FILED
NOT FOR PUBLICATION NOV 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: CHRISTOPHER B. PHILLIPS, No. 10-60032
Debtor. BAP No. 09-1114
CHRISTOPHER B. PHILLIPS, MEMORANDUM *
Appellant,
v.
UNITED STATES TRUSTEE,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Montali, Markell, and Hollowell, Bankruptcy Judges, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
*
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).
Christopher B. Phillips, a Chapter 7 debtor, appeals pro se from the
Bankruptcy Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s
denial of Phillips’s discharge in bankruptcy. We have jurisdiction under 28 U.S.C.
§ 158(d). We review de novo the bankruptcy court’s conclusions of law, and for
clear error its factual findings, including those regarding fraudulent intent and
materiality. Candland v. Ins. Co. of N. Am. (In re Candland), 90 F.3d 1466, 1469
(9th Cir. 1996). We affirm.
The bankruptcy court did not commit clear error in finding that Phillips
knowingly and fraudulently made material false oaths when he failed to disclose on
his bankruptcy schedules a disability insurance claim that he was actively pursuing
and, thus, it properly denied Phillips’s discharge under 11 U.S.C. § 727(a)(4)(A).
See Retz v. Samson (In re Retz), 606 F.3d 1189, 1197-99 (9th Cir. 2010)
(discussing elements of a denial of discharge under § 727(a)(4)(A)).
The bankruptcy court did not commit clear error in finding that Phillips
intended to hinder, delay, or defraud his creditors by failing to disclose his
disability claim; hence, it properly denied Phillips’s discharge under 11 U.S.C.
§ 727(a)(2)(B). See In re Retz, 606 F.3d at 1200, 1203-04 (setting forth elements
of a denial of discharge under § 727(a)(2)(B), giving great deference to bankruptcy
2 10-60032
court’s determinations regarding the credibility of witnesses, and noting that
debtor’s chance for a fresh start is conditioned on full and truthful disclosure).
We do not consider issues raised for the first time on appeal. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Phillips’s remaining contentions are unpersuasive.
Phillips’s motion to amend his reply to the Motion to Strike, filed on
November 14, 2010, is granted.
Phillips’s motion to strike and to sanction, filed on October 28, 2010, is
granted to the extent that it seeks to strike the four documents included in the
United States Trustee’s excerpts of record that the parties agree were not part of the
bankruptcy court record. The motion is otherwise denied.
AFFIRMED.
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