* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: ROYAL K. HUNT,

Debtor,
ROYAL K. HUNT,

Appellant, v. JOHN H. HARR, assignee of Ernest G. Clark and Verda Clark,

Appellee. No. 97-4137 (BAP No. UT-97-006) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Debtor Royal K. Hunt appeals the bankruptcy court’s order denying his request to reopen his bankruptcy case. The Tenth C ircuit Bankruptcy Appellate Panel affirmed, concluding that debtor’s failure to provide a transcript of the hearing on the motion to reopen precluded its revie w of the bankruptcy court’s decision. We exercise jurisdiction under 28 U.S.C. § 158(d), and affirm. Debtor had an ownership interest in a parcel of rea l property located at 8171 South Marion View Circle, Salt Lake County, Ut ah. On May 18, 1993, the bankruptcy trustee filed a notice to abandon property which included the subject real property. Thereafter, on July 6, 1993, ErnestG. Clark and Verda Clark, judgment creditors of debtor, filed their unsecuredclaim in the bankruptcy proceedings for which they received a distribution from the bankruptcy estate that paid part of their claim. A few weeks later, the C larks assigned any and all remaining interest in the judgment to appellee, Joh n H. Harr. After debtor’s bankruptcy case had been closed, appellee obtained a ruling from the Utah Court of Appeals that a lien was created against the subj ect property at the time of the judgment, which was unaffected by the bankruptcy. Debtor’s motion to reopen his bankruptcy case sought a determination that app ellee’s lien was invalid because by filing an unsecured claim, the Clarks ha d waived their secured interest-3-

in the subject property. Therefore, according to d ebtor, appellee took no interest in the subject real property because the Clarks ret ained no interest to convey. The bankruptcy court’s decision not to reopen a cas e under 11 U.S.C. § 350(b) is reviewed for an abuse of discretion. See Nintendo Co. v. Patten (In re Alpex Computer Corp.) , 71 F.3d 353, 356 (10th Cir. 1995). Debtor does not dispute that “[s]ecured debts, including judgment liens . . ., generally survive bankruptcy. David Dorsey Distr., Inc. v. Sanders (In re Sanders) , 39 F.3d 258, 260 (10th Cir. 1994). Rather, he asks us to determine as amatter of law that a creditor has waived his secured interest in a parce l of property if he filed an unsecured claim in a Chapter 7 bankruptcy listing the full amount of the debt. On the state of this record, we decline to do so. Debtor has not provided a record of the hearing on his motion to reopen. The record does not contain any indication of the b ankruptcy court’s reasoning for denying the motion to reopen. The bankruptcy courtmay have determined, as the Bankruptcy Appellate Panel suggested, that the stat e court’s decision was binding, or that other reasons weighed against reopening the case. Because the evidentiary record is insufficient to p ermit assessment of debtor’s claims, we must affirm. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992). Debtor’s failure to inclu de the relevant documents in his appendix requires this court to hold that he did no t meet his burden of proving the-4-

bankruptcy court’s ruling was an abuse of discretion. See McEwen v. City of Norman , 926 F.2d 1539, 1550 (10th Cir. 1991). The judgment of the Tenth Circuit Bankruptcy Appell ate Panel is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge