                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

In Re Peluso
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1805




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Recommended Citation
"In Re Peluso " (2004). 2004 Decisions. Paper 870.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/870


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                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 03-1805
                                 ________________

                                       IN RE:
                                    Angelo R. Peluso,
                                              Debtor


                                EILEEN K. PELUSO,

                                           Appellant
                                            v.

                               ANGELO R. PELUSO


                     ____________________________________

                   On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 02-cv-3524)
                    District Judge: Honorable Garrett E. Brown, Jr.
                   _______________________________________


                             Argued December 18, 2003


              Before: ROTH, MCKEE AND CUDAHY,* Circuit Judges.

                                (Filed: April 6, 2004)




  *
    The Honorable Richard D. Cudahy, Circuit Court Judge for the United States Court
of Appeals for the Seventh Circuit, sitting by designation.
Matthew A. Peluso, Esquire (Argued)
Stryker, Tams & Dill
Two Penn Plaza East
Newark, NJ 07105

       Counsel for Appellant


Linda J. Schwimmer, Esquire (Argued)
Markowtiz, Gravelle & Schwimmer
3131 Princeton Pike
Lawrenceville, NJ 08648

       Counsel for Appellee
                                _______________________

                                       OPINION
                                _______________________

ROTH, Circuit Judge:

       Eileen Peluso appeals the District Court’s order affirming the Bankruptcy Court’s

order denying her motion to avoid the sale of property. The procedural history of this

case and the details of appellant’s claims are well-known to the parties, set forth in the

District Court’s thorough opinion, and need not be discussed at length. Briefly,

appellant’s ex-husband filed for divorce and later filed for bankruptcy. Appellant filed a

motion in the Bankruptcy Court to avoid the sale of a flea market which was owned by a

corporation in which her husband had a forty-nine percent share. The Bankruptcy Court

denied the motion. Appellant appealed to the District Court which affirmed the order.

Appellant filed a timely notice of appeal and we have jurisdiction under 28 U.S.C. §

158(d).

                                              2
       Our review of the District Court’s and the Bankruptcy Court’s legal conclusions is

plenary, and we review the Bankruptcy Court’s factual findings under the clearly

erroneous standard. In re Indian Palms Associates, Ltd.,61 F.3d 197, 203 (3d Cir. 1995).

We need not reach the issue of whether the challenge to the sale is more properly brought

in an adversary complaint rather than a motion because we agree with the District Court

that the motion fails on the merits.

       The majority of appellant’s argument relies on her assertion that the state court in

the divorce action found that she and her ex-husband had a joint marital interest in the

flea market. However, we agree with the District Court that the Family Court never

found that Mr. Peluso had an individual ownership interest in the flea market. Rather, the

state court found that appellant was entitled to a fifty-percent share of her husband’s

forty-nine percent interest in the corporation which owned the flea market. “Under all of

these circumstances, Mrs. Peluso is entitled to a share of plaintiff’s interest in P&H

Enterprises.” App. at 70a. Thus, the flea market was not a part of M r. Peluso’s

bankruptcy estate, see In re Cassis, 220 B.R. 979, 983 (Bankr. N.D. Iowa 1998), and the

Bankruptcy Court lacked jurisdiction to void the sale. We also agree with the District

Court that the Bankruptcy Court did not have jurisdiction over the liquidation of the non-

debtor corporation’s assets.

       For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s March 6, 2003, order.



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