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IN RE FORD HOME FURNISHINGS CO.

September 21, 1967

In the matter of FORD HOME FURNISHINGS CO., Inc., Bankrupt


The opinion of the court was delivered by: HOLTZOFF

 This is a petition for a review of an order of the Referee in Bankruptcy denying priority to a claim of one of the bankrupt's creditors for money expended by the creditor in levying execution on the bankrupt's property shortly prior to the institution of the bankruptcy proceedings.

 The Court is of the opinion that the ruling of the learned Referee was correct and should be sustained.

 Priority of claims in bankruptcy is governed solely by statute. The pertinent provisions of the Bankruptcy Act, 11 U.S.C. § 104, which enumerate classes of debts entitled to priority, list among them "the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition." By necessary implication costs and expenses of preserving the estate prior to filing the petition are excluded.

 It was so held by Judge Chesnut for the District of Maryland, in the case of In re Van Fossen, D.C., 80 F. Supp. 297, in disallowing sheriff's fees incurred by a creditor in levying execution on the bankrupt's property prior to bankruptcy.

 The same result was reached in the Eastern District of New York by Judge Zavatt, in the case of In re Billelo, D.C., 171 F. Supp. 69, in declining to recognize as entitled to priority a claim for expenses incurred by a creditor in levying an attachment on the bankrupt's property prior to bankruptcy.

 This Court concludes that the claim in question is not entitled to priority and, therefore, the petition for review should be dismissed. The Court expresses no opinion on the question whether the claim for reimbursement may be allowed as a general unsecured claim.

19670921

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