Dabney v. Levy

22 Citing cases

  1. General Electric Co. v. City of San Antonio

    334 F.2d 480 (5th Cir. 1964)   Cited 17 times
    Joining six other Circuits in reaching that conclusion

    The following is from Hooper: "But this is no unsurmountable obstacle for we agree with Dabney v. Levy, 2 Cir., 1951, 191 F.2d 201, that the two-year limitation prescribed in § 11, sub. e does not begin to run until the time the fraud reasonably should have been discovered. That Court applied the teaching of Bailey v. Glover, 1875, 21 Wall. 342, 88 U.S. 342, 22 L. Ed. 636, subsequently applied in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743, 748, which declared that `this equitable doctrine is read into every federal statute of limitation.

  2. Austrian v. Williams

    103 F. Supp. 64 (S.D.N.Y. 1952)   Cited 19 times
    In Austrian v. Williams, 103 F. Supp. 64 (S.D.N Y 1952), an action by the reorganization trustee of Central States Electric Corporation against directors and others, Judge Weinfeld found that Williams' domination of Central States, as to which see his review of the facts, 103 F. Supp. at 71-75, "was so pervasive that it effectively prevented the proper institution of actions against him and the directors liable with him."

    The statute is tolled even though there are no affirmative acts of concealment by the defendant. It is made unmistakably clear by the Bailey v. Glover opinion and is underscored by Chief Judge Learned Hand in Dabney v. Levy, 2 Cir., 191 F.2d 201, certiorari denied 342 U.S. 887, 72 S.Ct. 177, that the fraud which can serve to suspend the operation of applicable statutes of limitations does not require the elements of common law deceit. Comparing the two cases Judge Hand said: "Each action was by an assignee, or trustee, in bankruptcy; each was assumed to be barred under the state law; each was to recover money which had belonged to the bankrupt and which the defendant had converted; in each the defendant had done nothing to cover up his guilt; in each the assignee, or trustee, had failed to discover the transfer within the period of limitation; and in each there had been no lack of diligence on his part in failing to do so."

  3. In re Metzeler

    66 B.R. 977 (Bankr. S.D.N.Y. 1986)   Cited 39 times
    Noting that "courts have consistently treated preferential transactions as separate and distinct under Rule 15(c)" and reasoning that fraudulent transfers should be treated the same way

    Upon Bouchard's raising the two year statute of limitations provided by § 546(a) of the Code and the one year statute of limitations allegedly provided by West German Law that governs the bankruptcy proceeding (Respondent's Supp. Brief at 18), the Trustee orally claimed compliance with Rule 15(c) at the hearing and asserted that the two year period had not run. The parties, agreeing that no evidentiary hearing was required, were directed to file supplemental papers addressing these issues with the Trustee to respond to, inter alia, Bouchard's contentions that Rule 15(c) was not satisfied and that the federal tolling doctrine with respect to fraud cases, see Dabney v. Levy, 191 F.2d 201, 205-06 (2d Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 177, 96 L.Ed. 665 (1951); Quaid v. Friedman (In re Friedman), 15 B.R. 493, 495-96 (Bankr.N.D.Ill. 1981), did not permit the assertion of the additional transfers.

  4. S.E.C. v. Gabelli

    653 F.3d 49 (2d Cir. 2011)   Cited 105 times   6 Legal Analyses
    Holding that "literally true statements that create a materially misleading impression," or "so-called 'half-truths,'" can be actionable as securities fraud

    Although the defendants make much of the fact that Section 2462 does not expressly state a discovery rule, this Court has previously held that for claims that sound in fraud a discovery rule is read into the relevant statute of limitation. See Dabney v. Levy, 191 F.2d 201, 205 (2d Cir.1951) (Hand, J.) (“[I]n cases of ‘fraud’ ... when Congress does not choose expressly to say the contrary, the period of limitation set by it only begins to run after the injured party has discovered, or has failed in reasonable diligence to discover, the wrong.”)

  5. Bornstein v. Poulos

    793 F.2d 444 (1st Cir. 1986)   Cited 15 times
    Holding an attorney violated a separate fiduciary duty to a corporation when it was unable to protect its own interests

    However, in cases of fraud, the two-year period may be tolled until the trustee learns of the fraud. See Berman v. Provencher, 614 F.2d 823, 825 n.[*] (1st Cir. 1980); Dabney v. Levy, 191 F.2d 201, 204-05 (2d Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 177, 96 L.Ed. 665 (1951). Nevertheless, even if tolling is applicable, Poulos' action would still not be timely.

  6. Berman v. Provencher

    614 F.2d 823 (1st Cir. 1980)   Cited 8 times

    Similarly, we note that, even if section 11(e) were to apply here, in view of defendants' concealment its limitations period would not begin to run until plaintiff uncovered the truth. Dabney v. Levy, 2 Cir., 1951, 191 F.2d 201, cert. denied, 342 U.S. 887, 72 S.Ct. 177, 96 L.Ed. 665. In all fairness, we are not critical only of defendants; the trustee, too, is guilty of overreaching.

  7. In re Thomas J. Grosso Investment, Inc.

    457 F.2d 168 (9th Cir. 1972)   Cited 25 times
    Upholding injunction against running of redemption period, ordinarily giving foreclosure purchaser clear title

    See statement of David Teitelbaum in the House Hearings on H.R. 6439, 75th Cong., 1st Sess. (1937), 33-35. Dabney v. Levy, 191 F.2d 201 (2d Cir. 1951), and Austrian v. Williams, 198 F.2d 697 (2d Cir. 1952), do not persuade us that the second sentence of 11(e) should apply in chapter X. It is reasonable enough that the chapter X trustee should bring his suit to recover preferences etc. within two years of the time of petition, as the first sentence of 11(e) requires. In so holding, however, Austrian and Dabney are no authority for the proposition that the trustee has only 60 days to exercise all right of redemption which he may have in encumbered collateral.

  8. Hooper v. Mountain States Securities Corp.

    282 F.2d 195 (5th Cir. 1960)   Cited 243 times
    Finding that a single telephone call of material importance to the scheme was sufficient to establish venue, and noting that the call from Texas to Alabama was an occurrence taking place in Alabama as well as Texas

    Alabama Code, Title 7, §§ 26 and 42. But this is no insurmountable obstacle for we agree with Dabney v. Levy, 2 Cir., 1951, 191 F.2d 201, that the two-year limitation prescribed in § 11, sub. e does not begin to run until the time the fraud reasonably should have been discovered.

  9. Chemical Bank Tr. Co. v. Prudence-Bonds Corp.

    207 F.2d 67 (2d Cir. 1953)   Cited 7 times

    We are not inclined to upset the joint findings of good faith made below. The Trustee does appear to us negligent, whether we apply further descriptive adjectives or no; but it was not itself receiving the money or refusing to disgorge, as in Dabney v. Levy, 2 Cir., 191 F.2d 201, certiorari denied Levy v. Dabney, 342 U.S. 887, 72 S.Ct. 177, 96 L.Ed. 665; cf. Dabney v. Chase Nat. Bank of City of New York, 2 Cir., 201 F.2d 635. The events happened back in the halcyon days of high finance before the legal responsibilities of indenture trustees had been judicially defined.

  10. Austrian v. Williams

    198 F.2d 697 (2d Cir. 1952)   Cited 40 times

    Bailey v. Glover, 21 Wall. 342, 348, 22 L.Ed. 636. Cf. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 585, 90 L.Ed. 743. And this federal doctrine is extended to include the period during which the corporation continues under the domination of the wrongdoers. Michelsen v. Penney, 2 Cir., 135 F.2d 409; Dabney v. Levy, 2 Cir., 191 F.2d 201, certiorari denied 342 U.S. 887, 72 S.Ct. 177. Under this rule the statute of limitations did not begin to run until the domination of Central by Williams was ended and this did not occur until the filing of the petition for reorganization, in 1942. Consequently, the court held that this suit was timely commenced.