In re Semel
| Decision Date | 21 April 1970 |
| Docket Number | No. 17911.,17911. |
| Citation | 427 F.2d 651 |
| Parties | In the Matter of Laurence SEMEL. Laurence Semel, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Laurence Semel, pro se.
Robert B. Wasserman, Newark, N. J. (Myron S. Lehman, Newark, N. J., on the brief), for the trustee, appellee.
OPINION OF THE COURT
The appellant Semel challenges the authority of a referee in bankruptcy to enter an order extending the time for filing objections to the discharge of a bankrupt without notice to the bankrupt.
The background facts are as follows:
Semel, an attorney, filed a voluntary petition in bankruptcy on April 11, 1968. An Order was entered fixing May 1, 1968, as the date for the first meeting of creditors, and September 1, 1968 as the last day for the filing of objections to the discharge of the bankrupt.
At a Section 21-A1 hearing on May 28, 1968, Semel stated that he was owed "more than a quarter million dollars." On May 29, 1968, an Order was entered by the Referee directing Semel to furnish, within 30 days, a list of the persons who allegedly owed him the quarter million dollars. Semel never complied with this order.
On August 20, 1968, the Referee, on an ex parte application by the trustee in bankruptcy, entered a written Order extending the time for filing objections to Semel's discharge in bankruptcy from September 1, 1968 to September 27, 1968. The Referee's Order stated in part: "it appearing further that future examinations of the bankrupt concerning his acts and conduct with reference to the property of the within estate are necessary, and good and sufficient cause appearing for the making of the within order."
No notice was given to Semel of the entry of the August 20th Order and he first learned of its existence on or about September 10, 1968, when he received a copy of specifications of objections to his discharge filed at that time.
On September 26, 1968, Semel filed "Notice of Motion" stating that he would apply on October 8, 1968 for an Order vacating and setting aside the August 20th Order extending time for filing of objections, on the ground that the latter Order "did not comply with General Order No. 23." Following hearing on Semel's application on October 8, 1968, the Referee entered an Order that day denying it. On October 14, 1968 Semel filed a Petition for Review of the Referee's October 8th Order.
On November 22, 1968 the Referee denied the Petition for Review on the ground that "Section 14b of the Bankruptcy Act does not require notice of such applications to extend time for filing of objections to discharge."
The District Court affirmed the Referee's disposition on March 13, 1969 and this appeal followed.
Semel's challenge to the validity of the Referee's Order extending the time for filing objections to his discharge is premised on his contention that General Order in Bankruptcy 23,2 requires that notice must be given of any order issued by a referee, and that General Order No. 23 provides that the Referee's Order should recite that notice was given.
General Order No. 23 provides:
"In all orders made by a referee, it shall be recited, according as the fact may be, that notice was given and the manner thereof; or that the order was made by consent; or that no adverse interest was represented at the hearing; or that the order was made after hearing adverse interests."
The Referee held in substance that Section 14b of the Bankruptcy Act, as amended,3 grants a referee authority, either upon his own motion or upon motion of a receiver, trustee, or creditor of a bankrupt, to extend the time for filing objections to a discharge, free of the impact of General Order No. 23.
We agree.
Section 14b provides in relevant part as follows:
"If the examination of the bankrupt concerning his acts, conduct, and property has not or will not be completed within the time fixed for the filing of objections to the discharge the court may, upon its own motion or upon motion for the receiver, trustee, a creditor, or any other party in interest or for other cause shown, extend the time for filing such objections."
It has long been settled that the Section's "discretionary power to extend the time for objections should be liberally construed." Collier on Bankruptcy, 14th ed. Vol. 1, Par. 14.06, p. 1279.
In the leading case of Dulaney v. Coppard, 145 F.2d 468 (5 Cir. 1944), cert. den. 325 U.S. 861, 65 S.Ct. 1199, 89 L. Ed. 1982 (1945), rehearing den. 325 U. S. 895, 65 S.Ct. 1409, 89 L.Ed. 2006, it was specifically ruled that a referee may extend the time for filing objections to a bankrupt's discharge without notice. There a referee in bankruptcy entered an order extending time for filing objections to discharge in bankruptcy without first giving bankrupt notice of his intention to do so. The District Court denied bankrupt's petition for Certificate of Review and the Fifth Circuit affirmed.
In doing so it said:
(emphasis supplied). 145 F.2d 468.
In accord, see Texas & N. O. R. Co. v. Phillips, 196 F.2d 692, 694 (5 Cir. 1952), where it was held that an order of a referee extending the time for filing objections to a discharge "may * * * in the discretion of the referee, be entered with or without notice * * *."
Evidencing the wide range of the discretionary power of a referee in extending time for filing objections to a discharge, it...
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... ... Recile v. Ward, 496 F.2d 675 (5th Cir. 1974), mod., 503 F.2d 1374 (5th Cir. 1974); In re Semel, 427 F.2d 651, 653 (3d Cir. 1970); In re Solomon, 506 F.2d 463 (6th Cir. 1974); In re Massa, 133 F.2d 191 (2d Cir. 1943). See also In re Hart, 7 CBC 479 (B.C.D.N.J.1975) ... In Recile v. Ward, supra, the Court of Appeals for the Fifth Circuit found no abuse of discretion in ... ...
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