[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13642

____________________

In re: GEORGE P. WAGNER, III,

Debtor.

___________________________________________________

OHI ASSET (VA) MARTINSVILLE SNF, LLC, 

OHI ASSET (FL) SEBRING, LLC,

OHI ASSET (VA) MARTINSVILLE ALF, LLC, 

OHI ASSET (NC) WARSAW, LP, 

Plaintiffs-Appellees,

versus

GEORGE P. WAGNER, III, 

Defendant-Appellant.

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____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cv-61099-RS,

Bkcy No. 20-bk-01255-SMG

____________________

Before JORDAN, BRASHER, and ABUDU, Circuit Judges.

ABUDU, Circuit Judge:

George Wagner III appeals the district court’s denial of his 

discharge for bankruptcy pursuant to 11 U.S.C. § 727(a)(4)(A). Section 727(a)(4)(A) of the Bankruptcy Code precludes a bankruptcy 

court from granting discharge to a debtor who knowingly and 

fraudulently makes a false oath in a bankruptcy case. When Wagner filed his voluntary bankruptcy petition, he omitted all reference 

to a show horse he purchased for his daughter several years preceding his bankruptcy case because, according to Wagner, he believed 

that the horse belonged to his daughter and not to him. Following 

a bench trial, the bankruptcy court granted judgment in favor of 

Wagner and fully discharged his debts. The district court vacated 

the bankruptcy court’s order granting discharge, concluding that 

Section 727(a)(4)(A) barred Wagner from receiving discharge because he knowingly and fraudulently omitted the horse from his 

bankruptcy case. 

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After a thorough review of the record and the parties’ briefs, 

and with the benefit of oral argument, we reverse the district 

court’s order and affirm the bankruptcy court’s order of discharge. 

I. BACKGROUND

A. Wagner’s Cash Management System 

For several years, Wagner’s wife, Melissa Wagner, managed 

their family finances. From 2010 through 2019, Wagner and Melissa 

owned a joint bank account. The joint account constituted the 

only bank account Wagner owned, and he deposited his salary and 

any other income he received into the joint account. 

Although Wagner did not have any bank accounts outside of 

the joint account, Melissa owned a personal savings account. Wagner did not have authority over Melissa’s personal savings account, 

nor did he have access to the funds she placed in it. Because Melissa 

did not trust Wagner with their finances, she regularly transferred

funds out of the joint account and into her personal savings account. Wagner knew of Melissa’s frequent transfers and never protested them. However, in June 2019, Melissa filed for divorce, and 

her monetary transfers between the joint account and her personal 

savings account ceased. 

B. Clover the Show Horse 

In 2016, Wagner used funds from the joint account to buy a 

show horse for his then-minor daughter, Anderson, who was a 

competitive horse rider. Four days after purchasing the horse, 

Wagner registered it with the United States Equestrian Federation 

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(the “USEF”) under Anderson’s name. Wagner said that he believed that registering the horse with the USEF qualified as transferring ownership of the horse to Anderson. 

Melissa testified that, because Anderson was a minor when 

Wagner purchased the horse, she paid for the horse’s maintenance 

expenses using funds from the couple’s joint account. Additionally, 

Wagner was listed as the named insured on the horse’s insurance 

policy from its purchase date until June 2019, when he transferred 

the horse’s insurance policy to Anderson. 

Further, in February 2019, Wagner leased the horse to another rider for six months pursuant to a written lease agreement. 

Wagner signed the February 2019 lease agreement in the capacity 

of the horse’s owner. However, Wagner claimed that he signed the 

lease agreement on behalf of Anderson because she was away at 

college at the time. After Wagner signed the February 2019 lease, 

the lease preparer sent Anderson a copy of the lease to re-sign as 

the horse’s owner, but she never signed it. 

Wagner deposited the net proceeds from the February 2019 

lease agreement into the joint account. Melissa then transferred 

the lease funds into her personal savings account. In January 2020, 

Anderson executed a lease agreement to rent the horse to another 

rider for a year, and she retained the proceeds from that lease. 

C. Wagner’s Divorce Proceedings & Prepetition Emails

In June 2019, when Melissa filed for divorce, the two entered 

divorce settlement negotiations. During the divorce proceedings, 

Wagner and Melissa exchanged several email communications 

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discussing the division of their assets. To facilitate an equitable distribution of their marital assets, Melissa sent Wagner an email 

dated June 2019, requesting to keep certain marital property. Relevant here, Melissa asked to keep a portion of the couple’s money 

to cover Anderson’s expenses for a year, which included the horse’s 

maintenance fees if they were not able to sell the horse. In response, Wagner informed Melissa that he intended to file for bankruptcy and, because he would be unable to discharge any alimony 

debt that arose from their divorce settlement, Melissa could keep 

as much of their marital assets as possible. Specifically, he stated 

that his “only concern was [Melissa] keeping hold of as much as 

possible and with the bankruptcy [Wagner] having as little as possible,” and his bankruptcy attorney “[wa]s working to that goal.” 

D. Wagner’s Financial Challenges & Bankruptcy Case

In the years leading up to his divorce, Wagner began experiencing financial problems. Several businesses in which Wagner 

held a substantial ownership interest started failing, including a 

business that defaulted on a lease agreement it held with OHI Asset 

(VA) Martinsville SNF, LLC, OHI Asset (FL) Sebring, LLC, OHI Asset (VA) Martinsville ALF, LLC, and OHI Asset (NC) Warsaw, LP 

(collectively “OHI Asset”). 

In early 2018, OHI Asset sued Wagner in state court to enforce his personal guaranty of debts that one of his defunct businesses owed. After a failed attempt to settle the lawsuit, OHI Asset 

obtained a large money judgment against Wagner. 

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On December 6, 2019, Wagner voluntarily filed for Chapter 

7 bankruptcy, seeking to discharge business related debt, including

OHI Asset’s money judgment against him. Wagner did not list the 

show horse or the income from the February 2019 lease agreement 

on his bankruptcy petition, schedules, or Statement of Financial 

Affairs (“SOFA”). However, Wagner provided a list of his income 

and assets, including the transfers Melissa made from the joint account into her personal savings account from 2017 through 2019, 

his daughter’s 2016 Ford Mustang, his wine collection, his jewelry, 

and his household goods and furnishings. 

After Wagner filed his bankruptcy schedules and SOFA, OHI 

Asset initiated an adversary proceeding objecting to his discharge. 

OHI Asset alleged that Section 727(a)(4)(A) barred discharge because Wagner intentionally omitted from his bankruptcy case his 

ownership interest in the show horse and his financial interest in 

the February 2019 lease income. 

The bankruptcy court conducted a two-day bench trial regarding OHI Asset’s objection to discharge. Wagner, Melissa, and 

Anderson testified during the trial that they each believed Anderson 

was the owner of the show horse from the moment it was purchased. Specifically, Wagner testified that, although Anderson was 

the owner of the show horse, Melissa paid for its maintenance using funds from their joint account because Anderson was a minor

when they purchased the horse. He further testified that he transferred the horse’s insurance policy to Anderson in June 2019 because she was no longer a minor. 

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Additionally, Wagner testified regarding the steps he took to 

prepare his bankruptcy petition, schedules, and SOFA. He stated 

that he had his jewelry, wine collection, and household furnishings

appraised so that his schedules and bankruptcy documents would 

reflect their accurate values. 

After hearing witness testimony and weighing the evidence 

presented at trial, the bankruptcy court found that Wagner was entitled to discharge because he did not knowingly and fraudulently 

make a false oath in his bankruptcy case in omitting the horse from 

his schedules and SOFA. The bankruptcy court credited Wagner, 

Melissa, and Anderson’s testimony as being supported by the documentary evidence. The bankruptcy court also determined that 

the actions Wagner took regarding the horse—signing the February 2019 lease on behalf of Anderson while she was away at college, 

paying for the horse’s maintenance expenses, and listing himself as 

the named insured on the horse’s insurance policy until June 

2019—were reasonable considering Anderson’s minor age. Additionally, the bankruptcy court found that, although the June 2019 

emails appeared concerning at first glance, when viewed in light of 

Wagner’s divorce proceedings, they did not support a finding of 

fraudulent intent. Specifically, the bankruptcy court found Wagner’s June 2019 email to Melissa expressing his goal of keeping the

fewest of their marital assets, “need[ed] to be viewed in the context 

of the Wagners’ impending divorce, as well as in light of the fairly 

extensive disclosures and otherwise thoroughness of Mr. Wagner’s 

bankruptcy schedules and [SOFA].” The bankruptcy court reasoned that the USEF registration records, along with Wagner, 

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Melissa, and Anderson’s testimony and the thoroughness of Wagner’s bankruptcy schedules demonstrated that he did not possess a 

fraudulent intent in omitting the horse from his bankruptcy case. 

The bankruptcy court entered final judgment in favor of 

Wagner and granted him discharge. OHI Asset appealed the bankruptcy court’s final judgment to the district court. 

The district court concluded that the bankruptcy court committed clear error by ignoring evidence in the record that supported a finding that Wagner knowingly and fraudulently made a 

false oath in his bankruptcy case when he omitted the horse. Specifically, the district court concluded that the June 2019 emails, the

timing of Wagner’s transfer of the horse’s insurance policy to Anderson, and Anderson’s signing of the January 2020 lease and retention of the proceeds indicated that Wagner knowingly and 

fraudulently omitted the horse from his bankruptcy case. The district court explained that the bankruptcy court failed to consider 

that “it was not until [Wagner] was preparing his bankruptcy petition that the insurance policy’s named insured was changed from 

[Wagner] to Anderson.” The district court further explained that 

the bankruptcy court ignored that, although Wagner asserted that 

he executed the February 2019 lease agreement and kept the proceeds because Anderson was away at school, Anderson was still

away at school when she executed the January 20201 lease 

1 The district court refers to the second lease agreement for the horse as the 

“February 2020 lease,” however, Anderson signed and executed the lease in 

January 2020. 

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agreement and received the proceeds from that lease. Additionally, 

the district court stated that in signing the February 2019 lease 

agreement and retaining the lease payments, Wagner represented 

that he was the horse’s owner. The district court concluded that 

Wagner’s actions leading up to his petition date supported a finding 

that he fraudulently omitted the horse from his bankruptcy case. 

Thus, the district court vacated the bankruptcy court’s final 

judgment in favor of Wagner and remanded to the bankruptcy 

court to enter judgment denying discharge. Wagner now appeals 

the district court’s denial of discharge.2

II. STANDARD OF REVIEW 

2 We raised sua sponte a jurisdictional issue in this case considering whether 

the district court’s September 30, 2022, order vacating the bankruptcy court’s 

final judgment and remanding for further proceedings was a final or otherwise

appealable order. We also considered whether Wagner’s motion for clarification filed in the district court after this appeal began rendered the present notice of appeal ineffective.

We conclude that the district court’s September 30, 2022, order was a final or 

otherwise appealable order because, upon remand, the bankruptcy court was 

not required to exercise significant judicial activity, or discretion, in carrying 

out the district court’s order. See 28 U.S.C. § 1291; Miscott Corp. v. Zaremba 

Walden Co. (In re Miscott Corp.), 848 F.2d 1190, 1192–93 (11th Cir. 1988). Additionally, we conclude that Wagner’s motion for reconsideration did not suspend the finality of the district court’s September 30, 2022, order because it did 

not seek reconsideration of matters encompassed in the merits of the order,

nor did it call into question the correctness of the order. See Finch v. City of 

Vernon, 845 F.2d 256, 258–59 (11th Cir. 1988). Thus, we have satisfied ourselves of our jurisdiction to review the instant appeal. 

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We sit as the second court of review in a bankruptcy appeal, 

independently examining the bankruptcy court’s judgment and applying the same standards as the district court. Feshbach v. Dep’t of 

Treasury Internal Revenue Serv. (In re Feshbach), 974 F.3d 1320, 1327 

(11th Cir. 2020). We review the bankruptcy court’s legal conclusions de novo and its findings of fact for clear error. PRN Real Est. & 

Invs., Ltd. v. Cole, 85 F.4th 1324, 1333 (11th Cir. 2023) (citations omitted). A bankruptcy court’s determination that a debtor lacks the 

requisite wrongful intent under Section 727(a)(4)(A) to deny discharge is a question of fact subject to clear error review. See Wines 

v. Wines (In re Wines), 997 F.2d 852, 856 (11th Cir. 1993) (citation 

omitted). 

A finding of fact is clearly erroneous “when although there 

is evidence to support it, the reviewing court on the entire evidence 

is left with the definite and firm conviction that a mistake has been 

committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 

(1985) (internal quotation marks omitted) (quoting United States v. 

U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Therefore, “[w]here 

there are two permissible views of the evidence, the factfinder’s 

choice between them cannot be clearly erroneous.” Id. at 574 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)). The 

clearly erroneous standard “does not entitle a reviewing court to 

reverse the finding of the trier of fact simply because it is convinced 

that it would have decided the case differently.” Id. at 573.

A “reviewing court must afford substantial deference to” 

findings of fact that “are based on determinations regarding the 

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credibility of witnesses at a bench trial.” Feshbach, 974 F.3d at 1328. 

During bench trials, “only the trial judge can” assess “the variations 

in demeanor and tone of voice that bear so heavily on the listener’s 

understanding of and belief in what is said.” Anderson, 470 U.S. at 

575. Thus, a reviewing court may not set aside a finding of fact that 

is based on the trial judge’s “decision to credit the testimony of one 

. . . or more witnesses, each of whom . . . told a coherent and facially plausible story that is not contradicted by extrinsic evidence.” 

Id. at 575–76; see also Fed. R. Bankr. P. 7052; Fed. R. Civ. P. 52(a)(6). 

III. DISCUSSION 

A. The District Court Did Not Properly Defer to the Bankruptcy 

Court’s Factual Findings 

Wagner argues that the district court erred in denying him a

discharge because there was substantial evidence to support the 

bankruptcy court’s conclusion that he did not fraudulently omit 

the horse from his bankruptcy case. We agree. 

The general proposition that a reviewing court must afford 

great deference to a trial court’s credibility determination has been 

well-established by the Supreme Court and this Court. See, e.g., Anderson, 470 U.S. at 575; Concrete Pipe & Prods. of Cal., Inc. v. Constr. 

Laborers Pension Tr. for S. Cal., 508 U.S. 602, 623 (1993) (explaining

that “review under the ‘clearly erroneous’ standard is significantly 

deferential” because “the factfinder is in a better position to make 

judgments about the reliability of some forms of evidence than a 

reviewing body acting solely on the basis of a written record of that 

evidence. Evaluation of the credibility of a live witness is the most 

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obvious example.”); Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 

619 (11th Cir. 1984) (stating that reviewing courts must accept a 

bankruptcy court’s factual findings unless they are clearly erroneous because “the trial judge is best able to assess the credibility of 

the witnesses before him and thus the evidentiary content of their 

testimony” (citation omitted)); Equitable Bank v. Miller (In re Miller), 

39 F.3d 301, 305 (11th Cir. 1994) (stating that a reviewing court must 

defer to the bankruptcy court’s credibility determinations); PRN 

Real Est., 85 F.4th at 1338 (same).

This proposition is codified in Federal Rule of Civil Procedure 52(a)(6)—and applicable to adversary proceedings by Federal 

Rule of Bankruptcy Procedure 7052. Since Congress’s enactment 

of the Federal Rules of Civil Procedure, Rule 52 has discouraged

reviewing courts from setting aside findings of fact that are based 

on a trial court’s decision to credit witness testimony. Fed. R. Civ. 

P. 52(a) (1939) (“Findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the opportunity of the 

trial court to judge . . . the credibility of the witnesses.”). 

Furthermore, Rule 52(a) has applied in bankruptcy proceedings long before Congress enacted the Federal Rules of Bankruptcy 

Procedure in 1983. See Bankruptcy Rules & Official Forms Under 

Chapters 1–13 of the Bankruptcy Act (1982) (codified as Fed. R. 

Bankr. P. 7052) advisory committee’s note to Rule 752 (stating that 

Bankruptcy Rule 752 “is an adaption of Rule 52 of the Federal 

Rules of Civil Procedure. Rule 52 has been frequently applied in 

adversary proceedings in bankruptcy cases.”). After the Federal 

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Rules of Bankruptcy Procedure’s promulgation, Rule 52 became—

and remains—mandatory in adversary proceedings. See Fed. R. 

Bankr. P. 7052 (2023) (“Rule 52 F. R. Civ. P. applies in adversary proceedings.”). This standard binds the district court, sitting as a court 

of review of the bankruptcy court’s judgment. 

Here, the bankruptcy court primarily based its ruling on a 

credibility determination, to which it was duly entitled deference 

under Rule 52(a) and our precedent. The record shows that, rather 

than deferring to the weight that the bankruptcy court accorded 

Wagner, Melissa, and Anderson’s testimony and its interpretation 

of the documentary evidence, the district court weighed the evidence anew and made its own factual findings—an endeavor neither it nor we have authority to undertake sitting as a reviewing 

court of the bankruptcy court’s decision. See Law Sols. of Chi. LLC 

v. Corbett, 971 F.3d 1299, 1304 (11th Cir. 2020) (“Neither the district 

court nor this court may make independent factual findings.” (internal quotation marks and citation omitted)). 

The district court concluded that Wagner possessed the requisite fraudulent intent in making a false oath in his bankruptcy 

case based on (1) Wagner’s June 2019 email correspondences; (2) 

the timing between when he changed the named insured on the 

horse’s insurance policy to Anderson, and when Anderson executed the January 2020 lease; and (3) Wagner’s retention of proceeds from the horse. However, the bankruptcy court, after listening to the testimony that Wagner, Melissa, and Anderson provided 

at trial, found that although Wagner may have knowingly omitted 

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the horse from his bankruptcy case, their testimony sufficiently rebutted the presumption that he omitted the horse with a fraudulent intent. The bankruptcy court credited their testimony that 

they all believed the horse was Anderson’s property. See Anderson, 

470 U.S. at 575–76 (explaining that a finding of fact is not clearly 

erroneous if that finding is based on the trial judge’s “decision to 

credit the testimony of one of two or more witnesses, each of 

whom has told a coherent and facially plausible story that is not 

contradicted by extrinsic evidence”). The bankruptcy court also 

found that the extrinsic evidence, namely Wagner’s June 2019 email 

to Melissa expressing his goal of keeping the fewest of their marital 

assets and transferring the horse’s insurance policy to Anderson 

that same month, did not contradict testimony provided by Wagner, Melissa, and Anderson. Although the district court concluded 

that the June 2019 emails where Wagner discussed his goal of retaining as few assets as possible in light of his impeding bankruptcy 

evinced fraudulent intent, the bankruptcy court explained that the 

June 2019 emails, when viewed against the backdrop of his divorce 

proceedings, did not support such a finding. 

Similarly, the bankruptcy court rejected any suggestion that 

Wagner’s timing in changing the named insured on the horse’s insurance policy indicated fraudulent intent. The bankruptcy court 

reasoned that for the majority of the time that Wagner was listed 

as the named insured, Anderson was a minor, and it was not until 

she became an adult that she became the named insured. Further, 

at the time that Wagner signed the February 2019 horse lease, Anderson was away at college and, although the lease was sent to her 

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to re-sign, she neglected to re-sign it. Moreover, the bankruptcy 

court determined Melissa’s transfer of the bulk of the February 

2019 lease proceeds from the joint account to her personal savings 

account failed to show Wagner knowingly and fraudulently failed 

to disclose the lease payments. Melissa’s rationale for the transfer—preserving the funds for future horse expenses—is consistent 

with the Wagners’ cash management practices where Melissa routinely transferred money from the joint account to her personal 

account out of distrust of Wagner with the money; the Wagners’ 

practice and explanation of paying for horse expenses through 2019 

because Anderson lacked an income of her own; and their testimony that the horse belonged to Anderson. 

Thus, the bankruptcy court—as the trial court—was best 

suited to appreciate the nuances of the witnesses’ demeanor that 

bore on the court’s credibility determination. See Anderson, 470 U.S. 

at 575. Deference to the bankruptcy court’s findings in this case 

was particularly appropriate because proving or refuting fraudulent intent depended on the bankruptcy court’s credibility determination. See Miller, 39 F.3d at 305; see also Kane v. Stewart Tilghman 

Fox & Bianchi, P.A. (In re Kane), 755 F.3d 1285, 1298 (11th Cir. 2014)

(stating that “the intent determination” under § 727(a)(2) “will often depend on th[e] [bankruptcy] court’s assessment of the debtor’s 

credibility” (citation omitted)). 

Because the bankruptcy court’s view of these facts was logical, plausible, and supported by the record, the district court misapplied the clearly erroneous standard in substituting its view of 

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the evidence for the bankruptcy court’s. See Anderson, 470 U.S. at 

573 (“The reviewing court oversteps the bounds of its duty under 

Rule 52(a) if it undertakes to duplicate the role of the lower 

court.”). See also id. at 577 (explaining that where two differing interpretations are neither illogical or implausible and each interpretation “has support in inferences that may be drawn from the facts 

in the record; and if either interpretation has been drawn by a [trial] 

court[,]” a court of review cannot find the trial court’s finding to 

be clearly erroneous). “A finding that is ‘plausible’ in light of the 

full record—even if another is equally or more so—must govern.” 

Cooper v. Harris, 581 U.S. 285, 293 (2017) (citation omitted).

B. The Bankruptcy Court Properly Granted Wagner a Discharge

Because we sit as a second court of review, we review “the 

bankruptcy court’s judgment anew, employing the same standard 

of review” as the district court. Lunsford v. Process Techs. Servs., LLC

(In re Lunsford), 848 F.3d 963, 966 (11th Cir. 2017) (citation omitted). 

The Bankruptcy Code provides a “fresh start” for the “honest but 

unfortunate debtor.” Mass. Dep’t of Revenue v. Shek (In re Shek), 947 

F.3d 770, 773 (11th Cir. 2020) (quoting Marrama v. Citizens Bank of 

Mass., 549 U.S. 365, 367 (2007)). “To ensure that only the deserving 

debtor receives the benefits of ” bankruptcy relief, Congress enacted several exceptions to discharge. Fesbach, 974 F.3d at 1327. Section 727(a)(4)(A) of the Bankruptcy Code prohibits the bankruptcy 

court from granting discharge to a debtor who “knowingly and

fraudulently . . . made a false oath or account” in a bankruptcy case. 

(emphasis added). “A debtor can make a false oath in his petition, 

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in his schedules, . . . and when giving sworn testimony.” PRN Real 

Est., 85 F.4th at 1339. 

A debtor’s deliberate omissions may constitute a false oath 

barring discharge under Section 727(a)(4)(A). Swicegood v. Ginn, 924 

F.2d 230, 232 (11th Cir. 1991) (citing Chalik, 748 F.2d at 618). “The 

false oath must be fraudulent and material.” PRN Real Est., 85 F.4th 

at 1339–40 (citing Chalik, 748 F.2d at 618). A false oath is “‘material’ . . . if it bears a relationship to the [debtor]’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence or disposition of his property.” Chalik, 748 

F.2d at 618 (citation omitted). 

An objecting party has the burden of proving that a debtor 

is not entitled to discharge pursuant to Section 727(a)(4)(A). See

Jennings v. Maxfield (In re Jennings), 533 F.3d 1333, 1339 (11th Cir. 

2008) (citing Grogan v. Garner, 498 U.S. 279, 289–91 (1991)). Once 

the objecting party “meets the initial burden by providing evidence 

establishing the basis for [its] objection, the burden shifts to the 

debtor” to provide a credible explanation that he is entitled to discharge. Chalik, 748 F.2d at 619. Because “a determination concerning fraudulent intent depends largely upon an assessment of the 

credibility and demeanor of the debtor, deference to the bankruptcy court’s factual findings is particularly appropriate.” Miller, 

39 F.3d at 305 (internal quotation marks and citation omitted). In 

this case, the bankruptcy court did not clearly err in determining 

that Wagner was entitled to discharge because he did not knowingly and fraudulently make a false oath in his bankruptcy case.

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IV. CONCLUSION 

Based on the foregoing, we REVERSE the district court’s 

order and AFFIRM the bankruptcy court’s order of discharge.

REVERSED.

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