USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-2408
IN RE:

MARK NELSON,

Debtor,
____________
MARK NELSON,
Appellant,
v.
LINDA WIHBEY TAGLIENTI, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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____________________

Domenic S. Terranova for appellant.

____________________
Linda T. Wihbey, with whom Ring, Rudnick & Grefe, P.C., Phil
________________
_____________________________ ____
G. Grefe, and Ring & Grefe, P.C., were on brief for appellees.
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__________________
____________________
June 3, 1993
____________________

STAHL,

Circuit Judge.
______________

Nelson (Mark) claims that

erred in dismissing
wife, Paula
alleges that
provided by
actions

Plaintiff-appellant

Mark

the bankruptcy and district courts

his suit for damages

against his former

Nelson Fiorenza (Paula), and her

attorneys.

He

defendants willfully violated an automatic stay

the bankruptcy code when

they instituted equity

in state court which interfered with the sale of the

former marital home.

We disagree and affirm.

I.
I.
__

Background
Background
__________
The Nelsons
resided at

were married on February

16 Dorchester Street,

2, 1985, and

Wilmington, Massachusetts.

On February 12, 1991, they executed a marital agreement which

subsequently became

part of a

divorce judgment.

Under the

terms of that agreement, Mark was obligated to pay Paula $200

weekly
old

as child support for the benefit of their eight year-

daughter.

The

agreement

further

obligated

him

to

maintain the first and second mortgages on the former marital

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home,

and

actively

to list

and

market the

property for

sale.1
On March
transferred

all of

22, 1991, for

his

Dorchester Street to his

right,

$1.00 consideration,
title

and interest

Family Court.
court entered
contempt
suspended
paid."

efforts

in

the Middlesex

On

May 8,

1991, and

16

County

Paula began
Probate

and

October 24, 1991,

the

judgments of contempt against him.

judgment

in

father, George Nelson, as trustee.2

When Mark failed to make child support payments,

enforcement

Mark

resulted

in

120-day

jail

The second
sentence,

until November 8, 1991, "to see if all arrears are

____________________
1.
According to defendants' brief in bankruptcy court, the
agreement also provided that Paula Nelson transfer her right,
title and interest in 16 Dorchester Street to Mark.
As we
read the agreement, she was required to transfer her right,
title and interest in six Wilmington properties, including 18
Dorchester Street, but not 16 Dorchester Street.
It is
___
unclear to us, therefore, who held title to 16 Dorchester
Street as of February 12, 1991.
2.
At oral argument, plaintiff's counsel contended that
prior to the transfer, the property was in a real estate
trust, with Mark and Paula as both trustees and lifetime
beneficiaries.
Counsel argued that a second real estate
trust had been established well in advance of March 1991, and
that the "transfer" really amounted to a mere substitution of
George Nelson for Mark as trustee. There is no evidence in
the record as to whether such trust arrangements ever
existed.
Nor is there any evidence that Paula surrendered
her interest as either trustee or lifetime beneficiary of 16
Dorchester Street in the marital agreement. See n.1 supra.
___
_____

-33

hearing on
12,

the contempt

1991.

On

November 8,

"skeleton"3 petition
Bankruptcy
November

Court
12,

judgment was continued

1991,

to November

Mark filed

a voluntary,

for bankruptcy under Chapter

for the

1991,

District

Mark

filed

in

of

13 in the

Massachusetts.

the

Probate

Court

On
a

suggestion of bankruptcy and a motion to continue the pending

contempt action.
proceeded

to file another

attachment and
transfer of
to
the

Subsequently, on November

temporary

the 16

Chapter 13

that court

restraining order

these proceedings, Judge

directed

the parties

trustee in bankruptcy, Joseph

assert that

trustee Szabo

allowing for

the sale of

bankruptcy estate did

____________________

to

the property,

the

According
McGovern of

meet with

Szabo.

"agreed to execute

seeking an

to prevent

Dorchester Street property.4

defendants, during
Probate Court

action in

25, 1991, Paula

the

Defendants

a stipulation

asserting that

the

not claim any right, title or interest

3.
A "skeleton" bankruptcy petition does not include the
required
itemized
lists
of assets
and
liabilities.
Petitioners obtain leave to file those lists at a later date.
After receiving two such extensions of time in which to file
the supporting
documents, Mark filed the schedules to
accompany his Chapter 13 bankruptcy petition on December 26,
1991. He listed 16 Dorchester Street as real property in
which he held an equitable interest of one-half, and on which
there were mortgages of $105,214.93 and $68,765.84.
Given
counsel's argument that Paula had relinquished all interest
in the property, see n.1 supra, it is unclear who held the
___
_____
remaining one-half beneficial interest in the property.
4.
She appears to have done so
Dorchester Street was the subject
agreement.

after learning that 16

of a purchase and sale

-44

in the property, as said property stood in the name of George

Nelson, not the Debtor

Mark Nelson."

Mark does

not dispute

defendants' version of what transpired.

The

Probate Court

issued a

temporary restraining

order on December 9, 1991, with a return date of December 19,

1991.

On December 17, 1991, Mark filed another suggestion of

bankruptcy and motion to continue.

Probate Court issued
restraining

order

On December 19, 1991, the

an interlocutory
in

force.

The

order continuing
pending

sale

of

the
16

Dorchester Street fell through when, according to Mark, Paula

refused to provide relief from the liens on the property.

On January 2,
preserve her

1992, Paula, in a

rights in

further effort to

16 Dorchester Street,

equitable action seeking

filed another

an attachment on the

property.

On

January 7, 1992, the Probate Court ordered the attachment.

On
proceeding in
her attorneys,
state
estate,

January 16, 1992,

Mark commenced

an adversary

the bankruptcy

court against his

ex-wife and

claiming that, by pursuing

court against
they

had

property
willfully

provided by 11 U.S.C.

362.

and attorneys' fees and

arose from

equity actions in

properly

in

the

bankruptcy

violated

an

automatic

stay

He sought actual damages, costs

punitive damages claiming that these

defendants' obstruction

of the proposed

sale of

the marital residence.

-55

In

response,

defendants moved

failure to state a claim.

to

dismiss

the action

for

On February 15, 1992, Mark converted his Chapter 13

bankruptcy petition
the

to a Chapter 7

mortgagee successfully

petitioned the

for relief from the stay in

foreclose

on its

petition.

Subsequently,

bankruptcy court

order to permit it to proceed to

16 Dorchester

Street mortgage,

an action

bankruptcy court

dismissed

which ultimately occurred.

On May
Mark's
court

22,

1992, the

adversary proceeding.

He

appealed to

the district

which, on September 15, 1992, affirmed the judgment of

the bankruptcy court.

From that decision he now appeals.

II.
II.
___
Discussion
Discussion
__________
As

general rule,

petition

operates as

property

of the

a stay

bankruptcy

Because the stay takes

the

filing

of a

against actions
estate.

11

bankruptcy

affecting the

U.S.C.

effect upon filing, without

362(a).
the need

for further action, it is often referred to as an "automatic"

stay.

The function of the stay is to "protect the bankrupt's

estate
seizures

from

being eaten

of

opportunity

property
to marshal

them equitably

among

away
before
the

the

by
the

creditors' lawsuits
trustee

estate's assets
creditors."

-6-

has

had

and
the

and distribute

Martin-Trigona
______________

v.

Champion Fed. Sav. & Loan Assoc., 892 F.2d 575, 577 (7th Cir.
________________________________
1989) (citing H.R.

Rep. No.

595, 95th Cong.

1st Sess.

340

(1977), U.S. Code Cong. & Admin. News 1978, p. 5787).

Ordinarily,
bankruptcy

court

before proceeding
362(d).

The code,

party

for, and

in

receive,

must

relief

against the debtor's

ask

from the

estate.

11

the
stay

U.S.C

however, also provides numerous statutory

exceptions to the automatic stay.

11 U.S.C.

interest

362(b)(2),

11 U.S.C.

362(b).

actions to "collect[] .

Under

. . alimony,

maintenance, or support from property that is not property of

___
the estate" are not barred by an automatic stay.

11 U.S.C.

362(b)(2)

take action

against

(emphasis supplied).
a

bankruptcy

approval of the court

Litigants

estate without

individual injured by any

provided
including

by

this

costs

receiving

or falling under one of

exceptions are subject to sanctions.

"[a]n

who

section

shall

and attorneys'

The code

the

prior

the statutory
provides that

willful violation of a stay

_______
recover
fees,

actual

and, in

damages,

appropriate

circumstances,

may

recover

punitive damages."

11 U.S.C.

362(h) (emphasis supplied).

Paula's

This

case turns

equity

actions

on
in

two questions:
state

court

362(b)(2) exception to the automatic

"willfully

(1)

fell

whether

under

the

stay; and (2) if not,

whether

Paula

violated"

the

thereby

subjecting herself to penalties

automatic

under

stay,

362(h).

In

-77

this

case,

the answer

to the

first question

provides the

answer to the second.

As noted above,
stays actions seeking to
is

not property
___

of

(emphasis supplied).
following
(1) the

362(b)(2) exempts from

collect support from property "that

the estate."

11 U.S.C.

362(b)(2)

Paula appears to have been aware of the

at the time she

Registry

automatic

of Deeds

filed the November equity action:

recorded that

ownership of

the

property had been transferred from Mark to George Nelson; and

(2)

Mark had not listed any interest in 16 Dorchester Street

as property

of the

estate because

he had

yet to

documents to support his bankruptcy petition.

the time

she filed

the

action, Paula

file the

At or close to

learned from

Joseph

Szabo, the Chapter 13 bankruptcy trustee, that the bankruptcy

estate

would not

claim

any of

the

proceeds of

the

then

pending sale of the property.5

Given the

peculiar "facts"

that Paula could not

stay

applicable to

Dorchester

of this case,

we hold

have "willfully violated" the automatic

plaintiff's

property, if,

in fact,

Street was ever covered by such a stay.

16

Although

____________________
5. We also note that Mark's counsel conceded at oral
argument that there was no way for Paula to determine from
public records who held beneficial interest in the property
at 16 Dorchester Street.
Indeed, in retrospect, it is
impossible for this court to determine whether the property
was properly part of the bankruptcy estate. The ambiguous
record of this case contains no evidence that the property
was ever in a real estate trust, and it is unclear whether,
when and how Paula surrendered her interest in the property.
-88

Paula
whether

could have
the

asked

property

the bankruptcy
was

subject

to

court to
a

stay

determine
prior

to

commencing her equity actions in state court, we hold that it

was reasonable for her
part
record
could

to believe that the property

of the bankruptcy estate.6

was not

Indeed, we believe that the

in this case makes it so obvious that Paula's actions

not

frivolous.

have

been

willful

that

See Fed. R. App. P. 38.

defendants the

sum of $2,000

and appellate attorneys'

we

find

appeal

Therefore, we award the

to cover both

fees said fees

severally against appellants and

this

appellate costs

to run jointly

his counsel.7

and

The decision
____________

of the district court is affirmed.

_________________________________

____________________
6.
Mark does not explicitly state which of Paula's actions
interfered with the sale of 16 Dorchester Street.
To the
extent that he argues for a distinction between actions filed
before December 26, 1991, when he filed the schedules
accompanying his bankruptcy petition indicating that the
bankruptcy estate had an equitable interest in the property,
and those initiated thereafter, he does so in a most
perfunctory manner.
This court has often warned litigants
that
"issues adverted
to
in
a perfunctory
manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."
United States v. Zannino, 895 F.2d 1, 17
_____________
_______
(1st Cir.), cert. denied, 494 U.S. 1082 (1990).
_____ ______
7. Because defendants did not cross-appeal the denial
their motion for costs and fees below, they failed
preserve that issue on appeal.

of
to

-99