In re Melnick

Citation360 F.2d 918
Decision Date05 May 1966
Docket NumberNo. 304,Docket 30216.,304
PartiesIn the Matter of Ben MELNICK, Bankrupt.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Albert Lyons, New York City (Ruben Schwartz, New York City), for appellant.

Murray Feigenbaum, New York City, Trustee, appellee.

Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.

PER CURIAM:

Ben Melnick, who filed a voluntary petition in bankruptcy in the District Court for the Eastern District of New York on November 23, 1962, appeals from an order of Judge Dooling confirming the denial of a discharge by Referee Warner. The only specification of objection which survived winnowing first by the referee and then by the judge concerned a sale on July 2, 1962, of the dwelling owned by Melnick and his wife as tenants by the entirety for $31,500. On signing the contract in November 1961, the buyers paid $3,100 which was deposited in an account of Mrs. Melnick at a savings and loan association; they paid the balance of $28,400 due at the closing to three mortgagees. Since the closing payment did not suffice to satisfy the mortgages and take care of other expenses, Mrs. Melnick withdrew $3,000 from the savings and loan association, deposited it in a joint bank account, and issued checks for $2,826.28. The Melnicks used the remaining $273.72 of the buyers' deposit for moving and living expenses.

The trustee's objections to discharge contained three specifications pertaining to this transaction: In Melnick's statement of affairs, sworn to on November 21, 1962, his answer to a question as to repayment of loans during the year preceding the filing of the petition made no reference to discharge of the mortgage debts; a question as to what property had been transferred during the year was answered "None"; and at the first meeting of creditors on December 12, 1962, he swore that he had transferred no money or property within the last twelve months. Discharge was denied under § 14c of the Bankruptcy Act since the court was "satisfied that the bankrupt has (1) committed an offense punishable by imprisonment" in "knowingly and fraudulently" making "a false oath or account in or in relation to any bankruptcy proceeding," 18 U.S.C. § 152.

The evidence clearly met the trustee's initial burden under § 14c of showing "to the satisfaction of the court that there are reasonable grounds for believing" that Melnick had committed an act which would prevent his discharge; the statute then places on the bankrupt the burden "of proving that he has not committed any of such acts." Since it is indisputable that Melnick made a false oath as to a material matter, the issue is whether he sustained the burden of proving he did not act "knowingly and fraudulently." Melnick claims to have met the burden by showing that he realized almost nothing out of the sale of his house and that the four month period for attacking the payment of the loans as preferential under § 60 had expired before the petition was filed. The referee, however, was justified in finding that Melnick knew the answers...

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23 cases
  • In re Mayo
    • United States
    • U.S. Bankruptcy Court — District of Vermont
    • December 7, 1988
    ...of persuasion to the bankrupt once the "prima facie" case of non-entitlement to a discharge was made by the objector. In re Melnick, 360 F.2d 918, 919-20 (2d Cir.1966); Matter of Decker, 595 F.2d 185, 188 (3d Cir.1979); Feldenstein v. Radio Distributing Co., 323 F.2d 892, 893 (6th Cir.1963)......
  • In re Overmyer, Bankruptcy No. 82 B 20329
    • United States
    • U.S. Bankruptcy Court — Southern District of New York
    • October 29, 1990
    ...shown reasonable grounds for the belief that the bankrupt had committed an act which would bar his discharge.); Accord In re Melnick, 360 F.2d 918, 919-20 (2d Cir.1966); Matter of Decker, 595 F.2d 185, 188 (3d Cir.1979); Feldenstein v. Radio Distributing Co., 323 F.2d 892, 893 (6th Cir.1963......
  • In re Hygrade Envelope Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 13, 1966
    ...court, unless we are prepared to brand this as "clearly erroneous." See In re Slocum, 22 F.2d 282, 285-286 (2 Cir. 1927); In re Melnick, 360 F.2d 918 (2 Cir. 1966). There are indeed a multitude of opinions proclaiming, in one way or another, the applicability of the "unless clearly erroneou......
  • Decker, Matter of
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 26, 1979
    ...facie case that the bankrupt is not entitled to a discharge. In re Finn, 119 F.2d 656, 657 (3d Cir. 1941). Accord, In re Melnick, 360 F.2d 918, 919-20 (2d Cir. 1966); Feldenstein v. Radio Distributing Co., 323 F.2d 892, 893 (6th Cir. 1963); Johnson v. Bockman, 282 F.2d 544, 545 (10th Cir. T......
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