United States Court of Appeals

for the Fifth Circuit

No. 20-40026

In the Matter of: Edward Mandel

Debtor,

Edward Mandel, 

Appellant,

versus

White Nile Software, Incorporated; Rosa R. Orenstein; 

Mastrogiovanni, Schorsch and Mersky, 

Appellees,

consolidated with

_____________

No. 20-40340

_____________

In the Matter of: Edward Mandel

Debtor,

Edward Mandel, 

Appellant,

versus

United States Court of Appeals

Fifth Circuit

FILED

August 17, 2021

Lyle W. Cayce

Clerk

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Steven Thrasher, individually; White Nile Software, 

Incorporated; Jason Coleman; Maddenswell, L.L.P.; 

Law Offices of Mitchell Madden,

Appellees.

Appeals from the United States District Court 

for the Eastern District of Texas

USDC Nos. 4:17-CV-261 and 4:17-CV-262

Before Jones, Southwick, and Engelhardt, Circuit Judges.

Per Curiam:*

These consolidated appeals are the latest in a number of appeals that 

this court has addressed stemming from Appellant Edward Mandel’s 

bankruptcy proceedings. Because a notice of appeal was not timely filed 

regarding the district court’s rulings in case number 4:17-cv-262, we lack 

appellate jurisdiction over assertions of error relating solely to the 

dischargeability of debts owed Appellees Steven Thrasher, White Nile

Software Incorporated, and Jason Coleman. Otherwise, finding no reversible 

error, we AFFIRM for the reasons stated herein.

I.

The complete factual and procedural background of these appeals is 

more than adequately set forth in our four prior opinions, issued between 

August 2014 and September 2018, regarding these bankruptcy proceedings. 

See In re Mandel, No. 13-40751, 578 F. App’x 376 (Aug. 15, 2014) (Mandel I); 

No. 15-40864, 641 F. App’x 400 (Mar. 7, 2016) (Mandel II); No. 17-40059, 

720 F. App’x 186 (Feb. 15, 2018) (Mandel III); and No. 17-40392, 747 F.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

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App’x 955 (Sept. 7, 2018)(Mandel IV). For purposes of the instant 

consolidated appeals, the district court’s two December 19, 2019

memorandum opinions (both entitled “Memorandum on Appeal from 

Bankruptcy Court”) in case numbers 4:17-cv-261 and 4:17-cv-262, and the 

district court’s April 24, 2020 order, in case number 4:17-cv-262, denying 

leave to appeal—together with the bankruptcy court’s September 12, 2013 

Order and March 31, 2017 Findings of Fact and Conclusions of Law—

provide the rulings of which Mandel seeks review in this court. 

For issues raised in these appeals, the following background 

information should suffice. This matterinvolves several disputes between cofounders of the company White Nile. Mandel and Thrasher initially formed 

White Nile, in early 2005, to develop Thrasher’s internet search invention. 

White Nile then hired Coleman to be its chief creative officer. By the end of 

2005, however, the business relationship had disintegrated. 

In essence, Thrasher contended that he had developed valuable 

intellectual property and, based on Mandel's misrepresentations, assigned 

that property to White Nile. Then, Mandel, in concert with others, 

purported to act for White Nile in order to release himself and others from 

non-disclosure agreements, so that he could misappropriate trade secrets for 

use by his new corporation, NeXplore. Mandel’s actions, Thrasher

maintained, prevented him from realizing value from his own inventions. 

Coleman alleged that he was fraudulently induced by Mandel to enter into a 

consulting agreement with White Nile and was deprived of compensation for 

his work and his interest in the intellectual property as a co-inventor. Mandel

denied all of Thrasher’s and Coleman’s claims, asserting among other things 

that NeXplore was formed to develop an internet search engine concept with 

an entirely different web-based inference.

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As we explained in Mandel I, Mandel was found to have 

misappropriated White Nile’s trade secrets and formed a new company, 

NeXplore. The bankruptcy court held Mandel liable for (1) theft or 

misappropriation of trade secrets; (2) breach of contract; (3) breach of 

fiduciary duty; (4) fraud and fraudulent inducement; (5) oppression of 

shareholder rights; and (6) conspiracy. It awarded $400,000 in damages to 

Coleman; $1,000,000 to Thrasher; and $300,000 to White Nile. In Mandel 

I, we affirmed the liability holdings but remanded the matter to the 

bankruptcy court to “either conduct an additional evidentiary hearing on the 

issue of damages or explain its award of damages on the basis of the evidence 

in the present record.” Following remand, we affirmed the district court’s 

judgment, in February 2018, regarding damages imposed in favor of 

Thrasher, Coleman, and White Nile. See Mandel III.

Also pertinent here are previous rulings regarding fees owed by 

Mandel to Appellees Rosa Orenstein and Mastrogiovanni, Schorsch & 

Mersky (hereinafter, “MSM”). Orenstein was appointed by a Texas state 

court to serve as a receiver for White Nile in connection with a lawsuit

regarding ownership of White Nile. With court approval, Orenstein retained 

MSM as counsel to assist her in her duties. As set forth in Mandel IV, three 

state court orders regarding the receivership are relevant here. 

The first state court receivership order was entered on November 1, 

2008, by consent of the parties. It established the scope of the receiver’s 

authority and the manner in which the receiver would be selected. Mandel 

agreed to pay 52.5% of the receiver’s fees and Thrasher 47.5% of the 

receiver’s fees. The order also stated that the receiver lacked authority to 

retain independent counsel without notice to the parties and court approval.

The second state court receivership order, dated May 29, 2009, 

appointed Orenstein, a bankruptcy attorney and one of the parties’ proposed 

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candidates, as the receiver. The second order restated the fee-sharing 

agreement between Mandel and Thrasher but did not include the prohibition 

on the retention of independent counsel. There also was no language in the 

second receivership order stating that it vacated or supplanted the first 

receivership order.

Thereafter, Orenstein retained MSM to assist her in her capacity as 

receiver. Mandel and Thrasher initially agreed to Orenstein’s retention of 

counsel, but Mandel soon began to object to the continued retention of 

MSM. Over Mandel’s objection, the state court entered the third 

receivership order, in September 2009, finding MSM’s retention to be 

authorized under the receivership orders and stating the terms of Mandel’s

and Thrasher’s payment to the receiver and MSM.

Later, when Orenstein sent Mandel a bill for $14,000 in attorney’s 

fees related to the receivership, he failed to pay and wrote to the state court 

claiming an inability to financially comply. Orenstein moved to compel 

compliance and the state court ordered financial discovery. A hearing was 

held after Orenstein alleged that Mandel was not complying with the ordered 

financial discovery. Rather than issuing a ruling at that time, the court 

continued the hearing to allow Mandel another opportunity to voluntarily 

comply. Subsequently, Mandel initiated mandamus proceedings concerning 

the validity of the payment order; the Supreme Court of Texas ultimately 

denied relief. (Orenstein hired an attorney at Hankinson Levinger to 

represent her in those mandamus proceedings.) On January 24, 2010, the 

day that the state trial court was set to resume the hearing on the enforcement 

of the payment order, Mandel filed for bankruptcy.

Eventually, the bankruptcy court decided that Orenstein was entitled 

to $315,553 in total fees for her work as White Nile’s receiver and that MSM 

was entitled to $155,517 in total fees for its work assisting Orenstein. The 

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district court subsequently overruled each of Mandel’s objections and 

affirmed the award. On appeal in Mandel IV, we determined, in September 

2018, that the state court had authorized the retention of counsel to assist 

Orenstein in her duties as receiver, and that Orenstein’s retention of counsel 

for the mandamus proceedings were done in her capacity as the receiver.1

Meanwhile, after Mandel II issued on March 7, 2016, the bankruptcy 

court tried Appellees’ objections to discharge and dischargeability in August 

and September 2016. On March 31, 2017, the bankruptcy court issued its 66-

page Findings of Fact and Conclusions of Law sustaining some, but not all, 

of Appellees’ objections to Mandel’s discharge and the dischargeability of 

the debts owed to Appellees. Thereafter, we issued Mandel III, on February 

15, 2018, affirming the compensatory damage awards owed to Thrasher, 

Coleman, and White Nile, and, on September 7, 2018, Mandel IV regarding 

the categories of fees recoverable by Orenstein and MSM. The district 

court’s memorandum opinions regarding Mandel’s appeals of the 

bankruptcy court’s March 31, 2017 Findings of Fact and Conclusions of 

Law—regarding discharge and dischargeability of debt—followed on 

December 19, 2019. 

II.

In these consolidated appeals, Mandel challenges the district court’s 

December 19, 2019 rulings (affirming the bankruptcy court’s 

determinations) that he should be denied discharge of his debts both 

1 The retention of counsel to assist in the bankruptcy case was not authorized, 

however, because Orenstein was not acting in her capacity as receiver when representing 

White Nile as a creditor in the bankruptcy. However, those attorney fees already were 

excluded from the award. Thus, at the conclusion of Mandel IV, we remanded the fee 

award, in September 2018, for recalculation solely to remove any fees attributable to 

Orenstein’s representation of White Nile as a creditor in the bankruptcy. 

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generally, pursuant to 11 U.S.C. §727, and particularly, pursuant to 11 U.S.C. 

§ 523, relative to the debts owed to Appellees. Mandel additionally contends 

the bankruptcy court and the district court erred in deciding that the claims 

asserted by Thrasher and White Nile were not extinguished by a 2012 statecourt settlement of litigation between Thrasher and one of Mandel’s former 

attorneys (hereinafter, the “Thrasher/Shore litigation”).

III.

When this court reviews the decision of a district court acting as an 

appellate court, we “apply[] the same standard of review to the bankruptcy 

court’s conclusions of law and findings of fact that the district court applied.”

In re JFK Capital Holdings, L.L.C., 880 F.3d 747, 751 (5th Cir. 2018) (quoting 

Barron & Newburger, P.C. v. Tex. Skyline, Ltd. (In re Woerner), 783 F.3d 266, 

270 (5th Cir. 2015) (en banc)). Accordingly, questions of fact are reviewed

for clear error and conclusions of law de novo. Matter of Cowin, 864 F.3d 344, 

349 (5th Cir. 2017). Mixed questions of law and fact also are reviewed de 

novo. Id. 

An appellate court must afford great weight to the bankruptcy court’s 

factual findings because the bankruptcy court is “in a far superior position to 

gauge the [debtor’s] credibility than a court that has been provided only with 

cold transcripts.” In re Acosta, 406 F.3d 367, 373–74 (5th Cir. 2005) (quoting 

In re Martin 963 F.2d 809, 814 (5th Cir. 1992)). A factual finding is clearly 

erroneous “when, although there is evidence to support it, the reviewing 

court on the entire evidence is left with a firm and definite conviction that a 

mistake has been committed.” Matter of Missionary Baptist Found. of America 

Inc., 712 F.2d 206, 209 (5th Cir. 1983) (quoting United States v. United States 

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

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IV.

At the outset, we address the timeliness of the notice of appeal filed 

by Mandel regarding the December 19, 2019 memorandum opinion entered 

by the district court, in case number 4:17-cv-262, relative to Thrasher, 

Coleman, and White Nile. As discussed in the district court’s April 24, 2020 

order denying leave to appeal, and the parties’ briefs, Mandel timely filed a 

notice of appeal only in case number 4:17-cv-261, despite the issuance of 

separate memorandum opinions in both case numbers 4:17-cv-261 and 4:17-

cv-262. Although much of the content of the two memorandum opinions is 

identical, substantive differences do exist, particularly regarding the 

dischargeability of debts owed solely to the claimants in the respective cases, 

i.e., Orenstein and MSM in case number 4:17-cv-261, and Thrasher, 

Coleman, and White Nile in case number 4:17-cv-262. Furthermore, a 

separate notification was provided for each matter and each memorandum 

opinion bears a different case number and caption.

Although we understand the logic of Mandel’s position, and readily 

acknowledge that mistakes occasionally do happen in the course of busy legal 

practices, the time limits of Federal Rules of Appellate Procedure 4(a)(1) and 

4(a)(6) are jurisdictional. Bowles v. Russell, 551 U.S. 205, 208 (2007); 28 

U.S.C. § 2107. The requirements of Rule 4(a)(6) do not permit the reopening 

of the time for filing an appeal when the rule’srequirements are not met. And 

they are not here, given that notice of each opinion was provided and received 

by Mandel’s former counsel and, indeed, Mandel himself. In any event, as 

detailed herein, we find no basis for reversing any of the district court’s 

rulings. 

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V. 

Both the bankruptcy court and the district court rejected Mandel’s 

preliminary assertion that a 2012 settlement of the Thrasher/Shore litigation

extinguished any debts that Mandel owed to Thrasher and White Nile, such 

that a consideration of their dischargeability was unnecessary. After hearing 

argument, and considering trial testimony, documentary evidence, and the 

parties’ briefs, the bankruptcy court determined that the September 2012 

settlement did not encompass the instant claims asserted by Thrasher and 

White Nile. Despite Mandel’s considerable efforts, the record before us 

provides no basis to disregard the bankruptcy court’s logical and wellreasoned conclusion based, inter alia, on the language in the settlement 

agreement expressly limiting its scope to “claims, demands, or suits, 

unliquidated whether or not asserted in the above case, as of this date, arising 

from or related to the events or transactions which are the subject matter of this 

case.”2

To the contrary, Mandel’s assertion that the “release” language of

the agreement should essentially be ignored is itself nonsensical, given the 

purpose and function of settlement agreements, as well as the nature of the 

attorneys’ fee-sharing dispute at issue in the Thrasher/Shore litigation

compared to the intellectual property misappropriation and related business 

disputes giving rise to the claims allowance/discharge litigation involved 

2 (Emphasis added.) Because this issue was addressed in the memorandum 

opinions issued by the district court in both case number 4:17-cv-261 and case number 4:17-

cv-262, we address it herein despite its seeming relevance only to the debts asserted by 

White Nile and Thrasher. The settlement was reached in connection with Texas state 

court litigation between Thrasher (and related entities) against Michael Shore; Alfonso 

Chan; Shore, Chan and Bragalone, L.L.P.; Shore Deary, L.L.P.; Judy Shore; David Deary; 

Karen Deary; W. Ralph Canada; Jeff Bragalone; Pat Conroy; and Joe DePumpo, et al., 

bearing Cause Nos. DC-11-14842 and DC-09-02907. 

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here. Further, as noted by the bankruptcy court, there has been no showing 

that Thrasher had the capacity or authority to individually settle/release 

claims on behalf of White Nile. 

Nor are we swayed by Mandel’s assertion that, in September 2013, the 

bankruptcy court erred in failing to (1) hold an expedited pre-trial evidentiary 

hearing regarding the scope and impact of the 2012 settlement and (2) issue 

an “indicative ruling”3 to ensure that we were aware of the bankruptcy 

court’s assessment whilst considering the appeal of the district court’s July 

2013 judgment regarding the bankruptcy court’s September 2011 (liability 

and damages) determinations relative to the allowance of the claims asserted 

by Thrasher, Coleman, and White Nile. The bankruptcy court certainly has 

discretion over the timing and organization of its docket and Mandel offers 

no basis for a conclusion that an abuse of that discretion occurred. Finally, 

as the Findings of Fact in paragraphs 11–19 and 55–66 of the March 31, 2017 

Findings of Fact and Conclusions of Law reveal, the bankruptcy court 

certainly gave due consideration of Mandel’s assertions regarding the scope 

of the 2012 settlement prior to rendering its discharge rulings.

4

VI.

Regarding discharge of debt, the bankruptcy court concluded, and the 

district court affirmed, that Mandel should be denied discharge under 11 

U.S.C. § 727(a)(3) and § 727(a)(4). Regarding the particular debts owed to 

the Appellees, the same conclusions were reached, pursuant to 11 U.S.C. 

§ 523(a)(2)(A), § 523(a)(4), and § 523(a)(6). 

3 See Fed. R. Bankr. P. 8008.

4 We thus affirm the judgment of the district court without the necessity of 

engaging in the convoluted consideration of various dates and rulings that an evaluation of 

the district court’s collateral estoppel determination would require. 

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A.

The exceptions to discharge set forth in subsections 727(a)(3) and 

727(a)(4)(A) apply when:

(3) the debtor has concealed, destroyed, mutilated, falsified or 

failed to keep or preserve any recorded information, including

books, documents, records, and papers from which the debtor’s financial condition or business transactions might be ascertained, 

unless such act or failure to act was justified under all of the circumstances of the case; or 

(4)(A) the debtor knowingly and fraudulently, in or in connection 

with the case—made a false oath or account.5

Regarding 11 U.S.C. § 523, subsections 523(a)(2)(A), 523(a)(4), and 

523(a)(6) prevent a discharge under section 727 . . . from any debt:

(2) for money, property, services or an extension, renewal or 

refinancing of credit, to the extent obtained by 

 (A) false pretenses, a false representation, or actual fraud, 

other than a statement respecting the debtor’s or an insider’s 

financial condition; [or]

(4) for fraud or defalcation while acting in a fiduciary capacity, 

embezzlement, or larceny; [or]

(6) for willful or malicious injury by the debtor to another entity 

or to the property of another entity[.]6

B.

Section 727 of Title 11 of the United States Code establishes 

exceptions to the discharge that Chapter 7 of that title otherwise grants to a 

5 11 U.S.C. §§ 727(a)(3) and (a)(4)(A). 

6 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6).

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debtor. Discharge of the debtor is required unless a statutory exception 

applies. See 11 U.S.C. § 727(a). The exceptions are construed strictly against 

the creditor and liberally in favor of the debtor. In re Duncan, 562 F.3d 688, 

695 (5th Cir. 2009); In re Hudson, 107 F.3d 355, 356 (5th Cir. 1997). 

Under § 727(a)(3), a plaintiff must show, by a preponderance of the 

evidence: (1) the debtor failed to maintain and preserve adequate records; 

and (2) such failure makes it impossible to ascertain his financial condition

and material business transactions. In re Dennis, 330 F. 3d 696, 703 (5th Cir. 

2003). As explained in Duncan, 562 F.3d at 697:

Under this section, the creditor objecting to the debtor's 

discharge bears the initial burden of production to present 

evidence that the debtor failed to keep adequate records and 

that the failure prevented the creditor from evaluating the 

debtor’s financial condition. Dennis, 330 F.3d at 703. . . . “A 

debtor’s financial records need not contain ‘full detail,’ but 

‘there should be written evidence’ of the debtor’s financial 

condition.” Dennis, 330 F.3d at 703 (quoting Goff v. Russell Co. 

(In re Goff), 495 F.2d 199, 201 (5th Cir.1974)); see also In re 

Juzwiak, 89 F.3d at 428 (“[C]ourts and creditors should not be 

required to speculate as to the financial history or condition of 

the debtor, nor should they be compelled to reconstruct the 

debtor’s affairs.” (citations omitted)); [Pher Partners v. 

Womble (In re Womble), 289 B.R. 836, 856 (Bankr. N.D. Tex.

2003)] (“Creditors are entitled to written evidence of the 

debtor's financial situation and past transactions; maintenance 

of such records is a prerequisite to a discharge.”). The 

adequacy of the debtor's records is determined on a case by 

case basis, using such considerations as the “debtor’s 

occupation, financial structure, education, experience, 

sophistication and any other circumstances that should be 

considered in the interest of justice.” Womble, 289 B.R. at 856

(internal quotation marks omitted).

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If the plaintiff satisfies this initial burden of 

production—that the debtor's failure to produce adequate 

records makes it impossible to discern his financial status—the 

debtor must prove the inadequacy is “justified under all the 

circumstances.” Dennis, 330 F.3d at 703. The bankruptcy 

court has “wide discretion” in analyzing these shifting 

burdens, and its determination is reviewed for clear error. Id.

In preserving business and finance records, sophisticated debtors may be held 

to a higher standard. See In re Jones, 237 B.R. 297, 305 (S.D.Tex. 2005).

Under § 727(a)(4)(A), the plaintiff in a bankruptcy proceeding must 

show that: (1) the debtor made a statement under oath; (2) the statement was 

false; (3) the debtor knew the statement was false; (4) the debtor made the 

statement with fraudulent intent; and (5) the statement related materially to 

the bankruptcy case. Matter of Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992).

“[T]he purpose of § 727(a)(4)(A) is to enforce a debtor’s dutyof disclosure 

and to ensure that the debtor provides reliable information to those who have 

an interest in the administration of the estate.” In re Lindemann, 375 B.R. 

450, 469 (Bankr. N.D. Ill. 2007). A plaintiff asserting a § 727(a)(4)(A) 

discharge exception bears the burden of demonstrating an actual intent to 

hinder, delay or defraud creditors. Matter of Chastant, 873 F.2d 89, 91 (5th 

Cir. 1989). “Circumstantial evidence may be used to prove fraudulent intent, 

and the cumulative effect of false statements may, when taken together, 

evidence a reckless disregard for the truth sufficient to support a finding of 

fraudulent intent.” Duncan, 562 F.3d at 695; see also Matter of Reed, 700 F.2d 

986, 991 (5th Cir. 1983)(“Fraudulent intent of course may be established by 

circumstantial evidence, or by inferences drawn from a course of conduct.”)

“False statements in the debtor's schedules or false statements by the 

debtor during the proceedings are sufficient to justify denial of discharge.” 

Duncan, 562 F.3d at 695 (citing Beaubouef, 966 F.2d at 178.) Further, the 

materiality of an omission is not solely based on the value of the item omitted 

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or whether it was detrimental to creditors. Id. Rather, the statement need 

only “bear [ ] a relationship to the bankrupt's business transactions or estate, 

or concern[ ] the discovery of assets, business dealings, or the existence and 

disposition of his property.” Beaubouef, 966 F.2d at 178 (quoting In re Chalik, 

748 F.2d 616, 617 (11th Cir. 1984)). 

The bankruptcy court found the requirements of both 11 U.S.C. 

§§ 727(a)(3) and (a)(4) satisfied. The district court agreed, highlighting 

various deficiencies and misrepresentations outlined by the bankruptcy court 

in making its determinations. Importantly, as the district court emphasized, 

many of these determinations turned, in significant part, on the bankruptcy 

court’s credibility findings after considering extensive argument, testimony, 

and numerous exhibits in several proceedings conducted over a five-year 

period. The district court found no reason to disturb these credibility 

determinations and neither do we. 

The record more than sufficiently demonstrates Mandel’s aptitude 

and willingness to utilize various entities controlled by him to improve his 

financial position and maximize opportunities for his various business 

interests with little regard for accounting transparency. Furthermore, this 

remained true even after he sought the protections of the bankruptcy 

statutes. The bankruptcy court details numerous inaccuracies and omissions

in the payment schedules and monthly operating reports submitted by 

Mandel. Even worse, he persisted in this practice subsequent to being 

specifically instructed, in accordance with Bankruptcy Rule 2015.3, to

disclose information fully and accurately, under the penalty of perjury,

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regarding closely held companies in which he held a “substantial or 

controlling interest.” See Fed. R. Bankr. P. 2015.3; Official Form 426.7

Additionally, despite his obvious business acumen, sophistication,

and intelligence, Mandel does not hesitate to claim innocent confusion 

and/or invoke his non-attorney status, as well as a proclaimed reliance on the 

advice of counsel (without waiving attorney-client privilege and providing 

evidentiary support for that assertion), when confronted with unfavorable 

evidence that he cannot otherwise explain away. Finally, though replete with

numerical record citations, conclusory assertions of sufficient recordkeeping,

and color commentary, Mandel’s numerous briefs fail to provide the detailed 

factual support and contextual explanation necessary to demonstrate clear 

error in the district court’s and bankruptcy court’s assessments of record 

evidence, as it existed at the time those determinations were made rather 

than some time thereafter. Accordingly, we likewise find no error in the 

determination that Mandel’s false statements were both material and made 

with fraudulent intent. Thus, we affirm the district court’s rulings regarding 

both § 727(a)(3) and § 727(a)(4)(A).

C. 

As set forth above, 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4), and 

523(a)(6) prevent a discharge under section 727 . . . from any debt:

(2) for money, property, services or an extension, renewal or 

refinancing of credit, to the extent obtained by 

7 Rule 2015.3 implements section 419 of the Bankruptcy Abuse Prevention and 

Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23 (April 20, 

2005).

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 (A) false pretenses, a false representation, or actual fraud, 

other than a statement respecting the debtor’s or an insider’s 

financial condition; [or]

(4) for fraud or defalcation while acting in a fiduciary capacity, 

embezzlement, or larceny; [or] 

(6) for willful or malicious injury by the debtor to another entity 

or to the property of another entity[.]8

Regarding the debts owed to Orenstein and MSM, Mandel argues that

he did not contemplate owing attorney’s fees when he initially agreed to the 

appointment of a receiver. Thus, he contends, he did not engage in fraud for 

purposes of § 523(a)(2)(A) in attempting to avoid paying those fees because 

he honestly never thought he had to pay attorney’s fees. The bankruptcy 

court obviously did not find this assertion credible and, like the district court, 

we find no basis on the record before us to reject that assessment. 

The bankruptcy court found that Mandel had entered into an agreed 

receiver order without any intent to comply with the agreement. In support 

of this conclusion, the bankruptcy court emphasized Mandel’s untruthful 

representation of indigency to the state court with regard to a $14,000 

outstanding attorney fee, and his ability and tendency to move funds around 

“at will depending on where it was needed and who he wanted to pay, 

[keeping] few, if any accurate records of his business transactions.” The 

bankruptcy court explained: “Here, the demands for payment by Orenstein 

and MSM were relatively small prior to Mandel’s bankruptcy. [But] he 

simply refused to pay them.” And, “[h]e did not tender any payments . . . 

except in the shadow of sanctions proceedings before the state court, and 

misrepresented his financial condition to Orenstein, MSM, and the state 

court.” Thus, the bankruptcy court concluded: “The preponderance of the 

8 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6).

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evidence established that Mandel entered into the agreed receiver order 

without any intent to comply with its requirements.” Thus, finding 

Orenstein’s and MSM’s claims arose from actual fraud, the bankruptcy court 

concluded that Mandel should be denied discharge, pursuant to 11 U.S.C. 

§ 523(a)(2)(A), regarding these debts. The district court agreed. 

Although the original receivership order did not authorize retention 

of counsel, it provided notice of that eventual possibility by stating that the

receiver was without authority to retain independent counsel “without 

notice to the parties and court approval.” See Mandel IV, 747 F. App’x at 957. 

Indeed, in Mandel IV we noted that “Mandel and Thrasher initially agreed to 

Orenstein’s retention of counsel, but soon began to object[.]” Id. On this 

record, we find no clear error in the bankruptcy court’s determinations of 

Mandel’s intent. 

Lastly, it is unnecessary for us address the dischargeability, under 11 

U.S.C. § 523(a), of debts owed to Thrasher, White Nile, and Coleman, given 

the absence of a timely filed notice of appeal of the district court’s rulings in 

case number 4:17-cv-262. Lengthy discussion of the issue is unwarranted, in 

any event, considering our claims allowance determinations (relative to 

misappropriation, fraud, theft, and breach of fiduciary duty) in Mandel I and 

III. Given those determinations, the requirements of 11 U.S.C. §§ 

523(a)(2)(A), 523(a)(4), and 523(a)(6) are satisfied.

VII.

Regarding appeal number 20-40026, the district court is 

AFFIRMED. Regarding appeal number 20-40340, the appeal is 

DISMISSED for lack of jurisdiction.

Case: 20-40026 Document: 00515981870 Page: 17 Date Filed: 08/17/2021