In re Weco Equipment
| Decision Date | 17 May 1944 |
| Docket Number | No. 41750.,41750. |
| Citation | 55 F. Supp. 532 |
| Parties | In re WECO EQUIPMENT, Inc. |
| Court | U.S. District Court — Eastern District of New York |
Abraham O. Chasser, of New York City, (Judith Y. Kirschenbaum, of New York City, of counsel), for Public Operating Corporation, creditor.
Harry LeRoy Schulman, of Brooklyn, N. Y. (Besse E. Kessler, of Brooklyn, N. Y., of counsel), for trustee.
Petitioner applies for review of an order of the referee which denied to petitioner the status of a general creditor of the bankrupt estate.
The debtor was adjudicated a bankrupt on November 29, 1941. On December 5, 1941, the following letter was sent by the attorneys for an assignor of the petitioner to the referee:
The first meeting of creditors was held on December 11, 1941. On November 15, 1943, before any distribution of the estate had been made, petitioner filed with the referee a formal proof of claim, setting forth an obligation of the bankrupt to Whitehall Equipment Co. Inc. and thereafter assigned to petitioner by mesne assignments. The referee refused to accept this proof of claim on the ground that the time within which it could be filed had long since expired.
Section 57 of the Bankruptcy Act, 11 U.S.C.A. § 93, deals with the requirements of proofs of claim. The elements are set forth in subdivision a as follows:
"A proof of claim shall consist of a statement under oath, in writing and signed by a creditor, setting forth the claim; the consideration therefor; whether any and, if so, what securities are held therefor; and whether any and, if so, what payments have been made thereon; and that the claim is justly owing from the bankrupt to the creditor."
Subdivision n requires that "* * * all claims provable under this title * * * shall be proved and filed in the manner provided in this section", and that proofs of claim must be filed within six months after the first meeting of creditors or they will be disallowed.
It has been established that the court has no power to accept a late filing or to extend the time for filing after it has expired. (See opinion of this Court in In re 74 Knowles Street Corporation, 52 F.Supp. 715, and cases cited therein). It has been equally well established that the time limitation does not bar an amendment after the six months' period of a valid proof of claim which was filed within that period. Hutchinson v. Otis, 190 U.S. 552, 23 S.Ct. 778, 47 L.Ed. 1179; In re Lipman, 2 Cir., 1933, 65 F.2d 366; In re Kessler, 2 Cir., 1910, 184 F. 51.
The only question to be decided on this application is whether the letter, which was sent to the referee within the prescribed period for the filing of proofs of claim, is to be construed as a proof of claim so as to be capable of amendment after the period had expired.
Despite the precise language of the statute as to what is required for a proof of claim, i. e., that it should be in writing, under oath, signed by the creditor and state the consideration, the courts have repeatedly indulged a liberality in permitting amendments which would appear to negate completely the requirements imposed by Congress. Assertions of claims which have been defective in substantial particulars, judged by the statutory standard, have been amended after the expiration of the prescribed period...
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