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Damien Bosco
Damien Bosco, Attorney
Category: Business Law
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Experience:  Helping you with your legal questions.
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There was a lease agreement between a corporation and the landlord,

Resolved Question:

There was a lease agreement between a corporation and the landlord, personally.

The landlord breached the lien waver provision, and exercised unlawful distraint disproportunate to the back rent owed.

Robbed of its assets and equipment, the company was forced into bankruptcy one year later, and was converted to Ch-7.

Federal judge had a hearing and determined the waiver agreement was valid.

The principal shareholder motioned the Trustee to prosecute an action against the landlord or abandon. Court ordered the claim abandoned. Company was dissolved of tangible assets.

QUESTION:
Is it possible for the shareholder to now pursue litigation Pro Se, as the recipient of that ababandoned, intangible tort claim, since the company has been dissolved? Or is that asset only attainable by an action filed by the company through counsel?
Submitted: 1 year ago.
Category: Business Law
Expert:  Damien Bosco replied 1 year ago.
Hi and Welcome! My name is XXXXX XXXXX will be assisting you. I am happy to help you. Corporations have to be represented by counsel. While an individual may represent their interest in court without an attorney, a corporation is not permitted to do so through non-lawyer employees, officers, or shareholders. See Richter v. Higdon Homes, Inc., 544 So.2d 300 (Fla. 1st DCA 1989); Nicholson Supply Co. vs. First Federal Savings & Loan Assoc. of Hardee County, 184 So. 2d 438 (Fla. 2d DCA 1966). I hope this helps you making your decision. Regards, Damien
Customer: replied 1 year ago.
What is the difference between a truck that a dissolving corporation transfer to a shareholder as compensation for debt to shareholder, and a cause of action from a breached contract?
Expert:  Damien Bosco replied 1 year ago.
Hi Michael: I am happy that I provided the correct answer to your original question. Your second question is separate and distinct from your first question. I am not sure what you mean by it. Can you put it into other words and I will see if I can answer it? If not, I will opt out of this question to let another expert attempt to answer it. Thanks, Damien
Customer: replied 1 year ago.

Damien,


 


The core issue you skipped over in your first reply is in my original question. I'm aware of Florida law on Corporations being represented by an attorney, as I thought was clear. What I asked in my second question, was a follow up to the issue asked in the first.


 


"Is it possible for the shareholder to now pursue litigation Pro Se, as the recipient of that ababandoned, intangible tort claim, since the company has been dissolved? Or is that asset only attainable by an action filed by the company through counsel?"


 


The question is DEFIINITION of ASSETS and HOW they SURVIVE or don't, AFTER a corporation no longer exists.


 


1. The Tort Action is an asset.


2. The Tort Action was abandoned by the Trustee.


3. The shareholder "individually" received the Tort Action as compensation for debt the corporation owed, as part of its settling the debt.


4. Why can't that Tort action now be considered "divested" from the corporate possession, and pass through to the individual, as any tangible property would do?


5. And if it can, then why cannot that shareholder bring an action "individually" as the new holder of that asset?


 


The only answer I can think of to deny such a scenario, is that such an "asset" DIES with the corporation. But I can't find any precedent to prove that. So what's the answer?


 

Expert:  Damien Bosco replied 1 year ago.
Hi Michael: Quite a sophisticated question. Thank your for the clarification. You want to know if the tort claim survives the dissolution of the corporation and rest with the shareholders based on the facts you provided in your question. I honestly cannot answer this question without doing proper research on it. It may be a colorful argument without precedent. In other words, it may not be decided previously in case law and would be de novo. I would have to do a couple of hours of research on Westlaw to determine the answer. Possibly another expert has recently had a similar situation. Therefore, I will opt out to see if another person can answer it. No need to respond as it will delay the process; another expert will see that it is an open question. Regards, Damien
Customer: replied 1 year ago.

Thank you.

Expert:  Damien Bosco replied 1 year ago.
Your Welcome.
Damien Bosco, Attorney
Category: Business Law
Satisfied Customers: 1220
Experience: Helping you with your legal questions.
Damien Bosco and 4 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Richard - Bizlaw replied 1 year ago.
Hello, I may be able to help you. The critical question is who owns the tort claim. Did the abandoned assets go to the creditors or to the shareholders of the company?
Customer: replied 1 year ago.

They went to me, the sole shareholder.

Expert:  Richard - Bizlaw replied 1 year ago.

Once the dissolution occurs, the tort claims and other asset similarly abandoned in the BK belongs to you individually. You would be able to bring the claim individually as successor to the corporation. In bringing the suit you would not need to use an attorney because it is an individual claim not a corporate claim.

 

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Customer: replied 1 year ago.

Thank you, XXXXX XXXXX there any case law in support of this, or in the absence thereof, a Statute or something that would dismiss the argument does NOT follow Perry v. Shaw, 13 So. 2d 811 (Fla. 1943), whereby: "A corporation adminsitratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under §607.1405 adn notify claimants under §607.1406"?

I had a judge determine the definition of this "includes the collectioon of assets, the disposal of properties, discharging liabilities and taking related actions, which may include 'bringing or defending legal proceedings associated with winding up or liquidation.' (citing) Allied roofing Indus., Inc., v. Venegas, 862 So. 2d 6 (Fla. 3d DCA 2003) (citing Florida Statutes §(NNN) NNN-NNNN3) and §607.1405(1)).

 

Continuiing, the Judge added: "An administratively dissolved corporation therefore has the capacity to sue provided the suit is ncessary to wind up and liquidate its business and affairs. Selepro, Inc. v. Church, 17 So. 3d 1267 (Fla 4th DCA 2009).

 

Closing, I was hit over the head with Corp. law "101" when the Judge cited "a corporation, unlike an individual, may not appear in court in "proper person' and represent itself. Neither may a pleading be signed by a coprorate officer who is not a licensed attorney at law." Daytona Migi Corp. v. Daytona Automotive Fiberglass, Inc., 417 So. 2d 272 (Fla. 5th DCA 1982) citing Nicholson Supply CCo., Inc., v. First federal Savings & Loan Assoc. of Hardee Cnty, 184 So. 2d 438 (Fla. 2nd DCA 1966).

 

I was then blessed with a "defective" complaint can be "cured" by the later appearanceof an attorney for the corporation. Szteinbaum v. Kaes Inversiones y valores, 476 So. 2d 247 (Fla. 3d DCA 1985).

 

I can assume this maxes out your usual legal questions, but as I said earlier, if the above is to be accepted (contrary to your observation that I conclude is correct), then a distinct bias (and prejudice) is being applied to cherry picking what defines an asset, and whether it can NOT be transferred as any other hard or chattel asset could be. Which, absent this bias and prejudice, doesn't make sense.

 

Would love to know someone else has blazed this trail. If there is no other option available, such as a MOTION TO RECONSDIER with the Circuit Court, then I will appeal. Is a Motion to reconsider plausible? Or is this order final from what I have described, and needs to go to an Appeal?

 

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