d. Practice. The practice in voting at creditors' meetings is indicated in what goes before. Claims are called for allowance at the first meeting, and should be at every continuance day. At the same time, appearances, either in person, by attorneys, or by agents or proxies, should be noted. If any power of attorney or proof of debt is objected to, the referee will often determine the question summarily. Sometimes such matters are postponed until all other claims are called, to determine whether the objections will affect the result. Votes are usually taken viva voce,52 and, at the conclusion, the result announced by the referee, he at the same time noting in his minutebook .the vote taken and the subject decided.53 After this is done, other votes cannot be received, nor should a creditor be allowed to change his vote.5 Referees usually have filing and approval stamps, which, when imprinted on the proofs or powers, indicate the action taken. There are, of course, slight variances in practice in every referee district. Any method which will permit an expression of the wishes of all creditors entitled to vote, without suggestion from or interference by the presiding referee, is all that is required. The effect of a disagreement of creditors on an election of trustee is considered elsewhere.55 52. Compare In re Pearson, Fed. Cas. 10,878. 53. The use of Form No. 22 is not general. 54. In re Schieffer, Fed. Cas. 12,445; In re Lake Superior, etc., Co. Fed. Cas. 7,997. 55. See Bankr. Act, § 44. SECTION FIFTY-SEVEN PROOF AND ALLOWANCE OF CLAIMS § 57. Proof and Allowance of Claims.- a Proof of claims shall consist of a statement under oath, in writing, signed by a creditor setting forth the claim, the consideration therefor, and whether any, and, if so, what securities are held therefor, and whether any, and, if so, what payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor. b Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instrument is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim. After the claim is allowed or disallowed, such instrument may be withdrawn by permission of the court, upon leaving a copy thereof on file with the claim. c Claims after being proved may, for the purpose of allowance, be filed by the claimants in the court where the proceedings are pending, or before the referee if the case has been referred. d Claims which have been duly proved shall be allowed, upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest, or their consideration be continued for cause by the court upon its own motion. e Claims of secured creditors and those who have priority may be allowed to enable such creditors to participate in the proceedings at creditors' meetings held prior to the determination of the value of their securities or priorities, but shall be allowed for such sums only as to the courts seem to be owing over and above the value of their securities or priorities. f Objections to claims shall be heard and determined as soon as the convenience of the court and the best interests of the estates and the claimant will permit. g The claims of creditors who have received preferences, voidable under section sixty, subdivision b, or to whom con 1 veyances, transfers, assignments, or incumbrances, void or voidable under section sixty-seven, subdivision e, have been made or given,* shall not be allowed unless such creditor shall surrender such preferences, conveyances, transfers, assignments, or incumbrances.* h The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance. i Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor. j Debts owing to the United States, a State, a county, a district, or a municipality as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued thereon according to law. k Claims which have been allowed may be reconsidered for cause and reallowed or rejected in whole or in part, according to the equities of the case, before but not after the estate has been closed. 7 Whenever a claim shall have been reconsidered and rejected, in whole or in part, upon which a dividend has been paid, the trustee may recover from the creditor the amount of the dividend received upon the claim if rejected in whole, or the proportional part thereof if rejected only in part. m The claim of any estate which is being administered in bankruptcy against any like estate may be proved by the trustee and allowed by the court in the same manner and upon like terms as the claims of other creditors. * Amendments of 1903 in italics. n Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, and then within sixty days after the rendition of such judgment: Provided, That the right of infants and insane persons without guardians, without notice of the proceedings, may continue six months longer. Analogous provisions: In U. S.: As to who may make proof, Act of 1867, § 22, R. S., § 5078; Act of 1841, § 5; and take proof, Act of 1867, § 22, R. S., § 5079; Act of 1841, § 5; As to manner of proof, Act of 1867, § 22, R. S., § 5077; Act of 1841, §§ 5, 7; As to inspection and allowance of claims, Act of 1867, § 22, R. S., §§ 5080, 5081; Act of 1841, §§ 5, 7; Act of 1800, §§ 16, 37, 39; As to postponing allowance of claims objected to, Act of 1867, § 23, R. S., § 5083; As to proof of preference claims, Act of 1867, § 23, R. S., § 5084. In Eng.: Act of 1914, Schedule II; General Rules 250-263. In Can.: Act of 1919, §§ 45, 46, 47, 48, 49, 52, 53; General Rules 115-118. Cross-references: To the law: Definitions of creditor, § 1 (9); of debt, § 1 (11); of secured creditor, § 1 (23). Jurisdiction to allow, disallow and reconsider claims, § 2 (2). Bankrupt to examine claims and to notify trustee of proof of false claim, § 7-a (3) (7). Provable debts only are dischargeable, § 17. Presentation of false claim for proof, punishment, § 29-b. Allowance or disallowance of claims at first meeting of creditors, § 55-b. Creditors holding allowed claims to vote, § 56-a (3). Notice to creditors of all meetings of creditors, § 58-a (3). Offsets and counterclaims, §§ 60-c, 68; as to codebtors, § 16. To the General Orders: clerk, XX. Proofs of claims to be filed with either referee or Depositions to prove claims; assigned claims; contingent claims, XXI. Compromise or settlement of claims, XXVIII. To the Official Forms: List of debts proved at first meeting, No. 19. Proof of unsecured debt, No. 31; of secured debt, No. 32; of debt due corporation, No. 33; of debt by partnership, No. 34; by agent or attorney, No. 35; of secured debt by agent, No. 36. Affidavit of lost bill or note, No. 37. Order reducing claim, No. 38; expunging claim, No. 39. To the Supplementary Forms: (Vol. III, post) Nos. 170-227. SYNOPSIS OF SECTION PROOF AND ALLOWANCE OF CLAIMS I. Proof and Allowance in General, 1122. a. Scope of section, 1122. b. Comparative legislation, 1123. c. Distinction between proof and allowance of claims, 1123. II. Proof of Claims Generally, 1125. a. General requirements, 1125. b. Requirements of general orders, 1127. c. Requirements of official forms, 1127. d. Statement of consideration, 1128. e. Before whom proofs taken, 1130. f. Who may make proof, 1130. (1) IN GENERAL, 1130. (2) PERSONAL REPRESENTATIVES, 1131. (3) PROOF BY AGENT, ATTORNEY OR PROXY, 1131. g. Against whom made, 1132. h. Assigned claims, 1132. (1) IN GENERAL, 1132. (2) RIGHTS OF CLAIMANTS OF ASSIGNED CLAIMS, 1132. i. Written instruments, 1134. j. Debts created by fraud, 1135. k. Claims by one bankruptcy estate against another, 1136. (1) IN GENERAL, 1136. (2) CASES WHERE AMENDMENT WILL BE ALLOWED, 1138. (3) AMENDMENT AFTER EXPIRATION OF YEAR, 1139. n. Withdrawal of claim, 1141. o. Filing proofs of claims, 1141. p. Proof as evidence; prima facie case, 1142. III. Proof of Secured, Priority and Preferred Claims, 1143. a. In general, 1143. b. Secured claims, 1143. (1) IN GENERAL, 1143. (2) WHAT CONSTITUTES A SECURED CREDITOR, 1144. (3) CLAIM SECURED BY OTHER FUND OR ESTATE OR BY THIRD PARTY, 1144. (4) SURRENDER OF SECURITY, 1145. (5) RETENTION OF SECURITY; EFFECT ON PROOF OF CLAIM, 1147. |