Perlman, etc. v. Tenofsky ( 1997 )


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  • [NOT FOR PUBLICATION]
    For the First Circuit
    No. 97-9003
    IN RE: STEVEN J. TENOFSKY, DEBTOR
    SAMUEL PERLMAN AND HERBERT RUBIN,
    TRUSTEES OF H.D.S. REALTY TRUST,
    AND JOSEPH BRAUNSTEIN,
    TRUSTEE OF ESTATE OF STEVEN J. TENOFSKY,
    Plaintiffs, Appellees,
    v.
    STEVEN J. TENOFSKY,
    Defendant, Appellant.
    No. 97-9004
    IN RE: STEVEN J. TENOFSKY, DEBTOR
    JOSEPH BRAUNSTEIN,
    Appellee,
    v.
    STEVEN J. TENOFSKY,
    Appellant.
    APPEALS FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL
    OF THE FIRST CIRCUIT
    Before
    Selya, Circuit Judge,
    Aldrich and Coffin, Senior Circuit Judges.
    Stephen F. Gordon for appellant.
    John
    M.
    Timperio with whom Mark
    N.
    Berman was on brief for
    appellees.
    September 26, 1997
    Per
    curiam. Appellant Steven J. Tenofsky claims that he
    wrongly was denied a discharge in his Chapter 7 bankruptcy case
    based on his failure to maintain recorded information from which
    his financial condition could be ascertained.    See 11 U.S.C. S
    727(a)(3). The bankruptcy judge's conclusion that appellant's
    records were inadequate and incomplete was affirmed by the First
    Circuit Bankruptcy Appellate Panel. Having reviewed the record, we
    find ourselves in full agreement with the reasoning expressed in
    the panel's thorough opinion, and also affirm. We add only the
    following brief comments.
    First, appellant's counsel emphasized at oral argument that
    the bankruptcy judge could not possibly have reviewed the 3,000
    pages of information contained in Mrs. Tenofsky's records during
    the thirty-minute recess between the conclusion of trial and her
    ruling, and that she therefore failed to consider carefully all of
    the evidence before rendering a decision. The judge, however, had
    ample time to review the nature of the material contained in Mrs.
    Tenofsky's records, and to make a judgment that it did not fill the
    gaps about which she was concerned. That the judge did not refer
    to the records in her bench ruling speaks to their relevance, not
    to her lack of consideration of them.
    Second, we may set aside the bankruptcy court's application of
    the law to the facts only if we detect clear error in its
    assessment of the facts, use of an erroneous legal standard, or an
    error or abuse of discretion in applying the law to the facts.
    See
    In
    re
    DN
    Associates, 
    3 F.3d 512
    , 515 (1st Cir. 1993). The
    -3-
    bankruptcy court here used the correct "case-by-case analysis,
    taking into account the particular facts and circumstances of the
    debtor's case," In re Ridley, 
    115 B. R. 731
    , 733 (Bankr. D. Mass.
    1990). The judge's evaluation of the facts was informed by her
    view of appellant's credibility, "a key element" that she was in
    the best position to assess.  See 
    id.
     We find neither error nor
    abuse.
    If appellant had a fighting chance to persuade the bankruptcy
    judge, and, though "weak, indeed almost hopeless, [but not]
    frivolous" before the appellate panel, Lallemand v. University of
    Rhode Island, 
    9 F.3d 214
    , 217-18 (1st Cir. 1993), the case surely
    has lost all merit at this stage. We therefore order appellant to
    show cause, within ten days from the issuance of this opinion, why
    we should not award double costs to appellee. See Fed. R. App. P.
    38.
    Affirmed.
    -4-
    

Document Info

Docket Number: 97-9003

Filed Date: 9/26/1997

Precedential Status: Non-Precedential

Modified Date: 4/18/2021