                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                April 17, 2007
                            FO R TH E TENTH CIRCUIT         Elisabeth A. Shumaker
                                                                Clerk of Court



In re: H EN RY D EA N V A UG H AN
and JESSIE ELA IN E V A U G HAN,

               Debtors,                           No. 06-6158
                                              (BAP N o. W O-05-028)
-------------------------                            (BA P)

ROBERT D. GARRETT, Trustee,

               Plaintiff-Appellee,

B AN K OF C USH IN G ,

               Appellee,

v.

HENRY DEAN VAUGHAN and
JESSIE ELA IN E V A U G HA N ,

          Defendants-Appellants.
______________________________

In re: H EN RY D EA N V A UG H AN;
JESSIE ELA IN E V A U G HA N ,

               Debtors,                           No. 06-6159
                                              (BAP N o. W O-04-039)
-------------------------                            (BA P)

B AN K OF C USH IN G ,

               Plaintiff-Appellee,

v.
    H EN RY D EA N V A UG H A N ;
    JESSIE ELA IN E V A U G HA N ,

                Defendants-Appellants.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


         Henry and Elaine Vaughan were indebted to the Bank of Cushing (the

Bank) as personal guarantors of a debt ow ed by a company called Americare

U.S.A., Ltd. The Vaughans filed a voluntary petition for relief under Chapter 13

of the Bankruptcy Code and their case was later converted to one under Chapter

7. The Bank subsequently filed an adversary complaint alleging that the

Vaughans’ debt to it should be excepted from discharge under 11 U.S.C.

§ 523(a)(2)(A)-(B) and (a)(6), and that the Vaughans should be generally denied

discharge under 11 U.S.C. §§ 523(c)(1), 727(c)(1). Thereafter, the bankruptcy

trustee (the Trustee) filed his own adversary complaint alleging that the Vaughans

should be generally denied discharge under 11 U.S.C. § 727(a)(2)(A)-(B) and



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
(a)(4)(A), (D). In the Bank’s adversary proceeding the Vaughans filed a motion

for partial summary judgment and the Bank responded with its own motion for

summary judgment. The Trustee also moved for summary judgment in his

adversary proceeding.

      In the Bank’s adversary proceeding the bankruptcy court granted the

Bank’s motion for summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A)-(B ).

Section 523 reads in pertinent part:

      (a) A discharge under section 727, 1141, 1228(a), 1228(b), or
      1328(b) of this title does not discharge an individual debtor 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;

                    (B) use of a statement in writing–

                          (i) that is materially false;

                          (ii) respecting the debtor’s or an insider’s financial
                          condition;

                          (iii) on which the creditor to whom the debtor is liable
                          for such money, property, services, or credit reasonably
                          relied; and

                          (iv) that the debtor caused to be made or published with
                          intent to deceive[.]



                                          -3-
Regarding § 523(a)(2)(A), the bankruptcy court found that a settlement agreement

the Vaughans entered into with the Bank allowing the Vaughans to payback the

amount owed under the guaranty agreements over time qualified as a “refinancing

of credit” and that the V aughans violated this subsection because

      both prior to and after entering into the Settlement Agreement . . .
      [the Vaughans] made a series of fraudulent oral and written
      representations to [the Bank] regarding both the availability and
      disposition of assets to repay the indebtedness they owed to [the
      Bank]. M oreover, [the Vaughans] made such representations to
      induce [the Bank] to enter into the Settlement Agreement, and [the
      Bank] both actually and justifiably relied to its detriment on these
      representations in agreeing to enter into the Settlement
      Agreement . . . .

Supp. Aplee. App. (Bank), Vol. VI, Doc. 136 at 14. Regarding § 523(a)(2)(B),

the bankruptcy court held that the Vaughans provided the Bank with a financial

statement in order to induce the Bank to enter into the settlement agreement, that

the bank justifiably relied on that statement, and that the statement was materially

false and made with the intent to deceive. The bankruptcy court ordered the

Bank’s claim excepted from discharge.

      In the Trustee’s adversary proceeding he argued that the Vaughans should

be generally denied discharge under 11 U .S.C. § 727(a)(2) and (a)(4)(A). Those

sections read:

      (a) The court shall grant the debtor a discharge, unless–

             ....




                                         -4-
            (2) the debtor, with intent to hinder, delay, or defraud a
            creditor or an officer of the estate charged with custody of
            property under this title, has transferred, removed, destroyed,
            mutilated, or concealed, or has permitted to be transferred,
            removed, destroyed, mutilated, or concealed–

                   (A) property of the debtor, within one year before the
                   date of the filing of the petition; or

                   (B) property of the estate, after the date of the filing of
                   the petition;

            ....

            (4) the debtor, knowingly and fraudulently, in or in connection
            with the case–

                   (A ) made a false oath or account[.]

The bankruptcy court held that its findings in the Bank’s adversary proceeding

were “law of the case” as to the Vaughans’ fraudulent conduct and that those

findings required a grant of summary judgment under 11 U.S.C. § 727(a)(2) in the

Trustee’s adversary proceeding.

      The V aughans appealed the grants of summary judgment in both adversary

proceedings to the bankruptcy appellate panel (BAP). Regarding the appeal from

the summary judgment order in the Trustee’s adversary proceeding, the BAP held

that the evidence showed that the Vaughans had knowingly and fraudulently made

a false oath by not disclosing numerous assets in their bankruptcy schedules and

other pleadings and that affirmance was required under 11 U.S.C. § 727(a)(4)(A).

The BAP held that its order affirming the denial of discharge in the Trustee’s



                                         -5-
adversary proceed rendered moot the appeal in the Bank’s adversary proceeding.

In appeal number 06-6158, the Vaughans appeal the BAP’s affirmance of the

bankruptcy court’s decision in the Trustee’s adversary proceeding. In appeal

number 06-6159, the Vaughans appeal the BAP’s determination that its appeal

from the decision in the Bank’s adversary proceeding was moot.

      W e have jurisdiction to review final bankruptcy decisions under 28 U.S.C.

§ 158(d). “On appeal from BAP decisions, we independently review the

bankruptcy court’s decision.” Houlihan Lokey Howard & Zukin Capital v.

Unsecured Creditors’ Liquidating Trust (In re Commercial Fin. Servs., Inc.),

427 F.3d 804, 810 (10th Cir. 2005) (quotation omitted). Further, “[w]e may

affirm for any reason supported by the record.” United States v. M yers

(In re M yers), 362 F.3d 667, 674 n.7 (10th Cir. 2004).

      W e review the bankruptcy court’s legal determinations de novo and
      its factual findings under the clearly erroneous standard. A finding
      of fact is clearly erroneous if it is without factual support in the
      record or if, after reviewing all of the evidence, we are left with the
      definite and firm conviction that a mistake has been made.

In re Commercial Fin. Servs., Inc., 427 F.3d at 810 (alteration and quotation

omitted).

      W e review the grant of summary judgment by the bankruptcy court
      de novo, applying the same legal standards as those applied by the
      bankruptcy [court and BAP]. Summary judgment is appropriate
      where there is no genuine issue of material fact and the moving party
      is entitled to judgment as a matter of law.




                                         -6-
Am. Bank & Trust Co. v. Jardine Ins. Servs. Tex., Inc. (In re Barton Indus., Inc.),

104 F.3d 1241, 1245 (10th Cir. 1997) (citation and quotation omitted).

      In their appellate brief, the V aughans do not address the BAP’s

determination that their failure to disclose assets in their bankruptcy court

statement of financial affairs and bankruptcy schedules was fraudulent. They

argue only that summary judgment was inappropriate because they submitted

evidence showing that a genuine factual dispute existed regarding whether the

Vaughans intended to defraud the Bank by submitting a false financial statement

prior to the settlement agreement and whether the Bank relied on that statement in

entering into the agreement.

      Here, follow ing thorough review of the materials submitted by the parties,

we agree with the BAP’s analysis and determination that affirmance of the grant

of summary judgment in the Trustee’s adversary proceeding was required under

11 U.S.C. § 727(a)(4)(A). W hile the bankruptcy court discussed § 727(a)(4)(A),

it based its holding in that proceeding on § 727(a)(2). Nevertheless we find the

BAP’s order and judgment affirming on § 727(a)(4)(A) grounds to be thorough

and persuasive.

      Consequently, because we may affirm for any reason supported by the

record and because it would serve no purpose to merely reiterate the BAP’s

conclusions, in appeal number 06-6158 we AFFIRM the bankruptcy court’s denial

of discharge in the Trustee’s adversary proceeding for the reasons set forth by the

                                          -7-
BAP in its M arch 22, 2006, Order and Judgment. Further, because a general

denial of discharge w as proper, the V aughans’ appeal of the bankruptcy court’s

order granting summary judgment in the Bank’s adversary proceeding in appeal

number 06-6159 is D ISM ISSED as moot.


                                                   Entered for the Court


                                                   David M . Ebel
                                                   Circuit Judge




                                        -8-
