Allred v. Vilhauer (In re Vilhauer)
- Citation:
- Eight Circuit Court of Appeals, No. 11-6038 (October 11, 2011)
- Tag(s):
-
- Ruling:
- The Bankruptcy Appellate Panel ruled that where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
- Procedural context:
- Appeal from a Bankruptcy Court decision affirming the Bankruptcy Court's judgment after trial that the debtor should be denied a discharge pursuant to section 727(a) of the Bankruptcy Code.
- Facts:
- Chapter 7 trustee filed a complaint seeking denial of the debtor's discharge based upon debtor's failure to account for 117 animals, which was 10% of the debtor's herd. Debtor conceded that, since the trustee met his burden of demonstrating the loss of property, the burden shifted to the debtor to provide an adequate explanation of the loss. Debtor produced photographs of 103 dead animals that the debtor testified died during a harsh winter and were burned in a burn pit on the farm before July 2010, and a witness testified he witnessed significant numbers of cattle deaths that year, both at the debtors’ property and at other farms in the area, although he did not count the deaths at the debtor's farm. The trustee produced a veternarian who supervised an exhumation of the burn pit and testified that only seven of the carcasses could have been in the pit before July 2010, and also testified that a normal death rate would have been 1-2% and not 10%. The Bankruptcy Court found the trustee's evidence more credible than the debtor's evidence and ruled in favor of the trustee. On appeal, the BAP held that “[where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Consequently, the BAP held that that the Bankruptcy Court did not clearly err in finding that the debtor failed to adequately explain the loss of cattle.
- Judge(s):
- Kressel, Schermer and Federman
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