Ellsworth v. Bauder (In Re Bauder)

SCHERMER, Bankruptcy Judge,

Dissenting.

I respectfully disagree with the majority’s conclusion that the bankruptcy court erred in denying the Debtor’s discharge. I agree with the majority that the bankruptcy court’s determination that the Debtor knowingly and fraudulently made a false oath or account under 11 U.S.C. § 727(a)(4) is a factual determination which is reviewed for clear error. Findings of fact shall not be set aside unless clearly erroneous. A finding is clearly erroneous when although there is evidence to support it the reviewing court is left with the definite and firm conviction that a mistake has been committed.20 A reviewing court cannot reverse the trial court’s findings simply because it is convinced that it would have decided the case differently.21 An appellate court oversteps its *833bounds if it decides factual issues de novo.22 If the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse even though it would have weighed the evidence differently.23 Furthermore, where there are two permissible views of the evidence, the trial court’s choice cannot be clearly erroneous.24

Due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Fed.R.Civ.P. 52(a). Accordingly, great deference must be given to the trial court when its findings turn on an assessment of credibility.25 “[Ojnly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.”26

In the instant case, the bankruptcy court’s decision was bas.ed on its assessment of the credibility of the Debtor’s testimony. The Debtor gave three reasons why she did not list the diamond ring: she forgot about it because it was not in her possession; she was told she did not have to list items not in her possession; and it was essentially valueless. Her reasons for not listing the ring are inconsistent. If she had forgotten about the ring, she would not have asked if she needed to list it as property when it was not in her possession. If she believed it had no value, why did she give it to her daughter to store in her safe deposit box? The trial judge observed the Debtor as she testified and determined, based on her demeanor and tone, that she had knowingly and fraudulently failed to disclose the ring on her schedules which she signed under oath. Such a determination is not clearly erroneous. The majority accept the Debt- or’s inconsistent explanations because, in part, the Debtor has a limited education and is afflicted with attention deficit disorder. I respectfully disagree that the Debt- or’s inconsistencies in her explanations should be excused. If a debtor has the capacity to attest under oath as to the truthfulness and accuracy of schedules, then the accuracy of such schedules should not be dependent upon one’s education or condition. Accuracy of schedules “is fundamental because the viability of the system of voluntary bankruptcy depends on full, candid, and complete disclosure by debtors ...”27

The majority relies heavily on the Bren decision in reaching its conclusion, noting that if Mrs. Bren qualifies for a discharge, this Debtor should too. I believe the majority puts too much emphasis on Bren. Although it is the most recent decision of the Eighth Circuit Court of Appeals on the subject of a false oath in bankruptcy, it is but one unpublished28 split29 opinion. *834Published precedent in this circuit makes it clear that in order for a false statement to bar a discharge, the false statement must be material.30 The subject matter of a false oath is material and thus sufficient to bar discharge if it “bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.”31 The Debt- or’s failure to list the ring in her schedules clearly “concerns the discovery of assets” and the “existence of property” and is therefore material.

• The fact that the ring may have minimal value does not render the Debtor’s omission immaterial. The Eighth Circuit Court of Appeals rejected that argument in Olson. “While we are not prepared to say that value is irrelevant to materiality, we are certain that it is not determinative.”32 The debtor’s duty is to disclose all assets, not merely assets that the debt- or believes have value. The petition, schedules, and statements must be accurate and reliable.33 Trustees and creditors should not be required to dig out and conduct independent examinations to get the facts.34 Bankruptcy provides debtors with a great benefit; the discharge of debts. The price a debtor must pay for that benefit is honesty and candor. If a debtor does not provide an honest and accurate accounting of assets to the court and creditors, the debtor should not receive a discharge. Section 727(a)(4) serves to ensure that only honest debtors receive the benefit of a discharge.

In my opinion the bankruptcy court did not err in its finding that the Debtor knowingly and fraudulently made a false oath. Since the bankruptcy court’s decision is consistent with Eighth Circuit precedent, I would affirm.

. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

. Id.; Handeen v. LeMaire (In re Le Maire), 898 F.2d 1346, 1349 (8th Cir.l990)(en banc).

. Anderson, 470 U.S. at 573, 105 S.Ct. at 1511.

. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.

. Id.

. Anderson, 470 U.S. at 575, 105 S.Ct. at 1512; LeMaire, 898 F.2d at 1349; Cepelak v. Sears (In re Sears), 246 B.R. 341, 352 (8th Cir. BAP 2000).

. Anderson, 470 U.S. at 575, 105 S.Ct. at 1512.

. In re Searles, 317 B.R. 368, 378 (9th Cir. BAP 2004).

. Rule 28A(I) of the United States Court of Appeals for the Eighth Circuit states that unpublished opinions are not precedent and parties generally should not cite them. The rule contains an exception permitting reliance on unpublished opinions if the opinion has persuasive value on a material issue but only if no published opinion of the Eighth Circuit Court of Appeals or another court would serve as well. The Eighth Circuit Court of Appeals has published two other opinions directly on point: Mertz v. Rott, 955 F.2d 596 *834(8th Cir.1992) and Palatine Nat’l Bank of Palatine, Illinois v. Olson, 916 F.2d 481 (8th Cir.1990).

. One member of the three judge panel which decided the Bren case dissented, arguing that Mrs. Bren should have been denied a discharge. Both Mertz and Olson were unanimous decisions.

. Mertz v. Rott, 955 F.2d 596, 598 (8th Cir.1992); Palatine Nat’l Bank of Palatine, Illinois v. Olson, 916 F.2d 481, 484 (8th Cir.1990).

. In re Chalik, 748 F.2d 616, 618 (11th Cir.1984), quoted in Mertz, 955 F.2d at 598, and Olson, 916 F.2d at 484.

. Id. As this court has previously stated, "an omission of a relatively modest asset will merit denial of discharge, if done with knowledge and fraudulent intent.” Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000).

. Mertz, 955 F.2d at 598. See also, Korte v. United States Internal Revenue Service (In re Korte), 262 B.R. 464, 474 (8th Cir. BAP 2001), in which this court said:

As § 727(a)(4)(A) makes clear, "[t]he Code requires nothing less than a full and compete disclosure of any and all apparent interest of any kind.” Fokkena v. Tripp (In re Tripp), 224 B.R. 95, 98 (Bankr.N.D.Iowa 1998)(citing In re Craig, 195 B.R. 443, 445 (Bankr.D.N.D.1996)).

The court added:

The failure to comply with the requirements of disclosure and veracity necessarily affects the creditors, the application of the Bankruptcy Code, and the public's respect for the bankruptcy system as well as the judicial system as a whole.

(quoting Nat’l Am. Ins. Co. v. Guajardo (In re Guajardo), 215 B.R. 739, 742 (Bankr.W.D.Ark.1997)).

.Id.