Ford Motor Credit Company, Appellant, v. Herndon H. Wilson, Trustee in Bankruptcy for Floyd William Johnson, Bankrupt, Appellee, 385 F.2d 128 (5th Cir. 1967)

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US Court of Appeals for the Fifth Circuit - 385 F.2d 128 (5th Cir. 1967) November 8, 1967

Leo A. Smith, Jr., Mobile, Ala., for appellant.

Maury Friedlander, Mobile, Ala., for appellee.

Before JONES, WISDOM and DYER, Circuit Judges.


Ford filed a reclamation petition with the referee in bankruptcy seeking to recover a 1964 Ford automobile to which it claimed title under an unrecorded written instrument executed by the bankrupt. Under this instrument title to the auto was to be retained by Ford until the balance due under the instrument was paid. The referee and the district court denied Ford's claim. We affirm.

Ford's argument that before the trustee in bankruptcy can assume the status of a creditor holding a lien under section 70(c) of the Bankruptcy Act, there must be an actual creditor is without merit. McKay v. Trusco Finance Co., 5th Cir. 1952, 198 F.2d 431. Furthermore, under McKay, it was not necessary for the referee to determine whether the instrument was a conditional sales contract or a chattel mortgage as the trustee's rights are superior in either event.