In re JENSEN; PEOPLES FINANCE CO. v. JENSEN, 200 F.2d 58

DUFFY, Circuit Judge. Debtor is a yardmaster employed by El-gin, Joliet and Eastern Railway, and has been in the employ of that company for more than 20 years. On October 30, 1950, debtor filed a petition and a plan for ex-tention under

Chapter XIII (Wage Earners’ Plans), Bankruptcy Act, 11 U.S.C.A. § 1001 et seq. The district court made an order of general reference on January 4, 1951. A meeting of creditors was thereafter held and several times adjourned. By the minute order of March 13, 1951, the referee hele! the debtor ineligible for relief under

Chapter XIII because debtor’s income was in excess of the S3,600 limitation provided in that

chapter on the date of the filing of the petition. The debtor on March 13 filed a petition to amend the proceedings to

Chapter XI (Arrangements), Bankruptcy Act, 11 U.S.C.A. § 701 et seq., and a notation in the docket shows that the case was transferred to

Chapter XI on the court’s own motion. On April 5, 1951, a formal order was entered which (1) denied the petition under

Chapter XIII, (2) gave debtor leave to amend to

Chapter XI proceedings, and (3) ordered that such amendment from

Chapter XIII to

Chapter XI be approvéd. Amended pleadings were filed on April 10, 1951. Debtor paid an additional filing fee as provided for proceedings under

Chapter XI. A new petition under said

chapter was presented.' The plan, as filed, was identical to the plan which had theretofore been proposed under

Chapter XIII. Under the plan, scheduled creditors were to be paid in full out of moneys to be received by a disbursing agent. Debtor authorized his employer to deduct $35 from his wages on each payday, and to turn such funds over to a disbursing agent. The Peoples Finance Company, which has a claim of $342.-52, was the only creditor which objected to the confirmation of the plan. An order was entered in the

Chapter XI proceedings, adopting as claims and consents in such proceedings the claims and consents which had theretofore been filed in the

Chapter XIII proceedings. A majority, in number and amount, of the creditors of debtor accepted debtor’s plan. The referee determined that debtor, as a natural person, came within the purview of

Chapter XI, and that it was permissible for him to file a plan of arrangement under that

chapter for an estate out of his future earnings. The referee likewise determined that the plan of arrangement should be confirmed notwithstanding a previous discharge in bankruptcy by debtor within a six year period. The referee confirmed the plan of arrangement under

Chapter XI, with the provision that the order of confirmation or any amendments thereafter entered would not constitute a discharge of the scheduled liabilities of the debtor until a showing had been made to the court that all the terms of the plan of arrangement or order of confirmation had been complied with, and reserved jurisdiction in the court to modify, alter, rescind, or amend the order at any time. The Finance Company petitioned for a review of said order, and the district court affirmed. It is from this order of the district court that this appeal is taken.

Debtor’s employer has continued regularly to make payments to the disbursing agent out of debtor’s earnings and a sizeable fund has been established; however, no payments have been made to debtor’s creditors due to the pending appeal.

Although the prospects of payment in full of the Finance Company’s claim as well as all other claims appear to be excellent, the Finance Company persists in this appeal, stating that it desires to put its claim into judgment in' the State court, stating, “This it deems imperative because of the extra-hazardous employment of the debtor.” The Finance Company urges a reversal based on three grounds: first, that a Bankruptcy Court has no power or authority to amend a

Chapter XIII Wage Earner’s Plan to a

Chapter XI proceeding; second, that a Bankruptcy .Court has no authority to confirm a

Chapter XI Arrangement, providing for an estate to be created solely out of future' earnings of debtor.; and third, that the previous discharge of debtor in a voluntary bankruptcy proceeding within six years of filing the petition herein is a bar to the

Chapter XI proceeding. The first sections of

Chapter XI and XIII, Bankruptcy Act, respectively provide: “The provisions of this

chapter shall apply exclusively to proceedings under this chapter.” Text-writers have commented on these sections. 7 Remington on Bankruptcy, 5th Ed., Sec. 3054.7, states, “The provisions of Chapter’ XI, Sections 301 to 399 (11 U.S.C.A. Secs. 701 to 799), by the terms of the statute are limited to proceedings brought under that

Chapter of the Bankruptcy Act.” To the same effect: 8 Collier on Bankfuptcy, 14th Ed,, Sec. 1.01; 9 Collier on Bankruptcy, 14th Ed., Sec. 21.01; 7 Remington on Bankruptcy, 5th Ed., Sec. 3129.2. The Finance Company urges that as the provisions of

Chapter XIII apply exclusively to proceedings under that chapter, an amendment of a

Chapter XIII petition and .proceedings thereunder to a

Chapter XI proceedings may not be permitted. We do not agree. By General. Order 37, 11 U.S.C.A. following

section 53, the Federal Rules of Civil Procedure, 28 U.S.C.A., are made applicable in bankruptcy so far as practicable. Under federal civil practice the fight to amend is freely granted. Furthermore a bankruptcy court is a court of equity, and is guided by equitable practices and. principles, except in so far ,as they-are inconsistent with the act. Securities & Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 455, 60’S. Ct. 1044, 84 L.Ed. 1293. We hold that if 'the petition filed herein under

Chapter XI could originally have been properly filed as a

Chapter XI proceeding, then the fact that it was originally filed under

Chapter XIII and was designated as an amended petition is o-f no moment. The test is: Does it disclose on its face a proper petition and plan under

Chapter XI of the Bankruptcy Act? The Finance Company insists that future earnings are not,, in contemplation of the Bankruptcy Act, property, and the authorities seem to be in accord. In Local Loan Co. v. Hunt, 292 U.S. 234, 243, 54 S.Ct. 695, 698, 78 L.Ed. 1230, the court said, “The earning power of an individual is the power to create property; but it is not translated into property within the meaning of the bankruptcy act until it has brought earnings into existence.” In McKeever v.

Local Finance Co., 5 Cir., 80 F.2d 449, 452, it is stated, “Future earnings are not, in contemplation of the bankruptcy law, property.” In Wood v. Scott, 6 Cir., 180 F.2d 252, 253, the court said, “The bonus proposal constituted an- offer for assignment of future earnings. * * * Title to the bonus had not vested in the bankrupt * * *. It was no part of the bankrupt estate’. An arrangement binding a debtor’s future earnings is unenforceable.” The plan proposed was a valid Wage Earner’s -Plan under

Chapter XIII, Bankruptcy Act. The application of future wages to a liquidation of debts is contemplated under

Chapter XIII of the Bankruptcy Act, but

Chapter XI does not contain a provision authorizing such relief, and we must therefore hold that such a plan may not be allowed as the basis of an Arrangement. We are further fortified in' our

interpretation of the intent of Congress when we consider that Congress first placed, a limitation of $3,600 -and then $5,000 of annual gross earnings as the maximum which a person might earn who desired to take advantage of the benefits provided in

Chapter XIII. However, the decision of the referee, affirmed by the district court, that debtor herein was entitled to liquidate his liabilities under a plan contemplated by the provisions of

Chapter XIII, 'irrespective of the excess of his earnings over the limitation imposed by that chapter, by the mere device of filing such a plan under

Chapter XI, would entirely nullify the limitation which Congress imposed in Sec. 606(8) of the. Bankruptcy Act, 11 U.S.C.A. § 1006(8). A further reason why the debtor cannot be granted relief under

Chapter XI proceedings is because he was granted a discharge in voluntary bankruptcy on April 4, 1947, which was within 6 years of the date of the confirmation of the plan under

Chapter XI. 6 Amer.Juris., 1950 Ed., Par. 1313, p. 1319, states, “A prior discharge of a debtor in bankruptcy, granted within six years, is a good ground1 of objection to the confirmation of an arrangement.” 8 Collier on Bankruptcy, 14 Ed., Sec. 9.19, states: “The confirmation of an arrangement operates as a discharge. Because of Sec. 366(4), a debtor who would he unable to obtain a discharge in an ordinary bankruptcy proceedings cannot obtain a discharge by means of the confirmation of an arrangement in a

Chapter XI proceeding.” The confirmation of an arrangement operates as a discharge under a

Chapter XI proceeding. The provisions of Sec. 15c(

S) are made applicable to

chapter XI proceedings by Sec. 366(4). “In

Chapter XI Congress made certain that no doubt could exist * * * whether the confirmation of an arrangement operates as a discharge.

Section 371 specifically provides that confirmation shall have such effect; * * 8 Collier on Bankruptcy, 14th Ed., Sec. 9.32, p. 1262. Sec. 371 of

Chapter XI provides, as far as applicable: “The confirmation of an arrangement shall discharge a debtor from all his unsecured debts and liabilities provided for by the arrangement * * An attempt -was made herein to incorporate the provisions of Sec. 660 of

Chapter XIII, 11 U.S.C.A. § 1060, deferring the discharge as hereinbefore stated. However, there is no similar provision under

Chapter XI and Congress apparently decided that the provisions of

Chapter XIII should be available only to those earning less than a certain stated gross income. We do not think the referee had any authority in a proceeding under

Chapter XI to utilize a provision of

Chapter XIII to defer a discharge until the provisions of the plan had been carried out. The order of the district court affirming the referee’s order confirpaing the plan under

Chapter XI is reversed, and the referee’s order of April 5, 1951, is vacated and set aside together with proceedings taken thereunder, and the matter is remanded to the referee for further proceedings according to law. . On April 7,1047, debtor had been discharged in a regular bankruptcy proceeding.