NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: JAY P. CLARK, No. 16-60026
Debtor, BAP No. 15-1065
______________________________
JAY P. CLARK, MEMORANDUM*
Appellant,
v.
JEREMY J. GUGINO, Chapter 7 Trustee,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Faris, and Jury, Bankruptcy Judges, Presiding
Submitted July 10, 2017**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 3
Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,*** District
Judge.
1. The bankruptcy court had jurisdiction to hear the Chapter 7 trustee’s
request for denial of a discharge under 11 U.S.C. § 727(a). The bankruptcy court
retained jurisdiction over all aspects of the case not involved in the appeals from
the conversion and substantive consolidation orders. See 28 U.S.C.
§ 158(d)(2)(D); In re Sherman, 491 F.3d 948, 967 (9th Cir. 2007). Because the
appeals did not directly involve the denial-of-discharge proceeding, the bankruptcy
court retained jurisdiction to resolve the trustee’s request for relief in that
proceeding.
2. The bankruptcy court properly denied Jay P. Clark a discharge under
§ 727(a). The court may deny a discharge under § 727(a)(2)(B) if the debtor, “with
intent to hinder, delay, or defraud a creditor,” disposed of or concealed property of
the estate. The bankruptcy court did not clearly err in finding that Clark intended
to hinder and defraud his creditors, given the nature and magnitude of the assets
that he failed to report. This is sufficient evidence to prove fraudulent intent. In re
Retz, 606 F.3d 1189, 1198–99 (9th Cir. 2010). The court considered Clark’s
***
The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
Page 3 of 3
explanations for his failure to report his assets and found them unpersuasive. The
court did not clearly err in that regard either.
The bankruptcy court also properly denied Clark a discharge under
§ 727(a)(4)(A), which permits denial of a discharge if the debtor knowingly and
fraudulently made a false oath in connection with the case. That provision applies
if “(1) the debtor made a false oath in connection with the case; (2) the oath related
to a material fact; (3) the oath was made knowingly; and (4) the oath was made
fraudulently.” Id. at 1197 (citation omitted). The bankruptcy court considered
Clark’s testimony regarding his intent, his reliance on counsel, and his omitted
property, and found that testimony less credible than the evidence establishing that
Clark made a false oath knowingly and fraudulently. There was no clear error in
that determination.
Because the bankruptcy court properly denied Clark a discharge under 11
U.S.C. § 727(a)(2)(B) and (a)(4)(A), we need not address Clark’s arguments under
§ 727(a)(3) and (a)(6)(A).
AFFIRMED.