United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1653
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In re: Jeremiah Joseph Paul; *
Stacy Marie Paul, *
*
Debtors. *
________________________________ *
*
John S. Lovald, Trustee, *
* Appeal from the United States
Appellant, * Bankruptcy Appellate Panel
* for the Eighth Circuit.
v. *
* [UNPUBLISHED]
Marissa Hunter; Misti Paul, *
*
Appellees. *
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Submitted: November 14, 2011
Filed: November 25, 2011
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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
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PER CURIAM.
John S. Lovald, trustee in the Jeremiah Joseph and Stacy Marie Paul bankruptcy
proceeding, appeals from a decision of the Bankruptcy Appellate Panel1 affirming an
order of the bankruptcy court.2 We affirm.
Lovald brought an adversary proceeding against Marissa Hunter (Jeremiah
Paul's step-mother) and Misti Paul (Jeremiah Paul's sister) seeking to avoid certain
asset transfers Jeremiah made to his sister and step-mother within two years of filing
the petition for bankruptcy. Lovald claimed the transfers were fraudulent under
Wyoming's Uniform Fraudulent Transfer Act, Wyo. Stat. Ann. § 34-14-205. After a
bench trial, the bankruptcy court found the trustee failed to prove one of the necessary
elements of a fraudulent transfer under the statute. See Royal v. Baker (In re Baker),
273 B.R. 892, 896 (Bankr. D. Wyo. 2002) (addressing a fraud claim brought pursuant
to Wyo. Stat. Ann. § 34-14-205 and holding "[t]he trustee has the burden of proof to
show the elements of the claim"). The bankruptcy appellate panel affirmed,
concluding "the Bankruptcy Court did not clearly err in finding that the Trustee's
evidence failed to meet his burden." Lovald v. Hunter (In re Paul), 446 B.R. 272, 276
(B.A.P. 8th Cir. 2011). Lovald never argued in the bankruptcy court, or on appeal to
the bankruptcy appellate panel, that he did not bear the burden of proof on all
elements of his statutory claim of fraud under § 34-14-205.
Now, for the first time in this appeal, Lovald argues Wyoming common law
creates a presumption of fraud under the circumstances involved in this case and
shifted the burden of proof to Hunter and Misti Paul to rebut the presumption.
Because this argument was never presented to the bankruptcy court or the bankruptcy
appellate panel, we decline to consider it. See Drewes v. Vote (In re Vote), 276 F.3d
1024, 1027 (8th Cir. 2002).
1
Lovald v. Hunter (In re Paul), 446 B.R. 272 (B.A.P. 8th Cir. 2011).
2
The Honorable Charles L. Nail, Jr., United States Bankruptcy Judge for the
District of South Dakota.
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Accordingly, we affirm for the reasons stated by the bankruptcy appellate panel.
See 8th Cir. R. 47B.
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