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


5-28-2004

In Re: Marvaldi
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2229




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Recommended Citation
"In Re: Marvaldi " (2004). 2004 Decisions. Paper 675.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/675


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 03-2229
                                    ____________

                                        IN RE:

                              ROCCO L. MARVALDI,

                                                 Debtor

                              MICHAEL PONTICELLI;
                              BARBARA PONTICELLI,

                                               Appellants

                                          v.

                             ANDREA DOBIN, TRUSTEE;
                                 FIRST STATE BANK;
                              LAWRENCE P. MARVALDI
                                      ____________
                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 02-cv-04368)
                    District Judge: Honorable Garrett E. Brown, Jr.
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 27, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN,* Circuit Judges.

                                (Filed: May 28, 2004)


      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       The appellants, Michael Ponticelli and Barbara Ponticelli (collectively

“Ponticelli”), appeal the orders of the district court and the bankruptcy court which

granted summary judgment in favor of Appellee Lawrence Marvaldi. This Court has

jurisdiction pursuant to 28 U.S.C. 1291.

       Michael Ponticelli was seriously injured in an accident involving a truck owned by

Marvaldi and his brother, Rocco Marvaldi. In 1995, the New Jersey courts entered

judgment in the amount of $1,335,725.00 for Ponticelli. Ponticelli’s attorney, Kim

Pascarella, mailed the judgment to Marvaldi Trucking, Marvaldi’s parents, and the truck

drivers involved in the incident. Marvaldi and Rocco Marvaldi never responded.

       Pascarella sent supplemental interrogatories to the Marvaldi brothers in March

1999. A relative of the brothers’ signed for the certified mail, but the M arvaldi brothers

never responded. Pascarella asked the post office for a forwarding address, but the

Marvaldi brothers did not provide one. Mrs. Marvaldi, Lawrence and Rocco’s mother,

contacted Pascarella and informed him that her sons were not living in the state, and there

were no assets available to pay the judgment.

       Pascarella gave the Sheriff of Ocean County a writ of execution to levy on the real

property co-owned by Rocco and Lawrence Marvaldi in August 1999. One day prior to

                                              2
the sheriff’s sale, scheduled for March 2000, Lawrence Marvaldi filed for Chapter 7. The

appointed trustee did not contest the levy and abandoned the real property. A second writ

of execution was filed, and four days prior to the rescheduled sheriff’s sale, Rocco

Marvaldi filed for Chapter 7.

       Andrea Dobin was appointed the trustee, and filed a complaint to void the

Ponticelli levy and judgment lien and sell the property.

       Dobin, Lawrence Marvaldi and Ponticelli all filed motions for summary judgment.

On the cross-motions for summary judgment, the bankruptcy court invalidated

Ponticelli’s pre-petition levy on real property.

       Ponticelli appealed to the district court, and the district court affirmed. Ponticelli

reached an agreement with Dobin, and the parties remaining in the instant appeal are

Lawrence Marvaldi and Ponticelli.

       The sole issue in this appeal is whether the bankruptcy court and the district court

correctly determined that Ponticelli’s counsel failed to make a proper good faith effort

under New Jersey law to locate and levy on personal property prior to levying on real

property such that the levy on the real property should be voided.

       This is an issue of law, and is therefore subject to plenary review. Brown v.

Pennsylvania State Employees Credit Union, 851 F.2d 81, 84 (3d Cir. 1988).

       New Jersey governs the required sequence of execution when attempting to levy

on real or personal property:



                                              3
       In every writ of execution which shall be issued against real estate, the
       sheriff or other officer to whom such writ may be directed shall be
       commanded that he cause to be made, of the goods and chattels in his
       county of the party against whom such execution issues, the debt, damages
       and costs or sums of money mentioned in such execution; and that, if
       sufficient goods and chattels of such party cannot be found in his county, he
       cause the whole or the residue, as the case may require, of such debt,
       damages and costs or sum of money to be made of the real estate whereof
       such party was seized on the day when such real estate became liable to
       such debt, damages and costs or sum of money, specifying the day
       particularly, or at any time afterwards, in the hands of any person then
       having the same.

N.J.S.A. 2A:17-1.

       New Jersey courts require that the sheriff return a writ of nulla bona prior to

executing on the debtor’s property:

       [T]he judgment creditor or his attorney must make a good faith attempt to
       ascertain the location of the debtor's personalty within the county and
       supply this information to the sheriff along with the writ of execution.
       Before levying and executing on the debtor's realty the sheriff must return a
       writ of nulla bona, certifying that he has made a strict and diligent search
       and has been unable to locate any personalty of the debtor within the
       county.

Raniere v. I & M Investments, Inc., 159 N.J. Super. 329, 337-338 (Ch. Div. 1978).

Although the requirement that the sheriff issue a writ of nulla bona is not in the statute, it

has been accepted by the courts as a requirement. Id.

       “[A]n execution sale against realty held without a prior, good faith attempt to

locate, levy upon and execute against personalty of the judgment debtor located within the

county is in direct violation of the positive command of the Legislature and is therefore

void.” Raniere at 337.

                                               4
       Both the district court and the bankruptcy court found that Ponticelli’s efforts did

not meet the good faith requirement. The district court found the efforts lacking.

       After receiving the judgment, Pascarella mailed it, but never received a response

from the debtors. Four years later, in 1999, Pascarella mailed a set of supplemental

interrogatories to the debtors, but knew that the debtors did not sign for the certified mail.

Pascarella conducted a motor vehicle search prior to the 1995 judgment, but did not

subsequently attempt to find any motor vehicles. Pascarella’s search for bank accounts

consisted of looking for a copy of a check. Pascarella did not compel post-judgment

depositions. Finally, the sheriff did not return a writ of nulla bona.

       Pascarella claims that Mrs. Marvaldi misled him by stating that her sons did not

live in New Jersey and they did not have any assets. Additionally, Pascarella asserts that

since the personalty is so insignificant in comparison to the amount owed Ponticelli,

Pascarella made a good faith effort to locate the personalty.

       The proper focus is not whether there are assets in the county, or the amount of

those assets, but rather whether a good faith effort was made to locate the assets. Evcco

Leasing Corp. v. Ace Trucking Co., 828 F.2d 188, 193 (3d Cir. 1987). Pascarella made

little effort to locate Rocco or Lawrence Marvaldi, or their assets. The sheriff did not

return a writ of nulla bona. There was not a good faith effort.

       Accordingly, we will affirm the judgment of the district court.

________________________



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