Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Ponticelli v. Dobin
Citation: 99 F. App'x 414Docket: No. 03-2229
Court: Court of Appeals for the Third Circuit; May 28, 2004; Federal Appellate Court
Michael and Barbara Ponticelli appeal the summary judgment orders from both the district and bankruptcy courts favoring Lawrence Marvaldi. The case arises from a 1995 New Jersey court judgment awarding Ponticelli $1,335,725 for injuries sustained in an accident involving Marvaldi's truck. Despite multiple communications from Ponticelli's attorney, Kim Pascarella, the Marvaldi brothers did not respond or provide information about their assets. After Pascarella initiated a writ of execution on Marvaldi's real property in 1999, Lawrence Marvaldi filed for Chapter 7 bankruptcy just before the sheriff's sale in March 2000. The bankruptcy trustee, Andrea Dobin, did not contest the levy initially but later sought to void it, leading to cross-motions for summary judgment in which the bankruptcy court ruled against Ponticelli, a decision affirmed by the district court. The core issue on appeal is whether Ponticelli's counsel made a sufficient good faith effort under New Jersey law to locate and levy on personal property before targeting real property. The applicable New Jersey law stipulates that a writ of execution must first demonstrate that the sheriff has made diligent attempts to locate the debtor's personal property, returning a writ of nulla bona if unsuccessful. This procedural requirement was not satisfied in Ponticelli's case, leading to the invalidation of the levy on the real property. The courts have established that a writ of nulla bona is required, even though not explicitly stated in the statute. An execution sale on real property without a prior good faith effort to locate and execute against the judgment debtor's personal property in the county violates legislative mandates and is void. Both the district and bankruptcy courts determined that Ponticelli did not meet the good faith requirement in attempting to locate the debtors' assets. After obtaining the judgment, Pascarella mailed it to the debtors but received no response. Four years later, he sent supplemental interrogatories but was aware that the debtors did not sign for the certified mail. His motor vehicle search prior to the judgment was not followed by further attempts to find vehicles, and his bank account search was limited to looking for a check copy. Pascarella did not compel post-judgment depositions. The sheriff did not issue a writ of nulla bona. Pascarella claimed Mrs. Marvaldi misled him about her sons' residency and asset status, asserting that the insignificance of personal property compared to the debt indicated good faith. However, the emphasis should be on whether a good faith effort was truly made to locate assets, not on the existence or value of those assets. The courts found Pascarella's efforts inadequate, affirming the district court's judgment.