Opinion
No. 16620.
December 20, 1934.
Proceeding in the matter of James M. Hopkins and James M. Hopkins doing business as the Hopkins Chevrolet Company, bankrupt, wherein bankrupt filed petition for an order reopening the bankrupt estate under Bankruptcy Act § 2(8), 11 USCA § 11(8).
Petition dismissed.
Daniel P. Scannell, of Dunkirk, N. Y., for bankrupt.
The District Court in which the adjudication in bankruptcy is made and in which the discharge is granted has power, in its discretion, to reopen the closed estate, without notice at any time [In re Rochester Sanitarium Baths Co. (C.C.A.) 222 F. 22; In re Schreiber (C.C.A.) 23 F.2d 428; certiorari denied Schreiber v. Public Nat. Bank Trust Co., 277 U.S. 593, 48 S. Ct. 529, 72 L. Ed. 1005; In re Paine (D.C.) 127 F. 246, 248; In re Levy (D.C.) 259 F. 314], upon the presentation of a verified petition, supported by affidavit, of the bankrupt [In re Graff (C.C.A.) 255 F. 241], or of a creditor who duly filed and proved his claim in the bankruptcy proceedings [In re Schreiber, supra; In re Graff (C.C.A.) 250 F. 997; Schofield v. Moriyama (C. C.A.) 24 F.2d 473, 475] from which it satisfactorily appears that the estate has not been fully administered [Bankruptcy Act § 2, subd. 8 (11 USCA § 11(8); In re Schreiber, supra; Schofield v. Moriyama, supra; In re Newton (C.C.A.) 107 F. 429; In re O'Connell (C.C.A.) 137 F. 838; In re Lighthall (D.C.) 221 F. 791], and on no other ground. In re Spicer (D.C.) 145 F. 431; In re Sayer (D.C.) 210 F. 397; In re Newton, supra. Neither the bankrupt nor adverse claimants should be permitted to oppose an application of a creditor to reopen the case. In re Paine, supra; Hunter v. Commerce Trust Co. (C.C.A.) 55 F.2d 1.
The procedure, upon reopening the case, is for the district judge to refer the matter to the proper referee, who must thereupon call a meeting of creditors to select a new trustee inasmuch as the old trusteeship is not revived by the reopening. Bankruptcy Act, § 44a (11 USCA § 72(a); In re Rochester Sanitarium Baths Co., supra.
In this case, the petition is made ex parte by the bankrupt. It appears from the petition that he was adjudicated bankrupt on December 22, 1930; that a first meeting of creditors was held on January 9, 1931, at which time Howard P. Roberts was appointed trustee; that the discharge was granted July 10, 1931, and the case was closed on October 8, 1931. The petition also sets forth that certain real property owned by the bankrupt and his wife as tenants by the entirety was surrendered to his trustee and that the referee determined that the interest of the bankrupt therein was of no value, but that the trustee did not abandon the property and no order of abandonment was entered.
The bankrupt asks for an order reopening the case "and reappointing Howard P. Roberts, as Trustee, for the purpose of abandoning the said real estate." There is no power in this court to reopen the case for the purpose stated nor to reinstate the trustee.
The application is denied, and the petition dismissed.