Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2d Cir. 1953). · Go Syfert
Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2d Cir. 1953). Cases Citing This Book View Copy Cite
“where congress intended that allowances should be made it has carefully enumerated them, and any omissions must be construed as express exclusions.”
64 citation events (4 in the last 25 years) across 24 distinct courts.
Strongest positive: Bear v. Coben (ca9, 1986-11-14)
Treatment trajectory · 1956 → 2026 · click a year to view as-of
1956 1991 2026
Top citers, strongest first. 28 distinct citers.
discussed Cited as authority (verbatim quote) ca9 1987 (2×) also: Cited as authority (rule)
9th Cir. · 1987 · signal: see · quote attribution · 1 verbatim quote · confidence high
where congress intended that allowances should be made it has carefully enumerated them, and any omissions must be construed as express exclusions.
discussed Cited as authority (verbatim quote) Bear v. Coben (2×) also: Cited as authority (rule)
9th Cir. · 1986 · signal: see · quote attribution · 1 verbatim quote · confidence high
where congress intended that allowances should be made it has carefully enumerated them, and any omissions must be construed as express exclusions.
cited Cited as authority (rule) Richard Michael Martin and Nanette Marie Martin
Bankr. S.D.W. Va. · 2023 · confidence medium
Holders v. Mabey, 832 F.2d 299 , 302 (4th Cir. 1987) (citing Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir. 1953)).
discussed Cited as authority (rule) Yellow Poplar Lumber Company, Inc.
Bankr. W.D. Va. · 2019 · confidence medium
The Act does not provide that attorneys for non-petitioning creditors may recover from the estate for the services rendered by appellants.”); Guerin, 205 F.2d at 304 (“‘It is well settled that the bankruptcy court lacks power to grant, and the policy of the Act is against, compensation not expressly provided by the Act.’ . . .
discussed Cited as authority (rule) In Re Electric MacHinery Enterprises, Inc.
Bankr. M.D. Fla. · 2007 · confidence medium
Corp., 206 F.2d 780, 781 (3d Cir.1953) (the work of attorneys for creditors “must be at the expense of their clients unless it is in some manner beneficial to the estate”); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (In the absence of benefit to the estate, “the bankruptcy court lacks power to grant, and the policy of the [Bankruptcy] Act is against, compensation not expressly provided for by the Act.”); Matter of Sapphire Steamship Lines, Inc., 509 F.2d 1242, 1245 (2d Cir.1975).
cited Cited as authority (rule) In Re Dillon
Bankr. S.D. Florida · 1996 · confidence medium
Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2nd Cir.1953).
discussed Cited as authority (rule) In Re AH Robins Co., Inc.
Bankr. E.D. Va. · 1995 · confidence medium
Id. {quoting Gue-rin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953)); see also Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 , 108 S.Ct. 963, 968-69 , 99 L.Ed.2d 169 (1988) (equitable powers limited to confines of Code).
discussed Cited as authority (rule) ca7 1993
7th Cir. · 1993 · confidence medium
The function of equitable considerations in a bankruptcy proceeding is to guide the division of a pie that is too small to allow each creditor to get the slice for which he originally contracted. 20 See also Guerin v. Weil, Gotschal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.) ("Although it has been broadly stated that a bankruptcy court is a court of equity, the exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act.") (citation omitted).
discussed Cited as authority (rule) Air Line Pilots Ass'n International v. Eastern Air Lines, Inc. (In Re Ionosphere Clubs, Inc.)
S.D.N.Y. · 1990 · confidence medium
The court’s equitable powers “must and can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 , 108 S.Ct. 963, 968-69 , 99 L.Ed.2d 169 (1988); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (“exercise of [bankruptcy court’s] equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act”).
discussed Cited as authority (rule) Kaiser Steel Corp. v. Jacobs (In Re Kaiser Steel Corp.) (2×)
Bankr.D. Colo. · 1989 · confidence medium
See also, e.g., Official Committee v. Mabey, 832 F.2d 299 , 302 (4th Cir.1987); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.).
discussed Cited as authority (rule) Louis W. Levit, Trustee of V.N. Deprizio Construction Co. v. Ingersoll Rand Financial Corporation
7th Cir. · 1989 · confidence medium
See also, e.g., Norwest Bank Worthington v. Ahlers, 485 U.S. 197 , 108 S.Ct. 963, 968-69 , 99 L.Ed.2d 169 (1988) (“whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code”); Official Committee v. Mabey, 832 F.2d 299 , 301-02 (4th Cir.1987); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.).
discussed Cited as authority (rule) In Re Rashid
W.D. Okla. · 1989 · confidence medium
Robins Co., — U.S.-, 108 S.Ct. 1228 , 99 L.Ed.2d 428 (1988); United States v. Sutton, 786 F.2d 1305, 1307-08 (5th Cir. 1986); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2nd Cir.1953); In re Robinson Bros.
discussed Cited as authority (rule) Lowrey v. First National Bank of Bethany (In Re Robinson Bros. Drilling, Inc.)
W.D. Okla. · 1988 · confidence medium
Paul & Pacific R.R., 791 F.2d 524 , 528 (7th Cir.1986), cert. denied, 481 U.S. 1068 , 107 S.Ct. 2460 , 95 L.Ed.2d 869 (1987) (“the fact that a proceeding is equitable does not give the judge a free-floating discretion to redistribute rights in accordance with his personal views of justice and fairness, however enlightened those views may be”)); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2nd Cir.1953). 4 The Court is persuaded that a transfer to a creditor for the benefit of an insider guarantor can be avoided and recovered.
discussed Cited as authority (rule) In the Matter of Iowa Railroad Company, Debtor. Union Pacific Railroad Company v. Terry F. Moritz, Trustee of Iowa Railroad Company (2×)
7th Cir. · 1988 · confidence medium
Paul & Pacific R.R., 791 F.2d 524 , 528 (7th Cir.1986); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.).
cited Cited as authority (rule) Bonded Financial Services, Inc., Debtor-Appellant v. European American Bank
7th Cir. · 1988 · confidence medium
See also, e.g., Official Committee v. Mabey, 832 F.2d 299 , 302 (4th Cir.1987); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.).
discussed Cited as authority (rule) In Re FIDELITY MORTGAGE INVESTORS, Debtor. LIFETIME COMMUNITIES, INC., Appellant, v. the ADMINISTRATIVE OFFICE OF the UNITED STATES COURTS, Appellee
2d Cir. · 1982 · confidence medium
In re United Merchants and Manufacturers, Inc., 597 F.2d 348, 349 (2d Cir. 1979); Borgenicht v. Creditors’ Committee, 479 F.2d 150, 153 (2d Cir. 1973); Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304-05 (2d Cir. 1953); In re FAS International, Inc., 382 F.Supp. 77, 79-81 (S.D.N.Y.1974), aff’d. per curiam, 511 F.2d 1164 (2d Cir.), cert. denied, 423 U.S. 839 , 96 S.Ct. 68 , 46 L.Ed.2d 58 (1975).
discussed Cited as authority (rule) In re Tariffville Manufacturing Co.
D. Conn. · 1965 · confidence medium
The governing rule is stated in Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir. 1953): “ ‘It is well settled that the bankruptcy court lacks power to grant, and the policy of the Act is against, compensation not expressly provided for by the Act.’ Lane v. Haytian Corp., 2 Cir., 117 F.2d 216, 219 , certiorari denied 313 U.S. 580 , 61 S.Ct. 1101 , 85 L.Ed. 1537 .
discussed Cited as authority (rule) In Re Chicago Express, Incorporated
S.D.N.Y. · 1963 · confidence medium
While it is said that a bankruptcy court sits as a court of equity, see Pepper v. Litton, 308 U.S. 295, 304 , 60 S.Ct. 238 , 84 L.Ed. 281 (1939), “the exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act,” Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2 Cir. 1953).
cited Cited "see" In Re: Steve P. Myrvang and Joanne L. Myrvang, Debtors, June Cotner Graves v. Steve P. Myrvang Joanne L. Myrvang
9th Cir. · 2000 · signal: see · confidence high
See id. at 305 .
discussed Cited "see" In Re: Robert E. Casse, Debtor Robert E. Casse, Debtor-Appellant v. Key Bank National Association, Creditor-Appellee
2d Cir. · 1999 · signal: see · confidence high
Of course, we agree with the principle articulated in Frieouf that a statute’s general provisions may be eclipsed by a provision specifically addressing a particular issue, and have applied that principle in bankruptcy; see Guerin v. Weil, Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (reversing allowance to petitioning creditors for certain fees because the Bankruptcy Act did not authorize their payment; “[although it has been broadly stated that a bankruptcy court is a court of *341 equity, the exercise of its equitable powers must be strictly confined within the prescribed limits of…
cited Cited "see" In Re Boyer
Bankr. N.D.N.Y. · 1988 · signal: see · confidence high
See Guerin v. Weil Gotshal & Manges, 205 F.2d 302, 304 (2d Cir.1953); 2 COLLIER ON BANKRUPTCY, supra, at 105-2.
discussed Cited "see" Matter of WT Grant Co. (2×) also: Cited "see, e.g."
Bankr. S.D.N.Y. · 1988 · signal: accord · confidence high
In order to be reimbursable under § 64(a), a creditor’s expense must fall under the following categories: “(1) the costs and expenses of administration, including the actual and necessary costs ... of preserving the estate ... fees for the referees’ salary and expense fund services ... filing fees paid by creditors in involuntary cases ... where property of the bankrupt, transferred or concealed by him ... is recovered ... by the efforts ... of one or more creditors, the reasonable costs and expenses of such recovery ... one reasonable attorney’s fee ... irrespective of the number of …
cited Cited "see" Central Rubber Products, Inc. v. Stafford Higgins Industries, Inc. (In Re Central Rubber Products, Inc.)
Bankr. D. Conn. · 1983 · signal: see · confidence high
See Guerin v. Weil, Gotshal & Mang- *868 es, 205 F.2d 302 (2d Cir.1953) (Act case 3 ).
cited Cited "see" Smith v. Winthrop
2d Cir. · 1975 · signal: see · confidence high
See, Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2 Cir. 1953).
discussed Cited "see" In The Matter Of Sapphire Steamship Lines, Inc.
2d Cir. · 1975 · signal: see · confidence high
See, Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2 Cir. 1953). 12 Winthrop, Stimson recognize this rule but argue that it is entitled to have its fee paid from the estate under an exception for situations in which (1) the trustee has refused or neglected to act and (2) the applicant has conferred a tangible benefit on all the creditors by acting in the trustee's stead. 13 To qualify for this exception, however, a creditor's attorney must satisfy a third requirement, i.e. the bankruptcy court must have formally authorized such attorney to act instead of the trustee.
discussed Cited "see, e.g." In re Fesco Plastics Corp.
7th Cir. · 1993 · signal: see also · confidence medium
See also Guerin v. Weil, Gotschal & Manges, 205 F.2d 302, 304 (2d Cir.1953) (A. Hand, J.) (“Although it has been broadly stated that a bankruptcy court is a court of equity, the exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act.”) (citation omitted).
discussed Cited "see, e.g." In Re FAS International, Inc.
S.D.N.Y. · 1974 · signal: see also · confidence low
The Court of Appeals for this circuit has enunciated the rule that “the bankruptcy court lacks power to grant, and the policy of the Act is against, compensation not expressly provided for by the Act.” Lane v. Haytian Corp., 2 Cir., 117 F.2d 216, 219 , cert. denied, 313 U.S. 580 , 61 S.Ct. 1101 , 85 L.Ed. 1537 (1941); see also Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2 Cir. 1953).
discussed Cited "see, e.g." In the Matter of I. J. Knight Realty Corp., Bankrupt. Reading Company
3rd Cir. · 1967 · signal: see also · confidence low
Co., 59 F.2d 969 (2 Cir. 1932); In re Progress Lektro Shave Corp., 35 F.Supp. 915 (D.Conn. 1940); In re Michigan Motor Specialties Co., 288 F. 377 (E.D.Mich.1923) 8 E. g., Texas & Pacific Railway Co. v. Bloom's Adm'r., 164 U.S. 636, 642-643 , 17 S.Ct. 216 , 41 L.Ed. 580 (1897); Barton v. Barbour, 104 U.S. 126, 130 , 26 L.Ed. 672 (1881); Bereth v. Sparks, 51 F.2d 441 , 80 A.L.R. 909 (7 Cir. 1931) citing numerous cases; Anderson v. Condict, 93 F. 349, 354 (7 Cir. 1899); see also Valdes v. Feliciano, 267 F.2d 91, 95 (1 Cir. 1959) 9 Guerin v. Weil, Gotshal & Manges, 205 F.2d 302 (2 Cir. 1953), cit…
Guerin
v.
Weil, Gotshal & Manges
22629_1.
Court of Appeals for the Second Circuit.
Jun 2, 1953.
205 F.2d 302
Emil Weitzner, New York City (Joseph Levine, New York City, of counsel), for appellant., Weil, Gotshal & Manges, New York City (Edward C. Wallace and Ira M. Millstein, New York City, of counsel), for appellees.
Hand, Clark.
Cited by 49 opinions  |  Published
AUGUSTUS N. HAND, Circuit Judge.

On January 20, 1948, an involuntary petition in bankruptcy was filed by certain creditors against Tailored Robes, Inc., in the United States District Court for the Southern District of New York. The bankrupt’s answer denied insolvency and the commission of the act of bankruptcy alleged. The appellees, attorneys for the petitioning creditors, employed accountants to examine the bankrupt’s books in order that they could assist in the conduct of examinations under Section 21, sub. a, of the Bankruptcy Act, 11 U.S.C.A. § 44, sub. a, and give expert testimony at the trial. Appraisers were also utilized to give expert testimony. Adjudication of bankruptcy followed on September 18, 1950. On July 3, 1951, the appellees filed a petition for an allowance to them for their services, Bankruptcy Act § 64, sub. a(1), § 62, sub. d, 11 U.S.C. §§ 104, sub. a(1), 102, sub.d, and for disbursements, including the sum of $6,921.25 here in question for the services of the accountants and appraisers. Following a hearing on the objections filed by two general creditors, the referee on January 30, 1952, allowed the appellees a fee of $11,000 for their services as attorneys for the petitioning creditors, but held that a court of bankruptcy had no power to grant the allowances for the services of[*304] the accountants and appraisers. The ap-pellees opposed confirmation of this report. However, on May 9, 1952, the District Court held that a court of bankruptcy could properly grant the allowances in the exercise of its equity power and by an order dated May 22 remanded the report for reconsideration in a manner not inconsistent with the court’s opinion. On July 9, the referee recommended the allowance of $6,921.25 for the accountants and appraisers. The District Court confirmed the report on July 24, and on July 31, ordered this amount to be paid by the trustee in bankruptcy to the appellees. The trustee has appealed.

Reimbursement for expenditures by a petitioning creditor for accountants and appraisers is not specifically allowed by any provision of the Bankruptcy Act. Reliance is placed on General Order 34, 11 U.S.C.A. following section 53 (see also § 2, sub. a(18)- of the Bankruptcy Act, 11 U.S. C-A. § 11, sub. a (18), permitting the recovery by a petitioning creditor of “the same costs that are allowed to a party recovering in a civil action cognizable as a case in equity”, which are defined in 28 U.S.C. §§ 1920, 1923. Since the type of disbursements here in question is not expressly mentioned in § 1920 or § 1923, the only authority for allowance is the equity practice of allowing costs “as between -solicitor and client” (i.e., the full expenses of a litigation), in certain cases, as where a fund in which others will share has been produced by these expenses, Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; 107 A.L.R. 749 ; 49 A.L.R. 1149; see also, 9 A.L.R.2d 1132; or where rights have been established in favor of others through the principle of stare de cisis, Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. Such an allowance is “appropriate only in exceptional cases and for dominating reasons of justice”, 307 U.S. at page 167, 59 S.Ct. at page 780. And we do not think that securing an adjudication in bankruptcy is sufficiently analogous to these cases to warrant an extension of that principle.

Moreover,, the Bankruptcy Act contains specific provisions governing the allowance of fees and expenses out of the estate and gives them priority. § 64, sub. a, 11 U.S.C.A. § 104, sub. a. The principle of the Greenough case, supra, is confined by the Act to the recovery of “reasonable: coats and expenses” where “the property of the bankrupt, transferred or concealed by him * * * shall have been recovered for the benefit of the estate * * * by the efforts and at the cost and expense of one or more creditors.” See, e.g., In re Medina Quarry Co., 2 Cir., 191 F. 815. Also given a first priority are “the costs and expenses of administration” including the trustee’s expenses in opposing a discharge, the ordinary fees of witnesses, and “one reasonable attorney’s fee for the professional services actually rendered * * * to the petitioning creditors in involuntary cases and to the bankrupt in voluntary and involuntary cases,” see 3 Collier, Bankruptcy 1551-4 (14th ed.). This Court has stated: “It is well settled that the bankruptcy court lacks power to grant, and the policy of the Act is against, compensation not expressly provided for by the Act.” Lane v. Haytian Corp., 2 Cir., 117 F.2d 216, 219, certiorari denied 313 U.S. 580, 761 S.Ct. 1101, 85 L.Ed. 1537. Although it has been broadly stated that a bankruptcy court is a court of equity, Young v. Higbee Co., 324 U.S. 204, 214, 65 S.Ct. 594, 89 L.Ed. 890; the exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act, see Berry v. Root, 5 Cir., 148 F.2d 945, 946, certiorari denied 326 U.S. 755, 66 S.Ct. 91, 90 L.Ed. 453. Where Congress intended that allowances should be made it has carefully enumerated them, and any omissions must be construed as express exclusions, 3 Collier, Bankruptcy 1534-7 (14th ed.).

It is argued that to disallow these expenses is to interfere with the scheme of equal distribution provided by the Bankruptcy Act, since the petitioning creditors are not treated on a basis of equality unless they are reimbursed for the necessary and reasonable expenses of initiating proceedings thereunder. But the depletion of the estates of bankrupts by numerous and excessive expenses was one of the reasons for the amendment of the Bankruptcy Act[*305] of 1867, 1 Collier, Bankruptcy 9 (14th ed.), and in view of the emphasis placed on economical administration, see, e.g., In re Consolidated Distributors, Inc., 2 Cir., 298 F. 859, 862, we are constrained to hold that the costs here in question may not be allowed in the absence of some express Congressional authorization. Cf. In re First Bond & Mortgage Co., 5 Cir., 74 F.2d 930.

A further ground relied on by the District Court was that the grant of discretion in General Order 43 [1] to deny expenses to the attorney for the petitioning creditors would imply a power to grant them. But we do not think this General Order should be read to authorize the payment of expenses not specifically provided for by the Bankruptcy Act, for if so extended the court would apparently be empowered to allow any expenditures it thought reasonable, and the statutory limitations we have referred to would be vitiated.

Reversed.

1

. This order, 11 U.S.C.A. following section 53 permits a court to “deny the allowance of any fee to the attorney for petitioning creditors or the reimbursement of his ex-ponses, or both, if it shall appear that the proceedings were instituted in collusion with the bankrupt or were not instituted in good faith.”