219 F2d 795 Commercial Savings Bank of Adrian Michigan v. Lockwood

219 F.2d 795

The COMMERCIAL SAVINGS BANK OF ADRIAN, MICHIGAN, Appellant,

v.

Emil LOCKWOOD, Trustee of Bradley Builders, Inc., a Michigan Corporation, Appellee.

No. 12263.

United States Court of Appeals, Sixth Circuit.

February 14, 1955.

Edwin L. Baker, Adrian, Mich., for appellant.

Edward N. Mack, Adrian, Mich., for appellee.

Before ALLEN, MILLER and STEWART, Circuit Judges.

PER CURIAM.

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1

This appeal was heard upon the record, briefs and arguments of counsel for the respective parties;

2

And it appearing that the Referee in Bankruptcy made findings of fact and conclusions of law that the chattel mortgage executed by the bankrupt, Bradley Builders, Inc., on March 11, 1953 to the appellant, The Commercial Savings Bank, of Adrian, Michigan, to the extent of the excess over $1,529.35 which was new money loaned by the appellant to the bankrupt at the time of its execution, was made, at a time when the bankrupt was insolvent, to secure an antecedent indebtedness from the bankrupt to the appellant; that said antecedent indebtedness was not a secured indebtedness as contended by the appellant, and the mortgage did not therefore release and replace an existing security; that adjudication in bankruptcy followed thereafter on April 17, 1953 before the expiration of four months after the execution of the mortgage; that the appellant had, at the time of the execution of the mortgage reasonable cause to believe that the bankrupt was insolvent within the meaning of Section 60, sub. b of the Bankruptcy Act, and that said mortgage, to the extent of said excess was a voidable preference within the meaning of Section 60, sub. a of the Bankruptcy Act;

3

And the District Judge, on Petition to Review, having found said findings of fact to be supported by the record and not clearly erroneous, and having affirmed the order of the Referee holding invalid the lien of said chattel mortgage to the extent of said excess;

4

And this Court also being of the opinion that the findings of fact are not clearly erroneous and that there was no error in the conclusions of law based thereon, Section 96, subs. a and b, Title 11, U.S.Code Annotated; In re Penfield Distilling Co., 6 Cir., 131 F.2d 694;

5

It is ordered that the judgment of the District Court be affirmed.