In the Matter of Moran, 71-1135.
| Decision Date | 18 February 1972 |
| Docket Number | No. 71-1135.,71-1135. |
| Parties | In the Matter of John Henry MORAN, Appellant, Bankrupt. |
| Court | U.S. Court of Appeals — Third Circuit |
John Henry Moran, pro se.
Before McLAUGHLIN, HASTIE and VAN DUSEN, Circuit Judges.
This is an appeal from an order of the district court affirming Referee Lipkin's order denying appellant's discharge in bankruptcy. The Referee's refusal to discharge the debtor was based on the grounds that he knowingly and fraudulently made a false oath in violation of 18 U.S.C. § 152.
On October 9, 1968, appellant filed a Wage Earners' Petition and Schedules, seeking an extension of time to pay his debts under the provisions of Chapter XIII of the Bankruptcy Act. At that time he failed to list "The Tuition Plan of New Hampshire, Inc.," to whom he was indebted, as one of his creditors. Appellant defaulted in his Wage Earners' payments which resulted in the dismissal of the Chapter XIII proceedings and an adjudication in the bankruptcy on June 18, 1969. On June 20, 1969, the debtor filed an Application for Leave to Amend Schedules to include as an unsecured creditor "The Tuition Plan of New Hampshire, Inc." in the amount of $1,700.80. The reason given for the failure to previously list the claim was ". . . applicant through inadvertence forgot to list the aforementioned debts." Tuition Plan objected to debtor's being discharged in bankruptcy based on the fact that debtor committed an offense punishable by imprisonment under 18 U.S.C. § 152 in that he had knowingly and fraudulently made a false oath to the Schedules and Statements of Affairs, previously filed by him. The Referee denied the discharge which was subsequently reviewed by Judge Barlow who affirmed that decision. Appellant now appeals to this Court. He states that there was no intent to commit fraud and therefore the denial of discharge was in error.
The actions of the debtor clearly show that he was aware of the debt when he filed the Wage Earners' Petition. We cannot believe that he "forgot" to include Tuition Plan when he received $500 from it less than two weeks before filing and continued to pay installments to it of $66.25 per month for a few months. On January 1, 1969 he received still another $500 from Tuition Plan. Certainly had Tuition Plan been aware of the Chapter XIII proceedings it would not have advanced an additional $500. The Referee was correct in his finding that the omission of Tuition Plan on the list of creditors was intended to mislead that creditor and was a material issue in the bankruptcy proceeding. The acts of the debtor demonstrate that he wilfully and knowingly made a false oath so that h...
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...court, and appellate courts should interfere only for the most cogent, compelling reasons in situations of gross abuse. In the Matter of Moran, 3 Cir. 1972, 456 F.2d 1030, cert. denied, 409 U.S. 872, 93 S.Ct. 201, 34 L.Ed.2d 123; In the Matter of Barbato, 3 Cir. 1970, 421 F.2d 1324, 1327; J......
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