
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                               [NOT FOR PUBLICATION]                                 For the First Circuit                                ____________________          No. 97-9003                            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                                         -3-          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.                                          -4-
