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IN RE BERLIN

March 9, 1944

In re BERLIN


The opinion of the court was delivered by: BARD

This matter arises upon a certificate for review of an order of a referee in bankruptcy denying a petition by the claimant seeking to establish against the trustee in bankruptcy a lien on an automobile truck owned by the bankrupt.

The facts are clearly stated in the opinion of the referee as follows:

 "The bankrupt was the owner of a Dodge truck. The truck was financed, in part, by the Atlantic Finance Corporation. The Commonwealth of Pennsylvania, Department of Revenue, had issued to Nilreb Products (being the same as Nilreb Manufacturing Company) a certificate of title. Thereon was noted --

 "'The motor vehicle described herein is subject to the following encumbrances. Favor of Atlantic Finance Corpoation, 1401 Brown Street, Philadelphia, Pa. -- amount $300.00.'

 "Irving Berlin, a brother of the bankrupt, had made sundry loans to the bankrupt during the latter part of his business operation. Early in April, 1942, the bankrupt requested from him an additional loan. To this request, according to the testimony of the bankrupt, as well as of the claimant, the claimant replied that he would make him a loan upon security. According to this same testimony it was thereupon agreed that the security should be the aforesaid truck. Irving Berlin then advanced to the bankrupt $500.00. He has produced a check in said amount, dated April 2nd, 1942, payable to the Nilreb Manufacturing Company and deposited by it in its bank account. The check was paid. The security agreed upon not having been delivered, and the bankrupt admitted to the claimant that the aforesaid loan from the Atlantic Finance Corporation was still outstanding, that he did not have the money to pay off the said loan and that, if the security was to be delivered, the claimant would have to pay the amount owing. The claimant thereupon paid the Atlantic Finance Corporation, at its office, the sum of $240.60 in cash. It does not appear that there was any assignment of the Finance Company's claim to the claimant. However, on April 16, 1942 four documents, offered in evidence, were filed with the Commonwealth of Pennsylvania, Department of Revenue, Bureau of Motor Vehicles. They were as follows:

 "1. An assignment of the truck by Nilreb Products, Daniel Berlin, Prop., to Irving Berlin, the claimant. Thereupon it was noted that there was no encumbrance on the car.

 "2. An application by Irving Berlin for a certificate of title.

 "3. Reassignment of the car by Irving Berlin to Nilreb Products. Therein was noted the fact that no encumbrance lay against the car.

 "4. An application for certificate of title by Nilreb Products. Thereon was noted an encumbrance of $700.00 in favor of Irving Berlin.

 "There is also in evidence the 'certificate of title to a motor vehicle' issued in favor of Nilreb Products. This certificate further reads as follows:

 "'Commonwealth of Pennsylvania

 "'Department of Revenue

 "'The Motor Vehicle described hereon is subject to the following encumbrances. Favor ...


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