Perlman, etc. v. Tenofsky ( 1997 )

USCA1 Opinion

                               [NOT FOR PUBLICATION]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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