A. E. Mallagh, Trustee in Bankruptcy of the Bankrupt Estate of Orville Stanford, Inc. v. Bank of America National Trust and Savings Association, Etc.

This action was brought by the trustee in bankruptcy against the appellee, hereinafter referred to as “the Bank,” upon a complaint containing two claims or causes of action. The first claim is to recover money paid to the Bank under a void chattel mortgage, the chattel mortgage being void as to a trustee in bankruptcy and as to the creditors for the failure of the Bank to record the mortgage.

The second claim was based upon a preference under Sections 60, sub. a and 60, sub. b of the Bankruptcy Act, 11 U.S. C.A. § 96, subs, a, b.

In the course of the proceedings before the District Judge, the trustee filed a motion for summary judgment as to the first claim and the Bank filed a motion to dismiss the first claim for failure of such claim to state a claim against the Bank upon which relief could be granted. The District Court denied the trustee’s motion for summary judgment on the first claim and granted the Bank’s motion to dismiss the first claim upon the ground stated in the motion, and a judgment of dismissal of the first claim was entered. On stipulation of the parties, the Court dismissed, without prejudice, the second claim which sought recovery against the Bank on the…