193 F. 787 | E.D. La. | 1912
In this case Joseph Burnstein, the holder and owner of two promissory notes, secured by mortgage on certáin real estate surrendered by the bankrupt, petitions the court for leave to foreclose his mortgage ■ in the state court. He alleges that he has reason to believe the property cannot be sold for a price exceeding the amount of his claim, with interest, costs, and attorney's fees stipulated for in the act of mortgage. Emile W. Del Bondio, trustee of the bankrupt, opposes the petition.
The parties have agreed to the following stipulation as to the facts:
“That (lie mortgage referred to in plaintiff’s petition was executed as alleged therein for the sum of $(5,000 as therein stated, of which $200 has been paid.
“That the said act of mortgage was duly recorded in the mortgage office of the parish of Orleans, as required by the laws of Louisiana, ou the day of its execution. That the interest is due on the two notes of $(1.300 as stated therein. That the first mortgage on the property thirdly described in tbe petition and in the act of mortgage is for $2,000, and interest is due thereon since June 24, 1911.
*789 “That the appraisement by the appraisers appointed by the trustee was for the sum of $10,275 for all of the property described in the petition or in the act of mortgage. That Joseph Burnsteiu, the petitioner herein, is the holder and owner of the notes, and they are not paid.”
It is urged by petitioner that his contract stipulates for a sale without appraisement, and if the property is sold by the trustee it will have to bring three-fourths of an appraisement made in the bankruptcy proceedings; that it will be subject to the payment of ices of an auctioneer, of the trustee and referee in bankruptcy, and of appraisers appointed in the proceedings; that the cost of advertising the property will be at a higher rate, ánd the advertisement will occupy more space, than if sold by the sheriff; and that he would not have the right to bid in the property and offset his debt against the price, but would be compelled to pay the full amount over to the trustee and await a distribution in due course.
For these reasons the application will be denied.