Riccio v. General Motors Acceptance Corp.
Riccio v. General Motors Acceptance Corp.
Opinion of the Court
The plaintiff, as trustee of the bankrupt estate of Jamare Sewing Machine Company, Inc., hereinafter referred to as Jamare, which had on February 7, 1961, filed a petition in bankruptcy and was adjudicated a bankrupt, brings this action under § 60 of the Bankruptcy Act (30 Stat. 562, as amended, 11 U.S.C. § 96) to recover because of an alleged preferential transfer suffered or made by the bankrupt on February 3, 1961, within four months before the filing of the petition and when the bankrupt was insolvent, the effect of which was to enable the defendant to obtain a greater percentage of its debt than other creditors of the same class. It is further alleged that at the date of the transfer the defendant had reasonable cause to believe that the enforcement of the transfer would work a preference within the meaning of the act. In paragraph 5 of the complaint, the plaintiff alleged that “on [February 3, 1961] Jamare . . . was insolvent and was indebted to defendant and divers other creditors of the same class upon unsecured indebtedness provable in bankruptcy.” The answer was in effect a general denial.
The controlling facts, briefly stated, are as follows: On April 21, 1960, Jamare entered into a retail instalment contract with Michael J. Cozy, Inc., the defendant’s assignor, for the purchase of a new 1960 Oldsmobile automobile for a total time price of $4104.08, which, after certain deductions which were agreed upon by the parties, left a time
The trial court found in paragraphs 10, 11 and 12, as subordinate facts and not as conclusions drawn from subordinate facts, that (1) the defendant’s assignor “was not an unsecured creditor,” (2) the defendant “was not in the same class with other unsecured creditors,” and (3) the defendant “did not obtain a greater percentage of [its] debt than other creditors of the same class.” In rendering judgment for the defendant, the court concluded that (1) the repossession of the automobile did not constitute a voidable preference 'within the meaning of the Bankruptcy Act, and (2) the plaintiff failed to sustain his burden of proof. The assignments of error attack paragraphs 10, 11 and 12 of the finding and the conclusions reached by the trial court.
“Briefly stated, the elements of a preference under § 60a consist of the following: a debtor (1) making or suffering a transfer of his property,
“In order to prove that a preference be effected under § 60 of the Act, a transfer of property must be made or suffered by the debtor ‘while insolvent.’ ” 3 Collier, op. cit. ¶ 60.30, p. 889. “As in the other elements of a preference, the burden of proof is on the trustee to show insolvency at the time of the transfer.” Id. ¶ 60.30, p. 893. The transfer may be voluntary or involuntary. The term “suffered,” as used in the act, does not require any conscious participation by the debtor. See Warner v. Dworsky, 194 F.2d 277, 280 (8th Cir.). The insolvency must be in the bankruptcy sense, as defined by §1(19) of the Bankruptcy Act (30 Stat. 544, §1[15], as amended, 11 U.S.C. §1[19]), which reads as follows: “A person shall be deemed insolvent within the provisions of this title whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts.” See Levy v. Carter Rice & Co., 136 Conn. 216, 219. This has been called “a balance sheet definition” and requires a weighing of assets and liabilities. Engelkes v. Farmers Co-operative Co., 194 F. Sup. 319, 327 (S.D. Iowa). It is a mathematical test, static in character. Langham, Langston & Burnett v. Blanchard, 246 F.2d 529, 532 (5th Cir.). “Under the Bankruptcy Act inability to meet current obligations is not insolvency, however. The test, rather, is the relation of the debtor’s total assets to its liabilities.” Cusick v. Second National Bank, 115 F.2d 150, 155 (D.C. Cir.). “In most circumstances the question of insolvency will be one of fact and
Applying the foregoing principles to the controverted issue of insolvency at the time of the transfer in the present case, we point out that it was incumbent on the trustee to introduce into evidence a statement of the assets and liabilities of the bankrupt. See Kimball v. Dresser, 98 Me. 519. There is nothing in the record before us showing the financial condition of the bankrupt, such as inventories, bankruptcy appraisals, trustee’s reports, orders confirming bankruptcy sales, or even the bankrupt’s own schedules. See Lynch v. Bronson, 80 Conn. 566, 568. It was the duty of the trustee not only to plead but to prove, and for the court to make a finding, that on February 3, 1961 — the date of the alleged transfer — the bankrupt’s debts exceeded the aggregate fair value of its assets. A failure to prove and find this indispensable and essential element must result in a finding that the preference, if any, is not voidable. It becomes unnecessary, in the view which we have taken of this case, to consider other legal propositions argued and briefed by the trustee.
There is no error.
In this opinion Pruyít and Kosicki, Js., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.