353 F. Supp. 11 | D.V.I. | 1973
MEMORANDUM OPINION AND ORDER
This case arises out of a petition to review an order of the referee in bankruptcy. Since the petition was not filed within the statutory period of ten days from the entry of the order,
The facts of this case are not simple, but the chronology relevant to the present motion may be briefly summarized. In July of 1971, CAP Sales Corporation (“CAP”), the present petitioner, instituted an action for debt. The defendant was somewhat ambiguously styled Frederick P. Weiner, an individual, “doing business as” Island Industries, Inc., a corporation. This ambiguity caused no immediate difficulties, and on August 19 the defendant confessed to an adverse judgment. That same day a writ was served attaching a van owned by him; formal judgment against the defendant was entered shortly thereafter. Over the next few months Weiner encountered increasing financial difficulties. His corporation, Island Industries, eventually filed for bankruptcy on November 18. At that time the true identity of the defendant in the civil action became important. Weiner urged that the action had in reality been against the corporation, that the van was in reality a corporate asset, and that it shall therefore be considered an asset of the estate to be distributed among all creditors.
On June 30, 1972, the referee issued the order now in dispute. He ruled that the van was a corporate asset and ordered CAP to surrender it to the bankrupt estate. This order was not mailed until July 14, and it was not received by CAP’s attorney until late in that month, due to the fact that he was changing offices at that time. On August 1 he filed a “notice of appeal” from the referee’s order. On August 15 he altered the format and filed a motion for leave to file a petition out of time. This motion was filed with the District Court, but forwarded by the Clerk to the referee for an initial determination. The referee denied the petition as untimely filed. CAP thereupon filed the present motion, on December 6, directly with this Court.
In light of the chronology, CAP’s request to file a petition at the present time is in many ways a sympathetic one. The referee’s order, for example, was mistakenly captioned for the District Court of Puerto Rico and was initially sent to that court. It would thus be difficult for an attorney to learn of its existence, and unfair to take the date of signature as beginning the ten-day period. I will instead take the period as beginning on July 14, the date when the Clerk of the Court mailed copies of the order to the attorneys involved
Nonetheless, in light of this chronology I also believe that the papers were not filed with the required promptness. Even granting CAP the benefit of the two dispositions discussed above, there still remains the period from July 14 to August 1. This is considerably over ten days. Yet the ten-day requirement, unlike Federal Rule 6(b) (1), does not permit subsequent enlargement of time at the discretion of the court. On the contrary, it may be understood as a jurisdictional limitation. See St. Regis Paper Co. v. Jackson, 369 F.2d 136 (5th Cir. 1966); In re Acme Furnace Fitting Co., 302 F.2d 318 (7th Cir. 1962); 2 Collier, Bankruptcy ¶[ 39.20 [3]-[4.1] (14th ed. 1971). I therefore do not feel myself empowered to waive this requirement on the facts of the present case.
If the original order were issued ex parte and might otherwise be challenged on due process grounds, it may of course be collaterally attacked at any time. See, e.g., Thomas Corp. v. Nicholas, 221 F.2d 286 (5th Cir.
For the reasons set forth above an Order will be entered denying the motion for leave to file the petition for review out of time.
ORDER
For the reasons set forth above, the motion for leave to file a petition for review out of time is hereby DENIED.
11 U.S.C. § 67(c).
11 U.S.C. § 107(a) provides as follows:
(1) Every lien . . . obtained by attachment, judgment ... or other legal . . . process . . . within four months before the filing of a petition initiating a proceeding under this title . . . shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent ....
(3) The property affected by any lien deemed null and void . . . shall be discharged from such lien, and such property . . . shall pass to the trustee or debtor ....
It was previously submitted to this court in the form of a motion to stay the sheriff’s sale of the van in the civil action. That motion was denied on December 9, 1971, since it had been brought by Weiner individually, and he was not the “bankrupt” in whose favor a stay order might be invoked.
Pursuant to my opinion in In re Quantum Development Corporation (Div. St. Croix, Dec. 15, 1972) the original files for bankruptcy matters originating in the Virgin Islands should be maintained by the Clerks of Court for the respective divisions of this' district. All filings by attorneys should be made in duplicate and the Clerk will forward one copy of each item to the referee in San Juan for his own file. Once this practice is instituted, the ten-day period will therefore begin to run on the day an order is received - by the Clerk here for filing. At least in this division, the Clerk will also be under standing instructions to immediately forward copies of the order to all attorneys of record.
In denying the petition for review, I am fortified by my belief that the referee decided the matter correctly. If I had gone on to reach the merits, I would have found that the civil action was indeed conceived of as being against the corporation, and that the van was considered as being a corporate asset.