348 F2d 991 Branch v. Mills & Lupton Supply Company

348 F.2d 991

Lewis N. BRANCH, Individually and d/b/a Dream Shell Homes, Bankrupt-Appellant,
MILLS & LUPTON SUPPLY COMPANY, Objecting Creditor, Appellee.

No. 16095.

United States Court of Appeals Sixth Circuit.

July 21, 1965.

James S. Hyde, Jr., of Wilkerson & Hyde, Chattanooga, Tenn., for appellant.

W. B. Luther, Chattanooga, Tenn. (Cunningham, Crutchfield & Luther, Chattanooga, Tenn., on the brief), for appellee.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and MATHES, Senior District Judge.*


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The bankrupt, who was engaged in the business of building shell homes, admitted that he furnished false affidavits for the purpose of obtaining a loan. One of the creditors filed specifications of objections to his discharge.


The referee in bankruptcy sustained the objections to the discharge in a memorandum opinion containing findings of fact and conclusions of law, saying:


"One of the objects of the Act is to release an honest and insolvent person from his debts. From this evidence it does not appear that this bankrupt was honest in his dealings with his creditors and the public. While he claims that it was a recognized practice of the trade and that he had made this same affidavit in many other cases, that does not cure the fact that he swore falsely to a material fact for the purpose of obtaining a loan. The giving of an oath, either written or oral, should be treated as sacred. This bankrupt's act of swearing falsely for the purpose of obtaining a loan is not indicative of such honesty as Congress intended to protect.


* * * * * *


"I find as a fact that the bankrupt swore falsely, or made a false statement in writing, to material fact for the purpose of obtaining credit or property from Family Pride Homes, Inc., in Atlanta, Georgia, and that he knew at the time these statements were made they were false. I further find that Family Pride Homes, Inc., to whom the statements were made, relied upon them in extending the credit."


On petition to review, District Judge Frank W. Wilson held the findings of the referee to be correct in all respects, in a comprehensive opinion reported at 242 F.Supp. 534.


We find that the pertinent facts and applicable law are correctly set forth in the opinion of the district court. Concurrent findings of fact by a referee and a district judge will not be set aside on appeal "on anything less than demonstration of plain mistake." In re Berman & Company, Bankrupt, 343 F.2d 125, 126 (C.A. 6); In re D. I. A. Sales Corporation, 339 F.2d 175, 178 (C.A. 6).

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William C. Mathes, Senior District Judge, Southern District of California, sitting by designation