Slack v. Slack (In Re Slack)

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 29, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-11208
Summary Calendar
_____________________
In The Matter Of: JOE GOWDY SLACK,
Debtor.
---------------------------------
JAMES D. SLACK, JR.,
Appellant,
versus
JOE GOWDY SLACK,
Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas0
USDC No. 3:03-CV-2602-K
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant James Slack appeals from the bankruptcy court’s
final judgment against him in his First Amended Complaint to Revoke
Discharge of Debtor. He asserts that the bankruptcy court erred by
not revoking the Debtor’s discharge pursuant to 11 U.S.C. §
727(d)(1) and/or 11 U.S.C. § 727(d)(2).
*
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this opinion should not be published and is not precedent except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.
“We apply the same standard of review as did the district
court: the bankruptcy court’s factual findings are reviewed for
clear error; its legal conclusions and mixed questions of fact and
law, de novo.” AT&T Universal Card Servs. v. Mercer (In re
Mercer), 246 F.3d 391, 402 (5th Cir. 2001) (en banc). The
bankruptcy court’s credibility determinations are entitled to
deference, and its factual findings may be set aside only if, after
considering the entire evidence, the reviewing court is left with
“the definite and firm conviction that a mistake has been made.”
Robertson v. Dennis (In re Dennis), 330 F.3d 696, 701 (5th Cir.
2003) (citation omitted).
In an adversary proceeding, the plaintiff has the burden of
proving sufficient facts to sustain his claims by a preponderance
of the evidence. See Beauboeuf v. Beaubouef (In re Beaubouef), 966
F.2d 174 (5th Cir. 1992). After review of the record and the
briefs of the parties, we find that the bankruptcy court did not
err, clearly or otherwise, in concluding that the Appellant failed
in his burden of proof required for discharge revocation. We find
no error in the bankruptcy court’s conclusions that the Appellant
did not show that the Debtor’s actions and mistakes were knowingly
and fraudulently made, that the Appellant did not show that the
Debtor’s mistakes were material, and that the Appellant did not
show that he was unaware of the facts at issue when the Debtor
sought discharge. Accordingly, the district court’s judgment
affirming the bankruptcy court’s decision is
2
AFFIRMED.
3