Jobin v. Otis (In re M & L Business Machine Co.)

190 B.R. 111, 1995 U.S. Dist. LEXIS 19104
CourtDistrict Court, D. Colorado
DecidedDecember 22, 1995
DocketCiv. A. No. 95-K-1704
StatusPublished
Cited by8 cases

This text of 190 B.R. 111 (Jobin v. Otis (In re M & L Business Machine Co.)) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jobin v. Otis (In re M & L Business Machine Co.), 190 B.R. 111, 1995 U.S. Dist. LEXIS 19104 (D. Colo. 1995).

Opinion

MEMORANDUM DECISION ON APPEAL

KANE, Senior District Judge.

Christine Jobin, trustee of the M & L Business Machine bankruptcy estate (“Trustee”), obtained default judgment against the Defendant in the underlying adversary proceeding based on Defendant’s failure to answer the Complaint. Defendant moved to quash service of process, or, in the alternative, for relief from judgment, arguing Jo-bin’s attempt to serve him “in care of’ his father’s company at a Snowmass, Colorado, address obtained from the letterhead of three-year old correspondence failed to satisfy Bankruptcy Rule 7004(b). The bankruptcy court denied the motion from the bench and by minute order, and Defendant appealed. I reverse, vacate the judgment and quash service.

I. BACKGROUND

James Otis, III was an investor in M & L Business Machine Company, Inc. (“M & L”). In the summer of 1993, after M & L declared bankruptcy and was revealed to be a Ponzi scheme, Otis III became one of hundreds of M & L “investors” targeted for preference actions by the Trustee. On October 1, 1993, the Trustee served a copy of the Summons and Complaint by depositing the same in the United States Mail, postage prepaid, addressed to “J. Otis, e/o Otis Company, 1907 Snowmass Creek Road, Snowmass, Colorado, 81654.” On June 17, 1994, the Trustee moved for entry of default and default judgment, asserting no response had been filed to the Complaint. The motion was granted by [114]*114the bankruptcy court, and on June 10, 1994, judgment was entered against “J. Otis.”

At the time of service in October 1993, Otis III was studying for the priesthood at a Franciscan seminary in England. His father, James Otis Jr. — owner of the Otis Company — was living and doing business in Illinois. His sister, Julie Otis, lived in Snow-mass. Each of these “J. Otises” denies having received the Summons and Complaint sent by the Trustee on October 1, 1993.1

The address used was from a letter Otis III had written M & L Vice President David Parish, M.D., on October 17, 1990. (R. Vol. I, Tab 21, Ex. C.) It appeared in the pre-printed letterhead as the address for the Otis Company. The Otis Company held a 35% interest in the limited partnership that owned the property at 1907 Snowmass Creek Road. The property, known as the Lazy 0 Ranch, was subdivided into 22 lots on which there were several homes. At the time he wrote the Parish letter, Otis III was working as a missionary pilot with a Glenwood Springs, Colorado surgeon in Mexico and, when in Colorado, stayed in one of the homes. He worked with the mission from August 1990 to September 1991, when he left to join the Franciscan Order of Divine Compassion in Monmouth, Illinois.

In the 1990 letter, Otis III notified Parish of his intent to invest in a new M & L account for the “support of missions [Otis III] want[ed] to open,” and asked Parish to “let [Otis III] know, or notify the OSO address,” 2 if there were any problems with his intended deposit. Id. The Trustee obtained the letter when she came into possession of M & L’s investor files in the course of these bankruptcy proceedings. Despite the fact that the only address on the face of the letter identified as Otis Ill’s was the OSO address, the Trustee sent the Summons and Complaint to the preprinted Otis Company address on the letterhead.

Otis Jr. received a copy of the Order Regarding Entry of Default on or about July 11, 1994. This was the first notice he had received of the matter. On January 3, 1995, he filed a Verified Motion to Quash Service of Process or in the Alternative, Motion for Relief from Judgment. After a hearing, the bankruptcy court granted the motion in part, amending the judgment to clarify that it was Otis III, and not James Otis, Jr. or Julie Otis (Otis Ill’s sister), against whom judgment was entered. (R. Vol. I, Tab 20.) The court did not quash service, however, on grounds it had no affidavit or anything else from Otis III on the adequacy of the Trustee’s service. (Rep.Tr. (Jan. 23, 1995) at 13:14-18.)

Otis III asserts he first received notice of the default on July 15, 1994, when he was visiting his father in Illinois from England. After his father’s motion to quash was denied, Otis III filed his own Verified Motion to Quash Service of Process or in the Alternative, Motion for Relief from Judgment. After a hearing held on June 27, 1995, the bankruptcy court denied the motion. This appeal ensued.

II. STANDARD OF REVIEW

The ruling from which the appeal is taken in this case was made from the bench and reiterated by minute order. There are no written findings of fact to review. Where, as here, review is of a bankruptcy court’s legal conclusions, I am required to conduct a [115]*115“de novo review of the record and reach an independent legal conclusion.” See In re Kirkland, 181 B.R. 563 (Bankr.D.Colo.1995) (citing In re Davidovich, 901 F.2d 1533, 1536 (10th Cir.1990)).

III. DISCUSSION

The issue on appeal is whether service of the preference action by addressing the Summons and Complaint to “J. Otis, e/o the Otis Company” at the Ranch complies with Bankruptcy Rule 7004(b)(1). The bankruptcy court ruled it did. Conceding the Parish letter from which the Trustee obtained the service address “is not the model of clarity,” the court nevertheless construed it to “indicate that [at the time the letter was written] [Otis was] still at the Snowmass address.” Rep.Tr. (June 27, 1995) at 18:8-9.3 The court relied on Otis Ill’s “admission” in his affidavit that he “was a resident [of Snow-mass] from August ’90 to mid-September of ’91,” and concluded Otis had failed to present sufficient evidence to convince the court he had intended to “change [his] legal residence” when he “[went] off to school” on a “temporary” basis. Id. at 18:10-25. I find the bankruptcy court’s conclusion clearly erroneous on several grounds.

A. The Law

Should a court purport to render a personal judgment against a defendant without having jurisdiction over him, the judgment will be treated as void. In the historically leading ease of Buchanan v. Rucker, 9 East 192 (1808), Lord Ellenborough uttered his famous dictum, “Can the Isle of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction?” There, the defendant had never been in or on Tobago and so far as it appears, had never otherwise been subject to its courts. Summons in that action had ostensibly been served by nailing a copy to the Tobago court house door, pursuant to a local law which by its terms was applicable only or primarily to owners of local plantations. The similarities in the instant case are striking.

Virtually all legal authorities agree that reasonable notice and opportunity to appear and defend must be afforded the defendant. The Federal Rules of Civil Procedure generally require personal service. See Fed.R.Civ.P. 4.

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Cite This Page — Counsel Stack

Bluebook (online)
190 B.R. 111, 1995 U.S. Dist. LEXIS 19104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jobin-v-otis-in-re-m-l-business-machine-co-cod-1995.