# In the Missouri Court of Appeals Eastern District
DIVISON FOUR

REGIONS BANK, ) No. ED 101121 ) Plaintiff, ) )

vs. ) ) ALVERNE ASSOCIATES, LLC and ) RENE GREGG, ) Appeal from the Circuit Court of ) St. Louis County ) Defendants, ) ) and ) ) SAMUEL BERGER, ) ) Appellant, ) ) Honorable Robert S. Cohen and ) ) RBRE LOAN PORTFOLIO, LLC, ) ) Respondent. ) Filed: December 9, 2014

Introduction
Samuel Berger appeals a judgment of the Circuit Court of St. Louis County granting

RBRE Loan Portfolio ’s application for a charging order. Berger claims the trial court erred in
failing to: (1) provide him at least five days’ notice and conduct a hearing before granting
RBRE’s application for a charging order; and (2) require RBRE to establish the amount of the2

outstanding judgment and Berger’s membership interest in the limited liability companies sought

t o be charged. We reverse and remand

. Factual and Procedural Background

In 2008, Alverne Associates , LLC obtained a loan from Regions Bank and executed two
promissory notes evidencing loans in the original principal amounts of $911,483.24 and

$714, 250.00

. Berger signed the promissory notes on behalf of Alverne Associates as “Samuel
Berger, Managing Member of ALVERNE ASSOCIATES, LLC,” and he executed a commercial
guaranty to individually and personally secure the notes. 1 Alverne Associates additionally

se cured the notes by deeds of trust on real estate that it owned in the City of St. Louis.

Alverne Associates failed to make the required payments on the promissory notes , and
Regions Bank filed an action against Alverne Associates and Berger for breach es of contract and

commercial guaranty. On August 31, 2011, the trial court entered summary judgment in favor of
Regions Bank in the amount of $1,775,618.67. The judgment assessed costs against Alverne
Associates and Berger and provided that “[p]ost judgmen t interest continues to accrue at the
highest lawful rate.” Regions Bank subsequently assigned the promissory notes and deeds of

trust to RBRE , and the trial court granted RBRE’s motion for substitution as party plaintiff

. On November 6, 2013, RBRE file d its “Verified Application for Charging Order”
(Application) pursuant to Section 347.119. 2 In the notarized application, RBRE alleged that the
trial court entered judgment against Berger and Alverne Associates in the amount of

$1,775,618.67 and the judgment remained unsatisfied in the amount of $820,489.58 . RBRE
requested the court “issue a Charging Order requiring any limited liability company in which

1 Rene Gregg also executed a commercial guaranty in relation to the loans. Regions Bank filed the underlying cause of action against Alverne Associates, Berger, and Gregg, but later dismissed Gregg from the lawsuit. 2 All statu tory citations are to RSMo 2000 as supplemented unless otherwise indicated.3

Samuel B. Berger has an interest to pay Plaintiff amounts up to the unsatisfied amount of th e
above judgment with interest from Samuel B. Berger’s interest in said limited liability company .

. . .” At the b ottom of the Application appeared the signature: “Mante Dzakuma, RBRE Loan

Portfolio, LLC.” RBRE attached two charts (“Exhibit B”) 3 refle cting the alleged outstanding
balances on each promissory note and calculations of compound interest “at 9% per annu m .”

On the same date, counsel for RBRE filed a notice of hearing set for November 8, 2013

and a “Motion to Shorten Time,” requesting the tr ial court “[s]horten time and notice
requirements for hearing on its Application for Charging Order . . . .” In support of its motion to

shorten time , RBRE alleged: (1) the judgment against Berger and Alverne Associates remained

unsatisfied in the amount of $820,489.58; and (2) RBRE “has recently been apprised of
judgment creditor, Samuel B. Berger’s, interest in limited liability companies to which it as
judgment creditor may obtain a charging order from this Court . . . .” RBRE requested that the

trial court “grant its Motion to Shorten the notice and time requirements regarding hearing on its
Application for Charging Order and allow hearing to proceed on Friday, November 8, 2013.”
RBRE generally alleged that the reason for its request was “the amount of the outstanding
judgment” and averred that “no party will be prejudiced by” and “the interests of justice will be
served by this Court shortening the notice and time requirements for hearing” on the Application.
Berger filed objections to RBRE’s motion to shorten time, asserting that Rule 44.01(d)
requires that parties serve motions and notices of hearings five days prior to the scheduled
hearing. Berger contended that the grounds RBRE asserted for shortening the time for notice of
the hearing

– namely
, “the amount of the outstanding judgment”

– did not justify shortening the
notice to two days and that less than five days’ notice would prejudice him. Berger also filed

3 The record on appeal contains an “Ex hibit B” that was filed with the Application, but not an “Exhibit A.”4

objections to the Application alleging, among oth er things, that the Application : i ncorrectly

calculated the outs tanding balance on the judgment; improperly calculated post

- judgment inte rest
on a compounding basis; failed to identify the LLC to be charged or Berger’s membership
interest in that LLC; and requested relief in excess of that authorized by Section 347.119.

On November 8, 2013, counsel for both RBRE and Berger appeared before the trial

court . W ithout ruling on the motion to shorten time, the trial court granted RBRE’s Application
and entered a charging order. The order , in i ts entirety, stated :

Cause called on Plaintiff, RBRE Loan Portfolio, LLC’s Application for Charging Order. The Court being duly advised hereby grants Plaintiff’s application for Charging Order and assesses a charging order pursuant to R.S.Mo. § 347.119 ag ainst Defendant, Samuel B. Berger’s membership interests in TMF Holdings, LLC, 816 Geyer, LLC and Maccabee Investments, LLC. TMF Holdings, LLC, 816 Geyer, LLC and Maccabee Investments, LLC are hereby ordered to pay all disbursements, draws and other monie s otherwise owed to Samuel B. Berger to RBRE Loan Portfolio, LLC up to the unsatisfied amount of the outstanding judgment in the above matter with interest.
The record does not reflect whether Berger sought to present either evidence or an offer of proof

at the November 8, 2013 appearance

. Berger filed a motion to reconsider denial of his objections to the Applica tion and motion

to shorten time. 4 In his motion, Berger argued that the trial court erred in : (1) failing to require

sufficient not ice prior to a hearing; (2) refusing to conduct a hearing and a llow Berger to present

evidence; and (3) entering a charging order “based upon a purported verification that was
inaccurate” and which “failed to disclose the amount of the unsatisfied judgment.” RBRE fil ed a
response to Berger’s motion to reconsider arguing that: (1) Section 347.119 does not require
notice or an evidentiary hearing; (2) the trial court did not abuse its discretion in shortening

notice and allo wing the Application to proceed; and (3) the statutory post

- judgment interest rate

4 Berger also filed with the Court of Appeals a petition for writs of mandamus and prohibition, which we denied by order dated November 20, 2013.5

of 9% per annum applied to the outstanding judgment. 5 The trial court denied the motion to
reconsider on February 7, 2014. Berger appeals the trial court’s grant of the Application and
subsequent entry of the Novembe r 8, 2013 charging order

. Standard of Review

Our review of a court

- tried case is governed by the principles set forth by the Missouri
Supreme Court in Murphy v. Carron , 53 6 S.W.2d 30, 32 (Mo. banc 1976). This court will affirm
the trial court's entry of a charging order unless there is no substantial evidence to support it, it is
against the weight of the evidence, or it erroneously declares or applies the law. Deutsch v.

Wolff , 7 S.W.3d 460, 462 (Mo.App.E.D. 1999) (citing Murphy v. Carron , 536 S.W.2d 30 (Mo.

banc 1976)).

Discussion
In his first point, Berger claims the trial court erred in failing to require five days’ notice
prior to a hearing and conduct a n evidentiary hearing on RBRE’s Application. In his second
point, Berger asserts that the tria l court erred in entering the charging order because it “fail[ed] to
require RBRE to meet its burden and demonstrate entitlement to a charging order” under Section

347.119. Because the record contains insufficient evidence to support the charging order, w e
need not resolve the question of whether entry of a charging order requires five days’ notice and
a hearing

. 6

5 RBRE attached the following documents to its response : printouts from the website of the Missouri Secretary of State listing Berger as the registered agent for Maccabee Investments, LLC, 816 Geyer, LLC, and TMF Holdings, LLC; Articles of Organization of Maccabee Investments, LLC and TMF Holdings, LLC; and Certificates of Organization of Maccab ee Investments, LLC and TMF Holdings, LLC. 6 A lthough Section 347.119 has been in effect since 1993, no Missouri court has analyzed or even cited this statute. We note, however, that our courts may find guidance in cases applying Section 358.280.1, which predates Section 347.119 and allows a judgment creditor of an individual partner to charge that partner’s partnership interest with payment of the unsatisfied6

A charging order is a post

- judgment remedy that allows the judgment creditor of an

individual debtor

- member of a limited liability company (or a partnership) to enforce a judgment
by charging the individual member’s distributional interest with the unsatisfied amount of a
judgment. See Mo. Rev. Stat. § 34 7.119; see also Wills v. Wills , 750 S.W.2d 567, 574
(Mo.App. E.D. 1988) (applying Sectio n 358.280, which governs charging orders against

individual debtor

- partners ). Section 347.119 provides , in pertinent part : “ On application to a
court of competent jurisdiction by any judgment creditor of a member, the court may charge the

member's intere st in the limited liability company with payment of the unsatisfied amount of the
judgment with interest. ” Mo. Rev. Stat. § 347.119. In other words , the charging order “requires
the limited liability company to pay over to the person to which the chargi ng order was issued
any distribution that would otherwise be paid to the judgment debtor.” 7 51 Am. J u r. 2d Limited
Liability Companies § 23.

amount of the judgment with interest. Mo. Rev. Stat. § 358.280.1; see also 359.421. In Feinberg v. Feinberg , the trial court conducted an evidentiary hearing on the judgment creditor’s application for a charging order. 924 S.W .2d 328, 330 (Mo.App.E.D. 1996). Likewise, in Gates Rubber Co. v. Williford , the trial court “called upon” the individual debtor

- partner and his partners to answer the judgment creditor’s application for a charging order and “show cause why [a charging] order should not be issued.” 530 S.W.2d 11, 13 (Mo.App. 1975). The trial court held a n evidentiary hearing prio r to enteri ng the charging order and, on appeal, the appellate court stated that “this proceeding was an adversary one . . . .” Id. at 14; see also Phillips v. Phillips , 155 Colo. 538, 542 (Colo. 1964) (“The ‘due application’ referred to in the [partnership charging order] statute necessarily means an application made to the court upon adequate notice to the persons whose rights might be adversely affected by the granting of the relief sought.”). 7 However, judgment creditors who obtain charging orders under Secti on 347.119 have “only the rights of an assignee of the member’s interest.” Mo. Rev. Stat. § 347.119. “The rights of an assignee include[] only the right to future distributions without the right to participate in management.” Carter G. Bishop, Desiderat a: The Single Member Limited Liability Company Olmstead Charging Order Statutory Lacuna , 16 Stan. J.L. Bus. & Fin. 222, 232 (2011); see also Mo. Rev. Stat. § 347.115.1 (“An assignment of an interest does not entitle the assignee to participate in the mana gement of the business and affairs of the limited liability company or to become or to exercise the rights of a member . . . .”).7

To obtain a charging order, the judgment creditor must file an “application to a court of
competent jurisdictio n.” Mo. Rev. Stat. § 347.119. Pursuant to Rule 55.26 , “[a] n application to
the court for an order shall be by motion which . . . shall be in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order sought.” R ule 55.26; see

also Mo. Rev. Stat. § 509.280. A motion is not self

- proving, and the movant has the burden of
proving the allegations contained therein

. Keith v. Burlington N. R. Co. , 889 S.W.2d 911, 925
(Mo.App.S.D. 1994). When an after

- trial motion is based on facts not appearing in the record, a
movant may submit proof of facts in the form of affidavits, depositions, and oral testimony.

Rule 78.05; Powell v. State Farm Mut. Aut. Ins. Co. , 173 S.W.3d 685, 689 (Mo.App.W.D.

2005). However, “e xhibits attached to motions filed with the trial court are not evidence and are

not self

- proving.” Ryan v. Raytown Dodge Co. , 296 S.W.3d 471, 4 73 (Mo .App.W.D. 2009 )
(quoting Powell , 173 S.W.3d at 689).

Based on the record before us
, it appears that the trial court entered the charging order
based solely on the allegations contained in the Application. 8 RBRE ’s two

- page Application,
entitled “Verified Application for Charging Order,” alleged the following: (1) on August 31,

2011
, the trial court entered judgment in favor of RBRE and against Berger and Alverne

Associates in the amount of $1,775,618.67; (2) the judgment remained unsatisfied in the amount
of $820,489.58 “[i]n addition to attorney’s fees, court costs, expenses, and other c ontractually
authorized amounts”; and (3) RBRE sought a charging order “against [Berger’s] interest in any

8 RBRE attached no affidavits to the Application, and the trial court did not hold an evidentiary hearing. While counsel appear ed before the trial court prior to its entry of the charging order,

“ argument of counsel does not qualify as sworn and competent testimony and does not replace movant's burden of proof requirement to produce competent and sworn testimony or evidence. ” Agnello v. Walker , 306 S.W. 3d 666, 675 (Mo.App.W.D. 2010); see also Ryan , 296 S.W.3d at 473 (“[A]n appellate court cannot accept cou nsels’ statements as a substitute for record proof even if there is no reason to doubt their accuracy.”).8

limited liability companies in which [he] has an interest against which [RBRE] as judgment
creditor can execute for purposes of satisfying said judgm ent.” Mante Dzakuma signed the
Application, “Mante Dzakuma, RBRE Loan Portfolio, LLC,” and a notary public attested that
Mr. Dzakuma appeared before him and signed the Application.

The relief that RBRE sought in the Application required resolution of factual matte rs not
appearing in the record

– most importantly
, the amount of the outstanding judgment and interest
Berger owed RBRE. See Powell , 173 S.W.3d at 689

. Because the contents of the Application

constitute d t he sole “ evidence ” supporting RBRE’s request for a charging order, the Application
must be properly verified. See Hinton v. Proctor & Schwartz, Inc. , 99 S.W.3d 454, 458
(Mo.App.E.D. 2003). A verified pleading “ sets forth evidentiary facts with the person al
knowledge of the verifying signatory [and] is in substance an affidavit and is accorded the same
probative force as [an] affidavit.” 9 3 Am. Jur. 2d Affidavits § 8 (2014). “In the absence of an
allegation of personal knowledge, the contents of an affid avit become inadmissible hearsay.”

Hinton , 99 S.W.3d at 459

. Although the Application purported to be “verified,” it failed to allege that the facts it

contained were asserted on the personal knowledge of the signatory , Mr. Dzakuma. See, e.g.
, Morley v. Ward , 726 S.W.2d 799, 802 (Mo.App.E.D. 1987). Mr. Dzakuma apparently filed the
application on behalf of RBRE. However, Mr. Dzakuma neither declared that he had personal
knowledge of the facts pleaded in the Application nor identified the source of the information he
used to calculate the amount of the outstanding judgment. Nor can this court infer from the
contents of the Application that Mr. Dzakuma’s allegations were based on his personal

9 “‘Personal knowledge,’ as requisite basis for affidavits, means something the witness actually saw or heard as distinguished from what he or she lea rned from some other person or source. . . . The affidavit must in some way show that the affiant is personally familiar with the facts so that he or she could personally testify as a witness.” 3 Am. Jur. 2d Affidavits § 14

.9

knowledge because he did not define his relationship to RBRE or even provide a job title. See,

e.g. , May & May Trucking, L.L.C. v. Progressive Nw. Ins. Co. , 429 S.W.3d 511, 515

( Mo.App.W.D. 2014) ; Standard of Beaverdale, Inc. v. Hemphill , 746 S.W.2d 662, 663
(Mo.App.E.D. 1988) ; cf. Midwest Precision Casting Co. v. Microdyne, Inc. , 965 S.W.2d 393,
396 (Mo.App.E.D. 1998) (holding that the averment that affiant was an owner and employee of
the plainti ff did not satisfy the requirement that the affidavit be made on personal knowledge).
Because the Application was not properly verified, we cannot consider it proof of the facts
alleged. See, e.g.
, Morley , 726 S.W.2d at 802.

Likewise, Exhibit B, which RBRE attached to the Application, is insufficient support for
the charging order. Exhibit B consisted of two charts, presumably generated by RBRE, stating:
the amount of the outstanding judgment on each promissory note, the monthly compound

“interest at 9 % per annum,” the “total outstanding” amounts of each promissory note, and the
“Grand Total of Deficiency (as of 11/1/13)” of $820.489.58. Exhibit B was not in the form of an

affidavit, was never offered and admitted into evidence, and was not stipulated to but instead was
challenged by Berger. “ Exhibits attached to motions filed with the trial court are not evi dence

and are not self

- proving.” 10 Powell
, 173 S.W.3d at 689 ; see also Ryan , 296 S.W.3d at 473

. In

short, our revie w of the record reveals nothi ng

– e.g., verified applications, affidavit s, or
testimony

– from which the trial court could find sufficient facts to determine with any degree of

10 Furthermore, in light of our conclusion that RBRE did not present proof upon which the trial court could ascertain the amount of the outstanding judgment, we find that the charging order itself was too indefinite to be valid and enforceable. See Am. W. Bo nding Co. v. United Sur. Agents, Inc. , 134 S.W.3d 700, 704 (Mo.App.S.D. 2004). For a money judgment to be enforceable when it does not state on its face the amount for which it was rendered, that sum must be ascertainable from the record. Id. ; see also 1 010 St. Charles Unit 1002 LLC v. Kemper Investors Life Ins. Co. , 408 S.W.3d 253, 256 n.2 (Mo.App.E.D. 2013).10

certainty the amount of the outstanding judgment. See, e.g.
, Deutsch , 7 S.W.3d at 462 ( stating

that the entry of a charging order requires “substantial evidence to support it . . . .” ).
At oral argument, counsel for RBRE suggested that a charging order is “most analogous”

to an execution under Rule 76.01 and, therefore, does not require proof of the amount of the
unsatisfied judgment sought by the judgment creditor. In its brief, RBRE asserts that Rule
76.06(e) “offers the best guidance” and “[i]t is telling that 76.06(e) is included within Rule 76:

Execution.”
Rule 76.01 provides: “An execution may be is sued on application signed by the party or
his attorney and stating the address of the person making the application.” Unlike an application
for a charging order, which, under Section 347.119 must be presented “ to a court of competent
jurisdiction ,” a jud gment creditor submits an application for execution to the clerk of the court. 11

Mo. Rev. Stat. § 513.025. In other words, “it is not a prerequisite to an execution that an express

order of the court be made for its issuance [,] ” and “execution shall autom atically issue upon the
judgment creditor’s application for execution under Rule 76.01.” Fielder v. Fielder , 671 S.W.2d

408, 410

– 11 (Mo.App.E.D. 1984).

RBRE contends that this court should apply Rule 76 to charging orders issued pursuant to
Section 347.119 because Rule 76.06(e) states that “[a] levy upon an interest in a partner

- ship
[sic] shall be made as provided in Section 358.280, RSMo.” RBRE implies that, because Rule
76.06(e) refers to the partnership charging order statute , the rules relating to execution apply to
charging orders. Contrary to RBRE’s reading of the rule, the fact that Rule 76.06(e) refers back

to Section 358.280 confirms that the statute (and not Rul e 76.01 ) governs the method by which a
judgment creditor may reach a partner’s financial interest in the partnership. See Gose, J.

11 We also note that the Circuit Court of St. Louis County provides judgment creditors a pre

printed “Execution/Garnishment/Sequestration Applicatio n and Order” form.11

Gordon, “The Charging Order Under the Uniform Partnership Act,” 28 Wash. L. Rev. 1, 18
(1953) (“The charging order statute a ppears to occupy fully the field of satisfaction of the claims
of judgment creditors against a partner’s interest . . . .”).

Furthermore, this court held in Wi lls v. Wills that the “‘charging’ procedure is the
exclusive remedy for a partner’s individual cr editor” and the “charging order on partnership
interests has replaced levies of execution as a remedy for reaching such interests.” 750 S.W.2d
567, 574 (Mo.App.E.D. 1988). This is because the purpose of the charging order is to “prohibit[]
any attachment or execution of specific partnership property by a judgment creditor of an

individual debtor

- partner

. ” Id. The charging order procedure therefore “ protects the interests of
the nondebtor partners by giving the judge wide latitude to control the creditor ’s actions against
the partnership.” Christensen v. Oedekoven , 888 P.2d 228, 232 (Wyo. 1995); see also Keeler v.

Acad. of Am. Franciscan History, Inc. , 943 A.2d 630, 633 (Md. Ct. Spec. App. 2008) (“The
purpose of the charging order is ‘to protect the partnership business and prevent the disruption
that would result if creditors of a partner executed directly on partnership assets.’”) ; Hellman v.

Anderson , 233 Cal. App. 3d 840, 849 (Cal. Ct. App. 1991) (“The charging order procedure has
replaced levies of execution as the remedy for reaching partnership interests .”). Based on the
charging order’s purpose and the statutory requirement of judicial oversight
, we decline to
extend the rules governing execution s to charging orders issued pursuant to Rule 347 .119.

Conclusion
Because the record contains insufficient evidence to support the charging order, we

reverse and remand.12 Patricia L. Cohen, Presiding Judge

Roy L. Richter, J., and Robert M. Clayton III, J., concur.