      Case: 10-31161 Document: 00511463044 Page: 1 Date Filed: 05/02/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 2, 2011
                                     No. 10-31161
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

In the Matter of: GINA MARINA DIAZ,

                Debtor

--------------------------

MUHAMMED SHARIF CHEEMA,

                                                   Appellant
v.

GINA MARINA DIAZ,

                                                   Appellee


                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:10-CV-2636


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Appellant Muhammed Sharif Cheema appeals the district court judgment
affirming the judgment of the bankruptcy court that rejected Cheema’s claim in
his adversary proceeding to avoid the discharge of his state court judgment



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-31161 Document: 00511463044 Page: 2 Date Filed: 05/02/2011



                                  No. 10-31161

against Diaz.   The district court affirmed the bankruptcy court’s denial of
Cheema’s claim of non-discharge on its finding that Cheema had failed to bear
his burden of proof that the judgment in question arose from Diaz’s false
pretenses, false representation, or fraud. We affirm.
      When Cheema’s claim came on for trial in the bankruptcy court, Diaz was
not present in court. She had been listed on the will-call witness list but had not
been subpoenaed. The bankruptcy court reminded counsel for Cheema that
when the judgment debt at issue was discharged in bankruptcy, the burden of
proving non-dischargeability became that of the judgment creditor – based in
this case on false pretenses, false representation, or fraud on the part of the
bankrupt. Our review of the record confirms that the bankruptcy court correctly
ruled that Cheema had failed to bear his burden of proof of the elements that
would avoid discharge, and that the absence of the unsubpoenaed Diaz at the
adversary hearing did not alleviate or otherwise affect the creditor’s proof
requirement under §523(a)(2)(A).
      We have reviewed the record on appeal, including the briefs of the parties
and the reasoning of the bankruptcy court. As a result, we are satisfied that the
judgment of the district court, based as it is on the reasoning of the bankruptcy
court, should be and hereby is,
AFFIRMED.




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