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1756 W. Lake Street LLC v. American Chartered Bank

United States Court of Appeals, Seventh Circuit

May 15, 2015

1756 W. LAKE STREET LLC, Plaintiff-Appellant,
v.
AMERICAN CHARTERED BANK and SCHERSTON REAL ESTATE INVESTMENTS, LLC, Defendants-Appellees

Argued: April 6, 2015.

Appeal fro the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 1869 -- Charles P. Kocoras, Judge.

For 1756 W. LAKE STREET LLC, Plaintiff - Appellant: Konstantinos T. Sparagis, Attorney, LAW OFFICES OF KONSTANTINE SPARAGIS, P.C., Chicago, IL.

For AMERICAN CHARTERED BANK, SCHERSTON REAL ESTATE INVESTMENTS, LLC, Defendant - Appellees: Jordan M. Litwin, Attorney, David L. Kane, Attorney, MELTZER, PURTILL & STELLE LLC, Chicago, IL.

CHRISTOPHER BAMBULAS, Party-in-Interest, Pro Se, Chicago, IL.

Before POSNER and SYKES, Circuit Judges, and SIMON, Chief District Judge.[*]

OPINION

Page 384

POSNER, Circuit Judge.

The plaintiff, a debtor in possession in a Chapter 11 bankruptcy, brought this adversary proceeding against a bank that had lent it money and an affiliate of the bank, claiming that the bank (with assistance from the affiliate) had defrauded the plaintiff. A debtor in possession has the powers of a trustee in bankruptcy, 11 U.S.C. § 1107(a), including the power to sue to prevent or recapture a fraudulent transfer of property of the debtor. See § 548(a)(1)(B). The district court granted summary judgment in favor of the bank, however, so the plaintiff has appealed.

As well as defending the district court's decision on the merits, the bank

Page 385

challenges our appellate jurisdiction, and we'll begin there. Rule 3(c)(1)(A) of the Federal Rules of Appellate Procedure requires, so far as pertains to this case, that the notice of appeal " specify the party or parties taking the appeal by naming each one." The notice of appeal in this case is a mess. It states that " Chris Bambulas, the Defendant herein, appeals under Rule 4 of the Federal Rules of Appellate Procedure." Bambulas is not the defendant; he is the co-owner (with his wife) of the debtor-plaintiff, 1756 W. Lake Street LLC. At the bottom of the notice is printed " CHRIS BAMBULAS, Plaintiff," followed by Bambulas's signature, under which appear the words " pro se." He is no more the plaintiff than he is the defendant. Lake Street argues in its opening brief that Bambulas was appealing as its agent, but the notice of appeal doesn't say that and anyway a limited liability company, like a corporation, cannot litigate pro se or be represented in the litigation by a nonlawyer.

Although there thus were multiple violations of the federal rules, they were harmless. The function of a notice of appeal is to notify the opposing party and the trial and appellate courts of the appeal and the party taking the appeal. The notice was properly captioned--Lake Street versus the bank (the bank's affiliate was not mentioned, but is anyway immaterial to the appeal, as we'll see)--and knowing that Bambulas was not either plaintiff or defendant the bank had to know that the appeal was by Bambulas's company, not by Bambulas himself. See Spain v. Board of Education, 214 F.3d 925, 929 (7th Cir. 2000) (" even though Mr. Spain was not named in the body of the notice of appeal, his 'intent to appeal is otherwise clear from the notice'" ). Lake Street was between lawyers when its notice of appeal was due, and the notice that Bambulas filed achieved the purpose of a notice of appeal--to notify. And because Lake Street is represented by counsel in the appeal there is no meaningful violation of the requirement that a limited liability company be represented in litigation by a lawyer. See United States v. Hagerman, 549 F.3d 536, 538 (7th Cir. 2008).

Although Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), had held that naming the appellant is a jurisdictional requirement for an appeal and its absence could not be excused as harmless, that decision preceded by five years a revision of Federal Rule of Appellate Procedure 3(c)(4), which now states (so far as relates to this case) that " an appeal must not be dismissed ... for failure to name a party whose intent to appeal is otherwise clear from the notice." See, e.g., Johnson v. Teamsters Local 559, 102 F.3d 21, 29 n. 4 (1st Cir. 1996). That is this case, and so allows us to entertain the appeal even though Lake Street's name appeared only in the caption of the notice of appeal and the body of the notice named only Bambulas as the appellant. Cf. Bowles v. Russell, 551 U.S. 205, 210-12, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), which holds that deadlines established by federal rules, as distinct from deadlines established by statutes (such as 28 U.S.C. ยง 2107(c)), are not ...


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