Lama Company v. Union Bank

Citation315 F.2d 750
Decision Date09 April 1963
Docket NumberNo. 18143.,18143.
PartiesLAMA COMPANY, a corporation, Appellant, v. UNION BANK, a corporation, and William N. Bowie, Jr., Trustee in Bankruptcy of the Estate of Charles A. Crowl, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Julius A. Leetham, Los Angeles, Cal., for appellant.

Loeb & Loeb, Alfred I. Rothman, and Robert A. Holtzman, Los Angeles, Cal., for appellee Union Bank.

Quittner, Stutman & Treister, Los Angeles, Cal., for appellee-trustee William N. Bowie, Jr.

Before JERTBERG and BROWNING, Circuit Judges, and FOLEY, District Judge.

JERTBERG, Circuit Judge.

Before us is an appeal by Lama Company, a corporation, hereinafter called appellant, from an order of the District Court affirming an order of the Referee in Bankruptcy.

The facts are not in dispute. The following summary is taken from the Referee's Certificate on Review to the District Court and the Findings of Fact of the Referee.

Prior to and at the date of bankruptcy, the bankrupt had occupied and was occupying certain premises belonging to appellant under an unexpired written lease providing for monthly rental of $743.00 plus an additional monthly charge of $16.00 for insurance premiums. Prior to and on the date of bankruptcy, there was located on said premises personalty utilized by the bankrupt in his business, consisting of machinery, equipment and fixtures which were inventoried by the trustee on July 30, 1961. All of said property belonged to the bankrupt but two-thirds of the machinery and equipment (both in dollar value and in physical space occupied) was subject to the liens of a valid chattel mortgage executed by bankrupt in favor of appellee, Union Bank. The remaining machinery, equipment and fixtures were owned by the bankrupt free and clear.

After July 30, 1961, the trustee abandoned in the bankruptcy proceedings for lack of equity any interest of the bankrupt estate in and to the machinery and equipment which was subject to the lien of the chattel mortgage held by appellee, Union Bank. All of said personalty remained on the leased premises until August 24, 1961 on which date all of said personalty was disposed of by auction conducted by an auctioneer under the authority of the bankruptcy court, which auctioneer was jointly engaged by the trustee and by the appellee, Union Bank, to dispose of their respective property interests, and all of said personalty was disposed of by the authorized auctioneer. Prior to bankruptcy, the bankrupt, with the agreement of the Union Bank, had arranged with an auctioneer to sell all machinery, equipment and other assets, including that subject to the lien of the chattel mortgage and that which was free and clear. When the trustee then the receiver originally took possession of the premises he determined to go forward jointly with the Union Bank and carry out the previously agreed upon auction.

Subsequent to July 24, 1961, the trustee secured and blocked off the leased premises and all of the same, nailing the door to the door jambs and securing the same with locks and placing signs or placards indicating control and possession of the premises and the personalty stored therein by the trustee. Damages in the amount of $60.00 were occasioned by reason of the locking and securing operations of the property.

It was undisputed at the hearing that the trustee's liability for administrative rent commenced on June 1, 1961 and terminated on August 24, 1961, at which time the premises were returned to the appellant. The total rent as called for by the lease for said period would have been the sum of $2,105.28. The Referee held that the trustee was obligated to pay only one-third (or $701.76) of the total rent for the period in question, because the personalty which was free and clear occupied only one-third of the leased premises, the other two-thirds of the space being occupied by personalty which was subject to the lien of the chattel mortgage held by appellee, Union Bank. The amount of $701.76 together with insurance premiums totaling $44.24 and the sum of $60.00 (being cost of repairing certain damage to the premises occasioned by the trustee's occupancy) or a total of $806.00 was fixed as the trustee's liability for administrative rent.

The two questions presented on this appeal are:

1) Was it error to conclude that the Bankruptcy Court lacked summary jurisdiction over the appellee, Union Bank?

2) Was it error...

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5 cases
  • Madrid, In re
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 February 1984
    ...Appellate Panel's conclusion rests on a question of law, it is subject to independent review by this court. Lama Co. v. Union Bank, 315 F.2d 750, 752 (9th Cir.1963). While we agree with the Panel that the sale should not be set aside under Sec. 548(a)(2)(A), we base our reasoning on differe......
  • Bubble Up Delaware, Inc., In re, 81-5168
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 23 August 1982
    ...on appellate review does not apply to review of conclusions of law. In re Howell, 638 F.2d 81, 82 (9th Cir. 1980); Lama Co. v. Union Bank, 315 F.2d 750, 752 (9th Cir. 1963). Where the facts in the record are not in significant dispute, our task is to determine whether a legal conclusion is ......
  • Tuma, In re
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 October 1990
    ...court does not apply the deferential, "clearly erroneous" standard when an error of law has been made in the finding. Lama v. Union Bank, 315 F.2d 750, 752 (9th Cir.1963). Section 1111(b) permits an undersecured creditor to elect to have its entire claim treated as secured. However, under S......
  • Minnick v. Lafayette Loan & Trust Co., 16407-8.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 20 February 1968
    ...979, 85 S.Ct. 1335, 14 L.Ed.2d 273 (1964); Solomon v. Northwestern State Bank, 8 Cir., 327 F.2d 720, 724 (1964); Lama Company v. Union Bank, 9 Cir., 315 F.2d 750, 752 (1963). ...
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