Cassandro v. Perillo et al

Filing 11

ORDER: SO ORDERED that this Court AFFIRMS the October 14, 2015 Judgment of the bankruptcy court. The Clerk of Court is directed to close this case and to mail a copy of this Order to the pro se appellant. Ordered by Judge Joan M. Azrack on 2/21/2017. CM to pro se Appellant. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT JOHN CASSANDRO

For Online Publication Only

Plaintiff,
ORDER
15-CV-6255 (JMA)

-againstWILLIAM PERILLO and MARTHA PERILLO
Defendants.
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AZRACK, United States District Judge:

FILED 
CLERK 

2/21/2017 5:01 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Appellant Robert Cassandro, proceeding pro se, appeals the October 14, 2015 Judgment
and Memorandum Decision of the bankruptcy court, which concluded that the debt appellant owed
appellees was nondischargeable. After reviewing the parties’ appellate briefs and the record
below, this Court affirms the decision of the bankruptcy court. This Court assumes familiarity
with the facts and underlying proceedings, which are referenced only as necessary to explain the
Court’s decision.
I. STANDARD OR REVIEW
A bankruptcy court’s conclusions of law are reviewed de novo. In re Ionosphere Clubs,
Inc., 922 F.2d 984, 988 (2d Cir. 1990). A bankruptcy court’s factual findings are reviewed for
clear error.

Id.

Whether there is sufficient evidence to support a finding that a debt is

nondischargeable is a question of law. In re Dubrowsky, 244 B.R. 560, 578 (E.D.N.Y. 2000). A
district court will not disturb a bankruptcy court’s finding that a debt is nondischargeable where
that conclusion is “well supported” by the testimony at trial. Id.

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Additionally, a pro se party’s pleadings and briefs are liberally construed “to raise the
strongest arguments they suggest.” Hamlett v. Santander Consumer USA Inc., 931 F. Supp. 2d
451, 455 (E.D.N.Y. 2013) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)).
II. ANALYSIS
Upon review, the Court concludes, for the reasons stated by the bankruptcy court in its
thorough and well-reasoned decision, that appellant’s debt is nondischargeable under 11 U.S.C. §
523(a)(2)(A).
Section 253 of the Bankruptcy Code governs dischargeability of debts and provides:
(a) A discharge under section 727 . . . does not discharge an individual debtor from any
debt—
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to
the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement
respecting the debtor’s or insider’s financial condition[.]
11 U.S.C. § 423(a)(2)(A). “A creditor seeking to establish nondischargeability under § 523(a)
must do so by the preponderance of the evidence.” Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d
Cir. 2006).
Appellant argues that appellees failed, as matter of law, to offer sufficient evidence that
debt at issue was nondischargeable. This Court disagrees. There is sufficient evidence in the
record from which the bankruptcy court could conclude that the debt in question was obtained by
false pretenses, false representation, or actual fraud. False pretenses, false representation, and
actual fraud are established by “a showing of intent to defraud, justifiable reliance, and causation
of loss . . . .” In re Scialdone, 533 B.R. 53, 59 (Bankr. S.D.N.Y. 2015). With regard to fraudulent
intent, the record contains ample evidence demonstrating that appellant borrowed far in excess of
the amount he represented to be the value of the Yaphank property—the business venture for which
the debt at issue was obtained. There was also evidence of: (1) the first priority mortgage appellant
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promised, but failed to deliver to appellees; (2) the personal guarantee appellant promised, but
failed to pay to appellees; and (3) appellant’s criminal conviction for engaging in a scheme to
defraud various investors, including the appellants. This evidence was more than sufficient to
establish appellant’s fraudulent intent. Additionally, there was sufficient evidence in the record—
in particular, appellees’ testimony—to support the bankruptcy court’s finding that appellees had
relied on appellant’s representations, were justified in doing so, and that appellant’s
representations were the direct cause of appellees’ loss.
Appellant also argues that the bankruptcy court’s factual findings were clearly erroneous.
Specifically, appellant challenges the bankruptcy court’s findings that he: (1) made
misrepresentations to appellees and (2) acted with fraudulent intent in doing so. The Court
disagrees, as these findings were well-supported by evidence at trial. Additionally, contrary to
appellant’s argument, the bankruptcy court’s reliance on appellant’s criminal conviction for
engaging in a scheme to defraud was not erroneous. First, the Court notes that appellant failed to
object to the admission of this evidence before the bankruptcy court and so, has failed to preserve
this objection. (Trial Tr. 43:23, ECF No. 5.) Accordingly, this Court reviews for plain error.
Notably, as the bankruptcy court made clear, appellant’s conviction was only one factor, under the
totality of the circumstances, supporting the finding that appellant had acted with fraudulent intent.
In finding fraudulent intent, the bankruptcy court also relied on appellant’s excess fundraising, the
promise of a personal guarantee, and the promise of a first mortgage on the Yaphank property.
Given the conclusions above, this Court will not disturb the bankruptcy court’s factual
findings and decision to deny appellant discharge of his debt. See In re AroChem Corp., 176 F.3d
610, 620 (2d Cir. 1999) (“[W]e review the bankruptcy court decision independently, accepting its
factual findings unless clearly erroneous . . . .”); Dubrowsky, 244 B.R. at 578 (“Hearing the

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testimony and viewing the witnesses, [the bankruptcy court judge] was clearly in the best position
to make [the dischargeability] decision and this Court will not interfere with [his] factual
conclusions as they are well supported by the testimony at the trial.”).
This Court has also considered appellant’s remaining arguments and finds them to be
without merit.
III. CONCLUSION
For the reasons stated above, this Court AFFIRMS the October 14, 2015 Judgment of the
bankruptcy court. The Clerk of Court is directed to close this case and to mail a copy of this Order
to the pro se appellant.
SO ORDERED.
Date: February 21, 2017
Central Islip, New York
_____/s/ (JMA)___________
Joan M. Azrack
United States District Judge

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