2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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
 

*

 The Honorable Richard D. Cudahy, Circuit Court Judge for the United States Court

of Appeals for the Seventh Circuit, sitting by designation.

NOT PRECEDENTIAL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)
2

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).
3

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 Mr. 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 nondebtor 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.