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IN RE SEMEL & CO.

May 23, 1968

In the Matter of SEMEL & CO., a corporation of the State of New Jersey, Debtor


The opinion of the court was delivered by: WORTENDYKE

 This action comes before me upon a petition of the National Newark & Essex Bank to review an Order made by the Honorable William H. Tallyn, Referee in Bankruptcy, dated January 12, 1968, denying a motion by the petitioner to file a proof of claim in the above-captioned matter.

 The relevant facts are not disputed by the respective parties. As set out by the Referee in his Certificate of Review, dated March 13, 1968, they are as follows:

 
"1. Semel & Co. filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on April 27, 1967.
 
2. The National Newark & Essex Bank was listed in this petition as one of the creditors.
 
3. On May 5, 1967 notice was given to creditors that the first meeting of creditors would be held on May 23, 1967, and that proofs of claims must be filed on or before November 23, 1967.
 
4. The National Newark & Essex Bank did not file a proof of claim within the six-month period expiring November 23, 1967.
 
5. On November 24, 1967 the Receiver filed a petition for authority to compromise the mortgage lien claim of National Newark & Essex Bank. Under the proposed compromise, the lien of the Bank would be limited to $25,000.00 and the balance of the Bank's claim would be allowed as a general unsecured claim.
 
6. Creditors were ordered to show cause why the Receiver should not be authorized to effect this compromise. On January 5, 1968, the adjourned return date of the order to show cause, the Receiver moved to discharge the order to show cause because of objections to the proposed compromise made by the debtor and by creditors, and I granted the Receiver's motion.
 
7. In the meantime, the National Newark & Essex Bank filed a motion for leave to file a proof of claim out of time; and on January 5, 1968 I denied this motion.
 
8. The petition for review of the order denying the motion by the Bank was timely filed.
 
9. Subsequently, the plan of arrangement proposed by Semel & Co. was confirmed, but deleted from the plan was paragraph 5 thereof which purported to reserve jurisdiction in the court, after confirmation, to determine the extent and validity of claims of secured creditors."

 Upon the foregoing facts, the Referee made the following Conclusions of Law:

 
"This proceeding was commenced by an original petition filed under Section 322 of the Bankruptcy Act. Section 355 provides that where a petition is filed under Section 322, subdivision n of Section 57 of the Act shall apply. Subdivision n of Section 57 states that claims which are not filed within six months ...

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