Avery v. Fischer, 22595.

• Decision Date: 08 June 1966
• Docket Number: No. 22595.,22595.
• Parties: Lawrence N. AVERY and D. L. Stoy, Creditors, Appellants, v. Charles R. FISCHER, Trustee in Bankruptcy for Equitable Enterprises, Inc., Debtor, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 719 (1966)

Lawrence N. AVERY and D. L. Stoy, Creditors, Appellants, v. Charles R. FISCHER, Trustee in Bankruptcy for Equitable Enterprises, Inc., Debtor, Appellee.

No. 22595.

United States Court of Appeals Fifth Circuit.

May 11, 1966.

Rehearing Denied June 8, 1966.

COPYRIGHT MATERIAL OMITTED

Robert L. King, Tampa, Fla., for appellants.

J. R. Trinkle, Jr., Tampa, Fla., Allen, Dell, Frank & Trinkle, Tampa, Fla., of counsel, for appellee.

Before PHILLIPS,^* JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

The question here is whether the previous timely filing of a creditor's claim in a Chapter XI proceeding for an arrangement constitutes a filing within the time prescribed in the Judge's subsequent order under § 196, 11 U.S.C.A. § 596, upon the proceeding being transmuted into one under Chapter X for corporate reorganization. The District Court held in the negative. Rejecting the claims of appellants as not timely filed and allowed, the result was that the approval of the plan by this particular class of creditors exceeded the statutory two-thirds. The plan was approved. We agree and affirm.¹

As the whole problem is one of timeliness, dates, although the subject of no dispute, do count. On July 31, 1961, Equitable,² as debtor, filed a voluntary petition for an arrangement under Chapter XI.³ By proper notice, §§ 334-336, 11 U.S.C.A. §§ 734-736, the meeting was fixed for August 18, 1961, for creditors to "attend, prove their claims, nominate a trustee, * * *, present written acceptances of the proposed arrangement, and transact * * * other business." Simultaneously, application to confirm the arrangement was to be filed by and heard on August 23, 1961. Although Chapter XI contemplates a "plan of a debtor for the settlement, satisfaction, or extension of the time of payment of his unsecured debts," §§ 306(1), 307, 11 U.S.C.A. §§ 706(1), 707, appellants Avery and Stoy each filed on August 18 a formal verified proof of claim stating the debt was "* * * evidenced by a (note) * * * attached and made a part" thereof which, with other attachments, revealed that the debt on its face was secured, certainly in substantial part.⁴

Subsequently, on the hearing February 19, 1962, the Referee found that while a majority in amount and number of creditors voted for the proposed Chapter XI plan of arrangement, the debtor had failed to file an application to confirm and had now announced that it could not do so since "it did not have sufficient money to so do." Cf. § 337(2), (3), 11 U.S.C.A. § 737(2), (3). Consequently, the Referee concluded it was in the best interest of the creditors that the matter proceed "pursuant to the provisions of the Bankruptcy Act." See § 376(2), 11 U.S.C.A. § 776(2). On February 23, 1962, Equitable was adjudged a bankrupt. The first creditors' meeting was held March 12, 1962.

On July 6, 1962, an order was entered authorizing Equitable to proceed as a petitioning corporation under Chapter X. And here of crucial importance there was also entered the July 6 "Order Fixing Time and Manner Approving Claims and Interest".⁵ The order required that by September 15, 1962, claims be filed with the Referee, with a copy sent to the Trustee at the Trustee's office. Also pursuant to the order, notice was given⁶ to all creditors and interest holders.

Notwithstanding the order and notice, these appellants did nothing It rounds out the picture to state that on October 21, 1964, a Special Master in the Chapter X proceedings reported that the Third Amended Plan of Reorganization was accepted by the required number of class 7⁷ creditors. Not counted were the claims of these appellants. On review the District Court overruled appellants' objections and entered the order confirming the Plan of Reorganization.

Of course the statute is as plain as it could be. It directs that "the judge shall prescribe the manner in which and fix a time within which the proofs of claim of creditors * * * may be filed and allowed." § 196, 11 U.S.C.A. § 596.⁸

To overcome this positive language and the uncontradicted fact that between the date of the order (July 6, 1962) and the cutoff date (September 15, 1962) no proof of claim was filed with the Referee, the Trustee or both, the appellants assert that § 196 authorized the Judge to prescribe the termination date of the September 15, 1962, but not the commencement date. For this theory they rely on West Hills Memorial Park v. Doneca, 9 Cir., 1942, 131 F.2d 374, and In re Keller, N.D.Cal., 1954, 120 F.Supp. 275, construing the phrases "within six months" and "within thirty days" of § 57 (n), 11 U.S.C.A. § 93(n).⁹ In West Hills the Court states that "while the statute specifies the outer limit of time within which a claim must be filed * * *, it does not specify the earliest time when a claim can be filed," and consequently, "a claim may be filed whenever the proceedings are pending but within the statutory limitation above indicated." 131 F.2d at 377. In Keller the District Court phrased it this way: "The term `within' as defined in numerous cases set forth in 45 Words and Phrases, Cumulative Pocket Part, means `not longer in time than' or `not later than.' `Within' does not fix the first point of time, but the limit beyond which action may not be taken." 120 F.Supp. at 275. Thus, the Court allowed a claim, filed more than six months after the first creditors' meeting and prior to the order avoiding the claimant's lien, as being "filed within thirty days from the date of such * * * avoidance."

Reflecting as they do the general policy of the law to find a way in which to prevent the loss of valuable rights, not because something was done too late but rather because it was done too soon,¹⁰ these cases, even if approved, do not, upon a consideration of all factors, justify the failure to file and prove the Chapter X claims here. As one might expect in an area as complex as bankruptcy the signs do point both ways and in the end the conceptual structure is not altogether symmetrical. But on balance § 196 reflects the intrinsic need for the formal filing (and proof) of claims after the commencement of the Chapter X proceeding quite without regard to what may have been filed previously. Consequently, § 196 should be constructed to achieve that end.

At the outset, cases construing § 57 (n), 11 U.S.C.A. § 93(n), are of dubious value since § 102, 11 U.S.C.A. § 502, makes § 57(n) expressly inapplicable to Chapter X proceedings.¹¹ But many more significant reasons sustain our views. They come readily to mind if we put it in the form of a question: Why is it important that claims be formally filed in the Chapter X proceedings as such?

There is, to begin with, the marked difference in the nature and character of claims encompassed within a Chapter X reorganization. Unlike ordinary bankruptcy in which claims are confined to those specified in § 63, 11 U.S.C.A. § 103, a reorganization covers creditors claims of every conceivable kind. § 106(1), 11 U.S.C.A. § 506(1).¹² See 6 Collier #2.05, at 369, #2.08, at 384 #2.10, at 385, ##9.05, 9.06, at 2795-2804. Besides those of all kinds of creditors are the claims of stockholders. See, e. g., § 106 (12), 11 U.S.C.A. § 506(12); § 179, 11 U.S.C.A. § 579; § 216(6), (8), 11 U.S. C.A. § 616(6), (8); § 224 (1), 11 U.S. C.A. § 624(1); 6 Collier #2.16, at 391.

There is thus the likelihood, if not certainty, that once the Chapter X reorganization proceeding commences the interest of many new parties, creditors or stockholders, will be at stake. Nowhere is the contrast more vivid than in our situation where the Chapter X reorganization grows out of an abortive Chapter XI arrangement which covers unsecured debts only (see statute quoted in text accompanying note 4, supra).¹³

More than that, the claims as filed and proved have a special significance in this statutory structure which envisages a reorganization and continuity of the economic enterprise. This objective is to be achieved through the adoption and confirmation of a plan of reorganization. But this cannot be accomplished unless there is precise knowledge about the nature and kind of claims of creditors and interest holders.

Thus, the Trustee is required to prepare and file a list of the creditors of each class and a list of the debtor's stockholders of each class. § 164, 11 U.S. C.A. § 564.¹⁴ The Trustee's duty is mandatory. The list, as filed and prepared, has extraordinary value since it is available for inspection and use by creditors, stockholders and interested parties in the organization of creditors committees or other concerted activity. See 6 Collier, #7.14, at 2017.

Armed as he is with traditional powers, § 187, 11 U.S.C.A. § 587, the Trustee has duties which transcend those of his counterpart in ordinary bankruptcy. Following traditional lines, he is, of course, required to examine all proofs of claim and interest and object to the allowance of those that may be improper. See 6 Collier, #9.04, at 2786. But one of the most significant things the Trustee must do is to prepare and file a plan of reorganization. § 169, 11 U.S.C.A. § 569; see 6 Collier, #7.25, at 2054. The statutory structure "makes the trustee the moving force in the formulation and preparation of reorganization plans," 6 Collier, #7.23, at 2046. He is actively to solicit from creditors and stockholders suggestions for the formulation of a plan or proposals in the form of plans. § 167 (6), 11 U.S.C.A. § 567(6). And after the plan is proposed, the hearing thereon held, § 171, 11 U.S.C.A. § 571, cleared by the SEC, § 172, 11 U.S.C.A. § 572, and approved by the Court, §§ 173, 174, 11 U.S.C.A. §§ 573, 574, it must be submitted by the Trustee with appropriate information, § 175, 11 U.S.C.A. § 575, to all affected creditors and stockholders for approval.

At this juncture the formal filing of claims becomes distinctively significant. For only creditors holding "claims filed and allowed" are permitted to vote. §...