United States District Court, W.D. Pennsylvania
FLOWERS CONTI SENIOR UNITED STATES DISTRICT JUDGE.
S. Lepre, Jr. (“Lepre”) filed a pro se Notice of
Appeal from the opinion and order of the bankruptcy court
dated February 4, 2019, with a brief in support (ECF Nos. 1,
12). Counsel for appellee Erica Lynn Milton
(“Milton”) filed a brief in opposition (ECF No.
13) and the appeal is ripe for disposition.
did not file a statement of the issues to be presented, as
required by Federal Rule of Bankruptcy Procedure
8009(a)(1)(A). Lepre filed an adversary proceeding in
Milton’s Chapter 7 case to argue that Milton falsely
stated she did not hold Lepre’s property, in violation
of 11 U.S.C. § 727(a)(4)(A). Lepre acknowledges that the
bankruptcy court conducted a trial, made findings of fact and
conclusions of law, and did not agree with him. Lepre’s
brief does not contain any citations to evidence in the
record or cite any legal authority. See Federal Rule
of Bankruptcy Procedure 8014(a)(8).
argues that Lepre’s appeal should be denied because it:
(1) is procedurally defective in failing to include a
statement of issues; (2) is frivolous and in bad faith; and
(3) fails to present a meritorious claim.
court declines to deny the appeal based on Lepre’s
failure to comply with Rule 8009. The United States Court of
Appeals recently addressed this circumstance in In re
Lawson, 774 F.
58 (3d Cir. 2019), and explained:
As a general matter, district courts are permitted to dismiss
bankruptcy appeals when appellants fail to comply with Rule
8009(a)(1). See Fed. R. Bank. P. 8003(a)(2); In
re Truong, 513 F.3d 91, 93 n.2 (3d Cir. 2008) (per
curiam); see also In re One2One Commc’ns, LLC,
805 F.3d 428, 449 (3d Cir. 2015) (Krause, J., concurring).
But “[n]ot every failure to follow procedural rules
mandates dismissal of the appeal.” In re
Comer, 716 F.2d 168, 177 (3d Cir. 1983). And “we
have repeatedly stated our preference that cases be disposed
of on the merits whenever practicable.” Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984).
Id. at 59-60.
court also declines to deny the appeal as frivolous. The
court can discern, from Lepre’s brief, that he is
contending that Milton made a false oath, and therefore, her
Chapter 7 discharge should not have been granted. (ECF No. 12
at 3). The court concludes that Lepre’s appeal may be
disposed of on the merits.
underlying dispute was precipitated by the breakup of
Lepre’s and Milton’s volatile personal
relationship. In 2015, Milton obtained a protection from
abuse order and Lepre was forced to leave the home where they
had previously resided. Lepre contends that Milton failed to
return all his personal belongings.
September 21, 2018, the bankruptcy court held a trial at
which Lepre, Milton, Jessica Weiss (Lepre’s fiance) and
Carol Milton (Milton’s mother) testified. On February
4, 2019, the bankruptcy court issued a thorough 20-page
memorandum opinion, with detailed findings of fact and
conclusions of law. The bankruptcy court held that
Lepre’s challenge under § 727 failed. Of note, the
bankruptcy judge found Milton’s testimony to be
“generally credible and devoid of any indication of
intentional deceit.” (Opinion at 9). For example,
Milton disclosed at the meeting of creditors that some of
Lepre’s items remained at her home.
correctly recognizes that the bankruptcy court’s
findings of fact can only be reversed if they are clearly
erroneous. Mellon Bank, N.A. v. Metro Commc'ns,
Inc., 945 F.2d 635, 641 (3d Cir. 1991), as amended (Oct.
28, 1991) (bankruptcy court's findings of fact are
reviewed under a clearly erroneous standard). Lepre argues
that “the record is replete with evidence” to
support his contentions against Milton. Lepre failed,
however, to support that conclusory argument with any
citations to the actual record and failed to point out any
specific factual errors. The court did not find any clear
errors in the bankruptcy court’s decision. In
particular, the court cannot identify any reason to overturn
the bankruptcy court’s credibility determinations.
See Tarquinio v. Tarquinio (In re Tarquinio), No.
17-CV-01917 (PGS), 2017 WL 5707538, at *3 (D.N.J. Nov. 27,
2017) (“due regard shall be given to the opportunity of
the bankruptcy court to judge the credibility of the
witnesses”)(quoting Fed.R.Bankr.P. 8013).
likewise failed to identify any alleged legal errors in the
bankruptcy court’s analysis. The purpose behind §
727(a)(4)(A) is “to ensure that the debtor provides
honest and reliable information to the trustee and others
interested in the administration of the estate without their
having to conduct costly investigations to discover the
debtor's true financial condition.” Giansante
& Cobb, LLC v. Singh (In re Singh), 433 B.R. 139,
154 (Bankr. E.D. Pa. 2010). As correctly stated by the