254 P.3d 526 (2011)
292 Kan. 176
Dennis W. HALL, Appellant,
v.
FORD MOTOR CREDIT COMPANY LLC, Appellee.
No. 103,370.
Supreme Court of Kansas.
April 29, 2011.
*528 Larry L. Livengood, of Salina, argued the cause and was on the brief for appellant.
Thomas J. Lasater, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and William P. Tretbar and Adam R. Burrus, of the same firm, were with him on the brief for appellee.
The opinion of the court was delivered by JOHNSON, J.:
Dennis W. Hall appeals the district court's denial of his petition for an injunction to restrain his creditor, Ford Motor Credit Co. LLC (Ford Credit), from proceeding with a post-bankruptcy repossession of the vehicle upon which Ford Credit retained a lien. Hall contends that the district court erred in finding that Hall's filing of a Chapter 7 bankruptcy petition, by itself, constitutes a default under the security agreement that can be enforced by the creditor under the Kansas Uniform Consumer Credit Code (UCCC) provision contained in K.S.A. 16a-5-109(2). We find that the district court considered other facts, in addition to Hall's bankruptcy filing, and that all of the factors present in this case supported the district court's holding that the prospect of payment, performance, or realization of collateral had been significantly impaired. Accordingly, we affirm.

FACTUAL AND PROCEDURAL OVERVIEW
On December 28, 2006, Dennis W. Hall bought a 2006 Ford F-150 pick-up truck (truck) from Long McArthur Ford in Hall's hometown of Salina, Kansas. Hall financed the purchase price through a note and security agreement contract (contract) that was subsequently assigned to Ford Credit. Under the contract, Hall committed to pay $27,964, plus 1.9% interest, in 72 monthly installments of $438.17, with the first payment due February 11, 2007. Hall's other contractual obligations included a requirement that he keep the truck in good condition and a requirement that he maintain physical damage insurance on the truck that would cover the remaining balance on the note (gap insurance). Through the contract, Ford Credit obtained a security interest in the truck.
Some 9 months after purchasing the truck, on September 30, 2007, Hall and his wife *529 filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code. In the bankruptcy documents, Hall claimed the truck as exempt property, identified Ford Credit as a secured creditor which was owed $27,549, and listed the truck's value at $20,000, i.e., Ford Credit was undercollateralized by $7,549.
In October 2007, Hall moved to Kearney, Missouri. That same month, Ford Credit sent a letter to Hall's attorney requesting a reaffirmation agreement whereby Hall's personal contractual obligations to Ford Credit would not be discharged in the bankruptcy. Ford Credit opined that Hall's voluntary bankruptcy filing constituted a default under the security agreement and that if Hall did not reaffirm the debt, Ford Credit would suffer a "significant impairment of the prospect of payment, performance or realization of the collateral under K.S.A. 16a-5-109(2)." Ford Credit sent two more similar letters to Hall's attorney in November. Hall concedes that he received the letters, but he declined to execute a reaffirmation agreement.
On January 15, 2008, Hall obtained a discharge in bankruptcy, effectively terminating his personal liability to Ford Credit on the note and contract. However, Ford Credit retained its lien on the truck.
After discharge, Hall continued to make the required monthly payments. He claims in this proceeding that he also continued to maintain the required insurance and to keep the truck in good condition. Despite the continued payments, Ford Credit attempted to repossess the truck.
In response, Hall filed a petition in Saline County District Court alleging violations of the Kansas Consumer Protection Act and requesting an order preventing Ford Credit from attempting to repossess the truck. In a July 2008 amendment to the petition, Hall added a claim that Ford Credit was in violation of the UCCC provision in K.S.A. 16a-5-109. Ford Credit filed answers and counterclaims to those claims, denying that Hall was entitled to relief and seeking a determination that Hall was in actual default under both the terms of the contract and under the UCCC.
The matter was tried to the court on June 26, 2009. On August 3, 2009, the district court made its ruling on the record, and on October 27, 2009, the court filed a Journal Entry in which it denied Hall's claim for declaratory judgment and injunctive relief and which granted Ford Credit declaratory judgment "on its claim that under the facts of this case, [Hall] is in default under the terms of the retail installment contract and the Kansas Uniform Consumer Credit Code." The court also granted judgment in favor of Ford Credit on Hall's consumer protection claim. With respect to the UCCC claim, the Journal Entry included the following recitations:
"7. Factors that demonstrate significant impairment in the present case include (a) Plaintiff's filing of a Chapter 7 petition for bankruptcy; (b) the discharge in bankruptcy of Plaintiff's debt and other duties and obligations owed to Defendant under the Contract; (c) Plaintiff's refusal to reaffirm his personal obligations under the Contract which would have cured the prospective default occurring as a result of the bankruptcy discharge; and (d) the fair market value of the Pickup being less than the debt it secures.
"8. Based upon these factors, Defendant has met its burden of showing by a preponderance of the evidence that even though the payments on the Contract are current, the prospect of payment, performance, or realization of collateral is significantly impaired, thereby rendering Plaintiff in default under subsection (2) of K.S.A. 16a-5-109."
Hall timely appealed to the Court of Appeals. We granted the parties' joint motion to transfer the appeal to this court.

ENFORCEABLE DEFAULT
Hall does not contest that his filing of a bankruptcy petition constituted a default under the specific provisions of the contract, which included the following default provision:
"I. Default: You will be in default if:
1. You do not make a payment when it is due; or

*530 2. You gave false or misleading information on your credit application relating to this contract; or
3. Your vehicle is seized by any local, state, or federal authority and is not promptly and unconditionally returned to you; or
4. You file a bankruptcy petition or one is filed against you; or
5. You do not keep any other promise in this contract.
"If you do not cure the default where allowed by law, Creditor can exercise Creditor's rights under this contract and Creditor's other rights under the law." (Emphasis added.)
However, under this State's version of the UCCC, not all contractual default provisions are enforceable. The UCCC's default constraint is contained in K.S.A. 16a-5-109, which provides:
"An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that
(1) the consumer fails to make a payment as required by agreement; or
(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor."
The official comment to the provision explains the reason for limiting contractual default provisions and describes the two circumstances which might constitute default on an installment obligation:
"1. One of the vital terms of every consumer credit agreement is that which sets forth the criteria which will constitute default. By its nature `default' is not a term that is negotiated by the partiesit is generally controlled by the creditor. It is appropriate, therefore, that its content and implications be confined by the law so as to prevent abuse. This section is intended to accomplish that.
"2. This section recognizes that there are two entirely distinct sets of circumstances which might constitute default on an installment obligation. The first and most common is the failure to pay an installment as required. A default of this type is susceptible of being cured by the consumer without impairing a continuing contractual relationship between the consumer and the creditor. See K.S.A. 16a-5-110. The second type of default relates to behavior of the consumer which endangers the prospect of a continuing relationship. It may be insolvency, illegal activity, or an impending removal of assets from the jurisdiction. There must, however, be circumstances present which significantly impair the relationship .... The burden of proof is on the creditor to justify action on a claim of default of this type." (Emphasis added.) K.S.A. 16a-5-109 (comment).
Ford Credit did not claim that Hall failed to pay a required installment. Therefore, to enforce the contractual default provision, Ford Credit had to establish that it fit within the significant impairment provision of K.S.A. 16a-5-109(2). Hall contends that Ford Credit did not carry that burden.

Standard of Review
This court has previously declared that "[w]hether an impairment is significant under K.S.A. 16a-5-109(2) is a question of fact," and when a district court determines that a creditor has met its burden to prove that such a significant impairment exists, this court reviews that decision for substantial competent evidence to support the district court's determination. Johnson County Auto Credit, Inc. v. Green, 277 Kan. 148, 153-54, 83 P.3d 152 (2004).
Perhaps an argument could be made that the determination of whether the facts of a particular case meet the statutory requirement for enforceability of a default provision is a question of law. However, the parties do not make that argument. Accordingly, we will apply the previously approved substantial competent evidence standard of review in this case.

Analysis
Hall's overarching argument is that Ford Credit's collateral position was not appreciably changed by the bankruptcy proceedings. *531 In support, he relies in part on cases interpreting the bankruptcy code, quoting extensively from In re Brock, 23 B.R. 998 (Bankr.D.D.C.1982); Lowry Federal Credit Union v. West, 882 F.2d 1543, 1547 (10th Cir.1989); and In re Rowe, 342 B.R. 341 (Bankr.D.Kan.2006).
Hall acknowledges that those cases are not binding upon this court but suggests they should persuade us that his bankruptcy filing does not justify Ford Credit's repossession of the truck while Hall is continuing to fully perform under the contract. As Ford Credit points out, Hall overlooks the rather significant factual distinction that in Lowry and Rowe the creditor did not establish that the value of the vehicle was considerably less than the remaining balance on the loan, as is the case here. Lowry, 882 F.2d at 1546 (no evidence that truck would depreciate more rapidly than the note's outstanding balance would be reduced); Rowe, 342 B.R. at 350 ("there is no evidence that the secured party is not adequately secured").
Moreover, the developing bankruptcy law does not advance Hall's argument that we should ignore or minimize the fact that he refused to reaffirm his debt in the bankruptcy proceeding. When a debtor files a Chapter 7 bankruptcy and possesses a vehicle which is securing a purchase money loan, the bankruptcy code provides the debtor with three options: (1) relinquish possession of the vehicle; (2) redeem the vehicle by paying off the loan; or (3) reaffirm the debt and remain personally liable to the creditor following the discharge in bankruptcy. See 342 B.R. at 344. As explained in In re Rowe, Lowry "sanctioned the use of the `fourth option' whereby a Debtor who at the time of filing was current on a debt secured by personal property could retain the property without either redeeming or reaffirming the debt." 342 B.R. at 344. However, subsequent to the Brock and Lowry decisions, the bankruptcy code was amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which effectively eliminated the "fourth option." "BAPCPA now provides consequences for failure to redeem or reaffirm when a debtor is current on payments. They are termination of the stay and removal of the collateral from property of the estate, with the creditor's remedies upon expiration of the stay being those provided by state law." 342 B.R. at 351. The fact that the bankruptcy code has strengthened the sanction for failing to comply with the mandate that the debtor redeem or reaffirm the debt in order to retain possession of the collateral counsels against ignoring the debtor's refusal to reaffirm the debt when considering whether the prospect of payment, performance, or realization of collateral is significantly impaired.
What the current bankruptcy code makes crystal clear is that the question of whether Ford Credit can repossess Hall's truck, following the lifting of the federal bankruptcy court's stay because of Hall's failure to relinquish, redeem, or reaffirm, is governed by Kansas law. This court is the final arbiter of that question, notwithstanding any predictions which may have been set forth in In re Rowe as to how Kansas courts would apply our version of the UCCC. See 342 B.R. at 350 ("The parties agree that it is not likely that a Kansas court would find `significant impairment' under the circumstances of this case where Debtors are current on their payments, have stated their intent to remain current notwithstanding the filing of the bankruptcy proceeding, and there is no evidence that the secured party is not adequately secured."). In that context, both parties cite to the same three cases: Green, 277 Kan. 148, 83 P.3d 152; Prairie State Bank v. Hoefgen, 245 Kan. 236, 777 P.2d 811 (1989); Medling v. Wecoe Credit Union, 234 Kan. 852, 678 P.2d 1115 (1984).
In Medling, the district court permitted the repossession of a secured vehicle upon which payments were current, based principally upon the debtor's false or inconsistent statements to the creditor and the debtor's failure to meet with the creditor after agreeing to do so. This court found substantial competent evidence to support the district court's finding of default "on the basis [that] the prospect of payment, performance, or realization of the collateral was significantly impaired." 234 Kan. at 858-59, 678 P.2d 1115. The lesson to be gleaned from Medling is that a significant impairment *532 under K.S.A. 16a-5-109(2) may be created by a debtor's actions and inactions which endanger the prospect of a continuing relationship with the creditor, even though the debtor may be current on the note payments.
In Hoefgen, the district court permitted the repossession of a floral business. In affirming that decision, this court cited to 13 factors that affected the substantial impairment of collateral analysis. Although the opinion referred to the "`spectre of bankruptcy,'" the reference was in the context of the creditor being undercollateralized, i.e., where the value of the collateral was less than the indebtedness. 245 Kan. at 246, 777 P.2d 811. The case certainly does not support the notion that a debtor's filing of bankruptcy automatically creates a substantial impairment of collateral within the meaning of K.S.A. 16a-5-109(2).
In Green, this court again affirmed the district court's ruling on a prebankruptcy repossession. However, in that case the district court had found that the creditor's repossession of the vehicle violated K.S.A. 16a-5-109. This court noted that a substantial competent evidence standard of review had been applied in Medling and Hoefgen, but that the district court in the Green case had made the negative finding that the creditor had failed to meet its burden of proving a significant impairment, which would carry an even less stringent standard of review. 277 Kan. at 153-54, 83 P.3d 152. Nevertheless, the Green court found that under either "deferential standard of review," the district court's determination that Auto Credit's repossession violated K.S.A. 16a-5-109 could be affirmed. 277 Kan. at 159, 83 P.3d 152.
Highly summarized, the facts in Green involved the Greens purchasing and financing a vehicle from Auto Credit, agreeing as part of the contract to keep the vehicle insured. The Greens apparently began to struggle with meeting their contract obligations. Auto Credit received notice from the insurance company that the debtor's coverage was to be cancelled for nonpayment of premiums. Shortly thereafter, Auto Credit entered into an extension agreement with the Greens which provided for the payment of past due interest and an extension of time to make the next installment payment. However, the extension agreement did not address the insurance issue. A little over a month later, the Greens failed to make a timely payment and Mrs. Green sent Auto Credit a handwritten note, explaining that the Greens' "`financial situation is falling fast,'" and that the Greens had an appointment "`concerning these issues.'" 277 Kan. at 150, 83 P.3d 152. Auto Credit apparently construed the note as an indication the Greens were going to file for bankruptcy and proceeded to repossess the vehicle.
Much of the discussion in Green focused on whether the debtors' failure to maintain insurance significantly impaired Auto Credit's collateral. The opinion noted that the district court had found that "after Auto Credit learned of the insurance problem, it executed an extension agreement and accepted five payments under the agreement." 277 Kan. at 159, 83 P.3d 152. The apparent suggestion is that Auto Credit must not have viewed the insurance cancellation as a collateral-impairing event, because it took no action to enforce that provision after learning of the default. Perhaps another way to view those circumstances is that, by entering into the extension agreement, the creditor modified the original contract and waived the debtor's obligation to maintain insurance, so that the debtor's failure to have insurance was no longer a contractual default. Nevertheless, Green accepted the district court's assessment of the insurance cancellation, along with its findings "that the Greens had not concealed themselves or the collateral, that the collateral was not in physical jeopardy, that the Greens remained communicative with Auto Credit, and that the note from Ronda Green expressed no intent to pursue bankruptcy." 277 Kan. at 159, 83 P.3d 152.
Perhaps most significant to our present task, Green observed "that this court has reviewed a variety of factors considered by the district court to determine whether significant impairment existed. The factors in each case will vary, and we have not set out a comprehensive list." 277 Kan. at 157, 83 P.3d 152. The factors in this case do vary from those in our prior cases, with the most *533 obvious difference being that, here, the debtor sought and obtained Chapter 7 bankruptcy protection.
In finding that Hall had defaulted under the contract by filing a bankruptcy petition, the district court made comments intimating that the mere filing of a bankruptcy petition might be sufficient to establish the requisite significant impairment under K.S.A. 16a-5-109(2). We disagree with that suggestion and reject the notion that the debtor's filing of a bankruptcy petition establishes, as a matter of law, that the prospect of payment, performance, or realization of collateral is significantly impaired. Circumstances might exist at the time of filing which would indicate that the debtor's continued performance under the installment contract is more likely than not.
Moreover, when the petition is filed, the possibility exists that debtor might choose to follow the bankruptcy code and perform one of the three permissible options with respect to secured personal property, i.e., relinquish, redeem, or reaffirm. If the debtor relinquishes possession of the vehicle or redeems it by paying off the debt, the question of the continuing relationship between debtor and creditor is no longer an issue. If the debtor reaffirms the debt, the creditor's position has been unaffected by the bankruptcy filing. In short, the creditor must show more than the filing of a bankruptcy petition.
In this case, there were more factors shown and relied upon by the district court. Specifically, Hall did not respond to Ford Credit's request for a reaffirmation of the debt in the bankruptcy proceedings. Instead, he proceeded to obtain a discharge of his personal liability on the note which carried an outstanding balance substantially in excess of the value of the collateral securing the note. After his bankruptcy discharge, Hall retained the possession, control, and enjoyment of the collateral, but Ford Credit was enjoined from contacting Hall about paying that portion of the debt which exceeded the value of the truck. See 11 U.S.C. § 524(a)(2) (2006) (discharge operates as an injunction against an act to collect, recover, or offset any discharged debt as a personal liability of the debtor).
Hall argues that Ford Credit's fears of significant impairment are only anticipatory in nature. He points to the fact that, since his discharge, he has performed all of his contractual obligations, and, at trial, he testified under oath that he intends to continue to faithfully perform under the contract. However, as noted, the bankruptcy code mandates a procedure for a debtor who wants to keep the secured personal property and continue to faithfully perform under the security agreement, i.e., the debtor can reaffirm the debt. Hall does not explain why his current self-serving statement of intent should trump his refusal to formalize his commitment to full contract performance through a reaffirmation of the debt. Under Hall's "trust-what-I-say-today" method of reaffirmation, Ford Credit must accept the additional risk that Hall might change his mind at any time and unilaterally decide to terminate any part or all of his contract performance. Hall, on the other hand, has been relieved of all personal liability and is subject to no additional sanction for failing to fulfill his precatory assurance of performance.
If Hall chooses to terminate performance, Ford Credit will be left to salvage whatever it can from the truck in whatever condition it might be at the time. In that vein, the truck's value in relation to the remaining balance on the contract is an important factor. A creditor would be justified in believing that a debtor would ordinarily not gratuitously pay more for a vehicle than it is worth. Accordingly, the prospect of debtor's continued performance would be significantly impaired as a matter of economic reality where the note is substantially undercollaterized.
Hall contends that Ford Credit "is in no worse position than it occupied before the bankruptcy," arguing that, so long as he continues to pay as he promised to do, the value of the collateral compared to the debt amount is irrelevant. That argument misses the point. Obviously, the creditor is made whole if the contract is completed. The focus is on the prospects that Hall will, in fact, continue to pay as promised to the completion date and if he does not, whether the collateral is likely to have been impaired.
*534 Moreover, before bankruptcy, Ford Credit held an installment purchase note upon which debtor was personally liable. The debtor's discharge without a reaffirmation of personal liability has effectively transformed the installment purchase contract into a month-to-month lease, unilaterally terminable at will by the debtor. One would be hard-pressed to argue that Ford Credit's position has not worsened.
Hall also suggests that his situation is indistinguishable from the circumstance where the creditor repossesses a vehicle that is valued at less than the debt amount, and the debtor responds by filing bankruptcy to discharge the amount of deficiency on the note. The analogy is faulty. As described above, Hall's utilization of the now-defunct "fourth option" is akin to a nonbinding reaffirmation of the contract. In contrast, the pre-bankruptcy repossession followed by a discharge of the note deficiency effects the same result as if Hall had elected the relinquishment option in his bankruptcy proceeding. The debtor no longer has possession and control over the vehicle or the benefit of its use, whereas the creditor has liquidated the amount of its loss and avoided the risk that the gap between vehicle value and debt amount will widen. Likewise, the creditor realizes the value of its collateral immediately, rather than looking in the mailbox each month to see whether the debtor has chosen to make that month's payment.
A final factor discussed by the district court, but not specifically listed in the journal entry, is the impact upon the creditor/debtor relationship caused by the discharge injunction of 11 U.S.C. § 524(a)(2). Ford Credit argues that the injunction cut off its ability to communicate with Hall and thereby impaired its ability to monitor whether Hall was performing all of his obligations with regard to the collateral. Hall counters with two arguments. First, he contends that Ford Credit is not precluded from communicating with his counsel. However, when a business relationship has devolved to the point that the parties to the contract are only able to communicate through attorneys, one would have to concede that the prospect of a continuing relationship has been endangered to some extent.
Next, Hall takes exception to Ford Credit's characterization of the injunction as foreclosing all communications, correctly pointing out that 11 U.S.C. § 524(a)(2) speaks only about an act to collect a discharged debt as a personal liability of the debtor. Accordingly, Hall contends that Ford Credit can still communicate with him on matters relating to the property on which it maintains a lien. While that distinction may be valid, the situation creates a considerable risk for the creditor that any communication with the debtor might be construed as relating to the debtor's personal liability, especially where the note is undercollateralized. Obviously, the discharge injunction imposes a constraint on the continuing relationship between debtor and creditor.
Considering all of the factors present in this case, we hold that there was substantial competent evidence to support the district court's determination that the prospect of payment, performance, or realization of collateral was significantly impaired so that Hall's default was enforceable under K.S.A. 16a-5-109(2).
Affirmed.


380 So.2d 406 (1980)
William Ellison STAMPS
v.
STATE.
7 Div. 701.
Court of Criminal Appeals of Alabama.
February 5, 1980.
James F. Hinton, Gadsden, for appellant.
Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen. for appellee.
HARRIS, Presiding Judge.
Appellant was convicted of buying, receiving, or concealing stolen property and was sentenced to three years imprisonment in the penitentiary. He was represented by counsel of his choice and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal. Trial counsel represents him on this appeal.
Omitting the formal parts the indictment reads as follows:
"The Grand Jury of said County charge that before the finding of this indictment William Ellison Stamps, whose name to the Grand Jury is otherwise unknown than as stated, did buy, receive, conceal or aid in concealing one Hi-Standard Shadow 12 gauge shotgun, serial number J02193G, of the value of $200.00; the personal property of Charles Douglas *407 Flanagan, knowing that it was stolen, and not having the intent to restore it to the owner, contrary to law and against the peace and dignity of the State of Alabama."
The evidence presented by the State and that presented by appellant was in sharp conflict. At the conclusion of the State's case appellant moved to exclude the State's evidence on the ground the State failed to make out a prima facie case. This motion was denied by the trial court.
Charles Douglas Flanigan testified that in September of 1978 he owned a High Standard Shadow 12 gauge shotgun, serial Number J02193G, and that he had loaned this gun to his sister-in-law, Bertie Shropshire, who lived at 1040 East Main Street, Centre, Alabama. He stated that the bolt of the shell ejector was missing at the time he loaned the gun and that it also had a scratch right behind the shell ejector. The value of this gun was $200.00. He said this gun was stolen from the home of his sister-in-law on September 17, 1978, and was recovered by the law enforcement officers. He identified State's Exhibit 1 as his shotgun and it was introduced into evidence without objection.
Danny Smith testified that he was an investigator with the District Attorney's Office in Cherokee County and had held this position since October of 1977; that he took part in the investigation of this missing gun and recovered it from one Joe Tierce on October 31, 1978. He stated that a number of weapons had been taken in some burglaries in Cherokee County and in his investigation he learned that Joe Tierce had bought some guns and he went to talk to Joe Tierce and in the course of his investigation recovered some guns and that State's Exhibit No. 1 was one of the guns.
Joe Allen Tierce testified that he received a telephone call from appellant who asked him if he was interested in buying some guns. Joe's brother was present when appellant made the telephone call and Joe talked to his brother, Lester Tierce, and he asked Lester if he thought he could sell the guns at a profit. Lester told Joe he did not know much about guns and did not know if he could make any money on the re-sale of the guns. Shortly after this conversation appellant and Lester drove to Joe's place of business in appellant's pickup truck. Appellant had three guns in the truck and after some negotiation Joe Tierce bought the three guns from appellant for a total of $240.00. Included in the three guns was the shotgun which was owned by Charles Flanigan. The purchase was made on September 23, 1978. The guns were placed in Joe's store located at Pruitt's Fish Camp where they were displayed on the wall of the store.
Pat Allen testified that he saw three guns in appellant's truck at Pruitt's Fish Camp and appellant was discussing selling the guns to Joe Tierce. The next time he saw the guns they were in Joe's store. He identified State's Exhibit No. 1 as being one of the guns.
Blake Cline stated that he saw appellant and Lester Tierce talking to Joe Tierce while the three men were standing by appellant's truck which had three guns in it. Cline also identified State's Exhibit No. 1 as being one of the three guns.
Pat Allen was recalled as a witness for the State and testified that, shortly before the sale and purchase of the guns at Pruitt's Fish Camp, appellant had asked him if he could move approximately 40 guns for appellant.
Appellant testified that he had known Joe Tierce for several years and had done many favors for him. He considered Joe a friend and was often at his place of business. He made deposits and cashed checks for him. He denied that he had ever sold any guns to Joe Tierce at any time.
Timmy Westbrook was called as a witness in behalf of appellant and testified that he was on a dove shoot on September 18, 1978, along with appellant, Jimmy Hammonds, Pat Allen and Joe Tierce. He was shown State's Exhibit 1 and stated he saw the identical gun in Pat Allen's truck at the dove shoot on September 18, 1978. He picked up the gun from the truck and noticed *408 it had a defective magazine and the handle was broken. He stated that after he examined the gun he put it back in Pat Allen's truck.
Several witnesses testified to appellant's good character. They also said he had a good reputation for truth and veracity.
Appellant claims, in brief, that in the trial of this case the jury was without the benefit of alibi testimony "in that the appellant at the trial date had no way of knowing or any knowledge as to the dates and places that the prosecuting witnesses would testify in their efforts to obtain the conviction of appellant," that it was only after the prosecuting witnesses had committed themselves to dates and places when the alleged offense was committed that appellant was able to recall events that conclusively proved that he was not present when the alleged offense was committed. He filed a motion for a new trial based upon newly discovered evidence that he was at a dove shoot on September 23, 1978, at the time the prosecution claimed he sold three guns, including the Flanigan gun, to Joe Tierce.
At the hearing on the motion for a new trial appellant presented considerable testimony tending to show that he was at a dove shoot on September 23, 1978, and, therefore, could not have committed the alleged offense for which he stood convicted.
In Character v. State, 51 Ala.App. 589, 287 So.2d 916, certiorari denied, 291 Ala. 775, 287 So.2d 919, this Court held:
"It is the law of this state that the unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person, who is unable to give a satisfactory explanation of his possession, then the jury is authorized to infer his guilt. Orr v. State, 107 Ala. 35, 18 So. 142; Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).
"The requisite scienter for the crime of receiving stolen property may be inferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
"In Buckles, supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
"`The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. Without this evidentiary rule in criminal cases it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.'"
Appellant insists that the trial court's denial of his motion for a new trial constitutes reversible error. We do not agree.
In Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, certiorari denied, 295 Ala. 430, 325 So.2d 539, Judge DeCarlo in a unanimous opinion, held:
"The general principles applicable to a motion for a new trial on the claim of newly discovered evidence are found in Hodge v. State, 32 Ala.App. 283, 26 So.2d 274. Specifically, the court stated that such a motion must be predicated on the following requirements:
"`... "(1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching."'
"Although appellate courts do not favor granting new trials on these grounds, much is left to the trial court's discretion, and its decision will not be revised unless *409 an abuse is shown. Hodge, supra; Aaron v. State, 181 Ala. 1, 61 So. 812; Slaughter v. State, 237 Ala. 26, 185 So. 373; Welch v. State, 28 Ala.App. 273, 183 So. 879.

. . . . .
"We have no reason to interfere with that exercise of discretion under the facts shown. Their credibility was for the trial judge. Dawson v. State, 44 Ala.App. 525, 215 So.2d 459.
"The concept of due diligence was explained by the Iowa Supreme Court in Westergard v. Des Moines Ry. Co., 243 Iowa 495, 52 N.W.2d 39, and we quote approvingly.
"`... The showing of diligence required is that a reasonable effort was made. The applicant is not called upon to prove he sought evidence where he had no reason to apprehend any existed. He must exhaust the probable sources of information concerning his case; he must use that of which he knows, and he must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered or developed. But he is not placed under the burden of interviewing persons or seeking in places where there is no indication of any helpful evidence.'"
The newly discovered evidence offered by appellant consists of testimony that he was seen around noon on September 23, 1978, at a dove shoot by various people. There is no testimony in the record as to the time of day that appellant allegedly sold the stolen guns to Joe Tierce. There was a time lag of several hours as to his presence at the dove field on the day of the offense.
In Washington v. State, 259 Ala. 104, 65 So.2d 704, the Supreme Court said:
"The granting of such a motion is addressed to the sound discretion of the trial court and will not be revised on appeal unless it clearly appears that that discretion has been abused, which we cannot here affirm as a fact. Maund v. State, 254 Ala. 452, 48 So.2d 553; Slaughter v. State, 237 Ala. 26, 185 So. 373."
In Young v. State, 283 Ala. 676, 220 So.2d 843, the court held:
"... Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state's evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error."
The record reflects that on the day of sentencing appellant and his attorney appeared in open court and pleaded guilty to nine other similar cases. The court imposed a three-year sentence in each of the ten cases and specifically ordered that all sentences run concurrently. Thus, in ten cases appellant received only three years. The court suspended all the sentences and placed appellant on probation for three years.
We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.
AFFIRMED.
All the Judges concur.


540 U.S. 1074
INDU CRAFT, INC.v.BANK OF INDIA ET AL.
No. 03-535.
Supreme Court of United States.
December 8, 2003.

1
Appeal from the C. A. 2d Cir.

2
Certiorari denied. Reported below: 64 Fed. Appx. 827.


112 Cal.App.2d 43 (1952)
WAYNE SWANSON, Appellant,
v.
HOWARD W. WHEELER, Respondent.
Civ. No. 18825.
California Court of Appeals. Second Dist., Div. Three.
June 26, 1952.
 Elwood Bowles for Appellant.
 Walleck & Olstyn, and Henry L. Walleck for Respondent.
 SHINN, P. J.
 Plaintiff sued for $5,000 as money had and received for his use and benefit. His claim was in reality for money due under an express oral agreement and which also became due upon mutual cancellation of the agreement; defendant counterclaimed for $5,000 alleged to be due him under the same agreement, and for other relief. Plaintiff appeals on the judgment roll from the judgment rendered in a trial to the court. Defendant has not filed a brief.
 The court made the following findings: August 8, 1949, defendant orally agreed to sell and plaintiff agreed to buy a poultry business for $10,000, $5,000 down and the balance on or before January 1, 1950 (this time was extended to August 8, 1950), title was to remain in defendant until the purchase price should be paid; plaintiff was given the right and privilege of withdrawing from the purchase of the business *44 within one year from August 8, 1949, and in the event plaintiff did so withdraw, his $5,000 down payment was to be returned to him; defendant was to retain the profits of the business for the first year; plaintiff paid $5,000 and no more; the business was jointly operated; the profits between August 8, 1949, and February 28, 1950, were $3,343.57; on February 17, 1950, plaintiff withdrew from the business and demanded $5,000; on that day the agreement for sale and purchase of the business was cancelled and terminated by mutual agreement and defendant promised and agreed to return to plaintiff $5,000, but failed to do so; between October 1, 1949, and February 17, 1950, $410.15 was expended for gas and oil for plaintiff's truck which was used in the business, and $391.25 for repairs on plaintiff's truck, defendant's truck and defendant's private automobile. The court also found it was not true that $5,000 was due, owing and unpaid from plaintiff to defendant.
 The court drew conclusions of law from the facts found, as set out below.  [fn. 1] The judgment was practically identical with the conclusions of law. Plaintiff made a motion under section 663, Code of Civil Procedure, for new conclusions of law and a different judgment on the findings, awarding him $5,000 and interest; the motion was denied.
 It appears from the record that plaintiff's attorney was directed to prepare findings and judgment. It also appears from a memorandum decision of the trial judge that he understood during the trial that the parties wished to complete *45 the sale and purchase of the property. There is nothing to that effect in the findings, nor elsewhere in the record. The statement may not be considered for any purpose and it also appears to have been in error as to the facts. It would seem that if the parties had desired to complete the transaction they would have done so, and would not be before us with an appeal.
 [1a] The findings are all in favor of plaintiff and the conclusions and judgment are in favor of defendant for specific performance of the agreement. Plaintiff was entitled to judgment on the findings for several reasons, first, under the terms of the original agreement upon his withdrawing from the business, second, as a legal consequence of the cancellation of the agreement, and third, under the agreement of defendant to repay the money upon cancellation of the agreement.
 We are at a loss to account for the conflict between the findings and the conclusions. It might be supposed they were not prepared by counsel in accordance with the court's directions, and were signed without knowledge of what they contained, but this does not seem to be a reasonable explanation in view of the fact that plaintiff made a motion for other conclusions and judgment, consistent with the findings, and this motion was denied. We cannot understand why the motion was denied, when it was clear that the present judgment could not stand. The fact that defendant did not file a brief indicates that his counsel were of the opinion that the judgment could not be sustained.
 Again we call attention to the importance of having correct and adequate findings. [2] Although it is the policy of reviewing courts to give findings a liberal construction in support of the judgment, even liberality has its limits, and the court may not, through purported construction, ignore clear and positive findings or supply those that are missing. Inadequate, contradictory and ambiguous findings create difficult problems on appeal and ofter imperil the judgment. We seldom see a set of findings that are decisive of the material ultimate issues of fact, and contain no evidentiary and redundant matter. We have had occasion before to comment upon the subject. (See Eggeman v. Binford, 106 Cal.App.2d 556 [235 P.2d 409]; Robbins v. Holther, 98 Cal.App.2d 674 [220 P.2d 585]; Crummer v. Besser Mfg. Co., 100 Cal.App.2d 189 [223 P.2d 100]; Alles v. Hipp, 108 Cal.App.2d 730 [239 P.2d 451]; Sanal v. Meador, 108 Cal.App.2d 820 [239 P.2d 908].) *46
 There is no apparent reason for deducting from the sum due plaintiff the expenses of the operation and repair of his truck which was used in the business, or of the repairs to defendant's truck and automobile. Defendant retains the profits of the business. He promised to pay plaintiff the exact sum of $5,000, and there is no finding that any deductions were to be made.
 [1b] The purported appeal from the order denying motion to vacate the judgment is dismissed. The judgment is reversed with directions to vacate the conclusions and judgment, make new conclusions of law consistent with this opinion, and enter judgment in favor of plaintiff against defendant for $5,000, with interest at 7 per cent per annum from February 17, 1950.
 Wood (Parker), J., and Vallee, J., concurred.
 "In the alternative, and in the event the foregoing conditions are not complied with, plaintiff shall be entitled to judgment against defendant for the sum of $5,000.00 with interest at the rate of 7% per annum from February 13, 1950, less the sum of $605.77 being the cost of the care, maintenance and operation of plaintiff's truck used by him in connection with the business of defendant."
NOTES
[fn. 1]  1. "Cross-complainant Howard W. Wheeler, is entitled to recover from cross-defendant Wayne Swanson, the sum of $5,000.00 with interest thereon at the rate of 7% per annum from January 1, 1950, on condition that within thirty (30) days from the date of entry of judgment herein, cross-complainant deliver to cross-defendant, all documents necessary to transfer to cross-defendant the title and good will to the business known as Howard Wheeler Poultry, as of February 18, 1950, and the assets of said business consisting of: one 1948 GMC truck with one-ton flat bed; all coops on the property at 13412 Victory Boulevard, Van Nuys, California, or elsewhere, used in said business; one Fairbanks scale, 500-pound capacity; one Fairbanks scale, 1000-pound capacity; two spring scales; One L. C. Smith adding machine; all batteries, and other moveable equipment now used in said business wherever located, and on the further condition that cross- complainant pay to cross-defendant the net profits of Howard Wheeler Poultry for the period from August 1, 1949, to February 28, 1950.


           Case: 11-15609   Date Filed: 02/08/2013   Page: 1 of 9

                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15609
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:10-cr-00273-WS-C-2

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                         versus

TIMOTHY WAYNE SEABURY,

                                                         Defendant-Appellant.
                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (February 8, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-15609     Date Filed: 02/08/2013    Page: 2 of 9

      Appellant Timothy Wayne Seabury appeals his convictions and total life

sentence after a jury trial for conspiracy to possess with intent to distribute crack

cocaine, conspiracy to possess with intent to distribute methamphetamine,

conspiracy to manufacture methamphetamine, and attempt to manufacture

methamphetamine, all in violation of 21 U.S.C. § 846.

      On appeal, Seabury raises three issues. First, he argues for the first time

that the district court abused its discretion in excluding his testimony, because it

was not offered for the truth of the matter asserted, and the testimony of defense

witness Billy Nelson, because it was admissible under the “residual” hearsay

exception in Fed.R.Evid. 807. He also argues for the first time that excluding his

and Nelson’s testimony violated his right to a fair trial and prevented him from

presenting a defense. Second, he argues that the district court abused its discretion

in disqualifying his counsel of choice because no actual or serious potential for

conflict existed, and the court ignored available alternatives to disqualification.

Third, he argues for the first time that the district court erred in deviating from the

Sentencing Guidelines “without explanation” by sentencing him to a term of life

imprisonment. For the reasons that follow, we affirm.

                       I. The Excluded Testimony at Trial

                                           2
              Case: 11-15609     Date Filed: 02/08/2013    Page: 3 of 9

      When an appellant does not contemporaneously object to an evidentiary

ruling in the district court, we are limited to review for plain error. United States

v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). Similarly, when the proper basis

for admission is not presented to the district court, we review the district court’s

evidentiary ruling for plain error only. United States v. King, 73 F.3d 1564, 1571-

72 (11th Cir. 1996). We have held that an error is not plain when the basis for

admission of excluded evidence was not raised at trial. Id. at 1572 (addressing

Federal Rule of Evicence 806 and explaining that to apply the plain error

exception to the contemporaneous objection rule when trial counsel had an

opportunity to assert the basis for admission would lead to “the exception

swallowing the rule”).

      The district court does not have discretion to exclude crucial, relevant

evidence that is necessary to establish a valid defense. United States v. Todd, 108

F.3d 1329, 1332 (11th Cir. 1997). However, a defendant is still required to

comply with established rules of procedure and evidence when presenting a full

and complete defense. United States v. Anderson, 872 F.2d 1508, 1519 (11th Cir.

1989).

      Rule 801(c) defines hearsay as a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

                                           3
                Case: 11-15609    Date Filed: 02/08/2013    Page: 4 of 9

truth of the matter asserted. Fed. R. Evid. 801(c). Thus, if an out-of-court

statement is offered for some purpose other than to prove the truth of the matter

asserted, it is not hearsay. E.g., United States v. Parry, 649 F.2d 292, 295 (5th Cir.

Unit B 1981).

      Pursuant to Rule 807, “a hearsay statement is not excluded by the rule

against hearsay even if the statement is not specifically covered by a hearsay

exception” if: (1) the statement has “equivalent circumstantial guarantees of

trustworthiness”; (2) it is “offered as evidence of material fact”; (3) it is “more

probative on the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts”; and (4) “admitting it will best

serve the purposes of these rules and the interests of justice.” Fed. R. Evid. 807.

      As noted above, we have held specifically that an error is not plain when the

basis for admission of excluded evidence was not raised at trial. King, 73 F.3d at

1572. Here, counsel had an opportunity to argue that Seabury’s testimony was

admissible because it was not offered to prove the truth of the matter asserted, but

he did not. Thus, because this argument—that the testimony should be admitted

because it was not hearsay—was not asserted as a basis for admission, any error

by the district court in this respect was not plain. Similarly, counsel also had an

opportunity to argue that Nelson’s testimony was admissible under Rule 807, but

                                           4
              Case: 11-15609     Date Filed: 02/08/2013    Page: 5 of 9

he did not, so any error by the district court in failing to admit Nelson’s testimony

under this rule was not plain. Id.

      Finally, regardless of the excluded testimony, Seabury was able, through the

rest of his testimony, to present a valid defense. As a result, we conclude that his

right to a fair trial was not violated, nor was he prevented from presenting his

defense. Todd, 108 F.3d at 1332. Accordingly, we affirm as to this issue.

                         II. Disqualification of Counsel

      “A trial court’s decision to disqualify the defendant’s counsel is reviewed

for abuse of discretion.” United States v. Campbell, 491 F.3d 1306, 1310 (11th

Cir. 2007) (internal quotation marks omitted). In applying the abuse of discretion

standard, we recognize that a district court has a “a range of choice, and so long as

its decision does not amount to a clear error of judgment” we “will not reverse

even if we would have gone the other way had the choice been ours to make.” Id.

(internal quotation marks, alterations, and ellipsis omitted).

      The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right [] to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI. “[A]n essential part of that right is the accused’s ability to

select the counsel of his choice.” United States v. Ross, 33 F.3d 1507, 1522 (11th

Cir. 1994). “Thus, a criminal defendant has a presumptive right to counsel of

                                          5
               Case: 11-15609     Date Filed: 02/08/2013    Page: 6 of 9

choice.” Id. at 1522-23. Nevertheless, “while the right to be represented by one’s

preferred attorney is comprehended by the Sixth Amendment, the essential aim of

the Amendment is to guarantee an effective advocate for each criminal defendant

rather than to ensure that a defendant will inexorably be represented by the lawyer

whom he prefers.” Campbell, 491 F.3d at 1310 (quotation and ellipsis omitted).

Thus, a defendant’s right to the counsel of his choice is not absolute. Id.

      “The need for fair, efficient, and orderly administration of justice overcomes

the right to counsel of choice where an attorney has an actual conflict of interest,

such as when he has previously represented a person who will be called as a

witness against a current client at a criminal trial.” Ross, 33 F.3d at 1523. When

there exists an actual conflict of interest, “the client is denied effective assistance

of counsel, and the attorney may be disqualified.” Id. Disqualification may be

warranted with a potential conflict. “Furthermore, if one attorney in a firm has an

actual conflict of interest, we impute that conflict to all the attorneys in the firm,

subjecting the entire firm to disqualification.” Id.

      In deciding whether a conflict warrants disqualification, we “examine

whether the subject matter of the first representation is substantially related to that

of the second.” Id. “Our goal is to discover whether the defense lawyer has

divided loyalties that prevent him from effectively representing the defendant.”

                                           6
               Case: 11-15609     Date Filed: 02/08/2013    Page: 7 of 9

Id. If the conflict “could deter the defense attorney from intense probing of the

witness on cross-examination,” then disqualification is appropriate. Id.

      Based upon our review of the record, we conclude that the district court

correctly determined that there was an actual conflict of interest with regard to

Seabury’s appointed counsel of choice. As a result, the district court did not abuse

its discretion in disqualifying counsel based on that conflict. See Ross, 33 F.3d

1523. Nor did it abuse its discretion in determining that counsel should be

disqualified, despite Seabury’s waiver of the conflict, based on the “nature” and

“extent of [the] conflict.” See id. at 1524 (holding that the district court did not

abuse its discretion by refusing to accept the defendant’s waiver of his right to

conflict-free representation where the court was “confronted with several actual or

potential conflicts of interest,” which, if recognized, “would have rendered the

court’s verdict suspect and the [defendant’s] assistance of counsel unethical and

ineffective”). Accordingly, we affirm as to this issue.

     III. Procedural Reasonableness of Seabury’s Total Life Sentence

      We review the reasonableness of sentences imposed under the advisory

Sentencing Guidelines under a deferential abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

      When reviewing the reasonableness of a sentence, we will first ensure “that

                                           7
               Case: 11-15609     Date Filed: 02/08/2013     Page: 8 of 9

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. Pursuant to § 3553(c)(1), the district court,

at the time of sentencing, “shall state in open court the reasons for its imposition

of the particular sentence, and, if the sentence . . . is of the kind, and within the

[guidelines] range . . . and that range exceeds 24 months, the reason for imposing a

sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1).

      The Supreme Court has held that, to comply with § 3553(c)’s requirement

of a statement of reasons, “[t]he sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d. 203

(2007). A reflection in the record that the district court considered the objections

and arguments of the parties and stated reasons for the sentence imposed can

demonstrate that the court considered the § 3553(a) factors. See United States v.

Dorman, 488 F.3d 936, 944 (11th Cir. 2007). The appellant has the burden of

establishing that the sentence is unreasonable in light of the record and the

                                            8
                 Case: 11-15609   Date Filed: 02/08/2013   Page: 9 of 9

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Contrary to Seabury’s assertion, we conclude from the record that the

district court did not depart from the guideline range, which was life

imprisonment, and it explained sufficiently the reason for the sentence

imposed—it was the statutory mandatory total sentence. Moreover, the district

court considered the arguments of the parties, and it stated specifically that the

sentence imposed satisfied the objectives set forth in § 3553(a). As a result,

Seabury has not met his burden of showing that his within-guideline-range total

sentence of life imprisonment was procedurally unreasonable, so we affirm as to

this issue. See Talley, 431 F.3d at 788; Rita, 551 U.S. at 356, 127 S.Ct. at 2468;

Dorman, 488 F.3d at 944.

      For the aforementioned reasons, we affirm Seabury’s convictions and total

life sentence.

      AFFIRMED.

                                          9