UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1457

In Re: DAVID EDGAR BANE,

Debtor.

------------------------

U.S. TRUSTEE,

Plaintiff - Appellee,

v.

DAVID EDGAR BANE,

Debtor - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. Samuel G. Wilson, District 

Judge. (7:12-cv-00529-SGW; BK-11-70118; AP-11-07013)

Submitted: February 24, 2014 Decided: April 9, 2014

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gary M. Bowman, Roanoke, Virginia, for Appellant. Judy A. 

Robbins, United States Trustee, Robert B. Van Arsdale, Assistant 

United States Trustee, W. Joel Charboneau, Roanoke, Virginia, 

Ramona D. Elliott, P. Matthew Sutko, Robert J. Schneider, Jr.,
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Executive Office for United States Trustees, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

On January 21, 2011, David Edgar Bane (Bane) filed a 

voluntary Chapter 7 bankruptcy petition in the United States 

Bankruptcy Court for the Western District of Virginia. On March 

21, 2011, W. Clarkson McDow, Jr., the United States Trustee for 

Region 4 (UST), initiated an adversary proceeding by filing a 

two-count complaint in the bankruptcy court alleging that a 

denial of discharge of Bane’s debts was warranted under 11 

U.S.C. § 727(a)(2)(A)1 and, alternatively, under 11 U.S.C. 

§ 727(a)(4)(A).2 Following discovery, a trial was held before 

the bankruptcy court on the UST’s complaint. On June 13, 2012, 

the bankruptcy court entered a decision and order denying 

discharge under both § 727(a)(2)(A) and § 727(a)(4)(A). On 

appeal, the district court affirmed the bankruptcy court’s 

§ 727(a)(2)(A)’s decision, and, given this affirmance, declined 

 1 Under § 727(a)(2)(A), the bankruptcy court shall deny 

discharge if, within one year before the date of the filing of 

the petition, “the debtor, with intent to hinder, delay, or 

defraud a creditor or an officer of the estate charged with 

custody of property under this title, has transferred, removed, 

destroyed, mutilated, or concealed, or has permitted to be 

transferred, removed, destroyed, mutilated, or concealed-- . . . 

property of the debtor.” 11 U.S.C. § 727(a)(2)(A).

2 Under § 727(a)(4)(A), the bankruptcy court shall deny 

discharge if the debtor “knowingly and fraudulently, in or in 

connection with the case-- . . . made a false oath or account.” 

11 U.S.C. § 727(a)(4)(A).
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to address the bankruptcy court’s § 727(a)(4)(A) decision. For 

the reasons stated below, we affirm.

I

A

In 2007, Bane’s company, Aequitas-Energy, Inc., purchased 

fifty acres of land (the Angel Lane Property) in Roanoke County, 

Virginia, from Bane’s mother, Martha Bane.3

 As payment, Martha 

Bane received a $400,000 note, which was to be secured by a deed 

of trust that was never recorded. Aequitas-Energy, Inc. then 

obtained a loan (the Loan) from Community Trust Bank (the Bank) 

secured by a properly recorded deed of trust on the Angel Lane 

Property. Consequently, the Bank’s lien was superior to that of 

Martha Bane’s. 

By 2010, the Loan was in default, and the Bank scheduled a 

foreclosure sale for July 2, 2010. The day before the scheduled 

foreclosure sale, Bane transferred the Angel Lane Property from 

his company to himself. He also filed a voluntary Chapter 7

bankruptcy petition, which resulted in a stay of the foreclosure 

sale. In September 2010, Bane moved to dismiss his bankruptcy 

 3 The Angel Lane Property was purchased by Martha Bane and 

Phillip Bane, as tenants in common, from Gilbert Miles and 

Frances McLaughlin in 1992. Phillip Bane’s half interest was 

conveyed to Martha Bane’s husband, Clyde Bane, in 1993. Upon 

Clyde Bane’s death in 1995, Martha Bane became the fee simple 

owner of the Angel Lane Property.
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petition on the basis that he failed to engage in credit 

counseling prior to the filing of his bankruptcy petition, and 

the bankruptcy court granted the motion on November 9, 2010.

The Bank scheduled another foreclosure sale, this time for 

January 24, 2011. On December 31, 2010, Bane prepared a deed 

transferring 90% of his ownership interest in the Angel Lane 

Property to his mother, with whom he then resided, for $10. The 

deed recited that it was “exempt from recordation tax pursuant 

to Virginia Code Section 58.1-811(d),” which exempts from 

taxation transfers made for no consideration. (J.A. 66).

On January 21, 2011, the last business day before the 

scheduled foreclosure sale, the deed transferring 90% of Bane’s 

ownership interest in the Angel Lane Property to Bane’s mother 

was notarized and recorded. Within hours, Bane filed another 

voluntary Chapter 7 bankruptcy petition, which stayed the 

January 24, 2011 foreclosure sale.

In conjunction with his bankruptcy petition, Bane filed 

schedules of his assets and liabilities and statements of 

financial affairs. In these filings, Bane failed to disclose 

that: (1) he is a named beneficiary of The Martha Harrison Bane 

Irrevocable Trust (the Trust); (2) V&V Land Management & 

Resource Recovery, LLC (V&V Land Management) had a $25,000 

judgment against him, his brother, Roy Bane, as trustee for the 

Trust, and the Trust itself; (3) he and his sister had a 
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judgment in the amount of $5,150 against Howard E. Payton; and 

(4) he had certain property at a Louisiana storage facility.

B

As to the UST’s § 727(a)(2)(A) claim, the bankruptcy court 

found that Bane’s transfer of 90% of his ownership interest in 

the Angel Lane Property was done with the intent to defraud his 

creditors. In so finding, the bankruptcy court observed that 

the “transfer of the Angel Lane Property . . . w[ore] several 

badges of fraud: (1) there was no consideration for the transfer

of the property from the Debtor to his mother; (2) the Debtor 

and his mother have a close familial relationship; and (3) the 

Debtor retained a partial interest in the property allowing him 

to continue to use the property.” (J.A. 396-97). According to 

the bankruptcy court, these facts established a prima facie case 

of fraudulent intent which was not rebutted by Bane’s 

implausible explanations for the transfer. See Farouki v. 

Emirates Bank Intern., Ltd., 14 F.3d 244, 249 (4th Cir. 1994) 

(“Although the burden may shift to the debtor to provide 

satisfactory, explanatory evidence once the creditor has 

established a prima facie case, the ultimate burden rests with 

the creditor.”). Consequently, the bankruptcy court concluded 

that the UST met his ultimate burden of persuasion and, 

therefore, a denial of discharge was warranted under 

§ 727(a)(2)(A).
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As to the UST’s § 727(a)(4)(A) claim, the bankruptcy court 

found that Bane made material omissions in connection with his 

bankruptcy petition, including Bane’s failure to disclose his 

interest in the Trust, V&V Land Management’s $25,000 judgment, 

the $5,150 judgment against Howard E. Payton, and the property 

he kept at a Louisiana storage facility. The bankruptcy court 

was most concerned about Bane’s failure to disclose V&V Land 

Management’s $25,000 judgment because such disclosure would have 

revealed Bane’s interest in the Trust. However, the bankruptcy 

court made clear that “each individual omission constitute[d]

grounds to deny a discharge.” (J.A. 398). The bankruptcy court 

found that each omission, individually and collectively, gave 

rise to a presumption of fraudulent intent, thereby establishing 

a prima facie case, that was not rebutted by Bane’s implausible

explanations for the omissions. Consequently, the bankruptcy 

court concluded that a denial of discharge was warranted under 

§ 727(a)(4)(A).

On appeal from the bankruptcy court, the district court 

agreed with the bankruptcy court’s conclusion that Bane’s 

transfer of 90% of his ownership interest in the Angel Lane 

Property “bore common badges of fraud, including a lack of 

consideration for the transfer of the property from Bane to his 

mother, the close familial relationship between the parties, and 

Bane’s retention of a partial interest in the property allowing 
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him continued use of that property.” (J.A. 409-10). These 

facts, coupled with the dearth of evidence negating fraudulent 

intent, led the district court to agree with the bankruptcy 

court’s conclusion that “Bane intended to defraud his 

creditors.” (J.A. 410). Accordingly, the district court 

affirmed the bankruptcy court’s § 727(a)(2)(A) decision, and, in 

so affirming, declined to address the bankruptcy court’s 

§ 727(a)(4)(A) decision. 

II

“When considering an appeal from a district court acting in 

its capacity as a bankruptcy appellate court, we conduct an 

independent review of the bankruptcy court’s decision, reviewing 

factual findings for clear error and legal conclusions de novo.” 

Campbell v. The Hanover Ins. Co., 709 F.3d 388, 394 (4th Cir. 

2013). A finding of fact is clearly erroneous when the entire 

record demonstrates convincingly to the reviewing court that “a 

mistake has been committed.” United States v. U.S. Gypsum Co., 

333 U.S. 364, 395 (1948).

On appeal to this court, Bane presses no challenge in his 

opening brief to the bankruptcy court’s § 727(a)(4)(A) holding. 

He did raise such a challenge in response to an argument in the 

UST’s brief which averred that the bankruptcy court’s 

§ 727(a)(4)(A) holding could be affirmed because Bane waived any 
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challenge to that holding or, alternatively, because the 

bankruptcy court correctly resolved the claim on the merits.

“It is a well settled rule that contentions not raised in 

the argument section of the opening brief are abandoned.” 

United States v. Al–Hamdi, 356 F.3d 564, 571 n.8 (4th Cir.

2004); see also United States v. Leeson, 453 F.3d 631, 638 n.4 

(4th Cir. 2006) (collecting cases). In rare circumstances, 

appellate courts, in their discretion, may overlook this rule 

and others like it if they determine that a “miscarriage of 

justice” would otherwise result. Venkatraman v. REI Sys., Inc., 

417 F.3d 418, 421 (4th Cir. 2005).

In this case, Bane has not adequately explained why he

failed to raise a challenge to the bankruptcy court’s 

§ 727(a)(4)(A) holding in his opening brief. In his reply 

brief, he posits that he did not address the bankruptcy court’s 

§ 727(a)(4)(A) ruling in his opening brief because the district 

court did not reach this issue. The obvious flaw in Bane’s

position is that we review the bankruptcy court’s decision, not 

the district court’s decision. Campbell, 709 F.3d at 394; In 

re: Frushour, 433 F.3d 393, 398 (4th Cir. 2005) (noting that, in 

an appeal from the district court sitting as an appellate court 

from a bankruptcy court, we “review directly the bankruptcy 

court’s decision”).
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Moreover, we decline to exercise our discretion to overlook 

the waiver of this argument. Bane suggests that the UST would 

suffer no prejudice were we to consider the § 727(a)(4)(A)

argument raised in his reply brief, which may or may not be 

true, but he has neither adequately explained why the bankruptcy 

court’s § 727(a)(4)(A) holding was not discussed in his opening 

brief nor why our refusal to exercise our discretion will result 

in manifest injustice. See A Helping Hand, LLC v. Baltimore 

County, Md., 515 F.3d 356, 369 (4th Cir. 2008) (declining to 

excuse waiver where the appellant had “not even explained why it 

failed to raise these arguments earlier, let alone explained 

why, absent our consideration, a miscarriage of justice would 

result”). For these reasons, we affirm the bankruptcy court’s 

decision to deny discharge under § 727(a)(4)(A).

Even though we could stop right here, we note that Bane’s 

challenge to the bankruptcy court’s § 727(a)(2)(A) ruling is 

without merit. The record as a whole supports the bankruptcy 

court’s finding that Bane’s transfer of 90% of his ownership 

interest in the Angel Lane Property was done with the intent to 

defraud his creditors. The lack of consideration and the 

parties to the transaction (mother/son) strongly suggest such 

intent, as does the timing of the recordation of the deed and 

Bane’s retention of a partial ownership interest, which allowed 

his continued use of the property. Considering Bane’s 
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preposterous explanations for failing to disclose the transfer

(allegedly, he thought the property was going to be sold or, 

alternatively, his brother recorded the deed without his 

knowledge), it is not surprising that the bankruptcy court held 

that Bane did not rebut the presumption of fraudulent intent and 

that the UST carried his ultimate burden of proof.4

III

For the reasons stated herein, the judgment of the district 

court is affirmed. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED

 4 Bane argues that there was no “transfer” of the Angel Lane 

Property because the deed transferring 90% of his ownership 

interest to Martha Bane was never delivered to her as required 

by Virginia law. This argument was not raised before either the 

bankruptcy court or the district court and, therefore, is 

reviewed for plain error. See In re: Celotex Corp., 124 F.3d 

619, 630–31 (4th Cir. 1997) (adopting plain error standard of 

review used in criminal cases, as set forth in United States v. 

Olano, 507 U.S. 725 (1993), for application in civil cases when 

party failed to preserve error below). Under this standard of 

review, we may exercise our discretion to correct an error not 

raised below if: (1) there is an error; (2) the error is plain; 

(3) the error affects substantial rights; and (4) we determine, 

after examining the particulars of the case, that the error 

seriously affects the fairness, integrity, or public reputation 

of judicial proceedings. Id. at 732-37. We have reviewed this 

argument and conclude that Bane cannot meet the plain error 

standard.