At page 595 Bankruptcy discharge does not release guarantor liability54 citing cases“the import of section 16 of the 1898 act is that the mechanics of administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve co-debtors of the bankrupt of their liabilities.”
- Timothy Blixseth v. Credit Suisse, 961 F.3d 1074 (9th Cir. 2020).publishedCREDIT SUISSE administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve co- debtors of the bankrupt of their liabilities.” Id. (alterations in original) (quoting Union Carbide Corp…
- In Re Linda Vista Cinemas, L.L.C., 442 B.R. 724 (Bankr. D. Ariz. 2010).published“The import of Section 16 [of the 1898 Act] is that the mechanics of administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve co-debtors of the bankrupt of their liabilities.” Und…
- In Re Dow Corning Corp., 244 B.R. 721 (Bankr. E.D. Mich. 1999).publishedCorp., 881 F.2d 1346, 1351 (5th Cir.1989), which was in turn quoting Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (per curiam), overruled by Specialty Equip., 3 F.3d at 1045-47); Arrowmill Dev., 211 B.R. at 507 (“[I]t…
- Star Phoenix Mining Co. v. West One Bank, 147 F.3d 1145 (9th Cir. 1998).publishedAs the Fifth Circuit has observed: “[A] creditor’s approval of the plan cannot be deemed an act of assent having significance beyond the confines of the bankruptcy proceedings.” Matter of Sandy Ridge Development Corp., 881 F.2d 1346, 1351…
- Star Phoenix Mining Co. v. West One Bank, 147 F.3d 1145 (9th Cir. 1998).publishedAs the Fifth Circuit has observed: "[A] creditor's approval of the plan cannot be deemed an act of assent having significance beyond the confines of the bankruptcy proceedings." Matter of Sandy Ridge Development Corp., 881 F.2d 1346, 1351…
- Spirco, Inc. v. Copelin (In Re Spirco, Inc.), 221 B.R. 361 (W.D. Pa. 1998).publishedAs the Seventh Circuit explained in Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982), “the mechanics of administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve c…
- Greenblatt v. Richard Potasky Jeweler, Inc. (In Re Richard Potasky Jeweler, Inc.), 222 B.R. 816 (S.D. Ohio 1998).publishedSee Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir. 1985); Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982); R.I.D.C.
- Duplitronics, Inc. v. Concept Design Elec. & Mfg., Inc. (In Re Duplitronics, Inc.), 183 B.R. 1010 (Bankr. N.D. Ill. 1995).publishedThe “import” of this provision is that “the mechanics of administering bankruptcy, no matter how suggestive, do not operate as a private contract to relieve co-debtors of the bankrupt of their liabilities.” Union Carbide Corp. v. Newboles,…
- Feuer v. Krasnyansky, 3 Mass. L. Rptr. 236 (Mass. Super. Ct. 1995).publishedSee also In re Sure-Snap Corp., 983 F.2d 1015 , 1019 (11th Cir. 1993); F.D.I.C. v. Municipality of Ponce, 904 F.2d 740, 747-48 (1st Cir. 1990); In re American Hardwoods, Inc., 885 F.2d 621, 625-26 (9th Cir. 1989); UnderhM v. Royal, 769 F.2…
- Mercantile Club, Inc. v. Scherr, 651 A.2d 456 (Md. Ct. Spec. App. 1995).publishedUnion Carbide v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (citing In re Kornbluth, 65 F.2d 400, 402 (2d Cir.1933)); see also Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985).
Show 35 more citing cases
- Monarch Life Ins. v. Ropes & Gray, 173 B.R. 31 (D. Mass. 1994).published(creditor’s approval of bankruptcy plan does not discharge bankrupt’s guarantors)
- In Re Monarch Capital Corp., 173 B.R. 31 (D. Mass. 1994).published(creditor's approval of bankruptcy plan does not discharge bankrupt's guarantors)
- Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Tasemkin, Inc., 172 B.R. 877 (N.D. Ill. 1994).publishedSee Latham v. Wells Fargo Bank, N.A., 896 F.2d 979, 984 (5th Cir.1990) (guarantor); In re Sandy Ridge Development Corp., 881 F.2d 1346, 1350-51 (5th Cir.1989) (guarantors); Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982).
- Dyrdal v. Lindfors Agency, Inc., 519 N.W.2d 236 (Minn. Ct. App. 1994).published“Bankruptcy discharge arises by operation of federal bankruptcy law, not by contractual consent of the creditors.” Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982).
- Silverman v. Eastrich Multiple Inv. Fund, L.P., 857 F. Supp. 447 (E.D. Pa. 1994).publishedAccordingly, “a Bankruptcy Court has no power to discharge the liabilities of a bankrupt’s guarantor who is not a party to the Chapter 11 proceedings.” Mellon Bank, 96 B.R. at 506 (citing Union Carbide Corp. v. Newboles, 686 F.2d 593, 595…
- LTV Corp. v. Aetna Cas. & Sur. Co. (In Re Chateaugay Corp.), 167 B.R. 776 (S.D.N.Y. 1994).published(the bankruptcy court has no power to discharge the liabilities of a bankrupt’s guarantor)
- Broadcast Capital, Inc. v. Davis Broad., Inc. (In Re Davis Broad., Inc.), 169 B.R. 229 (Bankr. M.D. Ga. 1994).publishedIn re Western Real Estate Fund, Inc., 922 F.2d 592 (10th Cir.) modified, Abel v. West, 932 F.2d 898 (10th Cir.1991) (Improper to permanently enjoin a creditor from recovering from non-debtor third party); In re American Hardwoods, Inc., 88…
- Fifth Third Bank of Se. Indiana v. Bentonville Farm Supply, Inc., 629 N.E.2d 1246 (Ind. Ct. App. 1994).published (rejecting defense by guarantors of bankrupt debtor that creditor’s approval of plan constituted accord and satisfaction)
- Keene Corp. v. Acstar Ins. (In Re Keene Corp.), 162 B.R. 935 (Bankr. S.D.N.Y. 1994).publishedThe “import” of this provision is that “the mechanics of administering bankruptcy, no matter how suggestive, do not operate as a private contract to relieve co-debtors of the bankrupt of their liabilities.” Union Carbide Corp. v. Newboles,…
- Copeland v. Merrill Lynch & Co., Inc., 162 B.R. 743 (E.D. La. 1993).published(a creditor’s approval of the plan cannot be deemed an act of assent having significance beyond the confines of the bankruptcy proceedings, simply because the gamesmanship imported from state contract law into the bankr…)
- Bankr. L. Rep. P 75,398 in the Matter of Specialty Equip. Companies, Inc., a Delaware Corp., & Spe Acquisition, Inc., a Delaware Corp., Debtors-Appellees, & Off. Unsecured Creditors Comm., Intervening & Gen. Elec. Capital Corp., Mitsui Nevitt Capital Corp., Credit Du Nord, Sun Life Ins. Co. of Am., & Wells Fargo Bank, the Senior Lenders, Appeal of Melvin C. Nielsen, Peter C. Kostantacos, & Shirlie Crooks, 3 F.3d 1043 (7th Cir. 1993).published Similarly, the payment which effects a discharge is not consideration for any promise by the creditors, much less for one to release nonparty obligors. 11 Id. at 595 (citations omitted); accord Underhill v. Royal, 769 F.2d 1426 , 1432 (9th…
- United Leasing, Inc. v. Burton, 20 Pa. D. & C.4th 481 (1993).publishedUnion Carbide, Corp. v. Newboles, 686 F.2d 593, 595 (7th.
- In the Matter of Lewis Anson David Edgeworth, M.D., Debtor. Donna Elaine Houston v. Lewis Anson David Edgeworth, M.D., 993 F.2d 51 (5th Cir. 1993).published(reaching the same result under section 16 of the Bankruptcy Act)
- Matter of Edgeworth, No. 92-4645 (5th Cir. June 1, 1993).published(reaching the same result under section 16 of the Bankruptcy Act)
- Zickler v. Shultz, 603 So. 2d 916 (Ala. 1992).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982).
- Olympus Hills Shopping Ctr., Ltd. v. Landes, 821 P.2d 451 (Utah 1991).published(a bankruptcy court “has no power to discharge the liabilities of a bankruptcy guarantor)
- In Re W. Real Est. Fund, Inc., Debtors. Landsing Diversified Props.-Ii v. The First Nat'l Bank & Trust Co. of Tulsa v. Kevin M. Abel Abel & Busch, Inc., Third-Party-Defendants-Appellants, 922 F.2d 592 (1st Cir. 1991).publishedId. at 223; Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982); see, e.g., In re Jet Florida Sys., Inc., 883 F.2d at 972-73; In re Sandy Ridge Dev.
- Landsing Diversified Props.-II v. First Nat'l Bank & Trust Co. (In re W. Real Est. Fund, Inc.), 922 F.2d 592 (10th Cir. 1990).published Id. at 223; Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982); see, e.g., In re Jet Florida Sys., Inc., 883 F.2d at 972-73; In re Sandy Ridge Dev.
- In Re Resorts Int'l, Inc., 145 B.R. 412 (Bankr. D.N.J. 1990).published Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985); Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982).
- Resolution Trust Corp. v. Dismuke, 746 F. Supp. 104 (N.D. Ga. 1990).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982); R.I.D.C.
- Seaport Auto. Warehouse, Inc. v. Rohnert Park Auto Parts, Inc. (In Re Rohnert Park Auto Parts, Inc.), 113 B.R. 610 (9th Cir. BAP 1990).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (per curiam).
- In Re 222 Liberty Assocs., 108 B.R. 971 (Bankr. E.D. Pa. 1990).publishedNo. 88-10774S, confirming a plan containing such a provision); and In re Monroe Well Service, Inc., 80 B.R. 324, 334-35 (Bankr.E.D.Pa.1987) (plan containing such a provision confirmed), with Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir…
- In the Matter of Sandy Ridge Dev. Corp., Debtor. Sandy Ridge Dev. Corp. v. Louisiana Nat'l Bank, 881 F.2d 1346 (5th Cir. 1989).publishedA bankruptcy discharge arises by operation of federal bankruptcy law, not by contractual consent of creditors, and “[a] creditor’s approval of the plan cannot be deemed an act of assent having significance beyond the confines of the bankru…
- Mellon Bank v. Siegel, 96 B.R. 505 (E.D. Pa. 1989).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982); Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985).
- In Re Elsinore Shore Assocs., 91 B.R. 238 (Bankr. D.N.J. 1988).published Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985); Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982).
- In Re Texaco Inc., 84 B.R. 893 (Bankr. S.D.N.Y. 1988).publishedThus, payment to a creditor under a confirmed plan of reorganization “is not consideration for any promise by creditors, much less for one to release non-party obligations.” Union Carbide Corporation v. Newboles, 686 F.2d 593, 595 (7th Cir…
- Bel-Ken Assocs. Ltd. P'ship v. Clark, 83 B.R. 357 (D. Md. 1988).publishedUnion Carbide v. Newboles, 686 F.2d 593, 595 (7th Cir.1982), R.I.D.C.
- In Re Epic Assocs. V, 62 B.R. 918 (Bankr. E.D. Va. 1986).published (A creditor’s approval of the plan cannot be deemed an act of assent having significance beyond *929 the confines of the bankruptcy proceedings[.])
- Fed. Sec. L. Rep. P 92,280, 13 Collier bankr.cas.2d 1198, Bankr. L. Rep. P 70,718 Herbert D. Underhill v. Carlos Royal, Herbert D. Underhill v. Nat'l Mortg. Exch., Inc., 769 F.2d 1426 (9th Cir. 1985).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (per curiam).
- Underhill v. Royal, 769 F.2d 1426 (9th Cir. 1985).publishedUnion Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (per curiam).
- Beconta, Inc. v. Schneider, 41 B.R. 878 (E.D. Mich. 1984).publishedThe import of Section 16 [currently rewritten and reenacted at 11 U.S.C. § 524 (e)] is that the mechanics of administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve co-debtors of…
- In Re Original IFPC Shareholders, Inc., 317 B.R. 738 (Bankr. N.D. Ill. 2004).published(construing 1898 Bankruptcy Act; subsequently limited by Specialty Equipment, infra)
- In Re: Cont'l Airlines, Inc., 203 F.3d 203 (3d Cir. 2000).See Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir.1982) (per curiam). 11 .
- In Re Davis Broad., Inc., 176 B.R. 290 (M.D. Ga. 1994).published See Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985) (holding that “the bankruptcy court could not discharge the liability of a nondebtor as part of a reorganization plan”) and Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th…
- Bel-Bel Int'l Corp. v. Barnett Bank of South Florida, N.A., 158 B.R. 252 (S.D. Fla. 1993).publishedSee, Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7th Cir., 1982).
Other citing cases
- Bowen v. United States, Dep't of Treasury, Internal Revenue Serv. (In Re Bowen), 174 B.R. 840 (Bankr. S.D. Ga. 1994).published
- Wayne H. Coloney Co. v. US Dept. of Air Force, 89 B.R. 924 (Bankr. N.D. Fla. 1988).published
- In Re Yellowstone Mountain Club, LLC, 460 B.R. 254 (Bankr. D. Mont. 2011).published
v.
F. Allen Newboles and Mary v. Newboles
Union Carbide Corporation loaned some $225,000 to New-Kro Oil Company. New-Kro gave Union Carbide a promissory note in return for the loan, and the President of New-Kro and his wife, F. Allen and Mary Y. Newboles, personally guaranteed New-Kro’s repayment of the loan. When New-Kro defaulted on its repayment of the loan, Union Carbide brought this diversity action against Mr. and Mrs. Newboles and New-Kro on October 31, 1978 in an attempt to recover the approximately $70,000 still owing on the note. On November 8, 1978, New-Kro petitioned for relief under Chapter XI of the Bankruptcy Act of 1898. New-Kro filed an amended proposed plan of arrangement for settlement of its unsecured debt on September 14, 1979. The plan allowed a twenty percent return on unsecured claims, and contained the following provision:
Impact of Arrangement on Guaranty Holders
Acceptance and confirmation of this Arrangement shall constitute a full settlement, satisfaction and discharge of all claims, demands, actions, causes of action or otherwise against not only the Debtor, but also against any other persons or entities who have entered into guaranty or indemnity agreements with unsecured creditors or who have endorsed commercial paper for the benefit of the Debtor, It is the intent of this Arrangement that upon its acceptance and confirmation, any creditors asserting claims arising out of agreements against persons or entities other than the Debtor by reason of indebtedness of the Debtor, shall be required to look solely to the Debtor for payment of such indebtedness under the terms of this Arrangement.
The plan was approved by a majority of the creditors, including Union Carbide, and was confirmed by the bankruptcy court. Pursuant to the plan New-Kro paid Union Carbide $14,337.01, leaving $55,715.90 un[*595] paid principal on the note. The district court then granted summary judgment for Union Carbide against Mr. and Mrs. New-boles in the amount of the unpaid principal plus interest of $3,734.98, and Mr. and Mrs. Newboles appeal.
On appeal, Mr. and Mrs. Newboles argue that their liability as guarantors on the note was erased by Union Carbide’s approval of the bankruptcy plan. In particular, Mr. and Mrs. Newboles argue that Union Carbide’s approval of the above-quoted provision in the plan and acceptance of New-Kro’s discharge payment worked an accord and satisfaction under Indiana law, which the district court must respect when sitting in diversity. But Section 16 of the Bankruptcy Act of 1898, 11 U.S.C. § 34 (repealed effective October 1, 1979), is to the contrary. Section 16 provides that “[t]he liability of a person who is a co-debt- or with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.” [1] Section 16 makes clear that the discharge of New-Kro itself had no effect upon the liability of Mr. and Mrs. Newboles on the note, and indeed we have held that the bankruptcy court has no power to discharge the liabilities of a bankrupt’s guarantor. In re Diversey Building Corp., 86 F.2d 456, 458 (7th Cir. 1936), certiorari denied, 300 U.S. 662, 57 S.Ct. 492, 81 L.Ed. 870. We hold that a creditor’s approval of the bankruptcy plan does not discharge the bankrupt’s guarantors either.
A bankruptcy discharge arises by operation of federal bankruptcy law, not by contractual consent of the creditors. In re Kornbluth, 65 F.2d 400, 402 (2d Cir. 1933). A creditor’s approval of the plan cannot be deemed an act of assent having significance beyond the confines of the bankruptcy proceedings, simply because the gamesmanship imported from state contract law into the bankruptcy proceedings would be intolerable. Since a majority of the creditors must approve the debtor’s plan for the debtor to be discharged, in many instances one creditor’s approval or disapproval will have no effect even in the bankruptcy proceeding. In the case that a single creditor’s vote is determinative, imputing extra-bankruptcy significance to it for that reason violates the specific command of Section 16 that “[t]he liability of a * * * guarantor * * * shall not be altered by the discharge of [the] bankrupt.” This case is no different because the plan expressly purports to discharge guarantors of the bankrupt. The import of Section 16 is that the mechanics of administering the federal bankruptcy laws, no matter how suggestive, do not operate as a private contract to relieve co-debtors of the bankrupt of their liabilities. See R. I. D. C. Industrial Development Fund v. Snyder, 539 F.2d 487, 490 n. 3 (5th Cir. 1976) (creditor’s approval of Chapter XI bankruptcy arrangement that purported to eliminate the underlying debt did not prevent the creditor from having recourse against the guarantor), certiorari denied, 429 U.S. 1095, 97 S.Ct. 1112, 51 L.Ed.2d 542; United States v. George A. Fuller Co., 250 F.Supp. 649, 656, 658 (D.Mont.1966).
Similarly, the payment which effects a discharge is not consideration for any promise by the creditors, much less for one to release non-party obligors. In re Kornbluth, 65 F.2d 400, 402-403 (2d Cir. 1933); Post v. Losey, 111 Ind. 74, 12 N.E. 121 (1887). Thus Union Carbide’s receipt of the discharge payment of $14,337.01 does not estop it to collect the rest of the debt from Mr. and Mrs. Newboles.
Therefore we affirm the order of the district court granting summary judgment for Union Carbide.
. Section 16 was rewritten and reenacted in the Bankruptcy Reform Act of 1978 at 11 U.S.C. § 524(e).