8400 NW Expressway LLC v. Morgan ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2008
No. 08-10020 Charles R. Fulbruge III
Clerk
In The Matter Of: RICHARD D. MORGAN
Debtor
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8400 NW EXPRESSWAY LLC
Appellant
v.
RICHARD D. MORGAN
Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-801
Before JOLLY, BARKSDALE and HAYNES, Circuit Judges.
PER CURIAM:*
Richard D. Morgan filed a Chapter 7 bankruptcy, claiming $37 million in
debts. One of his debtors, Appellant 8400 NW Expressway LLC, objected to
Morgan’s discharge on the ground, inter alia, that he failed to keep or preserve
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-10020
records from which his financial condition might be ascertained as required by
11 U.S.C. § 727(a)(3) (2005). We affirm the overruling of this objection.
The bankruptcy judge conducted a lengthy hearing in which Morgan
testified extensively. She found his testimony credible. Following the hearing
and argument by the parties, the bankruptcy judge entered a detailed opinion
addressing Appellant’s contentions and overruling its objections to Morgan’s
discharge. The district court affirmed.
We have carefully reviewed the pertinent portions of the record, and we
have considered the parties’ briefs and their thorough and well-presented
arguments. We conclude that the bankruptcy judge ultimately applied the
correct standard of law. Her factual findings are subject to review for clear
error. Gen. Elec. Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372 (5th
Cir. 2005). Although Appellant established that some records were missing, the
bankruptcy judge found that the records were not necessary to establish
Morgan’s financial condition. She also found in the alternative that Morgan was
justified in failing to keep or preserve these records. We conclude that the
bankruptcy judge, who is in the best position to judge the credibility of witnesses
and assess the missing records in light of the overall financial picture of the
debtor, did not make any relevant findings that were clearly erroneous. We
agree with the district court’s conclusions of law.
Accordingly, the judgment of the district court affirming the bankruptcy
court’s judgment is AFFIRMED.
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