PURINGTON et al v. PURINGTON

Filing 11

OPINION FILED. Signed by Judge Noel L. Hillman on 7/9/13. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
In re:
TRACY L. PURINGTON,
Debtor.

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Civil Action No. 12-4135
OPINION

APPEARANCES:
FILOMENA BOCCELLA
5018 MOSS MILL ROAD
EGG HARBOR TOWNSHIP, NEW JERSEY 08215
Appellant, appearing pro se
TRACY L. PURINGTON
1043 OLD ZION ROAD
EGG HARBOR TOWNSHIP, NEW JERSEY 08215
Appellee, appearing pro se
HILLMAN, District Judge.
Presently before the Court is Appellant Filomena
Boccella’s appeal from the Bankruptcy Court’s Order denying
her request to declare the debt due to her from Appellee Tracy
L. Purington as nondischargeable, and dismissing her complaint
with prejudice.

For the reasons that follow, Appellant’s

appeal will be denied.
I.

BACKGROUND
As the Court set forth in its prior Opinion, which

granted Boccella’s motion to file her appeal after it was
dismissed for her failure to timely comply with Fed. R. Bankr.
P. 8006 (Docket No. 4), on January 20, 2011, Debtor Tracy L.
Purington filed a voluntary petition of bankruptcy under
Chapter 7 of the United States Bankruptcy Code in the United
States Bankruptcy Court in the District of New Jersey.

On May

3, 2011, Appellant Filomena Boccella separately filed a
complaint against Purington in the Bankruptcy Court seeking to
block entry of discharge on the grounds that Purington had
misrepresented that her construction company was registered,
licensed, and insured in New Jersey, and that Boccella relied
on this misrepresentation when she paid Purington over $17,000
for construction work to be done on her home.

On May 30,

2012, the Bankruptcy Court denied Boccella’s request to
declare the debt due to her from Purington as
nondischargeable, and dismissed her complaint with prejudice.
Subsequently, on September 18, 2012, the Bankruptcy Court
entered an Order discharging Purington.
II.

STANDARD OF REVIEW
This Court has jurisdiction to hear appeals from final

judgments, orders, and decrees entered by the Bankruptcy
Court.

28 U.S.C. § 158(a).

This Court reviews the Bankruptcy

Court’s “findings of fact for clear error and exercise[s]
plenary review over the Bankruptcy Court’s legal
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determinations.”

In re Pillowtex, Inc., 349 F.3d 711, 716 (3d

Cir.2003); see also Fed. R. Bankr. P. 8013 (“Findings of fact,
whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the bankruptcy court to judge the
credibility of the witnesses.”).
III. DISCUSSION
The Bankruptcy Court denied Boccella’s request to hold
the debt Purington owed to her as a result of a failed home
improvement contract nondischargeable pursuant to 11 U.S.C. §
523(a)(2)(A), which provides, “A discharge under section 727,
1141, 1228(a), 1228(b), or 1328(b) of this title does not
discharge an individual debtor from any debt for money . . . ,
to the extent obtained by--(A) false pretenses, a false
representation, or actual fraud, other than a statement
respecting the debtor’s or an insider’s financial condition.”
In her appeal, Boccella asks this Court to overturn that
finding because she wishes to pursue her claims for breach of
contract and fraud against Purington, her husband, their
relatives, and their related construction companies
(“Purington parties”) in New Jersey state court.

Boccella

also wishes to have criminal charges brought against the
Purington parties for their fraudulent activities and
deceptive practices, and to prevent them from perpetrating
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their fraud on others.

Purington has not filed an opposition

to Boccella’s appeal.
Boccella’s appellant brief extensively describes her
claims against the Purington parties, including a detailed
recitation of their alleged conspiracy to dupe unwitting
homeowners into entering into home improvement contracts, even
though they are unlicensed and unskilled.

Boccella’s brief,

however, fails to articulate why the Bankruptcy Court denied
her request to classify her claim as nondischargeable.

She

also fails to explain how the Bankruptcy Court erred in that
determination.1
In order to establish a claim under 11 U.S.C. §
523(a)(2)(A), a party must establish each of the following
elements: (1) that the debtor obtained money, property or
services through a material misrepresentation; (2) that the
debtor, at the time of the transaction, had knowledge of the
falsity of the misrepresentation or reckless disregard or
gross recklessness as to its truth; (3) that the debtor made
the misrepresentation with intent to deceive; (4) that the

1

The Bankruptcy Court held a hearing on Boccella’s
request, but the record on appeal does not contain a
transcript of that proceeding, and it does not contain a copy
of the Bankruptcy Court’s Opinion and Order denying her claim.
As stated herein, the Court obtained a copy of the Bankruptcy
Court’s Opinion from the Bankruptcy Court’s publically
accessible Electronic Document Filing System.
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plaintiff reasonably relied on the representation; and (5)
that the plaintiff suffered loss, which was proximately caused
by the debtor's conduct.

In re Pandolfelli, 2012 WL 503668, 7

(D.N.J. 2012) (citing In re Santos, 304 B.R. 639, 651 (D.N.J.
2004); Starr v. Reynolds, 193 B.R. 195, 200 (D.N.J. 1996)).
“‘[A] debtor will rarely, if ever, admit that deception was
his purpose,’” and, therefore, “‘intent to deceive can be
inferred from the totality of the circumstances, including the
debtor’s reckless disregard for the truth.’”

Id. (quoting

Insurance Co. of N. Am. v. Cohn (In re Cohn), 54 F.3d 1108,
1118–19 (3d Cir. 1995)).
Even though, as noted above, Boccella does not provide
the Court with a copy of the Bankruptcy Court’s Opinion
explaining the reasons for denying her claim, the Court
independently obtained the Opinion, which is available on the
Bankruptcy Court’s public-access docket.

The Bankruptcy Court

issued a comprehensive, 35-page Opinion, which details the
procedural history of Boccella’s relationship with the
Purington parties, the Purington bankruptcy proceedings, and
Boccella’s claims and arguments for why the debt should not be
considered nondischargeable.

After weighing all of these

considerations, and applying the standard set forth above with
relation to § 523(a)(2)(A) claims, the Bankruptcy Court found
that although Purington (1) materially misrepresented herself,
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and (2) knew that her presentations to Boccella about her
qualifications and her established capacity to do the work
were false, Purington (3) did not intend to enter into the
contract never intending to comply with its terms, despite the
unsatisfactory workmanship of the job.

(See Bankr. 11-1757,

Docket No. 11, at 24-29.)
The Bankruptcy Court ultimately found that Boccella’s
arguments did not support a finding of the debt being
nondischargeable because “the critical element of intent to
deceive has not been established against the debtor by a
preponderance of evidence in this case.”

(Id. at 34.)

The

Bankruptcy Court concluded:
I am certainly sympathetic to the serious hardships
endured by the plaintiff and her house-mate as a
result of the failure of this project occasioned by
the actions and inactions of the debtor, and
recognize that the debtor clearly incurred a debt to
the plaintiff as a matter of breach of contract.
However I cannot conclude that all of the elements
required to be shown to establish
nondischargeability under section 523(a)(2)(A) have
been met on this record.
(Bankr. 11-1757, Docket No. 11, at 35.)2

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The Bankruptcy Court also considered whether an
arbitration award in favor of Boccella had a preclusive
effect, and found that it did not because it was unconfirmed
by a New Jersey court, and it did not address Boccella’s
claims regarding fraud under 11 U.S.C. § 523(a)(2)(A).
Considering Boccella’s arguments in her appeal, it does not
appear that she is disputing the Bankruptcy Court’s finding on
that issue. Even if, however, she intended to dispute that
finding, Boccella has not articulated how the Bankruptcy Court
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This Court finds that the Bankruptcy Court properly
applied the legal standard to Boccella’s claims.

This Court

further finds that Boccella has not provided any basis to hold
that the Bankruptcy Court’s findings of fact are clearly
erroneous.

Only a finding that the Bankruptcy Court applied

the wrong legal standard or made clear errors of fact would
support the reversal of the Bankruptcy Court’s decision.
Because Boccella has failed to establish either, her appeal
must be denied.
IV.

CONCLUSION
For the reasons expressed below, Boccella’s appeal of the

decisions of the Bankruptcy Court in 11-1757 and 11-11617 will
be denied.

An appropriate Order will be entered.

Date: July 9, 2013
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

erred in that determination, and the Court finds no basis to
overturn that finding.
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