In re Fitzgerald

S.D. New York

In re Fitzgerald

191 F. 95, 1911 U.S. Dist. LEXIS 109

CourtDistrict Court, S.D. New York

DecidedOctober 17, 1911

StatusPublished

Cited by1 cases

This text of 191 F. 95 (In re Fitzgerald) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Fitzgerald, 191 F. 95, 1911 U.S. Dist. LEXIS 109 (S.D.N.Y. 1911).

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Opinion

HOLT, District Judge.

This is a petition to review a ruling of a referee denying a motion to dismiss the petition of intervening creditors on the ground that they were not creditors when the petition was filed. Two claims were assigned to them after the petition was filed, one of which admittedly was a provable claim existing at the time the petition was filed.

[1] In my opinion, the assignment of the claim carried with it all the rights and remedies which the assignor had, and, among other remedies, the same right to intervene in a pending bankruptcy proceeding that the assignor had.

[2] The other claim is on a judgment for a deficiency on the foreclosure of a mortgage. The assignor held a bond for $50,000, secured by a mortgage, at the time the petition was filed. A suit to foreclose the mortgage was, brought, the property sold, and a judgment for about $3,000 for deficiency entered about a month after the original petition was filed. In my opinion, the assignor had a claim which was provable, although not yet allowable, at fhe time the petition was filed. The mortgagee held the mortgage as security for the bond; but, as the result of the sale showed, the security was insufficient. The mortgagee could have disregarded the mortgage and proved for the indebtedness due on the bond; or the mortgagee could have taken proceedings to have the value of the security fixed, and substantially did so by the suit to foreclose. I think that when the amount of the deficiency was ascertained, and judgment entered for the amount, the claim which was provable when the petition was filed became liquidated and in condition to be allowed.

My conclusion is that the referee’s ruling should be affirmed.

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HOLT, District Judge.

This is a petition to review a ruling of a referee denying a motion to dismiss the petition of intervening creditors on the ground that they were not creditors when the petition was filed. Two claims were assigned to them after the petition was filed, one of which admittedly was a provable claim existing at the time the petition was filed.

[1] In my opinion, the assignment of the claim carried with it all the rights and remedies which the assignor had, and, among other remedies, the same right to intervene in a pending bankruptcy proceeding that the assignor had.

[2] The other claim is on a judgment for a deficiency on the foreclosure of a mortgage. The assignor held a bond for $50,000, secured by a mortgage, at the time the petition was filed. A suit to foreclose the mortgage was, brought, the property sold, and a judgment for about $3,000 for deficiency entered about a month after the original petition was filed. In my opinion, the assignor had a claim which was provable, although not yet allowable, at fhe time the petition was filed. The mortgagee held the mortgage as security for the bond; but, as the result of the sale showed, the security was insufficient. The mortgagee could have disregarded the mortgage and proved for the indebtedness due on the bond; or the mortgagee could have taken proceedings to have the value of the security fixed, and substantially did so by the suit to foreclose. I think that when the amount of the deficiency was ascertained, and judgment entered for the amount, the claim which was provable when the petition was filed became liquidated and in condition to be allowed.

My conclusion is that the referee’s ruling should be affirmed.

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Bluebook (online)

191 F. 95, 1911 U.S. Dist. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fitzgerald-nysd-1911.

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