* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20048

IN THE MATTER OF: BEVERLY COCHENER

Debtor

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

RONALD J. SOMMERS, TRUSTEE

Appellant

v.

DAVID W. BARRY

Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-629 

Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2008

Charles R. Fulbruge III

Clerk
No. 08-20048

2

The court has carefully considered this appeal in light of the briefs, record

excerpts, and excellent arguments of counsel, and with due regard for the

lengthy and thoughtful opinions of the bankruptcy and district courts. We are

bound by the requirements that as an appellate court, we determine whether the

bankruptcy court’s findings of fact are clearly erroneous; whether it correctly

applied 11 U.S.C. § 105 to determine David W. Barry’s (“Barry”) liability for

sanctions; and whether it abused its discretion in fixing the amount of sanctions.

We do not, in other words, review the district court’s contrary findings. Most of

the facts in this case are undisputed. The parties’ arguments center, as did the

differing court opinions, around whether factual inferences of bad faith conduct

by Barry were correctly drawn. 

Viewing the case from the bankruptcy court’s perspective, whether or not

we might have drawn different inferences, we ascertain plausible record

evidence to support the bankruptcy court’s findings that Barry acted in bad

faith, especially when he asserted that dismissal of Ms. Cochener's case was in

the best interest of creditors; when he determined that he would not attend the

rescheduled meeting of creditors on June 20, 2001; when he instructed the

Debtor not to turn over relevant documents to the Trustee; and when he

knowingly misrepresented the reach-back period for evaluation of improper

transfers by the Debtor. The findings are secure whether gauged by a

preponderance or clear and convincing standard. The district court’s critical

error seems to have been its failure to recognize that even if the bankruptcy was

commenced originally as a “two-party dispute” and even if such a case might

ordinarily be dismissible, the debtor has no right to such relief when she has

abused the privilege afforded by bankruptcy relief. Here, the trustee had good

reason to believe following the first meeting of creditors, that assets were being
No. 08-20048

3

concealed by the Debtor, to the detriment of creditors. Moreover, Barry was

aware of this likelihood when he undertook to represent Ms. Cochener. The

bankruptcy court acted well within its authority to enforce the integrity of the

process by policing the accuracy of debtors’ schedules and representations to the

court. 

Because the bankruptcy courtfindings of bad faith conduct are not clearly

erroneous, its determination of Barry’s liability for sanctions under Section 105

was legally appropriate. In re Matter of Case, 937 F.2d 1014, 1023 (5th Cir.

1991). Finally, there is sufficient record evidence to support the amount of

sanctions awarded. The court did not abuse its discretion in assessing sanctions.

Accordingly, the judgment of the district court is REVERSED, and the

judgment of the Bankruptcy court is AFFIRMED.