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In re Blasingame

United States Court of Appeals, Sixth Circuit

November 7, 2016

In re: Earl Benard Blasingame; Margaret Gooch Blasingame, Debtors.Church Joint Venture, L.P.; Farmers & Merchants Bank.; Edward L. Montedonico, Chapter 7 Trustee, Plaintiffs-Appellees,
v.
Earl Benard Blasingame; Margaret Gooch Blasingame Defendants-Appellants.

         Appeal from the United States Bankruptcy Court for the Western District of Tennessee at Memphis. No. 08-28289-Jennie D. Latta, Judge.

          Argued: March 1, 2016

         ARGUED:

          David J. Cocke, EVANS│PETREE, PC, Memphis, Tennessee, for Appellants.

          Bruce W. Akerly, CANTEY HANGER LLP, Dallas, Texas, for Appellees.

         ON BRIEF:

          David J. Cocke, EVANS│PETREE, PC, Memphis, Tennessee, Michael P. Courty, GLANKER BROWN, PLLC, Memphis, Tennessee, for Appellants.

          Bruce W. Akerly, CANTEY HANGER LLP, Dallas, Texas, C. Barry Ward, BALLIN, BALLIN & FISHMAN, P.C., Memphis, Tennessee, for Appellees.

          Before: HARRISON, HUMPHREY, and PRESTON, Bankruptcy Appellate Judges.

          OPINION

          C. KATHRYN PRESTON, CHIEF BANKRUPTCY APPELLATE PANEL JUDGE.

         In these consolidated appeals, Earl Benard Blasingame ("Benard Blasingame") and Margaret Gooch Blasingame ("Margaret Blasingame") (together, "Debtors") appeal the order denying their discharges and the order striking certain documents from the record on appeal. For the reasons stated below, the Panel affirms the order denying Debtors' discharges, and affirms in part and reverses in part the order striking documents from the record.

         ISSUES ON APPEAL

         Debtors raised the following issues on appeal:

1. Was the bankruptcy court's finding that Debtors concealed assets or transferred property with intent to hinder and delay a creditor or officer of the estate, as required to deny their discharges pursuant to § 727(a)(2)(A) and (B) of the Bankruptcy Code, clearly erroneous?
2. Was the bankruptcy court's finding that Debtors knowingly and fraudulently made false oaths for purposes of 11 U.S.C. § 727(a)(4) clearly erroneous?
3.Was the bankruptcy court's finding that Debtors did not reasonably rely on the advice of their bankruptcy counsel in connection with their bankruptcy filings clearly erroneous, not supported by the facts, and contrary to the law of the case?
4.Was the bankruptcy court's decision to strike certain documents in the record on appeal in BAP Case No. 15-8008 (specifically ECF Nos. 543, 556, 557 and 564 in the underlying bankruptcy case, and ECF Nos. 477, 508, 528, 535, 536 and 537 in the adversary proceeding) clearly erroneous and an abuse of discretion?

         JURISDICTION AND STANDARD OF REVIEW

         Under 28 U.S.C. § 158(a)(1), this Panel has jurisdiction to hear appeals "from final judgments, orders, and decrees" issued by the bankruptcy court. For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States,489 U.S. 794, 798, 109 S.Ct. 1494, 1497 (1989) (citation and quotation marks omitted). "An order denying a discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A) and (a)(4)(A) is a final order, see, e.g., Hamo v. Wilson (In re Hamo), 233 B.R. 718, 720 (B.A.P. 6th Cir.1999), and final orders of a bankruptcy court may be appealed by right ...


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