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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP NO. EC-15-1405-MaJuKu 

)

ALVIN L. SOUZA, JR. and ) BK. No. 14-12200

ROBYN G. SOUZA, )

) Adv. No. 14-01082

Debtors. )

)

______________________________)

)

MILLER HAY AND TRUCKING, INC.,)

)

Appellant. )

)

v. ) M E M O R A N D U M1

)

ALVIN SOUZA, JR.; ROBYN SOUZA,)

)

Appellees. )

______________________________)

Argued and Submitted on October 20,2016

at Sacramento, California

Filed - November 17, 2016

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Frederick E. Clement, Bankruptcy Judge, Presiding

 

Appearances: Kevin Gerard Little argued for appellant; Joseph

R. Beery argued for appellees.

 

Before: JURY, KURTZ, and MARTIN,2 Bankruptcy Judges.

FILED

NOV 17 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

1 This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may

have (see Fed. R.App. P. 32.1), it has no precedential value. See

9th Cir. BAP Rule 8013–1.

2 Hon. Brenda K. Martin, Bankruptcy Judge for District of

Arizona, sitting by designation.
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Before the Panel is Miller Hay & Trucking Inc.’s (MHT)

appeal of the bankruptcy court’s judgment which held that the

debt created when MHT and the Debtors entered into agreements to

settle a debt in January and April 2014 was not excepted from

discharge under 11 U.S.C. § 523(a)(2)(A). For the reasons stated

below, we AFFIRM.3

I. FACTS

The facts are largely undisputed. Whether the bankruptcy

court’s discovery and evidentiary rulings were correct are hotly

contested.

 A. The Settlements

Prepetition, MHT delivered hay to the Debtors’ dairy,

resulting in an asserted claim of approximately $194,000. Based

on the debt, MHT sued the Debtor in California Superior Court

(State Court).

On January 22, 2014, the parties engaged in settlement

negotiations, eventually reaching an agreement that they placed

on the record before the State Court (January Agreement). Key

provisions of the January Agreement included: 1) the delivery by

the Souzas of a $20,000 check payable to MHT by January 31, 2014;

and 2) the turnover by the Souzas of 35 “reasonably healthy beef

animals” to be made available for turnover on January 31, 2014.

As to the cows, the Debtors were to make a good faith effort to

3 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532,

“Rule” references are to the Federal Rules of Civil Procedure,

“Bankruptcy Rule” references are to the Federal Rule of

Bankruptcy Procedure, and “FRE” references are to the Federal

Rules of Evidence.

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determine that they were more than four years old. MHT had the

option, at its own expense, to have a veterinarian examine the

animals to verify that they were not greater than four years old

and that they were reasonably healthy, and MHT would have the

right to reject the animals if they were not.4

4 From the January 22, 2014, hearing:

THE COURT: 11:01 AM On record once again in Miller Hay

.... And I believe we do have a resolution. So who wishes

to begin reciting?

...

MR. FARLEY: So I believe the resolution is as follows: My

client will deliver to Mr. Little's office a check

payable to Miller Hay in the amount of $20,000 no later

than close of business January 31st, 2014. In addition,

my client will segregate at the dairy site 35 animals.

That they will make a good faith effort to determine

those animals are not greater than four years old. But I

want to advise the Court, I don't mean to be facetious,

but animals don't come with birth certificates. So we

will do a good-faith effort they are not going to be more

than four years old. And they will be reasonably healthy

beef animals. In other words, generally speaking, to a

dairyman that means the animal is no longer giving good

milk or not milking. And then I understand that Mr.

Little's client wishes that at his own expense, their own

expense, to have a veterinarian examine the animals. If

for some reason they opt to reject the animals, then the

parties will have to meet and confer through their

lawyers to project -- through their lawyers regarding

projected animals. On January 31st, those animals will be

segregated for pickup at about 10:00 a.m. at their cost.

I think that's it. 

MR. LITTLE: To that, Your Honor, I would add that the –

that obviously animals don’t come with birth

certificates, but they do come with brand and

veterinarian records. And we will be exercising our right

to vet check these animals to make sure that they are not

greater than four years old and that they are reasonably

healthy. If they are not, they will be rejected. And I

hope that doesn’t happen because we’d be back in front of

(continued...)

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Prior to January 31, 2014, a $20,000 cashier’s check was

delivered to MHT and, by agreement of the parties, held by its

counsel pending the completion of the settlement. On January 31,

2014, Mr. Souza segregated 35 cows for delivery (Cows). After

inspection by its veterinarian, MHT rejected delivery of the

Cows.

Arguing alleged non-performance, MHT filed a motion to

compel performance under Cal. Civ. Proc. Code § 664.6 (664

Motion).5 On April 28, 2014, prior to a scheduled hearing on the

664 Motion, the parties again settled the matter by agreeing to

the same terms as the January Agreement, except that delivery of

the animals was to take place on May 9, 2014 (April Agreement).

On April 29, 2014, the day after reaching the April

Agreement, the Debtors filed for chapter 7 relief. The delivery

of 35 cows never occurred. Eventually, the $20,000 was returned.

B. The Trial

MHT filed an adversary complaint against the Debtors on

4(...continued)

Your Honor.

Settle. Hrg. Transc. 3:7 - 4:19 (Jan. 22, 2014).

5 Cal. Civ. Proc. Code § 664.6:

If parties to pending litigation stipulate, in a

writing signed by the parties outside the presence of

the court or orally before the court, for settlement of

the case, or part thereof, the court, upon motion, may

enter judgment pursuant to the terms of the settlement.

If requested by the parties, the court may retain

jurisdiction over the parties to enforce the settlement

until performance in full of the terms of the

settlement.

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August 4, 2014, alleging nondischargeability under § 523(a)(2)(A)

and objecting to discharge under § 727(a). MHT filed its first

amended complaint on October 6, 2014. Before trial, the parties

stipulated to dismissal of the § 727 claims. 

At the opening of trial, counsel for MHT stated that it was

no longer pursuing one of its § 523(a)(2)(A) claims -- fraud in

inducing delivery of the hay. Instead, it would only be pursuing

§ 523(a)(2)(A) claims on the grounds that the Debtors

fraudulently entered into the January and April Agreements.

During the course of the trial, the Court made three

discovery and evidentiary rulings that are the subject of this

appeal: that it was harmless under Rule 376 for Debtors to not

disclose in their Rule 267 Statement the sale of the Cows to a

third party; that MHT waived its hearsay objection to Mr. Souza’s

testimony as to the sale of the Cows; and that the cross

examination of Mr. Souza regarding a vacation home was not

sufficiently probative to proceed over Debtors’ objection. 

During direct examination, Mr. Souza testified that after

MHT rejected the Cows, all but one were transported to an auction

yard and sold. MHT initially objected to Mr. Souza’s testimony on

this subject because no sale documents had been previously

disclosed and provided as required under Rule 26. When the

bankruptcy court noted that no one was attempting to introduce a

sale document, MHT moved the bankruptcy court to bar Mr. Souza

from testifying regarding the sale because the Debtors’ Rule 26

6 As incorporated by Bankruptcy Rule 7037.

7 As incorporated by Rule 7026.

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disclosure concerning Mr. Souza's testimony did not include this

topic.8 The bankruptcy court considered the matter under Rules 26

and 37 and determined that the Debtors had violated Rule 26 by

not disclosing Mr. Souza’s testimony regarding the sale, but

found the non-disclosure “harmless.” Accordingly, the bankruptcy

court overruled the objection and Mr. Souza proceeded to testify

regarding the sale.

The next trial day – but a short time later in actual trial

time -- MHT cross examined Mr. Souza regarding the sale of the

Cows. The cross examination revealed that Mr. Souza had no

personal knowledge of the sale; instead, he only knew of it

because of undisclosed sale receipts. Having elicited this

testimony, MHT moved to strike Mr. Souza’s prior testimony as

hearsay. The bankruptcy court denied the motion, ruling that MHT

waived its hearsay objection by failing to object to the

foundation of Mr. Souza’s earlier testimony.

Mr. Souza testified on direct examination that the Debtors’

daughters were to be the source of funds and the cattle necessary

to fulfill the settlement. During the cross-examination, MHT

asked a series of questions regarding the Debtors' daughters'

ownership of 4K Dairy (acquired from the Debtors in 2010), their

ability to fund the $20,000 settlement payment, and their

involvement with 4K Dairy. The Debtors met this line of questions

with relevancy objections. MHT explained that the questions went

8 Debtors listed Mr. Souza as a witness offered to provide

“general information to refute the allegations in the complaint

in the above-entitled action.” Tr. Transcr. 138:4-6 (Nov. 3,

2015).

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to control of 4K because MHT’s theory is that the transfer was a

sham and that the Debtors continued to control the dairy and its

operations. The bankruptcy court overruled the objections but

warned of its concern regarding relevancy. When MHT inquired

regarding the Debtors’ sale of their vacation home to their

daughters in January 2012, Debtors again objected on grounds of

relevancy. MHT countered that it went to the Debtors’ intention

to stall their Chapter 7 filing to evade a potential clawback

claim in bankruptcy. The Court sustained the Debtors’ objection

citing FRE 403.

Ultimately, the bankruptcy court ruled in favor of the

Debtors and against MHT. It entered judgment denying MHT’s claims

on November 10, 2015. MHT timely appealed.

II. JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§ 157(b)(2)(I). The Panel has jurisdiction under 28 U.S.C. § 158.

III. ISSUES

1. Whether the bankruptcy court erred in allowing Mr. Souza's

testimony regarding the sale of the Cows under Rules 26 and

37 and not striking the testimony as hearsay;

2. Whether the bankruptcy court erred in limiting MHT’s inquiry

at trial into the Debtor’s transfer of assets to their

daughters; and

3. Whether the bankruptcy court was clearly erroneous in its

determination that MHT did not meet its burden under

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§ 523(a)(2)(A) as to the April Agreement.9

IV. STANDARD OF REVIEW

Rulings regarding discovery sanctions are reviewed for an

abuse of discretion. Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). The Panel gives

"particularly wide latitude" to the trial court's discretion when

making Rule 37 rulings. Id. at 1106. A bankruptcy court's

evidentiary ruling is reviewed for an abuse of discretion.

Slatkin v. Nelson (In re Slatkin, 525 F.3d 805, 811 (9th Cir.

2008). "Whether a requisite element of a § 523(a)(2)(A) claim is

present is a factual determination reviewed for clear error."

Tallant v. Kaufman (In re Tallant), 218 B.R. 58, 63 (B.A.P. 9th

Cir. 1998).

V. DISCUSSION

A. Mr. Souza’s Testimony

The bankruptcy court determined that the Debtors violated

Rule 26(a)(1) and (3) by not disclosing the sale of the Cows on

January 31, 2014.10 It then determined under Rule 37(c)(1)11 that

9 In its reply brief, MHT argues for the first time that

Ms. Souza should be held liable as a partner in the Alvin Souza

Dairy if it prevails under § 523(a). See Appellant Reply Br.

p. 1, n.1. However, "Issues not raised in the opening brief

usually are deemed waived." Dilley v. Gunn, 64 F.3d 1365, 1367

(9th Cir. 1995). To the extent MHT is asking the Panel to

overrule the bankruptcy court's decision regarding Ms. Souza, the

request is denied.

10 Though not entirely clear from the transcript, it appears

the bankruptcy court found a violation of Rule 26(a)(1)(A)(I)

which requires the disclosure of “each individual likely to have

discoverable information—along with the subjects of that

information—that the disclosing party may use to support its

(continued...)

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sanctions were unwarranted because the non-disclosure was

harmless. 

The bankruptcy court did not abuse its discretion in finding

a violation of Rule 26 (and no one has so argued on appeal). Once

it found a violation of this rule, the bankruptcy court correctly

turned to Rule 37 to determine the proper sanctions - if any - as

Rule 37(c)(1) exists to give teeth to the requirements of

Rule 26. Yeti, 259 F.3d at 1106.

Rule 37(c) provides the penalties that may be imposed if a

party fails to make disclosures as required under Rule 26. A

party attempting to avoid sanctions has the burden of proof as to

why its actions were either “substantially justified or

harmless.” Yeti, 259 F.3d at 1106-1107. Factors to consider when

determining if a violation of Rule 26 is harmless include:

“(1) prejudice or surprise to the party against whom the evidence

is offered; (2) the ability of that party to cure the prejudice;

10(...continued)

claims or defenses” and Rule § 26(a)(3)(A)(I) and (iii), which

require: “(I) the name and, if not previously provided, the

address and telephone number of each witness - separately

identifying those the party expects to present and those it may

call if the need arises ... and (iii) an identification of each

document or other exhibit, including summaries of other evidence

- separately identifying those items the party expects to offer

and those it may offer if the need arises.”

11 Rule 37(c)(1) provides, in pertinent part:

If a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is

not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a

trial, unless the failure was substantially justified

or is harmless.

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(3) the likelihood of disruption of the trial; and (4) bad faith

or willfulness involved in not timely disclosing the evidence.”

Lanard Toys Ltd. v. Novelty, Inc., 375 F. App'x 705, 713 (9th

Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857

(7th Cir.2003)). “A bankruptcy court abuses its discretion if it

applies the wrong legal standard, misapplies the correct legal

standard, or if its factual findings are clearly erroneous.” 

Pham v. Golden (In re Pham), 536 B.R. 424, 430 (B.A.P. 9th Cir.

2015). A finding of fact is clearly erroneous only if the finding

is “illogical, implausible, or without support in the record.”

Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).

In this instance, the bankruptcy court abused its discretion

when making its Rule 37 ruling because it used the wrong legal

standard by placing the burden of proof on MHT to prove how it

was harmed by the non-disclosure. The key passage from the trial

reads:

Court:

What I would like to hear the argument on is why this

isn't harmless. It seems to me that a party's

designation, though I agree was not sufficiently

specific to comply with the rule [26], it seems to me

that it is harmless because you should know that a

party ... is likely to give testimony on a broad

variety of subjects.

Tr. Transcr. 139:9-14 (Nov. 3, 2015). This statement led to MHT

addressing how it was harmed, rather than the Court requiring the

Debtors to demonstrate why non-disclosure was harmless. Moreover,

the bankruptcy court did little to explain why it concluded the

non-disclosure harmless. Therefore, the Panel cannot

independently determine if, under the Lanard Toys factors, the

Panel would reach the same decision. The bankruptcy court later

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compounded its error when it cited to Mr. Souza's testimony

regarding the sale of the Cows as a basis for its final ruling.12

Later, when MHT elicited from Mr. Souza that he had no

firsthand knowledge of the sale, MHT objected to the testimony on

hearsay grounds. The bankruptcy court overruled the objection and

MHT claims that this, too, was error. However, the Panel finds

that the bankruptcy court did not abuse its discretion on this

front. FRE 103(a)(1)(A) requires a timely objection or motion to

strike. A review of the transcript shows that when Mr. Souza

testified earlier in the trial regarding the sale of the Cows,

his counsel did not lay foundation regarding personal knowledge

of the sale. Had MHT objected to the testimony on foundational

grounds at that point, it (and the bankruptcy court) would have

learned that Mr. Souza had no firsthand knowledge of the sale and

therefore no foundation from which to testify. The bankruptcy

court was within its discretion when it ruled that MHT waived its

ability to move to strike when it failed to object to Mr. Souza’s

earlier testimony on foundational grounds.

12 Although the Court did take into account the subsequent

sale of the cows in its final ruling, during trial the Court

indicated it would instead weigh Mr. Souza’s testimony in light

of his lack of first hand knowledge of the sale:

But you've made your point, and that is he really

didn't know, and that goes to the weight I give his

testimony. So I am overruling the objection on both

grounds. I find waiver, but in the event that I -- I

find waiver by failing to raise the objection earlier.

But I think your point is, is that the testimony should

be given no weight anyway because he really doesn't

know, and at that -- and you've made your point there.

Tr. Transcr. 7:23-8:5 (Nov. 5, 2015).

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B. Ownership Testimony 

MHT also asserts that the bankruptcy court erred by limiting

MHT’s attempts to elicit evidence regarding the ownership and

control of 4K Dairy -- the source of the cash component and the

Cows for the settlement, as well as the Debtors’ transfer of a

vacation home to 4K Dairy. While a trial court has broad

discretion in excluding evidence under FRE 403, it must engage in

a balancing test to determine admissibility. Liew v. Official

Receiver & Liquidator (Hong Kong), 685 F.2d 1192, 1195 (9th Cir.

1982); United States v. Moran, 493 F.3d 1002, 1012 (9th Cir.

2007). When a court does not engage in explicit balancing, the

Panel reviews the ruling de novo. Id. 

Here, the bankruptcy court balanced the relevancy of

additional testimony regarding ownership and control of 4K Dairy

and the transfer of the house against the time it would take to

explore the subjects. It was clear from the start of this line of

questioning that the bankruptcy court doubted its relevancy. See

Tr. Transcr. 47:11-17 (Nov. 5, 2015). Eventually, the Court

sustained the Debtors’ objection under FRE 403 regarding the

daughters’ control of 4K Dairy and the transfer of the house

finding that “[t]he probative value is far outweighed by the time

necessary to elicit the facts surrounding it, so this is not a

line of inquiry I will allow.” Tr. Transcr. 49:16-19 (Nov. 5,

2015).13

13 Debtors argue that the entire line of questioning was

improper because it did not fall within the scope of the direct

examination and therefore should not have been allowed under

FRE 611(b). Debtors did not raise this objection at trial.

(continued...)

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Since the bankruptcy court did engage in a balancing of the

issues, the question becomes whether the bankruptcy court abused

its discretion in omitting the testimony. In its ultimate ruling

regarding the April Agreement, the bankruptcy court focused not

on whether the Debtors had intended to deceive MHT, but instead

whether the daughters' intended to fund the settlement. Since the

bankruptcy court’s ruling was premised on the fact that the

Debtors did not control the funding source of the settlement,

which was the very topic it cut off as not probative, excluding

testimony on this topic was error and an abuse of discretion.

C. Did the Court Commit Reversible Error?

MHT asks the Panel to rule that the bankruptcy court’s

ruling was clearly erroneous, reverse the judgment, and find in

its favor. The Panel cannot reverse factual findings which

support a judgment of the bankruptcy court unless it has a

“definite and firm conviction that the bankruptcy court committed

a clear error of judgment.” Price v. Lehtinen (In re Lehtinen),

332 B.R. 404, 411 (B.A.P. 9th Cir. 2005), aff'd, 564 F.3d 1052

(9th Cir. 2009). Further, the Panel can affirm a bankruptcy

court’s ruling for any reason supported by the record. Encino

Bus. Mgmt. v. Prize Frize, Inc. (In re Prize Frize, Inc.),

150 B.R. 456, 461 n. 11 (B.A.P. 9th Cir. 1993), aff'd, 32 F.3d

426 (9th Cir.1994); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.

1996). 

Though the Panel concludes that the bankruptcy court erred

13(...continued)

Accordingly, the Panel will not consider it now.

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in its Rule 37 and FRE 403 rulings, the errors were harmless. As

noted, MHT proceeded to trial under the theory that its claim was

non-dischargeable under 11 U.S.C. § 523(a)(2)(A), which provides

that a claim will not be discharged to the extent it is for

“money, property, (or) services” obtained by “false pretenses, a

false representation or actual fraud.” To show nondischargeability under § 523(a)(2)(A) the plaintiff must show:

(1) the debtor made a representation;

(2) the debtor knew the representation was false at the

time he or she made it;

(3) the debtor made the representation with the intent

to deceive;

(4) the creditor justifiably relied on the

representation; and

(5) the creditor sustained damage as a proximate result

of the misrepresentation having been made.

Van Zandt v. Mbunda (In re Mbunda), 484 B.R. 344, 350 (B.A.P. 9th

Cir. 2012), aff'd, 604 F. App'x 552 (9th Cir. 2015).

Accordingly, in order to prove a claim under § 523(a)(2)(A),

in addition to proving the Debtors had an intent to deceive, MHT

has the burden of demonstrating that it specifically relied on

the Debtors’ misrepresentations and that it sustained damages as

a proximate result of the misrepresentations. Even if Mr. Souza

entered into the January and April Agreements with the intent to

deceive and delay as MHT urges, the record is devoid of any

evidence that MHT sustained damages as a proximate cause of its

reliance on the alleged misrepresentations.

To show proximate damages, MHT must have forgone valuable

collection remedies in relying on Mr. Souza’s representations

that the Debtors would perform under the January and April

Agreements. See (Siriani v. Nw. Nat’l Ins. Co., of Milwaukee Wis.

(In re Siriani), 967 F.2d 302, 305 (9th Cir. 1992), as amended

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(June 29, 1992) (addressing renewals of credit). The only damage

asserted before the bankruptcy court, $80,000 referenced at

trial, is based on MHT’s perceived value of the fully performed

January and April Agreements.14 This, however, is not a correct

measure for determining proximate damages. The correct measure is

the value of the collection remedies available to MHT and lost or

reduced due to its reliance on Mr. Souza’s agreements to settle

the debt. Siriani, 967 F.2d at 307. MHT did not demonstrate that

by entering into the either the January or April Agreement it was

foregoing any available collection remedies, much less ones that

lost value because it relied on the Agreements. 

There was no evidence presented that the Debtors had the

wherewithal to satisfy a judgment taken in January (or April) of

2014, such that MHT would actually have collected on a judgment.

Rather, the evidence presented was that the Debtors’ daughters

were putting up the assets to meet the terms of the Agreements

because the Debtors had no cash or cattle for a settlement. Tr.

Transcr. 133:25 - 13:7 (Nov. 3, 2015). Thus, MHT has failed to

show that it sustained damages as a proximate cause of the

promises made by Mr. Souza on January 22 or April 28, 2014. See

also Chopra v. Chopra (In re Chopra), No. 10-52819 CN, 2013 WL

1681773, at *7-8 (Bankr. N.D. Cal. Apr. 17, 2013) (Siriani in a

settlement context means a plaintiff must “demonstrate that he

14 See Tr. Transcr. 75:11-14(Nov. 3, 2015), ascribing

anticipated value of $60,000 for the cattle to be delivered, in

addition to the $20,000 delivered check. During closing

arguments, counsel for MHT argued for an anticipated value of

$40,000 for the cattle. See Tr. Transcr. 141:21-142:20 (Nov. 5,

2015).

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forfeited valuable collection remedies as a result of the ...

[s]ettlement [a]greement”). 

At the hearing before the Panel, when questioned about

damages, counsel for MHT also suggested that MHT was damaged

insofar as it had given up the right to pursue and obtain a

judgment in the State Court. However, as the parties explained to

the State Court when they entered into the January Agreement, if

a disagreement arose as to the cattle, the parties would be back

before the State Court.15 In an attempt to resolve the dispute,

as contemplated in the January Agreement, Mr. Souza agreed on

April 28 to attempt a second transfer of cattle on or before

May 9, 2014. The suggestion that a default occurred is not quite

correct, insofar as the January and April Agreements contemplated

that the cattle presented might not be accepted. At that point,

MHT had the right to pursue its original claim. When questioned,

counsel for MHT could not explain to the Panel why securing a

State Court judgment prior to the bankruptcy would place it in a

superior position with respect to its claim. In summation, MHT

did not demonstrate that it sustained damage as a result of its

reliance on the unperformed January and April Agreements.

In the end, MHT failed to present evidence of a material

element of its claim under § 523(a)(2)(A). Accordingly, the

bankruptcy court’s ruling denying MHT’s complaint to deny the

15 This review of events supports the bankruptcy court’s

conclusion that the Debtors complied with the terms of the

January Agreement. The Debtors delivered cattle. MHT exercised

its right of refusal and both parties thereafter engaged in an

attempt to resolve the disagreement. This is exactly what the

parties agreed to in open court in January 2014.

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Debtor’s discharge based on fraud or misrepresentation was not

error and will stand.

VI. CONCLUSION

For the foregoing reasons, the order of the bankruptcy court

is AFFIRMED.

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