Coller v. Harmon
| Decision Date | 20 March 1967 |
| Docket Number | No. 3982.,3982. |
| Citation | 227 A.2d 385 |
| Parties | James R. COLLER and Dallas L. Tolson, Appellants, v. W. E. HARMON, t/a The Harmon House, Appellee. |
| Court | D.C. Court of Appeals |
Ellsworth T. Simpson, Hyattsville, Md., for appellants.
William P. Daisley, Washington, D. C., with whom Bernard I. Nordlinger, Washington, D. C., was on the brief, for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
Appellee, William E. Harmon, is engaged in the business of interior decorating and design under the name of "The Harmon House," with offices in Norfolk, Virginia. In 1964 he installed draperies and other furnishings in a night club operated by appellants in Virginia Beach. When the work was completed, appellants were unable to pay the balance remaining on their contract — $1,159.25. In order to obtain payment, appellee arranged for them to negotiate a loan through the Virginia National Bank where he was a depositor, the proceeds of which were to be used to discharge their debt to him. Accordingly, on July 20, 1964, appellants signed a 30-day note at the bank for $1,500,1 payable to The Harmon House. As a condition to approving the loan, the bank required that Mr. Harmon endorse it, which he did in the presence of appellants. On the basis of the note, which was left with the bank for collection, the bank issued a check to appellee for $1,492.50, the first month's interest of $7.50 having been deducted. He, in turn, gave appellants his check for $333.25 to cover the cash they had requested. When the note became due at the end of thirty days, appellants did not discharge or curtail it, and the bank called upon appellee to redeem it, which he did on September 1, 1964. Appellants had closed their club late in August because of financial difficulties and had moved from the area. Appellee made numerous attempts to locate them, but it was not until May 1965 that he ascertained they had moved to Washington, D. C.
On September 29, 1964, both appellants filed petitions in bankruptcy in the United States District Court for the Eastern District of Virginia, and on December 31, 1964, were discharged by orders of the Referee in Bankruptcy. Appellee was never given notice of the proceedings, apparently because neither he nor The Harmon House was listed on the bankruptcy schedules as either endorser or payee of the promissory note, although the Virginia National Bank was shown as holder of a note in the amount of $1,500.
Upon locating appellants in this jurisdiction, appellee filed this present suit seeking recovery of the principal amount of $1,500, plus interest, costs and attorney's fees. Appellants moved for summary judgment on the ground that they were relieved from liability on the note by virtue of their discharge in bankruptcy, which the court denied. Following a trial on the merits, the court entered a finding in favor of appellee, holding that Mr. Harmon or The Harmon House was appellants' creditor and should have been so listed in the bankruptcy proceedings and that as the note was payable in 30 days there was an obligation on the part of appellants to ascertain whether it had been redeemed by appellee. This appeal followed.
First, appellants contend that the court erred in failing to grant their pretrial motion for summary judgment. GS Rule 56 (c) of the trial court specifies that judgment shall be rendered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact * * *." The burden of demonstrating the absence of any material issue is upon the party moving for summary judgment. Early Settlers Insurance Co. v. Schweid, D.C.App., 221 A.2d 920 (1966); Reliable Home Appliances, Inc. v. District of Columbia, D.C. App., 219 A.2d 501, 503 (1966). When genuine issues of fact are present, summary judgment must be denied.
In the present case, in dispute were whether the bank or appellee should have been listed as a creditor in the bankruptcy proceedings and whether appellee had notice or actual knowledge thereof, issues which could not be resolved without a full trial. We see no prejudice to appellants by having before the trial court all matters which would have been proved on the motion. Dawson v. Drazin, D.C.App., 223 A. 2d 375 (1966). In our judgment, appellants' motion was properly denied.
Appellants primarily contend that the trial court erred in ruling that the debt of $1,500 was not extinguished by virtue of their discharge in bankruptcy.
Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), provides, in part, that a discharge in bankruptcy shall release a bankrupt from all his provable debts except such as "(3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." Notice must be "personal" to meet the requirements of the act. Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904); In re Venson, 234 F.Supp. 271, 272 (N.D. Ga.1964), aff'd sub nom. Venson v. Housing Authority of the City of Atlanta, 5 Cir., 337 F.2d 616 (1964); Wyser v. Estrin, 285 App.Div. 827, 136 N.Y.S.2d 744 (1...
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In re Vega
...debt is discharged unless "duly scheduled". 4) Although the debtor must exercise meticulous care in preparing schedules Coller v. Harmon, 227 A.2d 385 (D.C.App. 1967) scheduling adequacy is tested case by case. For example, the listing of a creditor by an initial instead of by his Christian......
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Matter of Robertson, Bankruptcy No. 79-01031-A.
...is indicative of his failure to exercise that degree of meticulous care required of him in scheduling his debts. See Coller v. Harmon, 227 A.2d 385, 387 (D.C.App.1967). This error, when considered in conjunction with Robertson's failure to make further inquiry in ascertaining the Davises' c......