In re Pi

239 B.R. 778, 1999 Bankr. LEXIS 1275, 1999 WL 809471
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedOctober 1, 1999
DocketBankruptcy No. 97-59793
StatusPublished

This text of 239 B.R. 778 (In re Pi) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Pi, 239 B.R. 778, 1999 Bankr. LEXIS 1275, 1999 WL 809471 (Ohio 1999).

Opinion

MEMORANDUM OPINION AND ORDER

CHARLES M. CALDWELL, Bankruptcy Judge.

This case is before the Court on the objection of the trustee, William B. Logan, Jr. (“Trustee”), to a proof of claim filed by the law firm of Barkan & Robon (“B & R”) in the amount of $92,954.87. B & R’s claim was incurred through its provision of legal services to: Mark Pi, Jr. (“Debtor”); the Debtor’s father, Mark Pi, Sr.; the Debtor’s mother, Lily Pi; as well as Cor[780]*780nerstone Foods, Inc., and JKMO Company, Inc. (“Corporations”). The Court finds that while B & R has failed to produce evidence sufficient to prove that the Debt- or, in writing, personally guaranteed the payment of fees owed to B & R for legal services rendered to the Debtor, his family and the Corporations, B & R has proved the Debtor orally promised to pay those fees. The Debtor’s oral promise to pay fees incurred by the Corporations can be enforced pursuant to the Leading Object Rule. The Debtor’s oral promise to pay legal fees incurred by his parents can be enforced through the doctrine of Promissory Estoppel. Based upon these findings, the Court concludes that B & R’s claim should be allowed in the amount of $92,-954.87. A brief summary of the relationship between the parties will illustrate the bases for the Court’s decision.

This case was commenced on October 22, 1997, and the Trustee was appointed on October 28, 1997. The Debtor scheduled B & R as a general, unsecured creditor in the amount of $94,000.00, and listed Mark Pi, Sr., Lily Pi, and Cornerstone Foods, Inc. as co-debtors. The Court issued a notice ordering creditors to file proofs of claims on or before March 16, 1998; however, B & R filed its unsecured proof of claim on March 23, 1998 — seven days late. Because of this tardy filing, B & R is only entitled to distribution after payment of timely claims. 11 U.S.C. § 726(a).1 Attached to B & R’s proof of claim was a statement itemizing payments received by B & R and credited toward the “Pi-Cornerstone” account. On April 7, 1999, the Trustee filed his objection to B & R’s proof of claim, and a hearing was held on June 29, 1999. Both litigants filed post-hearing memoranda.

B & R began providing legal services to the Pi family, as well as to the Corporations, in 1993. As the Corporations’ financial difficulties and legal bills mounted, B & R sought assurance that its fees would be paid, and in 1995, the Debtor, Mark Pi, Sr., and Lily Pi signed a document captioned “Acknowledgment and Consent” (“Acknowledgment”). B & R asserted that the Acknowledgment constituted a personal guarantee on the part of each of the signatories that B & R’s fees would be paid. B & R could not locate the original, executed Acknowledgment or a copy. Instead, a copy of an unsigned acknowledgment drafted for signature by the Debtor, Mark Pi, Sr., Lily Pi, and the President of Cornerstone Foods, Inc. was presented. B & R asserted that the text of this copy is identical to the Acknowledgment the Debt- or signed, and the Debtor testified he recalled signing it. Marvin Robon, B & R’s managing partner (“Mr. Robon”), testified that no security agreement or financing statement was executed or recorded to support the Acknowledgment, because the Debtor did not have any assets. B & R also asserted that additional steps were taken to guarantee payment of its legal fees. Mr. Robon testified the Debtor executed a “note and/or a guarantee,” but could not locate a copy.

The Court received into evidence a copy of a letter from the Debtor, on personal stationery, to Mr. Robon dated February 28, 1995 (“letter”), in which the Debtor refers to an enclosed, signed, original “Note and Future Advance Agreement to Pay Legal Fees” and a “Security Agreement.” The letter does not indicate whether the enclosed documents were signed by the Debtor or by some other person; nor does the letter indicate the capacity in which the enclosed documents may have been signed. The Debtor testified he remembered signing a document other than the Acknowledgment, but could only recall that it was “some type of guarantee.”

The Debtor testified he and his family understood B & R’s need to be paid for the [781]*781significant services it had rendered, and would continue to render, for their benefit as well as for the benefit of the Corporations. The Debtor testified he believed the legal services rendered on behalf of the Corporations served his personal interests, as the services were intended to preserve the value of the Corporations that he would inherit. No testimony or evidence was presented, however, as to whether the Debtor’s interests were served through the provision of legal services to Mark Pi, Sr. or Lily Pi.

A properly filed proof of claim constitutes prima facie evidence of the validity and amount of the claim. Fed. R.Bankr.P. 3001(f). A claim is deemed allowed as filed unless there is an objection. 11 U.S.C. § 502(a). The party objecting to a proof of claim bears the burden of presenting evidence sufficient to overcome the proof of claim’s prima facie effect. In re Eversole, 1990 WL 349992, *3 (Bankr.S.D.Ohio Aug. 13, 1990); Abboud v. Abboud (In re Abboud), 232 B.R. 793, 796 (Bankr.N.D.Okla.1999). If the objecting party succeeds in demonstrating facts that tend to defeat the claim, the ultimate burden shifts to the claimant. Abboud, 232 B.R. at 796.

In support of his objection to B & R’s proof of claim, the Trustee asserted the summary of payments received by B & R on the “Pi-Cornerstone” account, which was attached to B & R’s proof of claim, was not sufficient to establish that the Debtor was obligated to pay the entire balance due, as not all of B & R’s services were provided for the Debtor’s individual benefit. The Trustee argued B & R had not demonstrated the Debtor made any promise, written or oral, to pay for work done on behalf of others. The Trustee asserted, absent evidence which established the existence of a written promise to pay debts owed by another, the Statute of Frauds controlled and required B & R’s claim to be disallowed. The Trustee did not dispute that B & R performed the services, or that the Debtor should be liable for services provided for his individual benefit, so long as their value could be accurately determined.

In response to the Trustee’s objection, B & R made three arguments. First, B & R argued the Acknowledgment the Debtor admitted executing constituted his written promise to pay debts jointly owed by himself, his parents and the Corporations, thus satisfying the Statute of Frauds. Second, B & R argued the Debtor executed other documents in which he personally guaranteed payment of all of B & R’s legal fees. Although these documents could not be located, B & R asserted other evidence of their content was admissible and would establish the existence of the Debtor’s guarantee. Third, B & R asserted the Debtor made oral promises in which he agreed to pay all of B & R’s legal fees.

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Cite This Page — Counsel Stack

Bluebook (online)
239 B.R. 778, 1999 Bankr. LEXIS 1275, 1999 WL 809471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pi-ohsb-1999.