James Schlehuber v. Fremont National Bank & Trust, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED) [4135102] [13-2070]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2070
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In re: James C. Schlehuber, also known as Jim Schlehuber, Formerly doing
business as J.R.G., L.L.C., Formerly doing business as The Radar & Riley Limited
Partnership, Formerly doing business as March Plan Investments, L.L.C., Formerly
doing business as Rockford Omaha, L.L.C., Formerly doing business as January
Real Group, L.L.C.
lllllllllllllllllllllDebtor
-----------------------------James C. Schlehuber
lllllllllllllllllllllAppellant
v.
Fremont National Bank & Trust Company; Nancy J. Gargula, U.S. Trustee
lllllllllllllllllllllAppellees
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Appeal from the United States Bankruptcy
Appellate Panel for the Eighth Circuit
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Submitted: March 6, 2014
Filed: March 19, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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Appellate Case: 13-2070

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Date Filed: 03/19/2014 Entry ID: 4135102

PER CURIAM.
After James Schlehuber filed a voluntary Chapter 7 bankruptcy petition, one of
his creditors moved under 11 U.S.C. § 706(b) to convert the petition to one under
Chapter 11. After a hearing, the bankruptcy court1 granted the motion, and the
Bankruptcy Appellate Panel (BAP) affirmed. Schlehuber now appeals to this court,
arguing that the bankruptcy court applied an improper legal standard, and abused its
discretion, in granting the motion to convert. He also renews his constitutional
challenge to certain bankruptcy statutes.
We decline to address the constitutional challenges, because Schlehuber
abandoned them in his appeal to the BAP. See In re Trism, Inc., 328 F.3d 1003, 1008
(8th Cir. 2003) (declining to consider arguments on appeal not advanced before BAP).
As to the arguments that are properly before us, we review for abuse of discretion an
order granting a motion under section 706(b). See In re Tex. Extrusion Corp., 844
F.2d 1142, 1161 (5th Cir. 1988). Having carefully reviewed the record as a whole,
including the memoranda and evidence that the parties submitted, as well as their
varied arguments before the bankruptcy court, we find no basis to conclude that the
court applied an improper legal standard or abused its discretion in granting the
motion to convert. See In re Wolk, 686 F.3d 938, 940 (8th Cir. 2012) (court abuses
discretion when it fails to apply proper legal standard or bases its order on clearly
erroneous findings of fact); In re Danduran, 657 F.3d 749, 752 (8th Cir. 2011)
(finding of fact is clearly erroneous when, although there is evidence to support it,
reviewing court is left with definite and firm conviction that mistake was committed);
see also Toibb v. Radloff, 501 U.S. 157, 163 (1991) (Chapter 11 embodies general

1

The Honorable Thomas L. Saladino, Chief Judge, United States Bankruptcy
Court for the District of Nebraska.
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Bankruptcy Code policy of maximizing value of bankruptcy estate). Accordingly, we
affirm. See 8th Cir. R 47B.
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Date Filed: 03/19/2014 Entry ID: 4135102