Whiteford Plastics Co. v. Chase National Bank

• Decision Date: 17 January 1950
• Docket Number: Docket 21432.,No. 66,66
• Citation: 179 F.2d 582
• Parties: WHITEFORD PLASTICS CO., Inc. v. CHASE NATIONAL BANK OF NEW YORK CITY.
• Court: U.S. Court of Appeals — Second Circuit

179 F.2d 582 (1950)

WHITEFORD PLASTICS CO., Inc. v. CHASE NATIONAL BANK OF NEW YORK CITY.

No. 66, Docket 21432.

United States Court of Appeals Second Circuit.

Argued December 15, 1949.

Decided January 17, 1950.

Krause, Hirsch, Levin & Heilpern, New York City, for Debtor-Appellant; Elliot L. Krause and Sydney Krause, New York City, of counsel.

Milbank, Tweed, Hope & Hadley, New York City, for Claimant-Appellee; Samuel Ross Ballin and James G. Grady, New York City, of counsel.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The debtor, Whiteford Plastics Co., Inc., purchased two steam generators on January 19, 1948, and executed an instalment note for $4,862.20 and a conditional sale contract securing the note, both of which were assigned by the original vendor to the claimant Chase National Bank. Owing to inadvertence on the part of the bank the conditional sale contract was not filed with the Register of New York County until March 31, 1948. Under the New York Law, this neglect to file would render the contract void against lien creditors, though it would be good as between the bank and the Whiteford Plastics Co., Inc. New York Personal Property Law, Consol.Laws, c. 41, §§ 64, 65; Rivara v. James Stewart & Co., 241 N.Y. 259, 265, 149 N.E. 851.

On March 24, 1948, the debtor filed its petition for an arrangement, and listed the bank as a secured creditor in its schedules. The debtor then owed $4,743.54 on its note and was still in possession of the steam generators. Under date of June 16, 1949, it was stipulated between the bank and the debtor that the sum of $4,743.54, with interest from March 24, 1948, remained unpaid on the note. On May 20, 1948, the bank filed its proof of claim as a secured creditor. On September 16, 1948, the debtor proposed a plan of arrangement which provided for payment of 10% to unsecured creditors (in cash or pro rata shares of the debtor's common stock) and 33 1/3% of the proceeds of a claim that it owned against Dictaphone Corporation, and in addition 33 1/3% of the proceeds of its investment in Meadowlands, Inc., neither of which claims was to be disposed of without the prior approval of the creditors' committee. In a petition filed in the District Court under date of September 30, 1948, the debtor alleged that the bank's security was invalid and prayed that the court determine that the conditional sale contract was void and adjudge that the bank was an unsecured creditor to the extent of its claim and should only participate in the assets distributable under the arrangement as an unsecured creditor. While the debtor's petition was pending and before it was decided, the plan of arrangement was confirmed.

The confirmation of the plan of arrangement was binding on all parties in the absence of fraud and under Section 386 of Chapter XI, 11 U.S.C.A. § 786, the arrangement could only be attacked for fraud and within six months after confirmation. This was not done. The debtor now insists that the petition to avoid the conditional sale should prevail because of the provisions of Section 342, 11 U.S.C.A. § 742, reading as follows: "When no receiver or trustee is appointed, the debtor shall continue in possession of his property and shall have all the title and exercise all the powers of a trustee appointed under the title, subject, however, at all times to the control of the court and to such limitations, restrictions, terms, and conditions as the court may from time to time prescribe."

A trustee in bankruptcy is armed with all the rights of a lien creditor and under Section 70, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, can set aside the conditional sale contract on behalf of creditors. The debtor insists that under the precise words of Section 342, supra, he possesses the same rights as a trustee in bankruptcy. Such rights, however, as the referee held, are "subject * * * at all times to the control of the court and to such limitations, restrictions, terms, and conditions as the court may from time to time prescribe." The referee found that the steam generators had contributed nothing to the confirmation of the arrangement, and that in such circumstances the validity of the contract of conditional sale as between the parties should be recognized where the rights of creditors were not involved. We cannot see that the rights of creditors were involved in the case at bar, and hold that under the circumstances the referee was justified in holding the lien of the bank valid and treating the latter as a secured creditor.

So far as the record discloses, the creditors were never informed of the fact that the conditional sale contract was void as to a lienholder prior to the motion of the debtor to set the lien aside shortly before the arrangement came up for confirmation. No creditor then or since appears to have objected to the plan because it did not include the value of the generators, or for any other reasons. The debtor never contributed or offered to contribute this value to the plan and now seeks to obtain it purely for its own benefit. This we think it cannot do. In our opinion the bank, which had a good secured claim as against the debtor, can still hold it where the petition to avoid the sale is not in the interest of the general creditors. This seems in accord with the holding of the Court of Appeals for the Seventh Circuit in the case of In re J. C. Winship Co., 120 F. 93, where a bankruptcy receiver attacked the lien of an unfiled chattel mortgage for the benefit of a bankrupt who had entered into a composition with his unsecured creditors....