IN RE AMERICAN PACKERS EXCHANGE INC., 71-1190.

• Decision Date: 09 November 1971
• Docket Number: No. 71-1190.,71-1190.
• Citation: 449 F.2d 1313
• Parties: In the Matter of AMERICAN PACKERS EXCHANGE INC., Bankrupt. Petition of Laurence GREENBURG, Petitioner, Appellant.
• Court: U.S. Court of Appeals — First Circuit

449 F.2d 1313 (1971)

In the Matter of AMERICAN PACKERS EXCHANGE INC., Bankrupt Petition of Laurence GREENBURG, Petitioner, Appellant.

No. 71-1190.

United States Court of Appeals, First Circuit.

November 9, 1971.

Robert F. White, Boston, Mass., with whom Sherburne, Powers & Needham, Boston Mass., was on the brief, for appellant.

Daniel M. Glosband, Boston, Mass., with whom Widett & Kruger, Boston, Mass., was on the brief, for the Trustee In Bankruptcy, appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Petitioner-appellant, Laurence Greenburg, appeals from the district court's affirmance of a turnover order issued by the Referee in Bankruptcy. At issue are certain records of the bankrupt corporation, American Packers Exchange Inc., which are sought by the Trustee in Bankruptcy. The referee found that Greenberg, the president, treasurer, manager, and sole shareholder of American Packers, was in possession of these records on June 5, 1970, and ordered their delivery to the trustee on that date.¹ Greenburg petitioned the district court for review of this order, contending, as he does in this appeal, that the referee's finding of present possession in contrary to the evidence and the law.

American Packers was engaged in the business of buying and selling meat and fish products. The corporation operated from an office but had no place of business where merchandise was kept. It stored its merchandise in commercial freezers pending resale, or sold imported merchandise while still in transit or upon arrival at a dock. Following an involuntary petition filed on May 8, 1969, the corporation was adjudicated bankrupt on May 21. Attorney Robert Robinson was appointed receiver on May 27, and the trustee was appointed on September 3. Following the bankruptcy, Greenburg started a similar business in the same office.

The trustee's petition to compel turnover specifically sought the bankrupt's inventory records as of November 30, 1968, and the sales invoices from October 12, 1968, to May 8, 1969. These records are being sought to explain a very substantial depletion in the corporation's inventory.² Following three hearings in which six witnesses testified, the referee ordered the turnover of these records. The evidence adduced at the hearings is complex and contradictory and need only be outlined here.

Robinson, the receiver, made several visits to the office of American Packers. On June 9, 1969, he removed some of the bankrupt's records. On two subsequent occasions, October 20 and 30, he removed additional records. On each occasion he left detailed receipts of the materials removed. No receipt mentions the items sought herein, but Greenburg maintains that he possessed no further records of the bankrupt corporation.

With respect to the sales invoices, Greenburg acknowledged that they were never given to Robinson. The testimony of employees establishes that these invoices were made for every sale and stored in cartons in the office. One employee testified that she saw these cartons in the bankrupt's office in August 1969. With regard to the November 30, 1968, inventory sheets, the evidence indicates that they were used by the corporation's accountant in December of 1968, and returned in January to a file marked "Inventories" in the file cabinet of American Packers. Greenburg claimed to have seen this file in one of the boxes taken by Robinson on January 9 but not to have examined its contents. There was evidence that none of the bankrupt corporation's records were destroyed, discarded, stolen, or given to anyone but Robinson.

The primary condition underlying turnover relief is possession of the property at the time of the order. The burden of proving possession rests on the trustee, and the evidence must be "clear and convincing." Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). In reviewing the turnover order, this court is bound by the referee's findings unless they are clearly erroneous. First National Bank of Clinton v. Julian, 383 F.2d 329, 333 (8th Cir. 1967); In Re Goldman, 62 F.2d 421, 425 (1st Cir. 1932). The presumption in favor of the referee's findings is especially strong where, as here, they turn largely on determinations of credibility. Jue v. Bass, 299 F.2d 374 (9th Cir. 1962). The record in the instant case amply supports the conclusions that the sales invoices were in the...