FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
March 24, 2017
Blaine F. Bates
PUBLISH Clerk
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
IN RE RICHARD K. SEARS, BAP No. CO-16-025
Debtor.
LYNN MARTINEZ, Chapter 7 Trustee, Bankr. No. 15-13389
Adv. No. 15-1257
Plaintiff - Appellee, Chapter 7
v.
RICHARD K. SEARS,
Defendant - Appellant.
Appeal from the United States Bankruptcy Court
for the District of Colorado
Submitted on the briefs.*
John A. Berman, Esq. of Denver, Colorado, for Defendant – Appellant.
Maria J. Flora, of Maria J. Flora, P.C., Denver, Colorado, for Plaintiff – Appellee.
___________________________________________
*
After examining the briefs and appellate record, the Court has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. Bankr. P. 8019(g). The case is therefore submitted without oral
argument.
Before CORNISH, MICHAEL, and HALL, Bankruptcy Judges.
MICHAEL, Bankruptcy Judge.
Financial transparency is an integral component of our bankruptcy system. A debtor
seeking a discharge in a Chapter 7 bankruptcy case has a duty to fully disclose all of her
assets and liabilities, to provide sufficient records to explain her business affairs, and to
explain where her money went prior to the filing of the bankruptcy case. If a debtor cannot
tell her trustee or creditors what happened to her money, or provide records to show where
the money went, and a party in interest objects, she does not get a discharge.
In this case, Richard Sears (“Debtor”) ran several businesses and chose not to utilize
business accounts. He took over $2.2 million in cash draws from his businesses for
personal use. Debtor could not tell his bankruptcy trustee what happened to the $2.2
million, other than to say, “I spent it.” The trustee filed an action to deny the Debtor his
discharge. After a trial, the bankruptcy court sided with the trustee. Debtor appeals.
Finding no reversible error, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY1
In 1983, the Debtor began leasing land for hunting and grazing cattle. Beginning in
2004, the Debtor operated his hunting and cattle businesses through five companies (the
1
This factual background is substantially drawn from the bankruptcy court’s
findings. See Martinez v. Sears (In re Sears), 557 B.R. 193 (Bankr. D. Colo. 2016)
(hereafter “Martinez”).
2
“Companies”).2 The Companies generated $9,294,429 in income from 2008-2015.3 From
2011 through 2013, the Debtor suffered unexpected losses and increased operating costs.4
The Debtor sought Chapter 7 relief on April 2, 2015 (the “Petition Date”). Lynn Martinez
was appointed as Chapter 7 Trustee (the “Trustee”). The Debtor’s Schedule F listed a total
of $6,375,996.80 in unsecured debt primarily owed in connection with his cattle and
hunting businesses.5
The Debtor had no personal bank accounts prior to April 21, 2014, when he opened
a checking account at Wells Fargo Bank (the “Personal Account”).6 The Debtor’s reported
income and expenses could not be traced through the Personal Account, because the
Companies paid the Debtor’s personal expenses. The Debtor had separate checking
accounts for each of the Companies, as well as copies of checks with written notes (the
2
Apache Park Land & Cattle Company, Apache Park Livestock, Inc., Private
Land Bucks and Bulls, Inc., Rocky Mountain Romangus, Inc., and Trophy Outfitters, Inc.
(“Trophy”). The Debtor was the sole shareholder, officer, and director of each of the
Companies, with the exception of Trophy, in which he held a seventy percent interest. Id.
at 195.
3
Id. at 195-96.
4
E.g., extreme drought made it necessary to find additional pastures, hay
prices increased because of drought conditions, harsh winters required more hay, and
cattle losses occurred due to increased natural predators. In addition, the state veterinarian
quarantined the cattle due to a trichomoniasis outbreak, and the herd was sent to slaughter
at significant loss. Id. at 196-97.
5
Appellant’s App. at 248.
6
Martinez, 557 B.R. at 199. The Debtor did not disclose to the Trustee any
personal bank account held prior to the Personal Account. The Personal Account
statements during the period the account was active only listed thirty-two transactions.
3
“Original Records”).7 The Debtor brought to trial a large stack of boxes he alleged
contained the Original Records. Those documents were not offered into evidence.
Debtor’s accountant, Patricia Woods, used the Original Records to create Quickbooks
records (the “Reconstructed Records”). The Reconstructed Records were admitted into
evidence.
Debtor’s records were not adequate to identify transactions or allow the Trustee to
make inquiry into them. The Debtor’s strategy of using “cashier’s checks for draws or
intercompany transfers, so the funds would clear the bank more quickly” made money
difficult to trace.8 The Trustee identified over $2.2 million in disbursements from the
Companies to the Debtor, his wife, and son between 2009-2015 (the “Owner Draws”). She
could not determine the ultimate disposition of those funds. The Debtor failed to produce
evidence of the intercompany transfers or to explain the disposition of the Owner Draws,
other than to offer a vague explanation that the funds were used for personal or business
expenses, for which he offered no documentary support.
On July 6, 2015, the Trustee filed her Complaint for Denial of Discharge Pursuant
to 11 U.S.C. §§ 727(a)(3) and (a)(5) (the “Complaint”).9 Debtor filed an answer contesting
the Complaint. On September 8, 2016, after a two-day trial, the bankruptcy court entered
its Order on Adversary Complaint (the “Order”), denying the Debtor’s discharge pursuant
7
Id. at 201.
8
Id. at 200.
9
Complaint in Appellant’s App. at 24.
4
to 11 U.S.C. §§ 727(a)(3) and (a)(5). The bankruptcy court concluded the Trustee met her
burden under both §§ 727(a)(3) and (a)(5), ruling that the Debtor “failed to provide the
court with information to justify the lack of adequate business records under the
circumstances of this case”10 and “failed to offer an adequate explanation of the disposition
of very substantial funds.”11 This appeal followed.
II. STANDARD OF REVIEW
The bankruptcy court’s factual findings, which underpin its legal conclusions, are
reviewed for clear error.12 A factual finding is “clearly erroneous” when “it is without
factual support in the record, or if the appellate court, after reviewing all the evidence, is
left with the definite and firm conviction that a mistake has been made.”13
Counsel for the Debtor has striven valiantly to cast this case in a light that would
require de novo review, arguing that the bankruptcy court failed to hold the Trustee to the
proper standard of proof, and that, as a result, the entire decision should be, in effect,
retried in this Court. We are not persuaded. The bankruptcy court correctly stated the
10
Martinez, 557 B.R. at 202.
11
Id. at 203.
12
Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir. 1997)
(citing Clark v. Sec. Pac. Bus. Credit, Inc. (In re Wes Dor, Inc.), 996 F.2d 237, 241 (10th
Cir. 1993)) (holding the bankruptcy court “clearly erred” in determining a failure to keep
records was not justified under § 727(a)(3)).
13
LeMaire ex rel. LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.
1987) (citing Cowles v. Dow Keith Oil & Gas, Inc., 752 F.2d 508, 510-11 (10th Cir.
1985)).
5
applicable burdens of proof in actions brought under both § 727(a)(3) and § 727(a)(5).14
III. DISCUSSION
A prima facie case under § 727(a)(3) requires a showing that a debtor “failed to
maintain and preserve adequate records and that the failure made it impossible to ascertain
his [or her] financial condition and material business transactions.”15 If a creditor or trustee
meets this initial burden, “the burden then shifts to the debtor to justify his or her failure to
maintain the records.”16 A party objecting to a debtor’s discharge under § 727(a)(5) has the
burden of proving facts establishing that a loss of assets occurred.17 The burden then shifts
to the debtor to explain the loss of assets in a satisfactory manner.18 The ultimate burden
under § 727 rests with the plaintiff and must be proven by a preponderance of the
evidence.19
The fact that the bankruptcy court used proposed findings of fact and conclusions of
law is not properly before this Court and, in any event, does not constitute reversible
error.
14
Martinez, 557 B.R. at 199 (§ 727(a)(3)) and 202 (§ 727(a)(5)).
15
The Cadle Co. v. Stewart (In re Stewart), 263 B.R. 608, 615 (10th Cir. BAP
2001) (quoting Brown, 108 F.3d at 1295), aff’d, 35 F. App’x 811 (10th Cir. 2002). See
also Blackwell Oil Co. v. Potts (In re Potts), 501 B.R. 711, 718 (Bankr. D. Colo. 2013).
16
Stewart, 263 B.R. at 615.
17
Id. at 618.
18
Id. (citing United States v. Dorman (In re Dorman), 98 B.R. 560, 571
(Bankr. D. Kan. 1987)).
19
United States Tr. v. Garland (In re Garland), 417 B.R. 805, 810 (10th Cir.
BAP 2009) (citing Fed. R. Bankr. P. 4005).
6
The Debtor argues that the Order is “virtually a verbatim adoption” of the Trustee’s
Proposed Findings of Fact and Conclusions of Law and such adoption is reversible error.20
The Debtor did not list this issue in his statement of issues, and has therefore waived this
argument.21 Accordingly, we decline to consider it. Even if the argument had been
preserved on appeal, it is not persuasive. A bankruptcy judge’s verbatim adoption of
proposed findings become those of the court and may be reversed only if clearly
erroneous.22
The bankruptcy court did not err in determining the Debtor’s records were
inadequate to ascertain his financial condition.
The bankruptcy court determined the Debtor failed to maintain adequate records and
that such failure made it impossible to ascertain his financial condition under § 727(a)(3),
warranting denial of the Debtor’s discharge. “The scope of the debtor’s duty to maintain
records depends on the nature of the debtor’s business and the facts and circumstances of
each case.”23 When a debtor carries on a business involving substantial assets, “greater and
20
Appellant’s Br. 16.
21
See Adams–Arapahoe Joint Sch. Dist. No. 28–J v. Cont’l Ins. Co., 891 F.2d
772, 776 (10th Cir. 1989) (“An issue not included in either the docketing statement or the
statement of issues in the party’s initial brief is waived on appeal.”).
22
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985).
23
Bailey v. Ogden (In re Ogden), No. UT-98-042, 1999 WL 282732, at *6
(10th Cir. BAP Apr. 30, 1999) (unpublished opinion).
7
better record keeping” is warranted.24 Other circuit courts and bankruptcy courts hold that
records are inadequate where the debtor failed to separate personal and business accounts,25
failed to substantiate expenses,26 or failed to explain dispositions of cash.27
The bankruptcy court found all of these factors present in this case. The record
supports the findings. The Reconstructed Records commingled personal and business
expenses.28 The Reconstructed Records were neither accurate nor complete.29 The Debtor
and the Trustee were unable to identify the disposition of the Owner Draws or the sources
24
Caneva v. Sun Cmtys. Operating Ltd. P’ship (In re Caneva), 550 F.3d 755,
762 (9th Cir. 2008) (“when a debtor is sophisticated and carries on a business involving
substantial assets, ‘creditors have an expectation of greater and better record keeping.’”
(quoting Petersen v. Scott (In re Scott), 172 F.3d 959, 970 (7th Cir. 1999))).
25
Id. (debtor’s transfer of substantial funds to third party with failure to keep
terms or documentation of transfer established a prima facie violation of § 727(a)(3)).
26
In re Juzwiak, 89 F.3d 424, 428 (7th Cir. 1996) (checking account ledgers,
canceled checks, bank statements, and income tax returns were insufficient to reconstruct
a debtor’s financial condition without the source of funds and substantiation of expenses
when personal and business expenses were commingled).
27
Varco Pruden Bldgs. v. Strider (In re Kennington), 393 B.R. 430 (Bankr.
N.D. Miss. 2008) (failure to maintain distinction between company finances and personal
finances, using corporate funds to pay personal expenses, and failing to maintain
corporate books making it impossible to verify business dealings resulted in inadequate
financial records).
28
Tr. at 196, in Appellant’s App. at 510; Tr. at 185-86, in Appellant’s App. at
499-500.
29
Tr. at 12-13, in Appellant’s App. at 533-34; Tr. at 70-75, 152-55, 64, in
Appellant’s App. at 384-89, 466-69, 585; Tr. at 18, 26-30, in Appellant’s App. at 539,
547-51.
8
of certain expenses using the Reconstructed Records.30 We hold that the bankruptcy court
did not err in determining the Debtor failed to maintain adequate records, such failure
made it impossible to ascertain his financial condition, and denial of Debtor’s discharge
was warranted under § 727(a)(3).
The Debtor makes another rather unique argument in support of his position that the
requirements of § 727(a)(3) have not been met. Debtor argues that, under § 704(a)(4), a
Chapter 7 trustee has a duty to “investigate the financial affairs of the debtor.”31 Debtor
contends that this duty required the Trustee to undertake a detailed review of all of the
Debtor’s records, depose the Debtor, the Debtor’s bookkeeper, and the Debtor’s
accountant, and, finally, hire an expert should she deem it necessary in order to fully
understand the financial affairs of the Debtor. Debtor argues that the Trustee’s failure to
undertake such herculean tasks precludes the filing of a complaint under § 727(a)(3) and
the resultant denial of his discharge. The Debtor offers no viable legal precedent in support
of this argument.32 Perhaps it is because none exists.
30
Tr. at 70, 72, 152-55, in Appellant’s App. at 384, 386, 466-69; Appellant’s
App. at 1191-93.
31
§ 704(a)(4).
32
Debtor’s reliance upon Wazeter v. Mich. Nat’l Bank (In re Wazeter), 209
B.R. 222 (W.D. Mich. 1997), is completely misplaced. Wazeter dealt with whether
summary judgment should have been granted on a § 727(a)(3) complaint, not whether the
claim should be denied. Moreover, the Wazeter court, citing various authorities, noted
that “the burden is not on the creditor to organize and reconstruct the debtor’s business
affairs” and that “[c]reditors should not be forced to undertake an independent
investigation of a debtor’s affairs.” Id. at 228 (citing In re Juzwiak, 89 F.3d at 429 and
United States v. Ellis, 50 F.3d 419, 425 (7th Cir. 1995)). We agree with those sentiments.
9
The bankruptcy court did not err in determining the Debtor’s inadequate records
were not justified by the circumstances of the case.
The bankruptcy court found that the Debtor’s explanations did not justify his failure
to maintain adequate records.33 Our review of the record reveals sufficient evidence to
support the bankruptcy court’s determination.34 The bankruptcy court recognized the
Debtor had a seventh grade education, but did not find his relative lack of education
mitigated his duty to maintain records.35 The inadequacy of the Debtor’s records related to
his practice of failing to account for the frequent large cash withdrawals from the
33
While not clearly enumerated, the Debtor raises three explanations: (1) his
limited formal education; (2) his reliance on professionals to maintain his financial
records; and (3) the nature of his business made some forms of record keeping
impractical.
34
The United States Court of Appeals for the Tenth Circuit and this Court
have examined when failure to maintain adequate records is justified by looking at the
overall circumstances of the case, including the facts and custom of a debtor’s specific
financial undertaking. Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1295 (10th Cir.
1997); The Cadle Co. v. Stewart (In re Stewart), 263 B.R. 608, 615 (10th Cir. BAP 2001),
aff’d, 35 F. App’x 811 (10th Cir. 2002). See also Blackwell Oil Co. v. Potts (In re Potts),
501 B.R. 711, 718 (Bankr. D. Colo. 2013) (relevant considerations include the debtor’s
occupation, financial structure, education, experience, and sophistication (citing Turoczy
Bonding Co. v. Strbac (In re Strbac), 235 B.R. 880, 882 (6th Cir. BAP 1999))).
35
Martinez, 557 B.R. at 193. While other courts have held that a similar lack
of formal education justified a failure to keep adequate records, in those cases the
debtor’s lack of education was combined with lack of business experience and a modest
financial undertaking. See, e.g., Floret, L.L.C. v. Sendecky (In re Sendecky), 283 B.R.
760, 764 (8th Cir. BAP 2002) (debtor’s poor education and lack of experience along with
modest size of business justified lack of record keeping); Johnson v. Greene (In re
Greene), 340 B.R. 93 (Bankr. M.D. Fla. 2006) (inadequate records justified when debtor
received minimal income from odd jobs and lacked sophistication and business
experience).
10
Companies.36 The record provides no evidence that a reasonable person in similar
circumstances would employ such a practice,37 or that Debtor’s practices were
commonplace in the type of cattle business run by the Debtor. To the extent the bankruptcy
court rejected the Debtor’s attempts to justify his poor records because he employed an
accountant, the bankruptcy court did not commit error.38 We affirm the bankruptcy court’s
finding that the Debtor failed to justify his lack of adequate records under the
circumstances of the case.
The bankruptcy court did not err in determining that a loss of assets occurred under
§ 727(a)(5).
The bankruptcy court found that a loss of assets occurred in this case for purposes of
§ 727(a)(5). Our review of the record reveals sufficient evidence to support the bankruptcy
court’s determination. No party disputes the existence and amount of the Owner Draws,
nor the fact that the Debtor no longer possessed the Owner Draws. We hold that the
bankruptcy court did not clearly err in determining that a loss of assets occurred under §
727(a)(5).
The bankruptcy court did not err in determining the Debtor’s explanation for the loss
36
Martinez, 557 B.R. at 201.
37
The Trustee testified that she has seen “debtors who are essentially robbing
Peter to pay Paul.” Tr. at 184, in Appellant’s App. at 498. Woods testified that “debtor[s]
will have a company and then the debtor will have a personal bank account and there are
often transfers from one to the other . . . .” Tr. at 180, in Appellant’s App. at 494.
38
CM Temp. Servs., Inc. v. Bailey (In re Bailey), 375 B.R. 410, 418 n.3
(Bankr. S.D. Ohio 2007) (records inadequate when debtor failed to provide recorded
information of business transactions when he relied on accountant to balance records).
11
of assets was not satisfactory under § 727(a)(5).
The United States Court of Appeals for the Tenth Circuit has not set forth a standard
for determining what constitutes a satisfactory explanation of loss of assets under §
727(a)(5). Other courts have determined that such a finding is left to the sound discretion
of the court.39 Multiple circuits require some corroboration of a debtor’s testimony as to the
loss or disposition of assets.40 Other circuits and bankruptcy courts have held that
explanations of a debtor’s circumstances in general terms, that merely suggest reasons for
the loss of assets, fall short of the mark.41
To explain the loss of the Owner Draws, the Debtor offered his practice of moving
money around to “keep the business afloat in the midst of severe challenges” combined
39
See, e.g., Blackwell Oil Co. v. Potts (In re Potts), 501 B.R. 711, 726 (Bankr.
D. Colo. 2013) (and cases cited therein).
40
Id. The Fifth, Eleventh, and First Circuits have set forth two criteria in
determining whether an explanation is satisfactory under § 727(a)(5) that offer guidance.
First, it must be supported by some corroboration. Second, the corroboration must be
sufficient to eliminate any speculation as to what happened to the assets. See First Tex.
Sav. Ass’n v. Reed (In re Reed), 700 F.2d 986 (5th Cir. 1983); Chalik v. Moorefield (In re
Chalik),748 F.2d 616, 619 (11th Cir. 1984); Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803,
817-18 (1st Cir. BAP 2005).
41
Potts, 501 B.R. at 725 (“[E]xplanations of a generalized, vague, indefinite
nature such as assets being spent on ‘living expenses,’ unsupported by documentation, are
unsatisfactory.”); McVay v. Phouminh (In re Phouminh), 339 B.R. 231, 248 (Bankr. D.
Colo. 2005) (citing Bell v. Stuerke (In re Stuerke), 61 B.R. 623, 626 (9th Cir. BAP
1986)); Chalik, 748 F.2d at 619 (“Vague and indefinite explanations of losses that are
based on estimates uncorroborated by documentation are unsatisfactory.”); Baum v. Earl
Millikin, Inc., 359 F.2d 811, 814 (7th Cir. 1966) (Explanations must consist of more than
a “vague, indefinite, and uncorroborated hodgepodge of financial transactions.”).
12
with evidence of the Companies’ substantial expenses.42 The bankruptcy court found these
explanations unsatisfactory. We find no error in this conclusion. The Debtor made only a
vague and general evidentiary showing that the Owner Draws were transferred back to the
Companies and used to pay expenses.43 Put simply, the Debtor failed to account for over
$2,000,000 in cash received. Accordingly, we hold that the bankruptcy court did not
clearly err in determining the Debtor’s explanation of the loss of assets was not
satisfactory.
IV. CONCLUSION
The bankruptcy court did not clearly err in its findings with respect to the denial of
the Debtor’s discharge under §§ 727(a)(3) and (a)(5). Accordingly, the bankruptcy court’s
decision is AFFIRMED.
42
Appellant’s Br. 22.
43
Tr. at 18, 30-35, in Appellant’s App. at 539, 551-56. The majority of the
testimony regarding the disposition of the Owner Draws lacked documentary
corroboration.
13