115 F.2d 802 | 6th Cir. | 1940
Appellant as debtor filed a petition in the District Court under the provisions of Title 11 U.S.C., § 822 et seq., 11 U.S.C.A. ■ § 822 et seq., alleging insolvency and praying for an extension of time for the payment of his debts, a reduction of the interest rate, and other similar relief.
Appellant was the owner of various, small hotel buildings, residences, and unimproved lots in Johnson City, Tennessee, the more valuable of the properties being
One of appellant’s principal grievances was that the referee denied his application for the removal of Kirkpatrick and Burks as trustees under the trust deeds; but the appellant did not apply for the appointment of a trustee. This was the remedy available to him to protect his statutory rights against the claimed hostility of the trustees under the trust deeds. While the appointment of a trustee is discretionary with the court, under § 832 appellant was entitled either to have the court appoint a trustee subject to the control of the court, or to continue m possession of his property,” and to “have all the title and exercise all the powers” of a trustee appointed under the statute (§ 844)
Appellant was entitled to collect the rents if no trustee was appointed, and the referee erred in denying appellant’s motion to be permitted to collect the rents (§ 844). While denial of this motion was a substantial grievance, the statute does not make protection of the debtor’s rights in this particular a jurisdictional prerequisite (Cf. Hoyd v. Citizens Bank of Albany Co., 6 Cir., 89 F.2d 105) nor forbid dismissal of the petition until the debtor either has been protected by the appointment of a trustee or by the continuation of possession of the property in his own hands. On the other hand, § 881 manditorily requires that if an arrangement is withdrawn or abandoned prior to its acceptance, and no other arrangement is pending, or if no arrangement is accepted, the court shall, “where the petition was filed under section 822 of this title, enter an order upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in the interest of the creditors.” The case falls squarely within this statute.
We cannot say that upon this record as presented the District Court abused its discretion in dismissing the petition. Kunze v. Prudential Ins. Co., 5 Cir., 106 F.2d 917.
The decree is affirmed.
Title 11, U.S.O., § 832, 11 U.S.O.A. § 832.
“The court may, upon the application of any party in interest, appoint a trustee of the property of the debtor.”
§ 844. “Where no trustee is appointed, the debtor shall continue in possession of his property and shall have all the title and exercise all the powers of a trustee appointed under this chapter, subject, however, at all times to the control of the court and to such limitations, restrictions^ terms, and conditions as the court may from time to time prescribe.”