Pisculli v. T.S. Haulers, Inc. , 408 F. App'x 477 ( 2011 )

10-1553-bk
In re Pisculli
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
of February, two thousand eleven.
Present:
JOHN M. WALKER, JR.,
CHESTER J. STRAUB,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
In re NICHOLAS F. PISCULLI, JR.,
Debtor.
________________________________________________
NICHOLAS F. PISCULLI, JR.,
Debtor-Appellant,
v. No. 10-1553-bk
T.S. HAULERS, INCORPORATED,
RANCO SAND & STONE CORPORATION,
Creditors-Appellees.
________________________________________________
For Debtor-Appellant: JOSEPH SFERRAZZA (Sarah M. Keenan, on the brief),
Sferrazza & Keenan, PLLC, Melville, N.Y.
For Creditors-Appellees: JEFFREY HERZBERG, Zinker & Herzberg LLP,
Smithtown, N.Y.
Appeal from the United States District Court for the Eastern District of New York
(Feuerstein, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Debtor-Appellant Nicholas F. Pisculli, Jr., appeals from the March 18, 2010, judgment of
the district court affirming the bankruptcy court’s denial of Pisculli’s discharge in bankruptcy
pursuant to 11 U.S.C. § 727. On appeal, Pisculli argues that (1) the bankruptcy court
erroneously concluded that the proceeds of a sale of assets of Pisculli’s closely held corporation
(the “truck sale proceeds”) were the property of the bankruptcy estate and (2) he disbursed the
truck sale proceeds in good faith to satisfy business debts and thus lacked the intent to defraud
the creditors-appellees. We assume the parties’ familiarity with the facts and procedural history
of this case.
“A district court’s order in a bankruptcy case is subject to plenary review, ‘meaning that
this Court undertakes an independent examination of the factual findings and legal conclusions
of the bankruptcy court.’” In re Cacioli, 463 F.3d 229, 234 (2d Cir. 2006) (quoting In re Duplan
Corp., 212 F.3d 144, 151 (2d Cir. 2000)). We review the bankruptcy court’s findings of fact for
clear error and its conclusions of law de novo. Id. “[P]articularly strong deference [must be
given] a [bankruptcy] court’s findings of fact based on credibility assessments of witnesses it has
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heard testify.” In re Boyer, 328 F. App’x 711, 716 (2d Cir. 2009) (quoting United States v.
Canova, 412 F.3d 331, 357 (2d Cir. 2005)).
Section 727(a)(2)(B) of the Bankruptcy Code provides, in pertinent part:
The court shall grant the debtor a discharge, unless . . . the debtor, with intent to
hinder, delay, or defraud a creditor . . . , has transferred, removed, destroyed,
mutilated, or concealed, or has permitted to be transferred, removed, destroyed,
mutilated, or concealed . . . . property of the estate, after the date of the filing of
the petition[.]
11 U.S.C. § 727(a)(2)(B). Section 727(a) “must be construed strictly against those who object to
the debtor’s discharge and liberally in favor of the bankrupt.” In re Chalasani, 92 F.3d 1300,
1310 (2d Cir. 1996) (internal quotation marks omitted). To prevail under Section 727(a)(2)(B),
the party objecting to discharge must demonstrate that (1) the debtor (2) transferred or concealed
(3) property of the bankruptcy estate (4) with the intent to hinder, delay, or defraud the creditor
(5) after the filing of the bankruptcy petition. See, e.g., In re Bostick, 400 B.R. 348, 356 (Bankr.
D. Conn. 2009). The party objecting to discharge must establish those elements by a
preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287 (1991).
Pisculli challenges the bankruptcy court’s conclusions that the truck sale proceeds were
property of the bankruptcy estate and that he transferred those proceeds with intent to hinder,
delay, or defraud the creditors-appellees. Having carefully considered the record, we conclude
that the bankruptcy court did not err in holding that the truck sale proceeds were property of the
bankruptcy estate because Pisculli, as sole owner and shareholder of A.N. Leasing Corp., had
full control of those proceeds. The bankruptcy court reasonably concluded also that Pisculli
disbursed the truck sale proceeds with the intent to defraud the appellees because, among other
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things, Pisculli used those proceeds to satisfy the creditors of J&R Materials Corp., one of his
wholly owned businesses, and to pay personal expenses.
We have considered Pisculli’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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