In Re Rimell

111 B.R. 250, 1990 Bankr. LEXIS 382, 1990 WL 18600
CourtUnited States Bankruptcy Court, E.D. Missouri
DecidedFebruary 5, 1990
Docket12-41375
StatusPublished
Cited by18 cases

This text of 111 B.R. 250 (In Re Rimell) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Rimell, 111 B.R. 250, 1990 Bankr. LEXIS 382, 1990 WL 18600 (Mo. 1990).

Opinion

MEMORANDUM OPINION AND ORDER

BARRY S. SCHERMER, Bankruptcy Judge.

INTRODUCTION

On October 18, 1989, petitioners, Mark Twain Bank (hereinafter “Mark Twain”) and First Bank filed, pursuant to 11 U.S.C. § 303(b)(2), an involuntary Chapter 7 petition against Alleged Debtor Harriet Rimell. This filing was one of a series of actions in which Mark Twain and First Bank, in addition to The Boatmen’s National Bank of St. Louis (hereinafter “Boatmen’s”), and Mercantile Bank of St. Louis National Association f/k/a Mercantile Bank National Association (hereinafter “Mercantile” and collectively as “the Creditors”), filed involuntary Chapter 7 petitions against Albert Rimell, Morris Sherman, Rosalyn Margulis, and Lawrence Margulis, pursuant to 11 U.S.C. § 303(b)(1). Harriet Rimell asserts that she has more than eleven creditors, and since § 303(b)(2) permits two petitioning creditors to prevail only when a debtor has fewer than eleven creditors, the petition must be denied.

While Harriet Rimell’s case shares defenses common to the other four debtors listed above, the issue of whether sufficient creditors exist to avoid her being placed in an involuntary Chapter 7 bankruptcy is unique to her case. Thus, this opinion will be divided into two main sections — Ms. Ri-mell’s § 303(b)(2) counting of creditors, and the overriding involuntary case involving all five defendants.

JURISDICTION

This Court has jurisdiction over the subject matter of the proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” which the Court may hear and determine pursuant to 28 U.S.C. § 157(b)(2)(0).

*252 I.

Ms. Rimell’s § 303(b)(2) Creditor Counting

FACTS

In her answer, Harriet Rimell listed seventeen (17) creditors of her estate. Late in the afternoon of the day before this case went to trial, counsel for Ms. Rimell filed an amendment to this list (as required by Rule 1003(b)) which enumerated four additional creditors. At the commencement of the trial, this Court denied Ms. Rimell’s Motion to Amend Pleadings as untimely and prejudicial to the rights of the petitioning creditors to seek discovery and joinder of such creditors. Between December 18 and January 3, 1990 (the date of resumption of the December 18, 1989 trial), this Court permitted Ms. Rimell to add five creditors to those already claimed in her answer. However, this Court denied her attempted addition during the continued trial of the St. Louis County Collector as a twenty-third creditor. Thus, Ms. Rimell has listed a total of twenty-two creditors which this Court must consider in determining whether the Plaintiffs have met their burden.

At trial, Harriet Rimell testified that in January or February, 1989 she and her husband, Albert Rimell, created the Rimell Family Trust (hereinafter the “Trust”) to pay all bills related to expenses and maintenance of the Rimells’ residence. Many of the creditors listed in Ms. Rimell’s pleadings were paid directly from the Trust, whose sole source of funds, Ms. Rimell testified, was her regularly-contributed paychecks. Ms. Rimell also testified that the Trust was created solely “for estate planning purposes”.

Ms. Rimell has listed creditors of both herself and the Trust. Thus, in order to determine the number of creditors she has for purposes of § 303(b)(2), this portion of the Opinion will be divided into two sections—creditors of Ms. Rimell personally, and creditors of the Trust.

A. Creditors of Ms. Rimell

1.Sears, Roebuck and Company

Ms. Rimell listed Sears, Roebuck and Company (hereinafter “Sears”) as holding a $426.92 claim for merchandise purchased. In 1962,' Mr. Rimell opened a Sears account under the name of “Albert Rimell”, with- Harriet Rimell as an authorized signator. Thus, while Harriet Rimell was capable of purchasing merchandise under this account, at no time has Sears held her personally liable for any debt incurred.

Section 101(4) of the Bankruptcy Code defines a “claim” as a “right to payment”. In order for the creditor to have a right to payment, the debtor must be personally liable. Although Teresa Nadolski, a bankruptcy representative from Sears, testified that the company may choose to “go after” Ms. Rimell if her husband was unable to pay his bill, this. Court was not presented with evidence sufficient to allow a conclusion that Ms. Rimell was personally liable. Given the absence of Ms. Rimell’s personal liability, this Court concludes that Sears does not have a claim against Ms. Rimell and thus may not be counted as a creditor for purposes of § 303(b)(2) of the Bankruptcy Code.

2.Pioneer Bank

Pioneer Bank’s involvement with the Rimells arose from a $1,225,846.61 commercial loan which it made to Albert Rimell, Inc. On February 17, 1988, Harriet Rimell executed a personal guaranty of the indebtedness. Under the terms of the guaranty, Pioneer reserved the right, whenever the loan came due, to require Ms. Rimell to pay the amount due on demand. At trial Jean Marcus, Pioneer’s Vice President of Real Estate Lending, testified that although the loan was past due as of the filing date, Pioneer had not demanded payment of the loan pursuant to her personal guaranty. Thus, as of the filing date Pioneer Bank held a contingent claim against Ms. Rimell and this Court will count the Pioneer Bank as a creditor for purposes of § 303(b)(2).

3.R.B. Platt Development Co.

R.B. Platt Development Company (hereinafter “Platt”) holds a claim of $659.43 for installation of windows in the *253 Rimell family home. On January 3, 1990, Max Platzelman, president of Platt, testified that his workmen installed the windows sometime in October, but was unable to give an exact date. The only existing written evidence of indebtedness was a letter dated December 14, 1989, in which Albert Rimell requested a bill from Platt, and a November 26, 1989 invoice from Platt.

Although Mr. Platzelman’s testimony fails to conclusively prove that Platt had a claim against Ms. Rimell on the date of her filing, this Court believes that Ms. Rimell’s testimony is dispositive in determining whether such a claim did exist before October 18, 1989. At trial Ms. Rimell stated that sometime in July she requested that Platt perform the work. Platt agreed to this arrangement. Therefore in July 1989 a contract existed between Platt and Ms. Rimell for which Ms. Rimell was personally liable. Given this liability, this Court holds that, for purposes of § 303(b) of the Bankruptcy Code, a party becomes a creditor at the time a debt is incurred, as in the instant case when an enforceable contract was formed.

4.St. Louis County Farm Bureau

Ms. Rimell listed a claim of $87.48, which she owed to St.

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Cite This Page — Counsel Stack

Bluebook (online)
111 B.R. 250, 1990 Bankr. LEXIS 382, 1990 WL 18600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rimell-moeb-1990.