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Bixby v. First National Bank of Elwood

December 10, 1957

RICHARD E. BIXBY, AS TRUSTEE IN BANKRUPTCY OF CECIL L. SLAVENS, BANKRUPT, PLAINTIFF-APPELLANT,
v.
FIRST NATIONAL BANK OF ELWOOD, DEFENDANT-APPELLEE.



Author: Schnackenberg

Before LINDLEY, SCHNACKENBERG and PARKINSON, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

According to the judgment of the district court from which plaintiff, as trustee in bankruptcy of Cecil L. Slavens, bankrupt, has appealed, preferential transfers amounting to $11,519.50, made by the bankrupt to defendant on February 4th and 6th, 1954, are voidable. However, the district court refused to so adjudicate similar transfers between the same parties, amounting to not less than $28,785.30, on the ground that they were made prior to February 3, 1954. Plaintiff says this was error.

On April 19, 1954, an involuntary petition in bankruptcy (herein referred to sometimes as the "original petition") was filed. It alleged:

"7(a) Within four months next preceding the filing of this Petition, the said Cecil L. Slavens committed an act of bankruptcy, in that he transferred, while insolvent, portions of his property to one or more creditors, with intent to prefer such creditors over his other creditors.

(b) That within four months next preceding the filing of this Petition, the said Cecil L. Slavens concealed, removed or permitted to be concealed or removed, a part of his property, with intent to hinder, delay or defraud his creditors or any of them, or made or suffered a transfer of part of his property, which transfer was fraudulent under the provisions of Sections 67 or 70 of the Bankruptcy act [11 U.S.C.A. ยงยง 107, 110]."

On April 29, 1954, Slavens filed a motion to dismiss the petition. The referee in bankruptcy on June 2, 1954 heard this motion and petitioning creditors' motion for leave to amend their petition, and he entered an order sustaining the bankrupt's contention that the aforesaid language in the petition was "defective in not specifically setting forth the acts of bankruptcy alleged". He gave leave to the petitioning creditors to file an amended petition by June 6, 1954, directing the bankrupt to plead thereto by June 16, 1954. The referee in bankruptcy further ordered that "if no Amendment to the Petition is filed on or before the 6th day of June, 1954, as herein provided for, the aforesaid Creditors' Petition shall be deemed dismissed."

No dismissal order was ever entered, because on June 3, 1954 an amended petition was filed. It alleged, inter alia:

"That within four months next preceding the filing of this petition, * * *, Slavens committed an act of bankruptcy, in that he transferred, while insolvent, certain of his property, by executing and delivering to the First National Bank of Elwood, Indiana, on or about February 4, 1954, a Chattel Mortgage covering all of the personal property machinery and equipment in his place of business in Elwood, Indiana, for the benefit of said First National Bank of Elwood, Indiana, a creditor, for or on account of antecedent indebtedness, the effect of which transfer will be to enable such creditor to obtain a greater percentage of its debt than some other creditor of the same class."

On October 28, 1954 Slavens was adjudicated a bankrupt. All proceedings from April through October 28, 1954 continued under the same caption and docket number in the bankruptcy court.

The amended petition set forth in specific detail divers alleged acts of bankruptcy, including that of February 4, 1954, supra. On June 15, 1954, Slavens filed a motion to strike and dismiss the creditors' amended petition. No ruling was made on that motion.

Plaintiff commenced this action on January 31, 1956 against defendant alleging voidable preferential transfers amounting to $61,475.15 made by the bankrupt to defendant during the period of January 25 to April 19, 1954.

Defendant filed its answer. On defendant's motion, the district court on July 27, 1956 granted a partial summary judgment in favor of defendant, holding that June 3, 1954 was the date that the petition initiating the proceedings was filed and "that only such preferential transfers made or suffered within four months before such date can be avoided * * *."

The judgment of July 27, 1956 was incorporated in the judgment appealed from.

Relevant statutory provisions are contained in the Bankruptcy Act. Section 1(13)*fn1 provides:

"'Date of bankruptcy', 'time of bankruptcy,' 'commencement of proceedings', or 'bankruptcy', with reference to time, shall mean the date when the petition was filed;"

Section 60, sub. a(1)*fn2 provides:

"A preference is a transfer, as defined in this title, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, * * *."

Section 70*fn3 provides:

"(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of ...


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