MEMORANDUM AND ORDER
ELFVIN, District Judge.
The City of Rochester ("the City") appeals from an order of the bankruptcy court sustaining the objection of the Trustee in bankruptcy to the City's proof of claim.
On June 15, 1976 the City sent to the Hon. Edward D. Hayes, Bankruptcy Judge, what purported to be an amended proof of claim, citing therein as its original proof of claim an April 5, 1973 letter it had written to Justin L. Vigdor, Esq. The letter was written to Vigdor when he was and in his capacity as the state court's assignee for the benefit of creditors for the estate of Paul R. Dean & Company, Inc. ("Dean"). The pertinent portion of the letter states:
Attached to the letter was a listing of various securities purchased by Dean to be held in lieu of retained percentages for several contractors of the City.
The trustee (Joseph S. Carges) objected to the proposed amendment, stating that it was a nullity because the City had not filed a valid proof of claim with an appropriate officer of the bankruptcy court in a timely manner. In its response to the trustee's objection, the City contended that its letter was a proof of claim and cited Vigdor's listing of the City's debt in the Inventory and Schedule filed by him as assignee with the New York State Supreme Court, Monroe County, wherein he listed a liability of Dean to the City in the amount of $2,322,571; his appointment as receiver May 30, 1973 and his subsequent appointment as co-counsel to trustee Carges June 19, 1973; and Vigdor's supposed retention of the City's "proof of claim" as factors to be taken into account by the bankruptcy judge in determining whether its letter should be considered a proof of claim. The City also alleged that disallowance of its claim would be inequitable. The schedule filed by Vigdor as assignee is attached to the City's response to the trustee's objection to its claim.
By order dated August 19, 1976, Judge Hayes sustained the trustee's objections and dismissed the "alleged claim by the City of Rochester dated April 5, 1973 and the so-called amended proof of claim dated June 15, 1976." He described the letter as an inquiry and found it defective as a proof of claim and also found that there was nothing in the bankruptcy file to give the trustee notice of the City's "claim". Judge Hayes felt that it would place too great a burden on the trustee to hold him responsible for determining whether or not any of the pieces of paper filed in the bankruptcy proceeding or any proceeding remotely connected with the bankruptcy proceeding constituted a proof of claim.
The City argues that the only issue on appeal is whether it should be allowed to file an amended proof of claim and raises the same points it did below. In its memorandum of law the City relies on cases showing the liberal attitude this circuit's Court of Appeals has adopted in allowing amendments of proofs of claim. See, e. g.,
Section 57n of the Bankruptcy Act ("the Act")
Section 57a governs the form and content of a proof of claim.
The City relies heavily upon In re Kessler, supra, to support its position that a filing with the assignee for the benefit of creditors is a proper filing under the Act. Although the facts of the Kessler case are somewhat similar to those in the case at bar — i. e., the original "claim" was received by the state court assignee — the record showed that the "claim" and account of the transaction with the bankrupt were turned over to the receiver who subsequently became trustee. The City has assumed that its letter was turned over to the trustee, but there is no direct proof of this. More importantly, in Kessler, the attorney for the agent of the creditor called the receiver and inquired about the creditor's claim. He was told to call back and when he did he was informed that the claim had been received and that it was all right.
Two courts have specifically held that a filing with a state court's assignee is not sufficient under the Act and that the creditor has to take some affirmative action to make his claim appear on the records of the bankruptcy proceeding. In re Brill, 52 F.2d 636 (S.D.N.Y.), aff'd per curiam, 52 F.2d 639 (2d Cir. 1931); In re Richmond Hill Electrical Supply Co., Inc., 47 F.2d 938 (E.D. N.Y.1931). Admittedly, the assignees in Brill and Richmond Hill Electrical Supply did not become officials in the bankruptcy court, whereas Vigdor was appointed receiver. However, the subsequent appointment of Vigdor as receiver did not relieve those creditors who contacted Vigdor when he was the assignee of their responsibility to file proofs of claim during the period prescribed by the Act. The Act clearly places the burden on the creditor to make a proper demand on the bankrupt's estate. Hoos & Co. v. Dynamics Corp. of America, 570 F.2d 433 (2d Cir. 1978). The fact that a creditor may have contacted or filed a claim with the state court's assignee does not relieve him of this burden even if the assignee then becomes the receiver of the bankrupt's estate. The City also cites In re Gibraltor Amusements Ltd., supra, as being favorable to its position. However, both the majority and concurring opinions therein make it clear that the decision was based on the peculiar facts of the case. Footnote 2 of the opinion states that the court is not deciding the question of whether the mere filing with the receiver prior to the first date set for the meeting of the creditors, without more, would be sufficient. From April 5, 1973 when the City wrote to Vigdor inquiring about securities supposedly held by Dean until June 15, 1976 when the City tried to amend its purported proof of claim, the City did not participate in the bankruptcy proceedings or contact any official of the bankruptcy court.
A dispute exists as to whether or not the City received notice of the bankruptcy proceedings in the proper manner, but the City does not and cannot argue that it did not have actual notice of the bankruptcy proceedings.
The City argues that Vigdor was aware of its claim, that he had it in his possession when he became the receiver and that he had an obligation to bring it to the trustee's attention.
As to the City's citing of the equities of the situation, no court has equity power to extend the statute of limitations set forth in section 57n of the Bankruptcy Act. Hoos & Co. v. Dynamics Corp. of America, supra; In re Imperial Sheet Metal, Inc., supra.
There was not a proper filing under the Act; therefore, there was and is no proof of claim to amend.
In addition, the letter sent to Vigdor by the City does not adequately state a demand against the estate of Dean. In order for a correspondence to be considered an adequate basis for amendment it must, at the minimum, indicate the basis for the claim and the creditor's intent to hold the bankrupt's estate liable. Sun Basin Lumber Co. v. United States, 432 F.2d 48 (9th Cir. 1970); In re Lipman, supra; In re Imperial Sheet Metal, Inc., supra; In re Weco Equipment, 55 F.Supp. 532 (E.D.N. Y.), aff'd sub nom., Public Operating Corp. v. Schneider, 145 F.2d 830 (2d Cir. 1944); In re Quality Publications, 12 F.Supp. 651 (S.D.N.Y.1935). The City refers to the words "in trust" as showing its intent to hold the estate liable. These words do not suffice as an indication of such intent.
It is therefore hereby
ORDERED that the order of the Bankruptcy Court, dated August 19, 1976, is affirmed.