In re Aker

CAVANAH, District Judge.

The petitioner, a resident of Idaho engaged chiefly as housewife, files her petition under section 74 of the amendment to the National Bankruptcy Act approved March 3, 1933 (11 USCA § 202), stating that she is insolvent and unable to meet her debts as they mature and desires to effect a composition or extension of time to pay her debts. A schedule containing an inventory of all the property and' debts is attached to the petition and in which the Amsterdam Savings Bank, mortgagee, holds a mortgage in the sum of $3,000 against certain real property, situate in the comity of Montgomery, state of New York, and prays for an order enjoining the bank from proceeding further in the foreclosure of the mortgage. It is further set forth that the bank about May 20, 1933, instituted the foreclosure action, and, unless restrained, the bank will proceed to obtain a decree foreclosing all of her rights and title in the property without redemption. The amended act provides for the filing of such petition, and grants power to the court to enjoin secured creditors who may be affected by the extension from proceeding in any court for the enforcement of their claims until the extension has been confirmed. The bank appeared by filing its answer and affidavits upon which it submits its contentions. Upon the hearing the evidence, in substance discloses that the bank holds a mortgage in the principal sum of $3,000 and interest upon the real estate in question situate in Montgomery county, state of New York; that under an arrangement between the petitioner and the bank the bank was authorized to rent and collect the rent of the premises and apply it upon its mortgage debt. It collected the sum of $145.50 as rental, and has applied that amount upon its interest and taxes paid. The amount of the delinquent taxes was $156.60 and the amount of interest due is $82.50. The testimony of the petitioner shows that the bank applied out of the rents collected $88.13 as interest, $4.75 on repairs on the premises, and $14.55 as commission charged for collecting the rent, making a total of $107.43.

The evidence further discloses that at the present time the tenants are unable to pay the rent. After deducting the amount collected as rental of $145.50 from the total amount of $3,239.10, which represents the principal and interest of the mortgage and taxes, there is a balance of $3,093.60 due tire bank upon the indebtedness of the petitioner. It seems the taxes for the present year have not been paid. Now the question arises as to whether the petitioner should be granted an extension of time under the act in which to pay the indebtedness of the bank, and, as there will only accumulate in addition to the principal a sum covering the interest and taxes for the year 1933, which will not, under the evidence, exceed the value of the property securing the same, it would seem that the purpose of the amendment to the National Bankruptcy Law applies to such at ease as this, and the prayer for a restraining order will be granted in which the Amsterdam Savings Bank is enjoined from proceeding further as prayed for in the petition, until the 1st day of December, 1933.