Robinson, In re, No. 45

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore LUMBARD, FEINBERG and OAKES; LUMBARD; OAKES
Citation506 F.2d 1184
PartiesIn the Matter of Jack ROBINSON, Bankrupt. ocket 74-1351.
Docket NumberD,No. 45
Decision Date08 November 1974

Page 1184

506 F.2d 1184
In the Matter of Jack ROBINSON, Bankrupt.
No. 45, Docket 74-1351.
United States Court of Appeals, Second Circuit.
Argued Sept. 25, 1974.
Decided Nov. 8, 1974.

Page 1185

Donald P. Sheldon, Buffalo, N.Y. (Saperston, Wiltse, Day & Wilson and Thomas F. Segalla, Buffalo, N.Y., on the brief), for appellant, Jack Robinson.

William H. Gardner, Buffalo, N.Y. (Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N.Y., on the brief), for appellee, Manufacturers and Traders Trust Co.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Jack Robinson appeals from an order dated January 15, 1974, of the District Court for the Western District, John T. Curtin, J., affirming a denial of his discharge in bankruptcy upon findings by Beryl E. McGuire, Referee in Bankruptcy. Robinson filed a voluntary petition in bankruptcy on March 3, 1971, which stated his business to be that of a canned meat broker. The petition listed liabilities of $109,640.06 and non-exempt assets of $800. At a creditors meeting on April 16, 1971, Robinson denied under oath that he had made certain statements in January 1971 to Robert F. Spitzmiller, Jr., an assistant vice president of the Manufacturers and Traders Trust Co. of Buffalo, the appellee. On June 8, 1971, the last day for filing objections to Robinson's discharge, the bank filed such objections and petitioned for a determination of whether discharge

Page 1186

was appropriate. After three hearings the referee concluded that Robinson had given false testimony and denied Robinson's discharge. The district court affirmed the referee's decision, whereupon Robinson appealed to this court. We affirm.

I.

Robinson raises two issues on appeal. First, he claims that the bank failed to file timely its objections to his discharge. The last day of filing objections was June 8, 1971, and the bank filed its objections along with a petition for determination of dischargeability on that day. However, it did not pay the required filing fee of $10 for each document until the following day. The bank did, however, submit a $50 check on June 8th as indemnity against expenses in production of the record. Robinson argues that the late payment of filing fees somehow delays the effective date of the filing until June 9th. We do not agree.

There is no express statutory requirement that a filing fee must be paid before objections can be considered to have been timely filed. Robinson's argument is largely based on the fact that the Bankruptcy Act provides that the initial filing fees required of a bankrupt must be paid before a discharge is granted, Bankruptcy Act 14(b)(2), 11 U.S.C. 32(b)(2) (1970). However, the usual procedures followed with respect to payment of the initial filing fee undercut Robinson's argument, because even where the bankrupt fails to pay the initial filing fee, the bankruptcy process still goes forward. See United States v. Kras, 409 U.S. 434, 488-489, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

Furthermore, even if Robinson is correct in asserting that payment of filing fees is a prerequisite for an effective filing, it is arguable in this case that the fees were in fact paid on June 8th. On that date the bankruptcy court had in its possession the bank's check for $50 and it appears that that check could have been used to pay the filing fees.

Further support for rejection of Robinson's argument is found in the 1972 revision of the Manual of Office Procedures for Bankruptcy Clerks 1 which provides that 'where . . . papers are offered for filing without the proper fee, they should nevertheless be accepted for filing and a notation made on the paper itself that the filing fee has not been paid. The matter should then be called to the referee's attention.' Thus it appears that the normal practice of bankruptcy courts is to accept papers for filing whether or not filing fees have been paid.

Finally, we note that the purpose of a filing deadline is to bring the bankruptcy proceeding to an end and to permit an expeditious determination of whether there is any reason why the bankrupt should not be discharged. Here this purpose was fully accomplished by the bank's act of filing its objections within the required time period. Whether the filing fees were paid on that day, the next day or the next week does not effect the fulfillment of the deadline's purpose. Accordingly, we hold that the objections were timely filed.

II.

Robinson's second claim is that the district court erred in sustaining the referee's refusal to issue a discharge. The referee had concluded that Robinson had knowingly and fraudulently made a false oath in a bankruptcy proceeding. Under the Bankruptcy Act such a false oath is a ground for denying a discharge. Bankruptcy Act 14(c), 11

Page 1187

U.S.C. 32(c) (1970); 2 18 U.S.C. 152 (1970). 3 Under the Act the person objecting to the discharge must 'show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed (one of the acts that bar discharge).' Bankruptcy Act 14(c), 11 U.S.C. 32(c) (1970). Once the person opposing the discharge has done this, the burden of proving that he has not committed (one of those acts) shall be upon the bankrupt.' Bankruptcy Act 14(c), 11 U.S.C. 32(c)(1970).

In the Second Circuit we have held that 'the words of the statute requiring that the testimony be given 'knowingly and fraudulently' mean no more than an 'intentional untruth in a matter material to the issue which is itself material." In re Melnick, 360 F.2d 918, 920 (2d Cir. 1966) (per curiam) quoting In re Slocum, 22 F.2d 282, 285 (2d Cir. 1927). Great weight is given to the referee's findings because he saw and heard the witnesses and his findings are not to be reversed unless they are clearly erroneous. In re Melnick, supra.

The testimony in question was given at an adjourned session of the First Meeting of the Creditors of the bankrupt which was held on April 16, 1971. At that proceeding Robinson was asked several questions concerning statements he allegedly made to officers of the bank in January 1971. At the subsequent hearing on the bank's objections to Robinson's discharge Spitzmiller testified that Robinson had told him in January that he had some $50,000 in accounts receivable. On April 16, however, Robinson denied that he had made such statements when he was asked by the bank's counsel about each alleged account receivable.

Robinson claims that his statements were not intentional untruths because he did not understand the questions that he was asked. While it is true that at times Robinson seemed confused as to whether he was being asked if he had told the bank in January that he had accounts receivable or if he had accounts receivable in January, 4 other parts of the exchange between Robinson and the bank's attorney show that Robinson did understand the questions. 5 The referee concluded that the bank 'established by a fair preponderance of the evidence that the bankrupt knowingly and fraudulently gave false testimony in this proceeding' and that Robinson's disclaimers were not credible. The record supports the referee's findings. In re Melnick,supra. The cases cited by Robinson do not support his contention

Page 1188

that he lacked the requisite fraudulent intent. These cases generally involved failures of bankrupts to list inconsequential property interests on their schedules of assets. The court inferred that there was no fraudulent intent because the amounts involved were so small. See, e.g., In re Tabibian, 289 F.2d 793, 797 (2d Cir. 1951); In re Taub, 98 F.2d 81 (2d Cir. 1938). Robinson's testimony concerned thousands of dollars in alleged accounts receivable and...

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77 practice notes
  • In re Portner, Bankruptcy No. 89 B 00255 J
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • 11 Noviembre 1989
    ...of the evidence." Farmers Co-op Ass'n. of Talmage, Kansas v. Strunk, 671 F.2d 391, 395 (10th Cir. 1982). Accord, In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (proof by a preponderance is all that is required to establish the making of a false oath and rejected the bankrupt's and dissen......
  • In re Mayo, Bankruptcy No. 86-00146
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • 7 Diciembre 1988
    ...cases, by a fair preponderance of the evidence . . . (parentheticals supplied for clarity). Id., 22 F.2d at 285. Accord, In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (affirmed the referee's conclusion that an objecting creditor had "established by a fair preponderance of the evidence t......
  • In re Overmyer, Bankruptcy No. 82 B 20329
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • 29 Octubre 1990
    ...of Appeals. However, the Second Circuit has rendered inconsistent decisions on the appropriate burden to be utilized. See In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (the proper burden is that of preponderance of the evidence); But see Bank of Pennsylvania v. Aldman (In re Aldman), 54......
  • In re Garcia, Bankruptcy No. 86-02645F
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • 20 Julio 1988
    ...could be established by a mere preponderance of the evidence. See In re Mascolo, 505 F.2d 274, 276 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1187 (2d Cir.1974); Union Bank v. Blum, 460 F.2d 197, 200-201 (9th Cir. 1972). See also 12 Collier on Bankruptcy, ¶ 407.3 at 4-69 to 4-70 (14th e......
  • Request a trial to view additional results
77 cases
  • In re Portner, Bankruptcy No. 89 B 00255 J
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • 11 Noviembre 1989
    ...of the evidence." Farmers Co-op Ass'n. of Talmage, Kansas v. Strunk, 671 F.2d 391, 395 (10th Cir. 1982). Accord, In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (proof by a preponderance is all that is required to establish the making of a false oath and rejected the bankrupt's and dissen......
  • In re Mayo, Bankruptcy No. 86-00146
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • 7 Diciembre 1988
    ...cases, by a fair preponderance of the evidence . . . (parentheticals supplied for clarity). Id., 22 F.2d at 285. Accord, In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (affirmed the referee's conclusion that an objecting creditor had "established by a fair preponderance of the evidence t......
  • In re Overmyer, Bankruptcy No. 82 B 20329
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • 29 Octubre 1990
    ...of Appeals. However, the Second Circuit has rendered inconsistent decisions on the appropriate burden to be utilized. See In re Robinson, 506 F.2d 1184, 1185 (2d Cir.1974) (the proper burden is that of preponderance of the evidence); But see Bank of Pennsylvania v. Aldman (In re Aldman), 54......
  • In re Garcia, Bankruptcy No. 86-02645F
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • 20 Julio 1988
    ...could be established by a mere preponderance of the evidence. See In re Mascolo, 505 F.2d 274, 276 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1187 (2d Cir.1974); Union Bank v. Blum, 460 F.2d 197, 200-201 (9th Cir. 1972). See also 12 Collier on Bankruptcy, ¶ 407.3 at 4-69 to 4-70 (14th e......
  • Request a trial to view additional results

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