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Musso v. Tesmetges (In Re Tesmetges) , 95 B.R. 19 ( 1988 )


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  • 95 B.R. 19 (1988)

    In re Harry TESMETGES, a/k/a Theoharis Tesmetges, a/k/a Harry Thomas, a/k/a Henry Best, Debtor.
    Robert J. MUSSO, Trustee, Plaintiff,
    v.
    Harry TESMETGES, Teresa Tesmetges, Bernard Herman and Lelia Herman, Defendants-Appellees.
    Appeal of Philip M. KOVITZ.

    No. 88 CV 2311.

    United States District Court, E.D. New York.

    December 22, 1988.

    MEMORANDUM AND ORDER

    PLATT, Chief Judge.

    This is an appeal from a ruling of the United States Bankruptcy Court for the Eastern District of New York. Chief Judge Conrad B. Duberstein rendered a decision that Mr. Philip M. Kovitz is not a creditor of the estate and expunged all of *20 his claims. In re Tesmetges, 87 B.R. 263 (1988).

    This Court has jurisdiction to hear this appeal under 28 U.S.C. § 158(a) (1988). The findings of fact by the Bankruptcy Court judge "shall not be set aside unless clearly erroneous." U.S. Bankruptcy Rules 8013. However, this Court is free to make independent determinations as to the Bankruptcy Court judge's conclusions of law. In re Penn-Dixie Industries, Inc., 9 B.R. 936, 938 (S.D.N.Y.1981).

    Having reviewed Chief Judge Duberstein's decision, the transcript of the hearing which was held on June 1, 1988, and all papers submitted by the Trustee and the Appellant, this Court finds no reason to set aside Chief Judge Duberstein's findings of fact. The Bankruptcy Court's finding that Mr. Kovitz is not a creditor of the estate is not clearly erroneous.

    Having made a de novo review of Chief Judge Duberstein's conclusions of law, this Court finds them to be accurate. Under 11 U.S.C. § 502 (1988), the court is required to hold a hearing if objection to a claim is made to determine the allowability of that claim. The Trustee properly objected to Mr. Kovitz's claims, as he is required to do under 11 U.S.C. § 704(5) (1988), and a hearing was held on June 1, 1988. Mr. Kovitz failed to sustain his burden of persuasion and establish the allowability of his claims by a preponderance of the evidence, thus his claims were properly disallowed. In re Koch, 83 B.R. 898, 17 B.C.D. 449 (Bkrtcy.E. D.Pa.1988).

    For the reasons set forth above, the decision of Chief Judge Duberstein is affirmed and Mr. Kovitz's appeal is hereby denied.

    SO ORDERED.