In re Braver
| Decision Date | 30 June 1931 |
| Docket Number | No. 7377.,7377. |
| Citation | 51 F.2d 123 |
| Parties | In re BRAVER. |
| Court | U.S. District Court — Western District of Michigan |
Shapero & Shapero, of Detroit, Mich., for petitioner.
Joslyn, Joslyn & Joslyn, of Detroit, Mich., for trustee.
This cause is now before the court upon a petition filed by Harry Dunitz to review an order of the referees in bankruptcy overruling petitioner's claim filed in the bankruptcy proceedings.
Petitioner was the mortgagee named in a second mortgage executed by the bankrupt upon apartment houses which were subject to a first mortgage to the Union Trust Company. Petitioner upon default began foreclosure proceedings upon his second mortgage in the Wayne county circuit court, and obtained the usual decree of foreclosure, providing for sale at public auction, six months redemption therefrom, and possession six months after confirmation of sale. At the sale conducted by the circuit court commissioner, petitioner was the purchaser. Report of sale was duly filed by the commissioner with the clerk of the court, and an order was entered confirming said report, which order was served upon the attorneys in the cause, but the affidavit of service was not filed until November 27, 1929. On February 11, 1927, the Detroit Trust Company, receiver for the above-named bankrupt, and now the trustee in bankruptcy, filed a petition for intervention in the foreclosure suit in the state court, setting up that petitioner was threatening to take possession of the property covered by the decree therein, and had demanded possession of the tenants then upon the premises, and that the tenants pay rent to said petitioner as of February 14, 1927. The receiver prayed for an injunction restraining the petitioner from taking possession of the property and collecting the rents, and a temporary restraining order issued in pursuance of the prayer of the petition. The petitioner filed an answer and cross-petition in the state court, in which, among other things, it was prayed that the receiver be required to account for the rents collected by him from and after the date upon which the petitioner became entitled to possession under his foreclosure decree. Subsequently, the receiver moved in the state court proceedings to have its petition and the cross-petition dismissed for want of jurisdiction, and an order was later made by the circuit judge dismissing both petitions upon jurisdictional grounds. Upon appeal to the Supreme Court of the state, the order of the circuit judge dismissing the petitions for want of jurisdiction was affirmed. Dunitz v. Braver, 252 Mich. 111, 233 N. W. 347. In the meanwhile, the Union Trust Company commenced foreclosure proceedings upon its first mortgage, and the decree of foreclosure and sale became absolute upon March 27, 1927. The petitioner later filed his claim in the bankruptcy proceedings, asking the referees to order the trustee to pay to him all rents that the trustee had collected between the time that the petitioner was entitled to possession of the premises under the second mortgage foreclosure, and the time when the decree in the foreclosure of the first mortgage became absolute. The meritorious question here involved is whether the petitioner is entitled to the rents of the mortgaged premises during the above period.
The referees denied the petition on three grounds:
(1) That the order of the circuit judge dismissing the petition of the trustee and the cross-petition of this petitioner in the foreclosure proceedings in the state court, as affirmed by the Supreme Court, was res adjudicata on the petitioner's claim for rent.
(2) That petitioner was guilty of laches.
(3) That petitioner was not entitled to any relief since no demand for possession was made after his foreclosure became absolute.
1. The first ground for denying the petition is clearly without merit. I have examined carefully the record in the state court proceedings, and the opinion of the Supreme Court affirming the order of the circuit judge. It is perfectly clear that the trustee's petition, and the answer and cro...
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