Suffness v. Petros

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10442
Summary Calendar
________________________

In The Matter Of: AVANTE REAL ESTATE, INC

Debtor

_________________________________________________________________

MICHAEL B. SUFFNESS

Appellant,

v.

JOHN PETROS, US Trustee; ROBERT NEWHOUSE, Trustee;
WILLIAM T NEARY

Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-410-T)
_________________________________________________________________
(October 11, 1995)

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined

1
 Attorney Michael Suffness ("Suffness") appeals various

actions and orders of the bankruptcy court, including: (1) the

December 6, 1994 Order Requiring Michael Suffness to Show Cause

Why He Should Not Be Sanctioned Under Fed. R. Bankr. P. 9011; (2)

the February 14, 1995 Order Sanctioning Michael Suffness, which

enjoined Suffness from practicing in the bankruptcy court for the

Northern District of Texas for six months ("the suspension

order"); and (3) the January 25, 1995 Order Requiring Michael

Suffness to Pay Retainer in to the Registry of the Court, which

ordered the disgorgement of Suffness's retainer in the underlying

bankruptcy appeal. The district court affirmed all three orders

on April 17, 1995. Upon appeal to this court, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In May, 1994, John Petros ("Petros") and Ruben de la Torres

("de la Torres") formed Avante Real Estate, Inc. ("Avante") to

own and operate two apartment complexes. Shortly thereafter, the

working relationship between Petros and de la Torres

deteriorated. On August 15, 1994, and August 25, 1994,

respectively, Petros transferred, by special warranty deed, both

apartment complexes to other entities owned or controlled by him.

On August 26, 1994, Suffness, on behalf of Petros, wrote to

Avante's bank, Central Bank and Trust, requesting that the bank

freeze Avante's bank account.

that this opinion should not be published.

2
 On September 8, 1994, Petros and Suffness caused Avante to

file a voluntary chapter 7 bankruptcy petition. Petros signed

the petition as the debtor's president, and Suffness signed the

petition as the debtor's attorney. It is not clear if, and in

fact doubtful that, de la Torres, Petros's partner, was ever

served with notice of the bankruptcy filing. In the schedules

and statement of affairs that the debtor filed with the chapter 7

petition, the debtor identified one bank account number -- that

of an account at Central Bank and Trust -- and did not schedule

any real property or other assets.

At the first creditors' meeting, held on October 12, 1994,

Suffness appeared as debtor's counsel, but no one appeared on

behalf of the debtor. The trustee agreed to continue the meeting

until October 19, 1994, to allow the debtor an opportunity to

appear. Prior to the scheduled October 19, 1994 meeting,

Suffness contacted the chapter 7 trustee, Robert Newhouse

("Newhouse"), and informed him that the debtor would not be

appearing at the meeting, and that Suffness intended to file a

motion to dismiss the bankruptcy case.

On October 25, 1994, because Suffness had not yet filed a

motion to dismiss the case, the United States Trustee,

represented by Mary Frances Durham, filed a motion to dismiss the

case and to require payment to trustee. In this motion, the

United States Trustee requested the bankruptcy court to order the

disgorgement of $200.00 of Suffness's $840.00 retainer and

payment of that money to trustee Newhouse as compensation for his

3
time and effort, as well as to penalize Suffness for his failure

to fulfill his stated commitment to file a motion to dismiss and

to bear the costs of service of notice on the creditors. On

October 27, 1995, Suffness filed a response to the United States

Trustee's motion, urging that Newhouse seek compensation from

funds in the debtor's account at Central Bank and Trust, and

opposing the disgorgement of his retainer.

On November 21, 1994, the bankruptcy court held a hearing on

the United States Trustee's motion to dismiss and require payment

to trustee. At that hearing, the court heard from the United

States Trustee, the bankruptcy trustee, and Suffness. The

bankruptcy trustee, Newhouse, testified under oath regarding the

poor condition of the Avante properties,1 and his ultimate

decision to abandon the assets of the estate. Newhouse also

testified that he was unable to ascertain the amount of money in

the Central Bank and Trust account, and that he was unable to

retrieve the books and records of the rental properties. Next,

Newhouse noted that he was never able to discern who was the true

owner of the properties, because there appeared to be a dispute

between Petros and de la Torres, who both claimed to be owners in

full,2 and because the properties had been transferred, prior to

1
Newhouse testified that one complex appeared to be in
inhabitable condition and needed to be condemned, while the
other, while in terrible condition, appeared to be operating,
albeit without complete utilities.
2
The trustee testified that he had received a letter
from de la Torres, containing an original signature and
impression from a corporate seal, thus indicating that de la
Torres also claimed ownership and active management of the

4
the filing of the bankruptcy, from Avante to two separate

entities. Newhouse stated that it was his understanding that the

funds in the Central Bank and Trust account were not accessible

to the U.S. Trustee because they had been frozen pursuant to a

state court order regarding the dispute between Petros and de la

Torres.

Suffness did not cross-examine Newhouse. When the

bankruptcy court asked Suffness about the assets of the debtor,

and, in particular the amount of money in the Central Bank and

Trust account, Suffness responded that he "ha[d] not been told

what the amount in the account is." Suffness also was not able

to relate to the court the whereabouts of his client, or even his

confidence that his client, Petros, was in fact the sole owner of

the debtor corporation. Finally, Suffness requested that, rather

than through disgorgement of his fee, the bankruptcy trustee be

compensated for his services by money from the Central Bank and

Trust account.

At the conclusion of the November 21, 1994 hearing, the

bankruptcy court orally entered the following orders: (1) the

estate's interest in any real property was abandoned; (2) Central

Bank and Trust was to appear and show cause why it should not

turn over all funds on deposit for the debtor; (3) Suffness was

to pay one half of his retainer ($420.00) into the registry of

the court pending consideration of sanctions against him; and (4)

Suffness was to appear at a future date to show cause why he

properties, and, in fact, possessed the corporate seal.

5
should not be sanctioned pursuant to Rule 9011 of the Federal

Rules of Bankruptcy Procedure. The court ordered the attorney

for the United States Trustee to draft and submit a proposed

order reflecting its oral ruling.

On December 6, 1994, the bankruptcy court entered the Show

Cause Order it discussed at the November 21 hearing. That order,

entitled "Order Requiring Michael Suffness to Show Cause Why He

Should Not Be Sanctioned Under FRBP 9011," stated, inter alia,

that the court "believes that the debtor through Mr. Suffness may

have filed this bankruptcy for an improper purpose and,

therefore, the court is considering levying sanctions against Mr.

Suffness under Fed. R. Bank. Proc. 9011." Thus the court

ordered that, "pending disposition of this case," Suffness pay

one-half of his fee into the registry of the court. Finally, the

court ordered that, in order to show cause why he should not be

sanctioned, Suffness respond to the court regarding eight

specific matters: (1) proof of ownership of the stock of the

debtor; (2) the authority of Petros to sign the bankruptcy

petition for the debtor; (3) proof of notice of the filing of the

bankruptcy to the first lienholder on each property; (4) proof of

notice of the filing of the bankruptcy to the Central Bank and

Trust and its counsel; (5) failure to inform the court on

November 21, 1994 that the funds held by Central Bank and Trust

had been interpleaded in the Tarrant County Court of Law; (6)

failure to inform the chapter 7 trustee of the state court

proceedings and failure to forward documents regarding the bank

6
accounts and state court proceeding to the trustee; (7) failure

to include complete information regarding the two bank accounts

at the Central Bank and Trust; and (8) the source and amount of

any money paid to Suffness by the debtor, Petros, or any other

party for any matter regarding the debtor, the bankruptcy, or any

state court matters.

On that same day, the United States Trustee served notice of

a forthcoming December 22, 1994 hearing. In order to obtain a

correct service list, the Trustee contacted the attorney for

Central Bank and Trust, Dabney Bassell ("Bassell"), who informed

the United States Trustee that the bank had no knowledge of the

bankruptcy filing, had interpleaded the funds from two bank

accounts into the Tarrant County Court of Law on November 1,

1994, and had written Suffness four times prior to the November

21 hearing, asking Suffness to take some action regarding the

accounts or else respond to the petition and interpleader, but

had received no response. Upon learning of the interpleader, and

reasoning that it would serve no purpose to serve the bank with a

show cause order, the United States Trustee prepared a proposed

turnover order directed to the Tarrant County Court of Law, which

the court accepted as written.

Bassell filed an affidavit for the purpose of the December

22 hearing, and, after neither Suffness nor the debtor filed any

objections, the court admitted it into evidence. In the

affidavit, Bassell stated that an attorney in his firm,

representing the bank, wrote both Suffness and Cram, the attorney

7
for de la Torres, on September 14, 1994, regarding the freeze on

the bank accounts, and received no response. On October 17,

1994, Bassell wrote Suffness and Cram himself, and received a

response from Cram but not from Suffness. Concluding that there

continued to be a dispute as to the ownership of the account's

funds, on November 1, 1994, the bank filed a Petition in

Interpleader, and transmitted a copy of the petition to both Cram

and Suffness. In order to resolve the interpleader issue,

Bassell transmitted another letter to Cram and Suffness on

November 11, 1994. Bassell stated that, at the time that he had

written all of the letters described above, he had not been aware

of the debtor's petition in bankruptcy. Thus, the attorney for

the bank had contacted Suffness four times in writing prior to

the November 21 hearing at which Suffness told the court that

there was one, rather than two accounts at Central Bank and

Trust, that Suffness was not aware of the amount of money in the

account, and that the trustee should seek his payment out of the

bank account.

Prior to the December 22, 1994 hearing, the United States

Trustee designated several exhibits pursuant to the Northern

District of Texas Local Rule 8.1 and Local Bankruptcy Rule 9032.

Suffness, however, did not designate any witnesses or exhibits,

even though the Show Cause Order setting the December 22 hearing

required Suffness to respond to eight issues and also stated that

the court would consider all state court pleadings and all

correspondence between Suffness and Central Bank and Trust.

8
 At the December 22 hearing, the United States Trustee

introduced fourteen exhibits without objection, including the

letters sent from the bank to Suffness. Suffness, testifying on

his own behalf, admitted that he had received correspondence from

Central Bank and Trust prior to the November 21, 1994, hearing,

but claimed that he had not read the letters. He also admitted

having received a copy of the petition for interpleader from the

bank, but Suffness claimed that he mistook it for an application

to intervene in the bankruptcy case. When the court asked

Suffness why he had failed to include the rents, machinery and

office equipment as assets of the estate, as well as why Suffness

had represented the debtor's two bank accounts as if they

consisted of a single bank account, Suffness responded that he

did not know about the estate at the time of filing, but that he

had filed the petition nonetheless, in a hasty attempt to protect

the assets of the estate.

Petros also testified at the December 22, 1994 hearing.

Petros admitted that he was involved in a dispute over the

ownership and control of the Avante properties with de la Torres,

that he had transferred both of the properties to entities he

owned prior to the filing of the bankruptcy, and that he had

filed the bankruptcy largely as an alternative to state court

proceedings, as a "last resort" to gain control of the properties

and keep them out of the hands of de la Torres.3 After all of the

3
Petros testified that he had "tried" to gain control of
the properties through state court proceedings, but that de la
Torres "kept avoiding [him] for almost forty-five days."

9
testimony had been heard, Suffness voiced an objection to the

United States Trustee's exhibits. Because the exhibits had

already been entered into evidence without objection, the

bankruptcy court denied Suffness's request.

At the conclusion of the December 22 hearing, the bankruptcy

court made its findings of fact and conclusions of law pursuant

to 28 U.S.C. 157(b)(2)(A) and (O), and Bankruptcy Rule 7052. The

court found that both Suffness and Petros filed the bankruptcy

action for an improper purpose, namely, to cause harassment and

delay of another person who was contesting Petros's control of

the apartments. The court also found that the schedule of assets

filed with the bankruptcy court case stated that the two

properties were assets of the debtor at a time when the

properties had already been deeded out of the estate by Petros

himself, as evidenced by Petros's signature on the deeds. The

court found that the purpose of the filing was to have the

trustee pursue the properties and the rents, while Petros and

Suffness enjoyed the benefits of the automatic stay provision of

the Bankruptcy Code -- a purpose which is clearly improper.

Finally, the court stated that it was most troubled by its

finding that Suffness had intentionally "misrepresented to th[e]

Court knowledge that he had received form Mr. Bassell in at least

three letters and two other documents, a petition and an order,"

when he failed to disclose that there were two rather than one

account at Central Bank and Trust, and that the bank had in fact

contacted him with information about the accounts.

10
 Because of the intentional misrepresentations, the court

invoked its duty to regulate the practitioners pursuant to 11

U.S.C. § 105, and, accordingly, ordered that, "[f]or the

misrepresentation, Mr. Suffness will forfeit his fees in this

case. The total of $840.00 will be paid to the trustee. Mr.

Suffness is barred and enjoined from practicing in the Northern

District of Texas Bankruptcy Court for six months from December

23." The court did not explicitly impose any sanctions pursuant

to Rule 9011 of the Federal Rules of Bankruptcy Procedure.

Suffness appealed the rulings of the bankruptcy court,

including the Show Cause Order, the Suspension Order and the

Disgorgement Order, to the district court, which affirmed. The

district court concluded that the Show Cause Order was not a

final order and therefore not appealable, and that the bankruptcy

court did not err in sanctioning Suffness for his conduct.

We affirm.

II. STANDARD OF REVIEW

We review findings of fact by the bankruptcy court under the

clearly erroneous standard and decide issues of law de novo.

Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th

Cir. 1994); Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12

F.3d 426, 434 (5th Cir. 1994). Although the court of appeals

benefits from the district court's consideration of the matter,

the amount of persuasive force to be assigned to the district

court's conclusion is entirely a matter of discretion with the

11
court of appeals. Heartland Fed. Sav. & Loan Ass'n v. Briscoe

Enters., Ltd., II (In re Briscoe Enters., Ltd., II), 994 F.2d

1160, 1163 (5th Cir. 1993).

A finding of fact is clearly erroneous when, although there

is enough evidence to support it, the reviewing court is left

with a firm and definite conviction that a mistake has been

committed. United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948); In re Henderson, 18 F.3d at 1307. If the trial

court's account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not

reverse even though convinced that, had it been sitting as the

trier of fact, it would have weighed the evidence differently.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

III. DISCUSSION

Suffness raises thirteen issues on appeal. Specifically,

Suffness contends that the bankruptcy court made thirteen errors,

all of which and any of which require reversal. None of

Suffness's arguments contains any merit. They will be addressed

in turn.

First, Suffness argues that the bankruptcy court erred by

failing to give "proper FRBP 9011 notice" prior to "imposing

sanctions in the First Hearing." In other words, Suffness

contends that the court's order at the conclusion of the November

21, 1994 hearing requiring him to deposit one-half of his

retainer into the registry of the court pending consideration of

12
sanctions constituted a sanction itself for which he was entitled

prior notice. This contention is wrong. First, the court order

requiring him to deposit the money did not constitute a sanction,

but merely was an order -- as it states on its face -- requiring

him to deposit money pending consideration of sanctions. Because

Suffness was not sanctioned by means of that order, he was not

due any notice. Second, even if Suffness were sanctioned, which

he was not, he did receive notice. Suffness was given notice

prior to the hearing that the court would hear argument on the

United State's motion to dismiss and to require payment to the

trustee. In this motion, filed with the bankruptcy court October

25, 1994 -- a month before the hearing -- the United States

argued that Suffness should be required to disgorge part of his

retainer to the trustee. Suffness responded to that motion by

arguing that the trustee's payment should instead be drawn from

the bank account at Central Bank and Trust. Thus, Suffness was

under notice that his retainer was under risk of disgorgement by

the court. Suffness's first argument fails on its face.

Second, Suffness argues that the court erred in failing to

specify the reasons for the "sanction" at the conclusion of the

November 21, 1994 hearing. Suffness again mischaracterizes the

actions of the bankruptcy court. As discussed above, the court

did not sanction Suffness at the November 21, 1994 hearing. And,

even if the order requiring Suffness to pay half of his retainer

into the registry of the court constituted a sanction -- which it

did not -- the court gave adequate reasons for that order. The

13
court specifically stated that, based upon the representations

made by the trustee, the attorney for the bank, the United States

Trustee, and Suffness himself, it believed that Suffness might

have filed the bankruptcy case for improper purposes. The court

asked Suffness pointed questions about this issue at the hearing

itself, and also ordered Suffness to respond to eight specific

matters of concern, all regarding the propriety of the bankruptcy

filing and the veracity of Suffness's statements to the court.

Thus Suffness's second argument fails.

Third, Suffness argues that the bankruptcy court erred by

concluding at the conclusion of the November 21, 1994 evidentiary

hearing that Suffness had filed the bankruptcy case for an

improper purpose. Once again, Suffness mischaracterizes the

actions of the bankruptcy court on November 21, 1994. Although

the court heard testimony at the November 21 hearing that may

have justified such a conclusion, the bankruptcy court did not

make the legal finding that Suffness had filed the case for an

improper purpose until after considering the testimony and

evidence presented by all parties, including Suffness, at the

hearing on the subsequent Show Cause Order. As discussed above,

at the conclusion of the November 21, 1994 hearing, the court

only concluded that Suffness "may have filed this bankruptcy

case for an improper purpose," (emphasis added) and reflected

that conclusion in its written order filed December 6, 1994.

Fourth, Suffness argues that the court erred in imposing

Federal Rule of Bankruptcy Procedure 9011 sanctions at the

14
conclusion of the November 21, 1994 hearing without first

inquiring into the effect of the sanctions or standards for the

imposition of the sanctions. This argument fails because, as

discussed above, the court did not impose sanctions at the

conclusion of the November 21, 1994 hearing.

Fifth, Suffness argues that the bankruptcy court erred in

executing the December 6, 1994 Show Cause Order, which, Suffness

contended, "greatly exceeded the Order rendered in court at the

conclusion of the [November 21, 1994] hearing." Suffness's

argument is futile, however, because, as the district court

correctly concluded, the Show Cause Order was nothing more than a

scheduling order, establishing a hearing date and matters to be

considered at the hearing, and therefore was not a final order

and therefore not appealable. Even if it were appealable,

however, the order was entered on December 6, 1994, and Suffness

did not file his notice of appeal until January 31, 1995, at a

time when the filing deadline had expired. Also, Suffness did

not seek permission to appeal an interlocutory order. Thus, this

court lacks jurisdiction to review the scheduling order.4

For the same reason, we lack jurisdiction to review

Suffness's sixth argument, also challenging the legality of the

4
It should be noted that, ironically, the Order to Show
Cause is precisely the type and kind of order Suffness contends
that due process requires prior to the imposition of sanctions.
It gave Suffness notice that the court was considering
sanctioning him, described specifically the sanctionable behavior
suspected by the court, and gave Suffness ample opportunity to
prepare a defense, provide evidence and testify on his own
behalf.

15
bankruptcy court's December 6, 1994 Show Cause Order.

Seventh, Suffness argues that the bankruptcy court erred by

adopting the documents and events that were presented by the

attorney representing the United States Trustee. Suffness did

not object to the introduction of the items into evidence. We

generally do not consider on appeal matters not presented to the

trial court, and see no reason to make an exception in this case.

Quenzer v. United States (In re Quenzer), 19 F.3d 163, 165 (5th

Cir. 1993). Furthermore, even though Suffness had been directed

by means of the December 6, 1994 Show Cause Order to prepare and

submit evidence on his own behalf in order to counter the

assertions made by the United States Trustee, and in order to

rebut the inferences reasonably drawn from the evidence submitted

by the United States Trustee, he failed to introduce any

documentary evidence. Thus, the court committed absolutely no

error by adopting the uncontested, unopposed evidence provided by

the United States Trustee.

Eighth, Suffness contends that the bankruptcy court erred in

finding that Suffness filed the bankruptcy for the improper

purpose of causing the harassment and delay of another person.

In making this argument, Suffness primarily attacks the

credibility of the evidence put forth by the United States

Trustee, as well as the testimony of the chapter 7 trustee and

the attorney for the bank. Suffness also repeated his own

testimony and that given by Petros at the December 22, 1994

hearing. The bankruptcy court, however, was more than qualified

16
to evaluate the credibility of witnesses, and it would be an

abuse of our discretion to substitute our judgment for that of

the factfinder's. Anderson v. City of Bessemer City, 470 U.S.

564, 573-74 (1985). Suffness's conclusory allegations are simply

insufficient to establish that the bankruptcy court's findings

were clearly erroneous. United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948); Henderson v. Belknap (In re

Henderson), 18 F.3d 1305, 1307 (5th Cir. 1994); Haber Oil Co. v.

Swinehart (In re Haber Oil Co.), 12 F.3d 426, 434 (5th Cir.

1994).

Suffness's next three arguments fail for the same reasons as

his eighth argument. Specifically, Suffness's ninth argument,

that the bankruptcy court erred by holding that Suffness violated

Rule 9011 of the Federal Rule of Bankruptcy Procedure by filing

the case for an improper purpose, his tenth argument, that the

bankruptcy court erred in concluding that Suffness violated Rule

9011 by making misrepresentations to the court concerning the

bank account, and his eleventh argument, that the court erred in

concluding that Suffness had abused the bankruptcy process, all

must be rejected because the court had ample factual grounds on

which to base its factual findings, as evidenced by the

transcripts of the two hearings and the documents entered into

evidence. As described in detail in part II, supra, the court

had more than adequate factual grounds on which to base its

decision to reject the testimony put forth by Suffness and

Petros.

17
 Twelfth, Suffness argues that the bankruptcy court erred in

imposing sanctions at the conclusion of the December 22, 1994

hearing without inquiring into the effect of the sanctions or the

standards for the imposition of the sanctions. This argument is

meritless. The bankruptcy court has inherent power to guard the

practice of attorneys who appear in that court. State Bar Rule

3.03; 11 U.S.C. § 105; Northern District of Texas Local Rule 13.2

(made applicable through Local Bankruptcy Rule 9050); Matter of

Johnson, 921 F.2d 585, 586 (5th Cir. 1991). These powers are

discretionary, and the bankruptcy court has broad authority to

discipline attorneys and to award or disgorge fees paid in

connection with bankruptcy proceedings. Matter of Prudhomme, 43

F.3d 1000, 1003-04 (5th Cir. 1995); In re Anderson, 936 F.2d 199,

204 (5th Cir. 1991); 11 U.S.C. §§ 327, 329, and 330(a)(2); Fed.

R. Bankr. Proc. 2016(b) and 2017. It is common for a bankruptcy

court to order disgorgement of fees in order to obtain compliance

with a court order or punish misconduct of attorneys. Woods v.

City Nat'l Bank & Trust Co. 312 U.S. 262, 268 (1941); Anderson,

936 F.2d at 204.

In this case, the court's sanction was reasonable, and

Suffness has put forth no credible argument to establish that the

bankruptcy court abused its discretion. In re Lawler, 807 F.2d

1207, 1211 (5th Cir. 1987). Given the fact that the bankruptcy

court found that Suffness had filed the chapter 7 case for purely

improper purposes -- in order to delay creditors and to settle a

state law dispute over the ownership of the properties -- as well

18
as that Suffness had intentionally and deliberately misled the

court on crucial information, the bankruptcy court's ultimate

decision to require Suffness to disgorge his $840 retainer fee

and to bar Suffness from practicing in the bankruptcy court for

the Northern District of Texas for sixth months was reasonable.

Finally, Suffness argues that the bankruptcy court erred by

failing to give proper notice of possible "section 105 or

inherent court power sanctions" prior to imposing sanctions at

the conclusion of the second hearing. This argument is

meritless. The court's oral ruling on November 21, 1994 and the

December 6, 1994 Show Cause Order both provided Suffness with

notice and information regarding each of the issues the court was

to consider at the December 22, 1994 hearing. Specifically,

Suffness was directed to bring proof of ownership of the stock of

the debtor, evidence of Petros's authority to sign the chapter 7

petition, proof that he served notice of the bankruptcy filing to

the secured creditors, and proof that he served notice of the

filing on the bank. If Suffness required more time to gather

this information, he did not so indicate, either by filing a

motion to continue the hearing or for clarification of the

court's Show Cause Order. The court explicitly stated, both in

court and through its December 6 Show Cause Order, that it had

serious doubts as to the veracity of the representations Suffness

had made, and was continuing to make, to the court.

Thus, the court gave Suffness ample opportunity to correct

his misrepresentations to the court and to limit the damage to

19
creditors caused by his delay and misrepresentations. Suffness

nonetheless chose to make direct misrepresentations to the court,

and cannot with a straight face argue that he did not have notice

that he would be sanctioned for his misrepresentations.

IV. CONCLUSION
For the reasons stated above, we

AFFIRM.

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