Perlman, etc. v. Tenofsky ( 1997 )

[NOT FOR PUBLICATION]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
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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.
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