Charles Edward Lincoln

Additionally, the petition set forth another name used by the debtor within the1
past eight years: “Charles Lincoln for Tierra Limpia Trust.” The Court on February 6,
2009 denied a Motion to Amend the voluntary petition to change the name of the
debtor as moot.
1
UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In re
CHARLES EDWARD LINCOLN, 	Chapter 7
Debtor 	Case No. 09-10340-JNF
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
MEMORANDUM
I. INTRODUCTION
The matter before the Court is 	the “Motion to Amend Judgment, for Entry of
Specific Findings of Fact & Conclusions of Law Regarding Dismissal of Chapter 7 Case,”
filed by “Tierra Limpia Trust, Peyton Freiman trustee,” on February 19, 2009. The petition
that commenced the dismissed Chapter 7 case originally was filed in the name of “Lincoln,
Charles Edward (Peyton Y Freiman Trustee) [sic].” 	The debtor stated in the Motion to1
Amend Judgment that “[a]s required by Rules 59(e) and 9023, this Motion is filed within
10 days of the Court’s order dismiss the above cited case.” The Motion relates to an order
entered by this Court on February 6, 2009, dismissing the debtor’s Chapter 7 case on three
Case 09-10340 Doc 36 Filed 03/05/09 Entered 03/05/09 16:34:31 Desc Main
Document Page 1 of 5

On January 22, 2009, this Court ordered Peyton Freiman and Charles Edward2
Lincoln to provide a written statement containing the debtor’s exact name, as well as a
specific description of its form of organization, and a copy of the trust instrument
establishing that the trust is an eligible debtor. See 11 U.S.C. §§ 101(9)(A)(v) and 109.
The trust instrument reflected that Charles Edward Lincoln III is both settlor and
primary beneficiary of the trust, and provided that it was his desire and intention to
create an irrevocable inter vivos trust in accordance with the laws of Texas, “whereby
Settlor’s property will be held in trust and managed by the Trustee with objectively
reasonable prudence for Settlor’s benefit, by and through Settlor’s advice and consent,
so long as he is living . . . .” The trust also provided that the Trustee was to pay or
apply for the benefit of the Settlor the net income of cash on hand held by the trust in
monthly installments.
It did not file a Statement of Financial Affairs.3
2
grounds: 1) that it had failed to establish that it was eligible to be a debtor based on the
trust instrument it submitted; 2) it failed to comply with an order of the Court; and 3) to2 	3
the extent the debtor was not, as originally contemplated, an individual debtor, its failure
to be represented by counsel in accordance with MLBR 9010-1(c) warranted dismissal.
The debtor seeks reconsideration of the Court’s order dismissing the case on a
number of grounds. Although it states that the Court erred in finding it was not a business
trust for purposes of eligibility, it expresses “a willingness to amend its organization in
compliance with any order this Court might deem appropriate to clarify Tierra Limpia’s
status, nationwide operations, and functionality . . .” to allow the debtor “to better assess
what was wrong in its petition, allowing it to correct those mistakes and go on with the
Chapter 7 case at some point in the future.” Additionally, it submits that the Court erred
in finding that it was not a business trust, stating:
[t]he beneficiary, Charles Lincoln and his trustee, Peyton Freiman act as
financial advisors to various clients regarding their real estate. They do this
under the Tierra Limpia Trust and make a living doing so. 	Though the
Case 09-10340 Doc 36 Filed 03/05/09 Entered 03/05/09 16:34:31 Desc Main
Document Page 2 of 5

3
Debtor does not see how it does not qualify it requests again that the Court
tell it what is missing and what it can do to rectify the situation. Debtor,
through this motion, submits that it is more than willing to comply with the
rules, but, at this point has no idea how it has not done that by the standards
of common law and moves for a specific finding of fact regarding the nature
and scope of the definition of a “business trust in the confines of Rule 101.
[sic].”
The debtor, after referencing a trustee’s sale regarding Tierra Limpia Trust property
in Idaho, an ownership interest in real property notably absent from Schedule A - Real
Property, noted that “[t]he wrongful eviction and foreclosure sale that the debtor avoided
so narrowly will happen if the stay is lifted.”
II. DISCUSSION
The Court dismissed the debtor’s bankruptcy case on February 6, 2009. The Motion
to Amend Judgment was filed on February 19, 2009. As set forth below, the Court rules
that, pursuant to Fed. R. Bankr. P. 9006, the Motion is untimely. Accordingly, the Court
will enter an order denying the Motion for that reason.
Fed. R. Civ. P. 59, which applies to bankruptcy proceeding because of Fed. R. Bankr.
P. 9023, provides that “[a] motion to alter or amend a judgment must be filed no later than
10 days after entry of the judgment.” Rule 9006(a) applies to the computation of time to
file a Motion under Fed. R. Bankr. P. 9023. Rule 9006(a) provides:
In computing any period of time prescribed or allowed by these rules or by
the Federal Rules of Civil Procedure made applicable by these rules, by the
local rules, by order of court, or by any applicable statute, the day of the act,
event, or default from which the designated period of time begins to run
shall not be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the
act to be done is the filing of a paper in court, a day on which weather or
other conditions have made the clerk's office inaccessible, in which event the
period runs until the end of the next day which is not one of the
aforementioned days. . . .
Case 09-10340 Doc 36 Filed 03/05/09 Entered 03/05/09 16:34:31 Desc Main
Document Page 3 of 5

For example, the debtor filed Schedules I and J - Current Income and4
Expenditures of Individual Debtor(s).
4
Because the Court dismissed the case of February 6, 2009, the ten day period commenced
on February 7, 2009. February 16, 2009 was a federal holiday. Accordingly, the Motion to
Amend Judgment, to be timely, had to be filed no later than February 17, 2009. Because it
was filed on February 19, 2009, it is untimely. Moreover, Fed. R. Bankr. P. 9006(b) provides
that “[t]he court may not enlarge the time for taking action under Rule 1007(d), 2003(a) and
(d), 7052, 9023 and 9024.” See In re Old Summit Mfg., LLC, 324 B.R. 557, 560 (Bankr. M.D.
Pa. 2005). See also In re Lopez, No. 7-05-14734, 2008 WL 5157675 *3 n.5 (Bankr. D.N.M
2008).
Because the Motion to Amend Judgment is untimely, the Court need not address the
other issues rased by Peyton Freiman trustee. Nevertheless, the Court notes that Peyton
Freiman, on the debtor’s behalf, requests a special exemption from Local Rule 9010-1(c),
which requires that corporations, partnerships and business trusts appear only through
counsel, with certain limited exceptions not applicable here. 	The Court finds no
circumstances which would warrant an exemption from the requirement of the local rule.
Moreover, if, as the debtor suggests, it has the attributes of a corporation, it should be
bound by the requirement of MLBR 9010-1(c) to be represented by counsel. To the extent
that it was the intention of Charles Edward Lincoln and Peyton Freiman to file the case as
a trust, the Court observes that the Motion to Amend, in large part, seeks legal advice from
the Court. This impropriety, coupled with the defects in the documents filed prior to the
dismissal of the case, compel the Court to unequivocally rejects the request to exempt the4
Case 09-10340 Doc 36 Filed 03/05/09 Entered 03/05/09 16:34:31 Desc Main
Document Page 4 of 5

5
debtor from the requirements of MLBR 9010-1(c).
III. CONCLUSION
In accordance with the foregoing, the Court shall enter an order denying the Motion
to Amend Judgment.
By the Court,
_______________________________
Joan N. Feeney,
United States Bankruptcy Judge
Dated: March 5, 2009
Case 09-10340 Doc 36 Filed 03/05/09 Entered 03/05/09 16:34:31 Desc Main
Document Page 5 of 5