In re Lang , 10 F. Supp. 606 ( 1935 )

CAMPBELL, District Judge.

This is a motion brought on by an order to show cause why an order should not be made vacating and setting aside the order of December 21, 1934, staying the sheriff of the county of Richmond from executing a writ dispossessing said Elizabeth Lang from the premises 3295 Amboy Road, Oak-wood Heights, Staten Island, and why the petition of Elizabeth Lang should not be dismissed, or in the alternative why the name of Zenaid C. During Cox should not be stricken out of the petition as a creditor, and why the property at 3295 Amboy Road, Oakwood Heights, Staten Island, should not be stricken out of the list of assets of the said debtor.

On December 20, 1934, the said debtor, Elizabeth Lang, filed in the office of the clerk of this court a petition under section 74 of the Bankruptcy Act, as amended by Act June 7, 1934, § 2 (11 USCA § 202), in which she alleged that the names and addresses of her creditors were Mrs. Zenaid C. During Cox, 30 Llewellyn Place, West Brighton, S. I., Mrs. Eleanor A. Garbe, 15 Park Row, N. Y., and Mr. Edmund Schaefer, 537 Bay Street, Stapleton, Staten Island, and that a description ,and location of her assets was residence 3295 Amboy Road, complete furnishings of home 3295 Amboy Road, personal effects 3295 Amboy Road.

While the proceedings are entitled “Elizabeth Lang,” the petition and verification are signed “Elizabeth Lange.”

On the day the petition was filed, the order was signed extending the time to file schedules 10 days.

No order referring this matter to a referee was presented to this court.

On December 21, 1934, an order was signed staying the sheriff of the county of Richmond from executing a writ dispossessing the said Elizabeth Lang from her home at 3295 Amboy Road, Oakwood Heights, S. I., N. Y.

The petition herein was not filed in good faith.

The attorney who filed the petition, however, was a stranger to the foreclosure action and I will assume received his information from the petitioner.

The petitioner was not the owner of the premises 3295 Amboy Road at the time the petition was filed.

The premises in question had been, by Charles A. Mulligan, Jr., a referee in an action in the State Supreme Court to foreclose a mortgage on said premises, in which action said Zenaid C. During Cox was plaintiff; and said Elizabeth Lang and others were defendants, sold to said Zenaid C. During Cox, and said referee had delivered to the purchaser said Zenaid C. During Cox a deed of said premises as such referee, dated the 26th day of November, 1934, which deed had been duly recorded in the office of the clerk of the county of Richmond on the 27th day of November, 1934, in Liber 766 of Deeds, page 256.

The petitioner, Elizabeth Lange, or Lang, has refused to surrender possession, and the sheriff was not seeking to execute a warrant of dispossess, but had been ordered to execute a writ of assistance to put the purchaser, Zenaid C. During Cox, in possession.

The title of the said Zenaid C. During Cox cannot be destroyed by the simple filing of a petition under section 74 of the Bankruptcy Act, in which she is an adverse holder, and having acquired title as a bona fide purchaser for value, any claim that petitioner might have as against her or the property could only be litigated in a plenary action, if she is not already estopped by the judgment in the foreclosure action, and petitioner has no right, to withhold possession of the property from the owner, the said Zenaid C. During Cox, which I am convinced was the sole purpose of the filing of the petition and obtaining a stay.

The motion to vacate the order of December 21, 1934, staying the sheriff of the county of Richmond from executing a writ dispossessing the said Elizabeth Lange or Lang from the premises 3295 Amboy Road, Oakwood Heights, S. I., is granted.

The petition of said Elizabeth Lange or Lang, under section 74 of the Bankruptcy Act, being based upon the allegation that she is the owner of the said premises 3295 Amboy Road, which is the principal asset described, which is not true, and said petition not having been filed in good faith, the same is dismissed.

Submit order.