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In re Robinson

decided: November 8, 1974.

IN THE MATTER OF JACK ROBINSON, BANKRUPT


Proceeding for review of order of district court which affirmed order of referee in bankruptcy sustaining objections to bankrupt's discharge on a finding that bankrupt had knowingly and fraudulently made a false oath. Affirmed.

Lumbard, Feinberg and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).

Author: Lumbard

LUMBARD, Circuit Judge:

Jack Robinson appeals from an order dated January 15, 1974, of the District Court for the Western District, John T. Curtin, J., affirming a denial of his discharge in bankruptcy upon findings by Beryl E. McGuire, Referee in Bankruptcy. Robinson filed a voluntary petition in bankruptcy on March 3, 1971, which stated his business to be that of a canned meat broker. The petition listed liabilities of $109,640.06 and non-exempt assets of $800. At a creditors meeting on April 16, 1971, Robinson denied under oath that he had made certain statements in January 1971 to Robert F. Spitzmiller, Jr., an assistant vice president of the Manufacturers and Traders Trust Co. of Buffalo, the appellee. On June 8, 1971, the last day for filing objections to Robinson's discharge, the bank filed such objections and petitioned for a determination of whether discharge was appropriate. After three hearings the referee concluded that Robinson had given false testimony and denied Robinson's discharge. The district court affirmed the referee's decision, whereupon Robinson appealed to this court. We affirm.

I.

Robinson raises two issues on appeal. First, he claims that the bank failed to file timely its objections to his discharge. The last day of filing objections was June 8, 1971, and the bank filed its objections along with a petition for determination of dischargeability on that day. However, it did not pay the required filing fee of $10 for each document until the following day. The bank did, however, submit a $50 check on June 8th as indemnity against expenses in production of the record. Robinson argues that the late payment of filing fees somehow delays the effective date of the filing until June 9th. We do not agree.

There is no express statutory requirement that a filing fee must be paid before objections can be considered to have been timely filed. Robinson's argument is largely based on the fact that the Bankruptcy Act provides that the initial filing fees required of a bankrupt must be paid before a discharge is granted, Bankruptcy Act § 14(b)(2), 11 U.S.C. § 32(b)(2) (1970). However, the usual procedures followed with respect to payment of the initial filing fee undercut Robinson's argument, because even where the bankrupt fails to pay the initial filing fee, the bankruptcy process still goes forward. See United States v. Kras, 409 U.S. 434, 488-49, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973).

Furthermore, even if Robinson is correct in asserting that payment of filing fees is a prerequisite for an effective filing, it is arguable in this case that the fees were in fact paid on June 8th. On that date the bankruptcy court had in its possession the bank's check for $50 and it appears that that check could have been used to pay the filing fees.

Further support for rejection of Robinson's argument is found in the 1972 revision of the Manual of Office Procedures for Bankruptcy Clerks*fn1 which provides that "where . . . papers are offered for filing without the proper fee, they should nevertheless be accepted for filing and a notation made on the paper itself that the filing fee has not been paid. The matter should then be called to the referee's attention." Thus it appears that the normal practice of bankruptcy courts is to accept papers for filing whether or not filing fees have been paid.

Finally, we note that the purpose of a filing deadline is to bring the bankruptcy proceeding to an end and to permit an expeditious determination of whether there is any reason why the bankrupt should not be discharged. Here this purpose was fully accomplished by the bank's act of filing its objections within the required time period. Whether the filing fees were paid on that day, the next day or the next week does not effect the fulfillment of the deadline's purpose. Accordingly, we hold that the objections were timely filed.

II.

Robinson's second claim is that the district court erred in sustaining the referee's refusal to issue a discharge. The referee had concluded that Robinson had knowingly and fraudulently made a false oath in a bankruptcy proceeding. Under the Bankruptcy Act such a false oath is a ground for denying a discharge. Bankruptcy Act § 14(c), 11 U.S.C. § 32(c) (1970),*fn2 18 U.S.C. § 152 (1970).*fn3 Under the Act the person objecting to the discharge must "show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed [one of the acts that bar discharge]." Bankruptcy Act § 14(c), 11 U.S.C. § 32(c) (1970). Once the person opposing the discharge has done this, "the burden of proving that he has not committed [one of those acts] shall be upon the bankrupt." Bankruptcy Act § 14(c), 11 U.S.C. § 32(c) (1970).

In the Second Circuit we have held that "the words of the statute requiring that the testimony be given 'knowingly and fraudulently' mean no more than 'an intentional untruth in a matter material to the issue which is itself material. ' In re Melnick, 360 F.2d 918, 920 (2d Cir. 1966) (per curiam) quoting In re Slocum, 22 F.2d 282, 285 (2d Cir. 1927). Great weight is given to the referee's findings because he saw and heard the witnesses and his findings are not to be reversed unless they are clearly erroneous. In re Melnick, supra.

The testimony in question was given at an adjourned session of the First Meeting of the Creditors of the bankrupt which was held on April 16, 1971. At that proceeding Robinson was asked several questions concerning statements he allegedly made to officers of the bank in January 1971. At the subsequent hearing on the bank's objections to Robinson's discharge Spitzmiller testified that Robinson had told him in January that he had some $50,000 in accounts receivable. On April 16, however, ...


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