In re Bernard
| Decision Date | 27 March 1922 |
| Docket Number | 251. |
| Citation | 280 F. 715 |
| Parties | In re BERNARD. |
| Court | U.S. Court of Appeals — Second Circuit |
Bernard filed a voluntary petition, and scheduled a debt to Frank et al. After adjudication, but before application for discharge Frank moved in the District Court for an order 'expunging from the schedules heretofore filed' the said debt due by Bernard to Frank. Before motion made the court had apparently issued the usual injunction or stay order under Bankruptcy Act, Sec. 11a (Comp. St. Sec. 9595), and the notice of motion asked also for an order permitting him 'to proceed upon and enforce the collection of' said debt.
The court ordered: (1) That the debt so listed in Bernard's schedules be expunged therefrom; (2) that Frank et al. be permitted to proceed to attempt to collect said debt, and that all stays then existing against such suit or proceeding be abrogated; (3) that Bernard be enjoined from applying for a discharge from the debt so as aforesaid expunged. To this order Bernard filed this petition to revise.
Wilson E. Tipple and Tipple & Plitt, all of New York City, for bankrupt petitioner.
Milton P. Kupfer and Leo Oppenheimer, both of New York City, for creditors respondents.
Before HOUGH, MANTON, and MAYER, Circuit Judges.
To expunge a debt or the statement of a debt from a bankrupt's schedules, and to enjoin him from applying for a discharge in respect of such debt, is a novel procedure for which no authority has been produced. It is opposed to the theory of the Bankruptcy Act. The lower court evidently thought the debt not dischargeable, and for this reason entered the order above recited. But it is the duty of a bankrupt (section 7 (8), being Comp. St. Sec. 9591) to file schedules containing 'a list of his creditors,' and one to whom he owes an undischargeable debt is as much a creditor as is one whose claim may be discharged under the act.
A bankrupt is lawfully entitled to apply for a discharge under section 14 (Comp. St. Sec. 9598), and by section 17 (Comp St. Sec. 9601) such discharge shall release him 'from all of his provable debts' with the exceptions there enumerated; and the prescribed form of discharge (No. 59) merely orders that the bankrupt 'be discharged from all debts and claims which are made provable by said acts against his estate,' etc. To strike out from a schedule what the bankrupt swears is a debt is a power nowhere given to the District Court,...
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