In re Rubin

• Decision Date: 21 March 1928
• Docket Number: No. 3881-3883.,3881-3883.
• Citation: 24 F.2d 289
• Parties: In re RUBIN. RUBIN v. MIDLINSKY (two cases). SAME v. TAFF et al.
• Court: U.S. Court of Appeals — Seventh Circuit

24 F.2d 289 (1928)

In re RUBIN.

RUBIN v. MIDLINSKY (two cases).

SAME v. TAFF et al.

Nos. 3881-3883.

Circuit Court of Appeals, Seventh Circuit.

February 16, 1928.

Rehearing Denied March 21, 1928.

Jacob G. Grossberg, of Chicago, Ill., for appellant.

Clarence J. Silber, of Chicago, Ill., for Samuel Midlinsky and Anna Midlinsky.

Maurice Alschuler, of Chicago, Ill., for appellees Taff & Levin.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

Appellant's estate is in bankruptcy, and these appeals are to reverse orders allowing the claim of each appellee. Some questions in this bankruptcy proceeding were before this court in Re Rubin, 1 F.(2d) 157, and that opinion throws some light on Rubin's methods of doing business.

No. 3881. Sam Midlinsky Claim. — This claim was filed on November 20, 1924, on a judgment in a state court rendered January 31, 1917. Bankrupt's objections thereto were filed April 2, 1925, and set out: (a) That the only basis for the judgment was a note given for the sole purpose of enabling Midlinsky to make a redemption in foreclosure of a certain piece of property for Rubin; (b) that the matters and things set forth in a bill of complaint in a suit in the state court between bankrupt and Midlinsky and others are true; (c) the redemption in the foreclosure case was for the benefit of bankrupt, and if the rents, etc., collected after the redemption were accounted for they would more than pay the judgment. One main objection now urged, namely, that the proof of claim is defective, was not raised.

We think the proof of claim sufficient. In addition to the fact that Rubin wholly failed to support his objections by any evidence when the claim was set for hearing, the record shows that the transactions between Rubin and Midlinsky, and set out in his objections, had been litigated and decided in the state courts adversely to Rubin. It will be quite useless to discuss this claim further. The order is affirmed.

No. 3882. Anna Midlinsky Claim. — This claim was based on a deficiency decree in a state court rendered Sept. 15, 1917. The argument on this claim is based largely on an objection not raised before the referee or elsewhere. The only objections made before the referee were: (a) That the deficiency decree was entered for the sole purpose of enabling the collection of rents during the period of redemption after a foreclosure on a debt the basis of which was notes alleged to be the property of bankrupt, and that it was never intended that the deficiency decree should be paid; (b) that the rents collected by Anna and Sam, her husband, more than paid the deficiency decree.

The order allowing the claims show that, after at least two opportunities, bankrupt offered no evidence to support the allegations in his objections. The petition to review was a long statement of matters, most of which had no place in such a petition. There was an assertion that the referee refused to hear testimony in behalf of Rubin to support his objections. The record, certified by the referee, disclosed that Rubin had offered no evidence in support of matters alleged in his objections.

Exceptions to the certificate were that the certificate was erroneous because: (1) It did not fully set out the evidence; (2) it did not truly set out the proceedings before the referee; (3) it did not show refusal of the referee to permit bankrupt to put in evidence. So far as we can find, there was no request for a corrected record, nor for any hearing of any kind before the court. The court denied the petition.

On the face of the referee's order and of the certificate to the judge, there appears no error in allowing the claim. Bankrupt made no effort to support his affirmative charges made against the integrity of the certificate. Apparently the contentions as to this claim were disposed of adversely to bankrupt in the state court. The order should be and is affirmed.

No. 3883. Taff & Levin Claim. — This claim is based on a state court judgment rendered October 29, 1915. The objections to this claim are that the notes upon which the judgment was entered were given to Taff & Levin in order that they might give a waiver of lien upon a building they were then constructing for bankrupt, so as to close a real estate loan; that Taff & Levin then abandoned the building contract, leaving the building uncompleted, so that bankrupt had to and did complete it; that thereafter and by reason thereof, the parties entered into an agreement to cancel and surrender the notes and satisfy the judgment of record; that bankrupt had a suit pending in the state court to set aside the judgment and declare it null and void, from the prosecution of which suit he had been enjoined by the bankruptcy court; that because the judgment was more than seven years old and had not been revived, no claim could be based on it.

It appears in the record that bankrupt was enjoined by the bankruptcy court from prosecuting his claim against Taff & Levin for the cancellation of the judgment upon which the claim was filed, and that although he made several efforts to have the injunction set aside it apparently still remains in full force and effect. We are unable to find any order of the referee allowing this claim, but on August 5, 1925, bankrupt filed a petition to review and revise, which sets out many things not germane to the issue. On November 9, 1926, the referee...