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In re Meabon

United States District Court, W.D. North Carolina, Charlotte Division

July 30, 2014

IN RE: RICHARD P. MEABON AND EVELYN L. MEABON, Debtors. RICHARD PAUL MEABON, AND MARTHA MEDLIN, in her capacity as Trustee under that Certain Trust Agreement of Raymond B. Meabon and Nancy E. Meabon dated May 10, 1991, Appellants,
v.
R. KEITH JOHNSON, Trustee for the Bankruptcy Estate of Richard P. Meabon and Evelyn L. Meabon, Appellee

For Richard Paul Meabon, Appellant: Michael K. Elliott, LEAD ATTORNEY, Elliott Law Firm, PC, Huntersville, NC.

For R. Keith Johnson, Appellee: John C. Woodman, LEAD ATTORNEY, Moon Wright & Houston, Charlotte, NC; R. Keith Johnson, LEAD ATTORNEY, Stanley, NC.

Page 447

ORDER

Robert J. Conrad, Jr., United States District Judge.

THIS MATTER comes before the Court on Appellants' Notice of Appeal from Bankruptcy Court, (Doc. 1), Appellants' Brief, (Doc. 4), and Appellee's Motion to Dismiss, (Doc. 6). It is ripe for review.

I. BACKGROUND

On February 23, 2010, Richard Meabon and Evelyn Meabon (debtors) filed a voluntary Chapter 7 case (No: 10-30455) in the Bankruptcy Court of this district. On June 11, 2010, the Bankruptcy Court granted discharge under 11 U.S.C. § 727 (the Bankruptcy Code). However, on April 8, 2014, the Bankruptcy Court revoked Richard Meabon's Discharge. Thereafter, Appellants appealed the Bankruptcy Court's Order Revoking Discharge. (Docs. 1, 1:1). Appellee has filed a motion to dismiss as frivolous Appellants' appeal, which this Court now reviews. (Doc. 6).

II. STANDARD OF REVIEW

Under 28 U.S.C. § 158(a), district courts have jurisdiction to hear appeals of the decisions of bankruptcy courts. A bankruptcy court's findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. In re J.A. Jones, Inc., 492 F.3d 242, 249 (4th Cir. 2007). Findings of fact are clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In re Weiss, 111 F.3d 1159, 1166 (4th Cir. 1997). " Stated differently, a choice between two permissible views of the evidence cannot be clearly erroneous," 9 James Wm. Moore Et Al., Moore's Federal Practice - Civil § 52.31[1] (3d ed. 1997), and " so long as the trial court's factual finding is plausible, the appellate court may not reverse it." 19 James Wm. Moore Et Al., Moore's Federal Practice - Civil § 206.03[4] (3d ed. 1997); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Under rule 9011 of the Federal Rules of Bankruptcy Procedure, the Court may dismiss a claim as frivolous if the allegations and other factual contentions don't have evidentiary support and, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, (Fed. R. Bankr. P. 9011(b)(3)), or if the denials of factual contentions are not warranted on the evidence, or, if specifically so identified, are not reasonably based on a lack of information or belief. Fed. R. Bankr. P. 9011(b)(4). See Law v. Siegel, 134 S.Ct. 1188, 1198, 188 L.Ed.2d 146 (2014) (noting that rule 9011 is " bankruptcy's analogue to Civil Rule 11" ). " An appeal is frivolous when the result is obvious or when the appellant's argument is wholly without merit." In re Lapke, 428 B.R. 839, 844 (B.A.P. 8th Cir. 2010) (internal citation omitted).

III. ANALYSIS

A. Findings of Fact

The Bankruptcy Judge made several findings of fact, stated hereafter. On February 23, 2010, Richard Meabon and Evelyn Meabon filed a voluntary Chapter 7 bankruptcy case, and Keith Johnson was appointed Trustee. (Doc. 1:1 at 2). Prior to filing bankruptcy, the Meabons consulted with attorney Rick Mitchell ...


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