UNITED STATES BANKRUPTCY APPELLATE PANEL

FOR THE EIGHTH CIRCUIT

 

No. 97-6051

 

In re: JUDITH ANN WEBB *

*

*

Debtor. *

*

HELEN C. BERGMAN * APPEAL FROM THE UNITED

* STATES BANKRUPTCY

Appellee * COURT FOR THE 

* DISTRICT OF NEBRASKA

v. *

*

JUDITH ANN WEBB *

*

 Appellant *

 

Submitted: August 20, 1997

Filed: September 23 1997

 

Before HILL, DREHER, and SCOTT, Bankruptcy Judges

SCOTT, Bankruptcy Judge

The pro se debtor appeals from a judgment denying her discharge

for failure to explain a loss of assets. 11 U.S.C. § 727(a)(5). A

review of the record reveals that the findings of the bankruptcy court

are not clearly erroneous such that the judgment will be affirmed.

After her father's death, the debtor received, in 1991 and 1992,

over $116,500 from his estate and insurance proceeds. In 1993, the

debtor obtained a loan in the amount of $55,000, of 
2

which she received over $5,000 in cash. The remainder of the loan

proceeds were paid directly to her creditors. Although she initially

received this large amount of money from her father's estate, her

father's wife (not the debtor's mother), Helen Bergman, the appellant, 

successfully contested the distribution. On May 25, 1995, the probate

court ordered debtor to pay $37,700 of the funds she had received to

Helen Bergman. The debtor filed her bankruptcy case on May 22, 1995,

three days prior to entry of judgment by the state court.

Although initially represented by counsel, the debtor was pro se

at trial. In view of her pro se status, the bankruptcy court permitted

her to submit a new pretrial statement, and, after trial, permitted her

to supplement the record with particular documents. The bankruptcy

court denied the debtor's discharge, finding her statements regarding

her loss of assets so generalized and vague as to render her testimony

unbelievable. The debtor appeals this judgment, pointing to no specific

error in the trial court's findings, but, rather, asserts that the

bankruptcy court should have advised her what other documents she was

required to produce in order to defend the section 727(a) action.

It is well-settled that pro se litigants are not excused from

complying with substantive and procedural law. American Inmate

Paralegal Association v. Cline, 859 F.2d 59, 61 (8th Cir. 1988), cert.

denied, 488 U.S. 996 (1988); Burgs v. Sissel, 745 F.2d 526 (8 Cir. th

1984); McCaslin v. Radcliff, 168 F.R.D. 249, 
3

255 (D. Neb. 1996). While it is true that a court must construe pro se

pleadings liberally, Ouzts v. Cummins, 825 F.2d 1276, 1277 (8 Cir. th

1987), the court may not act as counsel for either litigant, Burgs v.

Sissel, 745 F.2d 526, 528 (8 Cir. 1984); Schooley v. Kennedy, 712 F.2d th

372, 373 (8 Cir. 1983). Accordingly, while the trial court properly th

requested specific documentation and permitted the debtor to submit

additional documents, it was neither the trial court's duty nor province

to conduct the debtor's discovery, aid in preparation for trial, or

determine what documentary evidence should be offered at trial. 

The Panel has reviewed the scant record on appeal submitted by the

debtor, as well as the bankruptcy court file. It does not appear to the

Court from the file, the debtor's record, or the debtor's brief that

error was made by the trial court. The record reveals that the debtor

received over $100,000 in cash from her father's estate and that she

received a loan which paid creditors and cash to her. Despite this

receipt of wealth, she could account for only $66,800 of the funds. Her

explanations were described by the trial court as so vague and

generalized that it could place no reliance on her credibility. Indeed,

the bankruptcy court, as trier of fact, expressly did not believe her. 

It is not for this Panel to make credibility findings of witnesses whose

testimony only the trial court viewed. See Fed. R. Bankr. Proc. 8013;

Miller v. Kasden (In re Kasden), 209 B.R. 239, 241 (BAP 8 Cir. 1997); th

Norwest Bank Nebraska, N.A. v. Tveten (In re Tveten), 82 B.R. 95 (D.

Minn. 1987), aff'd, 848 
The Panel does not have before it a transcript of the 1

proceedings below. Inasmuch as it is the appellant's burden to

demonstrate the merits of her appeal, she must bear the burden of

the deficient record. See generally Fed. R. Bankr. Proc. 8006;

Zander v. Lutheran Brotherhood of Minneapolis, 137 F.2d 17, 21

(8 Cir. 1943); Sublette v. Servel, Inc., 124 F.2d 516, 517 (8 th th

Cir. 1942). The record before the Court provides no inference

that the bankruptcy court committed any error.

4

F.2d 871 (8 Cir. 1988); Brenton National Bank of Perry v. Kistler (In th

re Kistler), 46 B.R. 739 (S.D. Iowa 1985).

The debtor has made no showing of any factual error by the

bankruptcy court. Moreover, it was not error for the bankruptcy court, 1

either during or after trial, to advise the debtor what evidence she

must offer in order to prosecute her defense. No error appearing from

the record, the judgment of the bankruptcy court is affirmed.

A true copy.

Attest:

CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE EIGHTH

CIRCUIT