In re Berghorst , 24 F. Supp. 494 ( 1938 )

RAYMOND, District Judge.

On the 24th day of November, 1936, petitioner was duly adjudicated bankrupt. No attempt was made to file application for discharge until May 12, 1938, upon which date a petition was filed praying for extension of six months for this purpose. The ground alleged in the petition is that bankrupt “was unavoidably prevented from filing his application for discharge within the period of thirteen months after date he was adjudged bankrupt, by reason of the fact that his attorney, John R. Dethmers, who represented him in this matter, erroneously believed and advised petitioner that the period allowed by said Acts for the filing of such application was eighteen months after the date of his adjudication of bankruptcy.”

Objections to the granting of said application were filed by bankrupt’s principal creditor. Briefs have been submitted and bankrupt’s attorney has filed his affidavit in further support of the petition for extension, wherein he states “that deponent desired to delay filing the application for discharge until such suit for Leah Parker might be brought and determined in the state court; that said Leah Parker appears to be delaying the instituting of such suit for the purpose of escaping these bankruptcy proceedings and until after the application for discharge is filed and such discharge ordered by this Court.”

Various interpretations have been placed upon the words “unavoidably prevented” as used in Section 14 of the Bankruptcy Act, 11 U.S.C.A. § 32. See Gilbert’s Collier on Bankruptcy (4th Ed.) sec. 436. In sec. 3167, Remington on Bankruptcy (4th Ed.), it is stated that,—

“For a bankrupt to be ‘unavoidably prevented’ some extremely compelling outside force must have acted upon him.

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“The failure to file the application within the year must not have been from ‘choice’, even though by advice of counsel, but must have been, within reason, unavoidable.”

In the present case, there appears to be the combination of erroneous advice of counsel accompanied by intentional delay to await the conclusion of another suit.

Careful examination of the cases cited in briefs of counsel leads the court to the clear conclusion that in the exercise of a sound discretion, there is no justification for granting the extension as prayed. See In re Schaefer, 9 Cir., 80 F.2d 387; In re Adams, D.C., 12 F.Supp. 755; In re Goldstein, D.C., 40 F.2d 539; In re Taylor, 2 Cir., 22 F.2d 499. An order will accordingly be entered denying the prayer of the petition.