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Greater New York Savings Bank v. Boothe

January 9, 1979

GREATER NEW YORK SAVINGS BANK, RESPONDENT-APPELLEE,
v.
PHILIP BOOTHE, DEBTOR-APPELLANT.



Appeal from the United States District Court for the Eastern District of New York.

Present: HONORABLE IRVING R. KAUFMAN, Chief Judge, HONORABLE J. JOSEPH SMITH, HONORABLE JAMES L. OAKES, Circuit Judges.

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by appellant pro se and submitted by counsel for the appellee.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the order of said District Court be and it hereby is affirmed.

1. The Bank moved to dismiss the appeal on procedural grounds. In declining to grant this application, the district judge ruled favorably to Mr. Boothe on his contention that he was not properly served with the motion to dismiss.

2. Since the Bank was appellant's only creditor, its failure to approve the wage-earner's plan was fatal to appellant's Chapter XIII petition. 11 U.S.C. § 1066. Accordingly, the stay of the foreclosure sale was properly vacated, and the petition was properly dismissed.

19790109

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