                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 22, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40910
                          Summary Calendar


                     IN RE: JUAN PEQUENO, DEBTOR

                           JUAN PEQUENO,

                             Appellant,

                               versus

                         MICHAEL B. SCHMIDT,

                              Appellee.

                       --------------------
          Appeal From the United States District Court
                for the Southern District of Texas
                          No. B-05-CV-070
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     At issue in this appeal is the Bankruptcy Court’s denial of

appellant Pequeno’s August 3, 2004 motion to deny admittance of

appellee Schmidt’s exhibits dated July 7, 2004; the court denied

the motion.    Pequeno appealed to the United States District Court

for the Southern District of Texas, and that court affirmed the

Bankruptcy Court’s denial of Pequeno’s motion.     We affirm.

     In an appeal based on an evidentiary ruling of the Bankruptcy

Court, an appellant must prove both: (1) that the Bankruptcy Court

     *
       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this opinion should not be published and is not precedent except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.
                            No. 06-40910
                                 -2-

abused its discretion; and (2) that the appellant’s substantial

rights were prejudiced.    Roberts v. Poole, 80 B.R. 81, 87 (N.D.

Tex. 1987).

      The exhibits at issue were first offered by Schmidt at a July

7, 2004 hearing, the purpose of which was to convert Pequeno’s

bankruptcy to a Chapter 13, pursuant to an order of the district

court.   Schmidt offered the exhibits in support of his Motion to

Reconvert Pequeno’s bankruptcy from a Chapter 13 to Chapter 7.   At

this hearing, Pequeno initially objected to all of these exhibits

but upon further questioning by the court, objected only to Exhibit

C.   The court admitted Exhibit A, stated that there was no Exhibit

B, and did not rule upon Exhibit C.        As the court explained,

because the stated purpose of the July 7, 2004 hearing was to

convert the case to Chapter 13 pursuant to an order of the district

court, it did not want to convert Pequeno’s bankruptcy to a Chapter

13 and entertain Schmidt’ motion to convert it back into a Chapter

7 on the same day.

      However, on August 4, 2004, the bankruptcy court held a

hearing on Schmidt’s Motion to Reconvert, and the judge admitted

the exhibits.   Nonetheless, on September 13, 2004, the Bankruptcy

Court denied Schmidt’s Motion to Reconvert, allowing Pequeno to

remain under Chapter 13 and giving him until October 7, 2004 to

file a Chapter 13 Plan.    Thereafter, the Bankruptcy Court denied

Pequeno’s Motion to Deny Admittance of the exhibits on October 8,

2004.    Regardless of whether the Bankruptcy Court took Schmidt’s
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                                  -3-

exhibits into account when issuing its September 13, 2004 ruling

(and the record does not indicate one way or the other), it ruled

in Pequeno’s favor and allowed him to proceed under Chapter 13.

Therefore,   any   consideration   by   the   Bankruptcy   Court   of   the

exhibits would be harmless.

     Schmidt filed a Second Motion to Reconvert on October 22, 2004

based on Pequeno’s failure to file a feasible Chapter 13 Plan.          The

Bankruptcy Court granted this motion on December 27, 2004; however,

whether it considered the disputed exhibits or not is irrelevant,

as its stated reason for reconverting Pequeno’s bankruptcy to

Chapter 7 was that Pequeno failed to file a plan or make payments.

     Therefore, we AFFIRM.
