Pequeno v. Schmidt

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 22, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40910
Summary Calendar
IN RE: JUAN PEQUENO, DEBTOR
JUAN PEQUENO,
Appellant,
versus
MICHAEL B. SCHMIDT,
Appellee.
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Appeal From the United States District Court
for the Southern District of Texas
No. B-05-CV-070
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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

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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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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.

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