In re Weare
| Decision Date | 05 December 1949 |
| Citation | 87 F. Supp. 413 |
| Parties | In re WEARE. |
| Court | U.S. District Court — Southern District of New York |
Dillon & O'Brien, New York City, for bankrupt.
Thayer & Gilbert, New York City, for trustees of Farrar Street Trust, a creditor.
The bankrupt filed his voluntary petition in bankruptcy on September 20, 1949 and was adjudicated a bankrupt on the same day by Judge Hulbert.
A meeting of the bankrupt's creditors was held on October 20, 1949, at which time the trustees of the Farrar Street Trust filed their proof of claim. The trustees of the Farrar Street Trust, representing claims in the sum of $12,151.94, and the present attorneys for the bankrupt, Dillon & O'Brien, whose claim amounts to $500, are the only creditors of the bankrupt.
The bankrupt now makes a motion to vacate his adjudication in bankruptcy, entered on his voluntary petition on September 20, 1949, and to dismiss the voluntary petition of the bankrupt because the trustees of the Farrar Street Trust, one of the two creditors, have pressed a claim to income from a testamentary trust under the will of Lillie C. Weare, his mother, which had accrued at the date of the filing of the petition, and to future income from such testamentary trust. It appears that the bankrupt had filed his petition laboring under the apprehension that any income from said testamentary trust would be subject only to a possible levy of ten per cent of the amount of the income if and when the bankruptcy trustee proceeded to garnishee the ten per cent of such income under Section 684 of the Civil Practice Act of the State of New York. In view of the fact that the attorneys for the trustees of the Farrar Street Trust have made claim to the entire income which had accrued to the trustee of the testamentary trust on September 20, 1949, and were also laying claim to a substantial portion, if not all, of the future income accruing, the bankrupt decided that his bankruptcy proceedings, instead of easing his problems, had created many difficulties for him.
The trustees of the Farrar Street Trust had instituted in May of 1944 an action in the Supreme Court of the State of New York to recover from the bankrupt, based on three claims, the sum of $3,559.42 with interest, $1,095.67 with interest, and $2,400 with interest. The bankrupt is anxious to relegate the trustees of the Farrar Street Trust to their action in the Supreme Court of the State of New York by moving to vacate the adjudication. The trustees for the Farrar Street Trust object to the motion and insist that they have certain vested rights in the bankruptcy, of which they would be deprived were the bankrupt's motion to be granted. The rights which the trustees of the Farrar Street Trust insist they would lose, were the motion to be granted, are
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In re Blue, Bankruptcy No. 79-01709-L
...Code. The bankrupt, on page five of her Memorandum of Law, in fact admitted such prejudice would result. The court in In re Weare, 87 F.Supp. 413, 414 (S.D.N.Y.1949) in denying the bankrupt's motion to dismiss his voluntary petition held it is the rule, founded on sound principles, that per......
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Goodrich v. England
...was filed." It is clear that there is no right to withdraw a voluntary petition for bankruptcy after adjudication. In re Weare, D.C.S.D.N.Y.1949, 87 F.Supp. 413. This section, read in conjunction with 11 U.S.C.A. § 776(2) of Chapter 11, which gives the court power to adjudicate the petition......
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Matter of Poirier, Bankruptcy No. 2-81-00822.
...to dismiss it, the objections of creditors were sustained since they would be injured by a dismissal. And in In re Weare, 87 F.Supp. 413 (S.D.N.Y.1949) (Kaufman, J.) where a bankrupt mistakenly believed that his creditors could not reach more than 10% of the income of a trust, of which he w......