In the Matter of Henry Clark, Bankrupt-Appellant. Chemical Bank New York Trust Company, Objecting Creditor-Appellee

Second Circuit

In the Matter of Henry Clark, Bankrupt-Appellant. Chemical Bank New York Trust Company, Objecting Creditor-Appellee

328 F.2d 612, 1964 U.S. App. LEXIS 6530

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 30, 1964

Docket28516_1

StatusPublished

Cited by1 cases

This text of 328 F.2d 612 (In the Matter of Henry Clark, Bankrupt-Appellant. Chemical Bank New York Trust Company, Objecting Creditor-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In the Matter of Henry Clark, Bankrupt-Appellant. Chemical Bank New York Trust Company, Objecting Creditor-Appellee, 328 F.2d 612, 1964 U.S. App. LEXIS 6530 (2d Cir. 1964).

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PER CURIAM.

The sole question presented here is whether the bankrupt’s failure to appear at the hearing on the objections to his discharge acted as a waiver of his right to a discharge. The bankrupt claimed that his physical condition (a heart ailment) was such that he could not be subjected to legal questioning. No application was made by the bankrupt for a nunc pro tunc order resetting the time for the hearing. The Referee and the Court held that since Section 14, sub. e of the Bankruptcy Act 1 specifically provides for the consequences of non-appearance, the bankrupt waived his right to a discharge. The legislative history reveals that the addition of the words “without sufficient excuse” in the first clause of the section was rejected (see proposal in H.R. 6439, 75th Cong., 1st Sess. 1937). 2 No question as to the equitable powers of the bankruptcy court is presented because no application for a nunc pro tunc order was made to the Referee or to the District Court. The requirements of Section 14, sub. e can *613 not be satisfied by appearance of counsel, We need not speculate upon any decision which might be made by the Referee upon good cause shown to reset the date for a hearing when, as and if the bankrupt is able to appear because none has been sought and no order thereon is before us.

Order affirmed.

1

. 11 U.S.O.A. § 32, sub. e:

“If the bankrupt fails to appear at the bearing upon the objections to his application for a discharge, or having appeared refuses to submit himself to examination, or if the court finds after hearing upon notice that the bankrupt has failed without sufficient excuse to appear and submit himself to examination at the first meeting of creditors or at any meeting specially called for his examination, he shall be deemed to have waived Ms right to a discharge, and the court shall enter an order to that effect.”

2

. 1 Collier, Bankruptcy ¶14.01 at 1253 (14th ed. 1962).

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PER CURIAM.

The sole question presented here is whether the bankrupt’s failure to appear at the hearing on the objections to his discharge acted as a waiver of his right to a discharge. The bankrupt claimed that his physical condition (a heart ailment) was such that he could not be subjected to legal questioning. No application was made by the bankrupt for a nunc pro tunc order resetting the time for the hearing. The Referee and the Court held that since Section 14, sub. e of the Bankruptcy Act 1 specifically provides for the consequences of non-appearance, the bankrupt waived his right to a discharge. The legislative history reveals that the addition of the words “without sufficient excuse” in the first clause of the section was rejected (see proposal in H.R. 6439, 75th Cong., 1st Sess. 1937). 2 No question as to the equitable powers of the bankruptcy court is presented because no application for a nunc pro tunc order was made to the Referee or to the District Court. The requirements of Section 14, sub. e can *613 not be satisfied by appearance of counsel, We need not speculate upon any decision which might be made by the Referee upon good cause shown to reset the date for a hearing when, as and if the bankrupt is able to appear because none has been sought and no order thereon is before us.

Order affirmed.

1

. 11 U.S.O.A. § 32, sub. e:

“If the bankrupt fails to appear at the bearing upon the objections to his application for a discharge, or having appeared refuses to submit himself to examination, or if the court finds after hearing upon notice that the bankrupt has failed without sufficient excuse to appear and submit himself to examination at the first meeting of creditors or at any meeting specially called for his examination, he shall be deemed to have waived Ms right to a discharge, and the court shall enter an order to that effect.”

2

. 1 Collier, Bankruptcy ¶14.01 at 1253 (14th ed. 1962).

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328 F.2d 612, 1964 U.S. App. LEXIS 6530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-henry-clark-bankrupt-appellant-chemical-bank-new-york-ca2-1964.

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