In re Minogue, 16894.
| Decision Date | 21 March 1930 |
| Docket Number | No. 16894.,16894. |
| Citation | 39 F.2d 239 |
| Parties | In re MINOGUE et al. |
| Court | U.S. District Court — Eastern District of New York |
Gaillard, Fisher & Allen, of New York City, for the motion.
Frederick W. Lahr, of St. George, S. I. N. Y., opposed.
This is a motion for an order directing a reargument of the motion made February 14, 1930, to direct the trustee to pay certain expenses in foreclosure. The motion originally made was denied by me.
No memorandum was received by me from the petitioner's attorneys by February 19th, but, it appearing that such memorandum had been sent to the clerk and petitioner contending that a real question is presented, the reargument was allowed.
The petitioner represents certain holders of mortgages covering property belonging to the bankrupts, which mortgages were foreclosed, and in each instance purchased by the holder of the mortgage foreclosed on the sale in foreclosure by the referee appointed by the state court to make the sale.
The petitioner now seeks an order directing the trustee to pay to the respective holders of said mortgages the money paid by each of them for taxes and interest thereon, water rates, and insurance.
This motion it seems to me should, in the first instance, properly have been made before the referee in bankruptcy to whom the case was referred, and should have been made on the petitions of the persons interested, and not by an attorney at law representing them, but this court has jurisdiction to entertain the motion, and, without regard to technical errors, will decide it.
No receiver was appointed in the foreclosure actions, and no order segregating the rents was ever had; therefore the petitioner is not entitled to any relief as to expenses. In re Brose (C. C. A.) 254 F. 664.
Petitioner contends, however, that the holders of said mortgages are entitled to be repaid the amount paid by them for taxes, with interest thereon, and water rates, under the provisions of section 64a of the Bankruptcy Act (11 USCA § 104(a).
This contention is not sustained. The taxes and water rates are not unpaid, and no claim for their payment can be made by the municipality, state or United States, because they have been paid, either by the referee in the foreclosure action or by the purchaser at the foreclosure sale.
The amount thereof was paid out of the purchase price at the foreclosure sale, and neither the referee, the purchasers, nor the holders of said mortgages were subrogated to the rights of the...
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In re Co-Build Companies, Inc.
...Holding that such purchaser may not be so subrogated are: In re Hollenfeltz, D.C., 94 F. 629; In re Veitch, D.C., 101 F. 251; In re Minogue, D.C., 39 F.2d 239; In re Brinker, D.C., 128 F. 634; and in the Matter of Hibbler Machine Supply Co., D.C., 192 F. 741. Contra are the more recent case......
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In re Rogers
...Holding that such purchaser may not be so subrogated are: In re Hollenfeltz, D.C., 94 F. 629; In re Veitch, D.C., 101 F. 251; In re Minogue, D.C., 39 F.2d 239; In re Brinker, D.C., 128 F. 634; and in the Matter of Hibbler Machine Supply Co., D.C., 192 F. 741. Contra are the more recent case......
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In re Cleveland
...in In re Rogers, D.C.Cal.1951, 101 F.Supp. 555. Exemplary of the decisions holding that there can be no subrogation is In re Minogue, D.C.N.Y.1930, 39 F.2d 239. A leading decision in the Fourth Circuit holds that subrogation may be properly allowed. The following language is quoted from In ......
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In re Columbia Tobacco Co.
...It is not presently thought that the right of full and complete subrogation as the statute contemplates, can be set at naught. In re Minogue, D.C., 39 F.2d 239, and In re Green River Jockey Club, D.C., 5 F. 2d 259, cited in the decision of the referee, are not controlling. Neither in those ......