In re American Properties, Inc., Bankruptcy No. 80-40156
| Decision Date | 15 May 1983 |
| Docket Number | Bankruptcy No. 80-40156,Adv. No. 83-0060. |
| Parties | In re AMERICAN PROPERTIES, INC., Debtor. BOARD OF COUNTY COMMISSIONERS OF SALINE COUNTY, KANSAS, Plaintiff, v. COLEMAN AMERICAN PROPERTIES, INC., A Kansas Corporation, Defendant. |
| Court | U.S. Bankruptcy Court — District of Kansas |
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Constance M. Achterberg, Asst. County Atty. for Saline County, Saline, Kan., for creditor.
R. Pete Smith and Chris W. Henry, McDowell, Rice & Smith, Kansas City, Kan., for debtor.
In this chapter 11 proceeding, issues of notice and the effect of confirmation are presented.
The issues presented for determination are:
1. Did the debtor's notice comply with the requirements of K.S.A. § 60-304(d) (Supp.1981).
2. Does a tax lien creditor have a claim in bankruptcy.
3. Was notice received by the Board.
4. What notice is required to dispute all claims in chapter 11 and did the debtor comply with these requirements.
5. What was the effect of confirmation for the creditor's claim and lien.
Briefs have been submitted and the Court is ready to rule.
The debtor, American Properties, Inc., filed its chapter 11 petition for reorganization on March 5, 1980. An Order was signed on August 19, 1980 setting the final date for the filing of claims as September 9, 1980. According to the file, this Order was sent to the Saline County Treasurer (Treasurer), County Court House, Saline, Kansas, 67401. The Order was filed on August 26, 1980 (pleading # 74) and mailed to the Treasurer on August 22, 1980 (pleading # 74) (this Order will be referred to as the August 22 Order). From an examination of the file and the certificates of mailing, this is the first notice sent to a Saline County representative concerning any of the chapter 11 proceedings for this debtor, as borne out by the following chronological facts: The petition was filed March 5, 1980 but the debtor was given until March 12, 1980 to file its initial list of creditors (pleading # 7).
On March 14, 1980 a list of creditors was filed, but the Board was not included (pleading # 9). On March 26, 1980 and March 27, 1980 (pleading # 12) notice to creditors of the § 341 meeting was sent out but Saline County was not notified.
On April 7, 1980 the debtor filed its schedule of debts (pleading # 17). A computer print-out creditor register was included, Saline County Treasurer was listed, but, according to the file, this pleading was never sent to the Board or the Treasurer (see pleading # 18).
Certificates of mailing entered in the Court file between April 7, 1980 and August 22, 1980 indicate the Saline County Board of County Commissioners (Board) never received a pleading, a notice, or any other document.
At a hearing held March 11, 1983 the following evidence was adduced:
All notices and mailings in this case were done by Electronic Processing, Inc. (EPI). R. Pete Smith, an officer and director of EPI testified concerning EPI procedures for mailings. Mr. Smith testified that all creditors listed on EPI's computer printout creditor register (exh. 2C) were mailed notice of the bankruptcy proceeding together with a Proof of Claim form. This mailing occurred on April 7, 1980. The Saline County Treasurer was included on the creditor print-out list. Creditors on the computer register were mailed notice of the bankruptcy proceeding in the numerical sequence in which their claims were assigned in the computer register. Proof of claims were filed on the forms provided to creditors by this mailing by both the Douglas County Treasurer and the Reno County Treasurer. Douglas County was number 45 on the computer register and Reno County was number 37. Saline County was number 43. Thus, creditors preceding and following Saline County on the computer register received the notices mailed on April 7, 1980 and in fact timely filed claims.
Mr. Smith testified that no mail addressed to the Saline County Treasurer was returned.
Mr. Smith testified that in the regular course of EPI's business all mail processed by EPI's computer service was mailed.
Apparently, the Board alleges there is no "county courthouse" in Saline County, but rather a City-County Building. This point was raised at the hearing to assert the address used by the debtor was incorrect, but the argument apparently was abandoned in the Board's brief.
The Board alleges it has "no record of notice having been given to it of the bankruptcy proceedings or the subsequent actions therein."
The debtor's schedules contained in the Court file listed all debts, including the claim of Saline County Treasurer as "unliquidate." The April notice, alleged by the debtor to have been mailed to the Board, did not state that the Board's claim was unliquidated, disputed or contingent. Notice that debts were "unliquidate" or that claims were disputed was not specifically directed to each creditor, and was not specifically directed to the Board until the August 22, 1980 notice was mailed. The August 22, 1980 notice informed the Board that its claim was listed as "disputed" (in fact the Board's claim was listed as "unliquidate," not disputed) and that the Board had until September 9, 1980 to file its claim.
A claim was not filed. To date, a claim has not been filed.
The disclosure statement was approved on December 13, 1981.
The plan was confirmed on March 31, 1982.
The Board asserts that notice was not "legally complete" (memorandum of the Board, pg. 1) because the debtor did not comply with K.S.A. § 60-304(d) (Supp. 1981). Service of process on a Kansas County, however, is accomplished by serving either the Board of County Commissioners or the County Treasurer. K.S.A. § 60-304(d) (Supp.1981). This state requirement is adopted in F.R.Civ.P. 4(d)(6). Sufficiency and proof of service in bankruptcy is governed by Bankruptcy Rules 203, 704(c)(6), 704(f) and 704(g), and notices to the County Treasurer were proper under the Bankruptcy Rules.
The terms claim, debt, and creditor are federally defined in the Bankruptcy Code and these definitions control.
In bankruptcy, a "creditor" is an "entity that has a claim against the debtor that arose at the time of or before the order for relief. . . ." 11 U.S.C. § 101(9). A debt is a "liability on a claim." 11 U.S.C. § 101(11). A "claim" is a "right to payment." 11 U.S.C. § 101(4)(A). The "right to payment" is not limited to an in personam right to payment from the debtor, nor is an in rem right to payment from the debtor's property excluded. In chapter 11 cases, Congress contemplated that creditors with non-recourse in rem rights to payment would automatically have recourse in personam against the debtor under 11 U.S.C. § 1111(b)(1). Furthermore, creditors with liens on property such as statutory tax liens, have a secured claim in bankruptcy "to the extent of the value of their interests in the estate's interest in such property. . . ." 11 U.S.C. § 506(a). See also 1 Norton Bankruptcy Law and Practice § 28.23 (1981).
Thus, whether or not a tax authority is a "creditor" owed a debt under state law, the taxing authority is a "creditor" owed a "debt" and has a "claim" in a bankruptcy proceeding. New York v. New York, N.H. & Hartford R.R., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953).
When mail is properly addressed, stamped and deposited in the mail system, there is a presumption it was received by the party to whom it was sent. See, e.g., Legille v. Dann, 544 F.2d 1 (D.C.Cir.1976). Proper mailing, however, must be proved before the presumption is activated. Id. Simpson v. Jefferson Standard Life Ins. Co., 465 F.2d 1320 (6th Cir.1972). Proof of custom of mailing is sufficient to carry the burden of proper mailing, see Simpson v. Jefferson Standard Life Ins. Co., 465 F.2d 1320 (6th Cir.1982); Gulf Coast. Invest. Corp. v. Secretary of Housing and Urban Devel., 509 F.Supp. 1321 (E.D.La.1980); J.I. Case Co. v. Sinning Bros. Motor Co., 137 Kan. 581, 21 P.2d 328 (1933), and proof of customary and usual computer procedures is sufficient to show adherence to a usual and customary procedure. Gulf Coast Invest. Corp. v. Secretary of H.U.D., 509 F.Supp. 1321 (E.D.La.1980). The mailing employee need not testify. J.I. Case Co. v. Sinning Bros. Motor Co., 137 Kan. 581, 583, 21 P.2d 328, 330 (1933).
If the proper and correct address was not used the presumption cannot be activated. Illinois Central R.R. v. Ready Mix Concrete, Inc., 323 F.Supp. 609 (E.D. La.1971). A higher standard of correctness is required when the addressee is a private entity. See, e.g., Julian C. Cohen Salvation Corp. v. Eastern Elec. Sales Co., 205 Pa.Super. 26, 206 A.2d 331 (1965). Where an address is slightly incorrect, however, most courts appear to hold that the presumption is weakened, but still raised. See, e.g., Mary Fletcher Hospital v. City of Barre, 117 Vt. 430, 94 A.2d 226 (1953); Womack v. United States Fidelity and Guaranty Co., 85 Ga.App. 564, 69 S.E.2d 812 (1952). Where an addressee is a well known public entity or business, a more general and less definite address or designation has been required. See, e.g., Barnet v. Norton, 90 Vt. 544, 99 A. 238 (1916); American Surety Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1934).
Denial of receipt does not, as a matter of law, rebut the presumption, but rather creates a question of fact. See, e.g., Swink & Co. v. Carroll McEntee & McGinley, Inc., 266 Ark. 279, 584 S.W.2d 393 (1979).
The Court holds that addressing a notice to the County Treasurer at the County Courthouse instead of the City-County Office Building is only a slight error and a sufficient description to prove the notice was properly addressed. Therefore mailing was proved and the presumption of receipt is raised. The Court further holds that...
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