Masaru Sumida v. Fusao Yumen

Ninth Circuit

Masaru Sumida v. Fusao Yumen

444 F.2d 1281

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 27, 1971

Docket26223, 26341

StatusPublished

This text of 444 F.2d 1281 (Masaru Sumida v. Fusao Yumen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Masaru Sumida v. Fusao Yumen, 444 F.2d 1281 (9th Cir. 1971).

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Opinion

JAMES M. CARTER, Circuit Judge:

This case arises out of a dismissal of a Chap. XII petition for a real property arrangement. Two questions are presented: (1) where the debtors (appellants) withdraw the proposed real property arrangement but failed to submit a new or amended proposal before or at the meeting of creditors, is the bankruptcy referee required by Sec. 481 of the Bankruptcy Act, 11 U.S.C. § 881, either to adjudicate the debtor a bankrupt or to dismiss the debtor petition; (2) when the referee’s dismissal of the debtor’s petition has been affirmed by the district court as authorized under Section 481 of the Bankruptcy Act, 11 U.S.C. § 881, is the court prior to the entry of a final decree, required to pass on ancillary applications of the debtor. We affirm.

This case started with a petition under Chap. XII filed by the debtors on January 17, 1967. It is now here for the second time and there seems to be no end to the multitudinous applications, briefs and maneuverings of the appellants through counsel and William S. Ellis, Jr., appearing in pro. per.

On April 25, 1969 we decided the first appeal in Sumida v. Yumen, 409 F.2d 654, and held that a dismissal of the Chap. XII petition was improper without there first being held a creditors’ meeting. Secs. 434, 435, 467 and 468 of the Act, 11 U.S.C. §§ 834, 835, 867 and 868 (1964). A chronological chart of the dates of the events in this proceeding is set forth in the margin. 1

*1283 Following remand, a creditors’ meeting was noticed for June 26, 1969. Two days before the meeting, on June 24, 1969, the appellants withdrew their proposed real property arrangement, Appendix A to the Chap. XII petition. Because there was no proposed plan on file at the creditors’ meeting of June 26, 1969, the meeting was continued to August 6, 1969 “ * * * at which time and place creditors may attend and be heard on whether this proceeding should be dismissed or the debtors adjudged bankrupt; the effect of the proceeding to enforce a lien against the real property subject hereto; and such other matters as may properly come before the meeting.”

On August 6, 1969, the date of the adjourned creditors’ meeting, no new or amended real property arrangement was on file or presented. On that day Ellis, acting on behalf of the appellants, filed a motion for leave to amend the Appendix A of the petition, the proposed real property arrangement. The motion expressly asked for leave to amend “within 30 days after this court has determined the following matters”— :

1. Whether or not a partnership may hold title to real property in Hawaii;

2. Whether or not any and all proceedings to enforce a lien against the debtors are automatically stayed;

3. Whether or not the petition for a real property arrangement was filed in good faith;

4. Various other ancillary matters.

The motion concluded, “the submittal of amended Proposed Real Property Arrangement prior to the disposition of the above-listed matters would compound confusion and complexities.”

Ellis argued to the referee that these various matters should be ruled upon and disposed of before he was required to submit an amended plan. The creditors present, on inquiry by the referee, unanimously agreed that dismissal of the petition would be in their best interests. Because there was no amended real property arrangement pending, the referee orally denied the motion to amend and ordered the petition dismissed. On September 18, 1969, a formal order to the same effect was filed.

On petition for review the district court affirmed the referee in his action in denying the motion to amend and dismissing the Chapter proceedings, and *1284 noted that not only was there no real property arrangement pending, but that appellants had given no indication that a new plan would be forthcoming. The court stated, that like the referee, it would not decide the preliminary or ancillary questions which the appellants asserted had to be decided before they would submit a new real property arrangement. The court’s order was filed January 6, 1970.

A motion to amend the court’s order was filed on January 16, 1970, heard on April 20, 1970 and at that time orally denied. A formal order was filed May 13, 1970.

After the hearing on April 20, 1969 and specifically on April 29, May 1, and May 5, 1969, appellants filed six applications to declare liens and state proceedings void, for restoration of appellants’ property and for contempt citations against creditors. Each was an application to amend the formal order of January 6,1970.

None of the six applications were on file on April 20, 1969, the date of the hearing. In the court’s formal order of May 13, 1970 the court denied the motion (filed January 16, 1970) to amend the order denying the petition for review, and final decree. With reference to the dismissal of the Chapter proceedings the court made no further findings in addition to those in the order of January 6, 1970.

The court in the order of May 13, 1970, denied the six late filed applications “as coming too late and not called for or required by the state of the record and proceedings as of the date of the court’s order of January 6, 1970 and the court’s oral decision rendered on April 20, 1970.” A petition for rehearing was filed, heard and ordered denied on June 10,1970.

Two notices of appeal were filed, one from the order of January 6, 1970, appeal #26223, and one from the orders of May 13, 1970 and June 10, 1970, appeal #26341.

Appellants contend that the dismissal of the Chapter proceedings was not a matter appealed from in appeal #26223. 2 Appellants state in their reply brief that they are “not appealing dismissal as such.” If this is true, then this is the end of the matter and the dismissal of the Chapter proceedings would be final. However, appeal #26341 probably covers the dismissal and in any event there must be an end to these seemingly interminable proceedings. We therefore consider the dismissal issue.

I

The Dismissal Was Proper and Required Under Sec. k81 of the Act.

Under Sec. 481 of the Act, 11 U.S.C. § 881

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