Filed: May 01, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2214 In Re: Derek J. Portaluppi 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 OR
Summary: 14-2214 In Re: Derek J. Portaluppi 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 ORD..
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14‐2214
In Re: Derek J. Portaluppi
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 1st day of May, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________
IN RE: DEREK J. PORTALUPPI
_________________________________________
WILLIAM HOLMES,
Creditor‐Appellant,
‐v.‐ No. 14‐2214
DEREK J. PORTALUPPI,
Debtor‐Appellee.
____________________________________________
FOR APPELLANT: William Holmes, pro se, Portland, CT.
FOR APPELLEE: Scott M. Charmoy, Charmoy & Charmoy, Fairfield, CT.
____________________________________________
Appeal from the United States District Court for the District of Connecticut
(Shea, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and
hereby is AFFIRMED.
Creditor‐Appellant Williams Holmes (“Holmes”), proceeding pro se,
appeals from the District Court’s judgment affirming the bankruptcy court’s
order dismissing Holmes’s adversary proceeding. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
“The rulings of a district court acting as an appellate court in a bankruptcy
case are subject to plenary review.” In re Stoltz, 315 F.3d 80, 87 (2d Cir. 2002).
Consequently, “we review the bankruptcy court decision independently,
accepting its factual findings unless clearly erroneous but reviewing its
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conclusions of law de novo.” In re Enron Corp., 419 F.3d 115, 124 (2d Cir. 2005)
(internal quotation marks omitted). Particular deference is given to a bankruptcy
court’s findings on credibility. See In re CBI Holdings Co., 529 F.3d 432, 450 (2d
Cir. 2008).
Holmes contests the bankruptcy court’s findings of fact in relation to
Debtor‐Appellee Derek J. Portaluppi (“Portaluppi”), including its determination
that Portaluppi was credible. We find no clear error in the bankruptcy court’s
conclusion that Portaluppi’s bankruptcy petition did not intentionally give the
wrong address for Holmes. Moreover, Holmes timely filed his adversary
proceeding and thus suffered no prejudice. Nor was there any clear error in the
bankruptcy court’s finding that Portaluppi did not act with fraudulent intent to
conceal the sale of any automobiles or withhold records of those sales. Two of
the challenged transactions took place more than one year prior to the
bankruptcy petition, and thus did not have to be disclosed. See 11 U.S.C.
§ 727(a)(2)(A). We find no clear error in the bankruptcy court’s conclusion, after
hearing testimony, that Portaluppi lacked fraudulent intent when he transferred
a Ford F350 (the lone transaction within the relevant time period challenged by
Holmes on this appeal). In re CBI Holdings, 529 F.3d at 450. Finally, there was no
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evidence that Portaluppi failed to keep recorded information from which his
financial condition might be ascertained. See In re Kran, 760 F.3d 206, 210‐11 (2d
Cir. 2014).
We have considered all of Holmes’s remaining arguments and find them
to be without merit. Accordingly, for the reasons set forth above, the judgment
of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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