Case: 12-11231   Date Filed: 10/17/2012   Page: 1 of 5

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-11231
                        Non-Argument Calendar
                      ________________________

          D.C. Docket Nos. 1:11-cv-23232-KMM ; 10-03321-AJC


IN RE: AKRAM NIROOMAND,

                                                     Debtor.

__________________________________________________________________

ALAN L. GOLDBERG,


                                                     Plaintiff-Appellant,
                                  versus

HOWARD D. ROSEN,
DONLEVY-ROSEN & ROSEN, P.A.,

                                                     Defendants-Appellees.

                     __________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________
                            (October 17, 2012)
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Before CARNES, WILSON, and HILL, Circuit Judges:

PER CURIAM:

      Alan Goldberg, Trustee, appeals from the district court’s Final Order

affirming the bankruptcy court’s Order and Final Judgment in this action. For the

following reasons, we shall affirm the district court’s Final Order.

                                                  I.

      Alan Goldberg is the bankruptcy trustee in the Chapter 7 bankruptcy of

Debtor, Akram Niroomand. In May of 2008, a judgment of $2,930,899.97 was

entered against the Debtor.1 About a year prior to this judgment, and eighteen

months prior to filing for bankruptcy protection, the Debtor hired Howard D.

Rosen and Donlevy-Rosen & Rosen, P.A. to prepare numerous legal documents

and to create and fund the Niroomand Family Trust, an off-shore asset protection

trust. The Debtor paid the law firm $45,000 in fees and costs for these services.

At a later point, the Debtor repatriated the trust funds for fear of being held in

contempt of the judgment against her.

      The Trustee brought the underlying adversary proceeding against the

defendants seeking to recover the attorneys’ fees and costs as fraudulent transfers

under 11 U.S.C. § 548. The Trustee’s theory of fraud was that the Debtor was



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          The bankruptcy court found these facts after a bench trial.

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insolvent at the time of these transfers. The Trustee also asserted damage claims

for legal malpractice and unjust enrichment against the defendants.

                                         II.

      The bankruptcy court conducted a bench trial of the Trustee’s claims. The

Trustee presented only the testimony of the Debtor and then rested, although the

district court admitted “voluminous documentary and testimonial evidence.”

Included in that evidence was the Debtor’s Affidavit of Solvency executed when

she retained the defendants’ services in which she testified that she was solvent

and could pay her anticipated debts, including lawsuit judgments. The record

contained as well her Verified Answers to Written Questions. The Trustee offered

no expert testimony in support of his legal malpractice claim against defendants.

      The Debtor testified that she was insolvent at the time of the transfers, but

the record evidence, including her affidavits of solvency, was used to impeach her.

As a result, the bankruptcy court did not credit her testimony. Instead, in response

to defendants’ oral motion for judgment based on partial pleadings pursuant to

Fed. R. Civ. P. 52(c), the court found the following:

             The plaintiff’s case consisted of one witness, which in the first
      place the Court did not find credible, but, in addition, the evidence
      presented is rather clear.
             While, I never found any evidence about legal malpractice, I’m
      looking for what could possibly be argued as unjust enrichment. As
      to the constructive fraud, fraudulent transfer, the Court thinks it’s
      abundantly clear that there’s been no establishment of insolvency.

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              In fact, the record is abundant with records of solvency. The
      witness signed a solvency affidavit, which she said she did not read,
      but the Court notes – noted that the witness could remember some
      things in the way of financial numbers of a rather complicated
      structure down to the penny, and other things, she couldn’t remember
      at all.
              But aside from that, it’s the opinion of the Court that the
      plaintiff’s case is woefully lacking in any proof on any of the counts,
      and, therefore, the motion to dismiss should be granted.

      In denying the Trustee’s motion for a new trial, the bankruptcy court noted

that the evidence at trial “consisted solely of the testimony of witnesses whose

testimony totally supported the Defendants,” and that “the evidence in this case is

woefully lacking – in fact, the evidence is non-existent.”

      In reviewing the bankruptcy court’s judgment, the district court concluded

that the evidence in support of the Trustee’s claims was “woefully lacking.” The

district court noted that there was no evidence of legal malpractice or unjust

enrichment, and that the credible evidence supported a finding that the Debtor was

solvent, not insolvent, at the time she made the transfer.

      Our review of the record supports the district court’s view. We do not find

any support in the record for the Trustee’s claim that the bankruptcy court did not

consider the documentary evidence in reaching its conclusions. Nor do we find

support for the Trustee’s assertion of clear error in the bankruptcy court’s finding

that the Debtor was solvent at the time of the transfers. See Fed. R. Bankr. P.

8013; Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 

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(1999) (“findings of fact shall not be set aside unless clearly erroneous”). The

bankruptcy court heard the Debtor’s testimony and discredited it. This is entirely

within its province. Fed. R. Bankr. P. 8013. See Grupo, 

be

given to the opportunity of the [bankruptcy] court to judge the credibility of the

witnesses”). Further, the record supported a finding that the Debtor was solvent at

the time of the transfer so that the bankruptcy court was entitled to make such a

finding.

      Finding no clear error, we shall affirm the judgment of the district court

upholding the bankruptcy court’s Final Judgment.

      There are cross-motions for sanctions pending in this case. In addition there

is a motion to strike portions of the Trustee’s reply brief. Finding no merit to

these motions, they shall be denied.

      AFFIRMED. ALL PENDING MOTIONS DENIED.




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