                                                          FILED
                                                           OCT 03 2012
 1
                                                       SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
 2                                                       OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP Nos. AZ-12-1114-DJuHl
                                   )
 6   CLARENCE THOMAS CUMMINGS AND )       Bk. No.    09-10576-RTB
     PAMELA K. CUMMINGS,           )
 7                                 )      Adv. No. 09-01383-RTB
                    Debtors.       )
 8   ______________________________)
                                   )
 9   CLARENCE THOMAS CUMMINGS;     )
     PAMELA K. CUMMINGS,           )
10                                 )
                    Appellants,    )
11                                 )
     v.                            )      M E M O R A N D U M1
12                                 )
     UNITED STATES TRUSTEE,        )
13                                 )
                    Appellee.      )
14   ______________________________)
15               Argued and Submitted on September 20, 2012
                             at Phoenix, Arizona
16
                            Filed - October 3, 2012
17
               Appeal from the United States Bankruptcy Court
18                       for the District of Arizona
19     Honorable Redfield T. Baum, Sr., Bankruptcy Judge, Presiding
20
     Appearances:     Wesley Denton Ray, Esq. of Polsinelli Shughart PC
21                    for Appellants; Jennifer A. Giaimo, Esq. for
                      Appellee.
22
23   Before:   DUNN, JURY and HOULE,2 Bankruptcy Judges.
24
25
          1
            This disposition is not appropriate for publication.
26   Although it may be cited for whatever persuasive value it may
27   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8013-1.
28
          2
            Hon. Mark D. Houle, U.S. Bankruptcy Judge for the Central
     District of California, sitting by designation.
 1        The debtors, Clarence Thomas (“Thomas”) and Pamela K.
 2   Cummings (“Pamela”)(collectively, “the Cummings”), appeal the
 3   bankruptcy court’s order denying their chapter 7 discharge3 under
 4   § 727(a)(4)(A).4   We AFFIRM.
 5                                   FACTS
 6        Thomas has worked in real estate management for over forty
 7   years.   Thirty-two years ago, Thomas became owner of All State
 8   Management Co., Inc. (“All State”),5 which managed various
 9   apartment complexes and small commercial buildings in several
10
          3
            Unless otherwise indicated, all chapter, section and rule
11
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
12   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
13        4
            The United States Trustee (“UST”) sought denial of the
     Cummings’ discharge under § 727(a)(2)(B) and (a)(4)(A) in its
14
     complaint against the Cummings (“complaint”). The bankruptcy
15   court apparently denied the Cummings their discharge under
     § 727(a)(2)(A) and (B) and (a)(4)(A). The bankruptcy court did
16   not cite, however, the specific subsections of § 727(a)(2) in its
17   “Minute Entry/Order for Matter Taken Under Advisement” (“minute
     entry order”) wherein it set forth its factual findings and legal
18   conclusions.
          The Cummings appeal the bankruptcy court’s determinations
19   under § 727(a)(2)(A) and (B) and (a)(4)(A). Because we conclude
20   that the bankruptcy court’s determination to deny the Cummings’
     discharge under § 727(a)(4)(A) was sufficiently supported by the
21   record, we need not examine its determinations under
     § 727(a)(2)(A) and (B). See Shanks v. Dressel, 540 F.3d 1082,
22
     1086 (9th Cir. 2008)(“We may affirm on any ground supported by
23   the record”).
24        5
            The Cummings filed their original Schedule B on June 1,
25   2009 (main case docket no. 11). They amended their Schedule B
     five times, filing an amended Schedule B on June 15, 2009 (main
26   case docket no. 29), June 22, 2009 (main case docket no. 39),
     August 20, 2009 (main case docket no. 122), September 24, 2009
27   (main case docket no. 160), and September 20, 2010 (main case
28   docket no. 323). In the original Schedule B and in each amended
     Schedule B, the Cummings disclosed that only Thomas had an
     interest in All State, with the value of his interest “unknown.”

                                       2
 1   states, including Arizona.6   All State continued to operate until
 2   June 2009.7
 3        On March 2, 2009, approximately two months before the
 4   Cummings filed for bankruptcy, Thomas formed First Beacon
 5   Management Co., LLC (“First Beacon”), another real property
 6   management company.8   Thomas held a 45% member interest and
 7   Pamela held a 50% member interest in First Beacon.   Jeannie
 8   Wetzel, president of All State (and later of First Beacon), held
 9   the remaining 5% member interest.    Thomas entered into a
10   management agreement with First Beacon on May 1, 2009.
11        According to Thomas, First Beacon commenced operations in
12   June 2009.9   He later revealed, however, that First Beacon
13
14        6
            Thomas created numerous entities, with each entity
     typically owning a particular parcel of real property. Thomas
15
     would locate a parcel of real property, usually an apartment
16   complex, and then would seek investors who would put up the
     equity to purchase the real property. When the parcel of real
17   property was sold, Thomas received a certain percentage
18   commission between 15% and 25%, and the investors were repaid
     their investments plus a return. All State usually managed the
19   real property on behalf of the entity.
20        7
            All State filed its own chapter 7 bankruptcy petition on
21   October 7, 2010 (bankruptcy case no. 10-32401). The chapter 7
     trustee apparently filed an asset report on December 8, 2010
22   (main case docket no. 16) and a final account report on April 6,
     2012 (main case docket no. 64). He also sought to be discharged
23   as trustee (main case docket no. 64), to which the UST did not
24   object (main case docket no. 65). To date, All State’s chapter 7
     bankruptcy case remains open.
25
          8
            Thomas filed First Beacon’s Articles of Organization on
26   March 2, 2009.
27        9
            Thomas testified at trial that All State terminated most,
28   if not all, of its management agreements. He further testified
                                                        (continued...)

                                      3
 1   already was operating when he received and reviewed an initial
 2   draft of the Cummings’ bankruptcy schedules sometime before May
 3   2009.
 4           As part of setting up First Beacon, Thomas transferred
 5   client accounts, including escrow accounts,10 from All State to
 6   First Beacon.11       He also opened a bank account for First Beacon
 7   in March 2009.
 8           First Beacon’s bank account had a closing balance of $1,100,
 9   as of March 31, 2009, a closing balance of $121,618.33, as of
10   April 30, 2009, and a closing balance of $130,810, as of May 29,
11
12           9
           (...continued)
13   that a group of clients canceled their management agreements with
     All State but subsequently became clients of First Beacon.
14
             10
            According to Thomas, these escrow accounts were created
15   and maintained “to pay property taxes, insurance escrows, payroll
16   deductions, things of that nature.” Tr. of January 5, 2012 hr’g,
     19:15-16.
17
             11
                  At trial, Thomas testified to the following:
18
19           Q: So monies going into this account [of First Beacon]
             wouldn’t have been from clients of First Beacon?
20           A: Well, they were either the clients or they were
             escrow accounts that were being maintained to pay
21           property taxes, insurance escrows, payroll deductions,
22           things of that nature.
             Q: Were those escrow accounts, would they have been
23           accounts that were [formerly] held in a bank account
             for All State?
24
             A: When All State was managing, operating, the answer’s
25           yes, and then they eventually were transferred to First
             Beacon –
26           Q: Okay.
27           A: – later on. Or they would have been.

28   Tr. of January 5, 2012 hr’g, 19:12-22.

                                          4
 1   2009.        On May 15, 2009, First Beacon’s bank account had a balance
 2   of $169,238.98.       Five deposits totaling $137,871.66 were made
 3   into First Beacon’s bank account between May 6 and May 19, 2009.
 4           The funds in First Beacon’s bank account rapidly dwindled.
 5   It had a closing balance of $94,387.54, as of June 30, 2009, a
 6   closing balance $1,090.32, as of July 31, 2009, and a closing
 7   balance of $7,155.56, as of August 31, 2009.
 8           Thomas initially claimed that he did not know the source of
 9   the deposits in First Beacon’s bank account.       He later explained
10   that some of the funds in First Beacon’s bank account had
11   belonged to Nottingham Place Apartments, one of First Beacon’s
12   clients.       Thomas acknowledged that he had an interest in
13   Nottingham Place Apartments.       He stated, however, that First
14   Beacon returned the funds to Nottingham Place Apartments.12
15           Thomas leased an office space on First Beacon’s behalf in
16   April 2009; All State formerly had occupied the office space.        He
17   also entered into lease agreements with First Beacon on May 1,
18   2009, as to two Lincoln Navigators, a Mercury Mountaineer and a
19   “Toyota SUV” for use by First Beacon’s employees (“First Beacon
20
21
22
             12
            The UST referenced an affidavit by Thomas that was filed
23   in support of his motion for summary judgment (adv. proc. docket
     no. 24) in the adversary proceeding commenced by the UST.
24
     Neither the UST nor the Cummings included a copy of the affidavit
25   in the record before us. We obtained a copy of the affidavit
     from the bankruptcy court’s electronic adversary proceeding
26   docket. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,
27   Inc.), 887 F.2d 955, 957-58 (9th Cir. 1988); Atwood v. Chase
     Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th
28   Cir. BAP 2003).

                                           5
 1   vehicle leases”).13
 2           The Cummings filed their chapter 7 petition on May 15, 2009.
 3   They filed their original schedules and statement of financial
 4   affairs (“SOFA”) on June 1, 2009.         They did not disclose in their
 5   original schedules their interests in First Beacon or the First
 6   Beacon vehicle leases.       In fact, the Cummings did not mention
 7   First Beacon at all in the two amendments to their Schedule B
 8   filed on June 15, 2009, and June 22, 2009.        They finally
 9   disclosed Thomas’s interest in First Beacon in their third
10   amended Schedule B and second amended SOFA filed on August 20,
11   2009.        Notably, the Cummings did not ever mention Patricia’s
12   interest in First Beacon in any of the Schedule B’s they filed.
13           The Cummings did disclose in their Schedule G, however,
14   leases with Ford Motor Credit and Toyota Financial Services as to
15   a 2008 Lincoln Navigator and a 2008 Toyota Highlander,
16   respectively.       The Cummings also reported in their Schedule I
17   that they made monthly installment payments of $533.46 for a
18   lease on a Toyota.
19           They later disclosed in their second amended Schedule G
20   filed on June 15, 2009, leases with Ford Motor Credit as to two
21   2008 Lincoln Navigators and a 2008 Mercury Mountaineer, and a
22   lease with Toyota Financial Services as to a 2008 Toyota
23   Highlander.       The Cummings again failed to mention the First
24
25
             13
            Thomas testified at trial that he did not own the
26   vehicles. Instead he leased them from the vehicle dealerships,
27   then “subleased” the vehicles to First Beacon for use by its
     employees, as he was unable to get First Beacon and/or All State
28   to lease them directly from the vehicle dealerships.

                                           6
 1   Beacon vehicle leases in the second amended Schedule G.
 2        Although Thomas had reviewed the original schedules, he
 3   stated that did not notice that they did not mention his interest
 4   in First Beacon.   He assumed that the original schedules
 5   disclosed his interest in First Beacon because his attorneys at
 6   Polsinelli Shughart PC (“Polsinelli law firm”), who knew of First
 7   Beacon and in fact, had helped him prepare its operating
 8   agreement, would have “picked up on the fact that First Beacon
 9   should have been – should have been added to the schedules.”         Tr.
10   of January 5, 2012 hr’g, 39:24-25, 40:1.
11        Thomas believed that his attorneys would include his
12   interest in First Beacon in the original schedules so as to place
13   the chapter 7 trustee on notice.       He moreover maintained that
14   though the original schedules failed to disclose his interest in
15   First Beacon, it had been disclosed and discussed by his
16   attorneys with the chapter 7 trustee before the filing of the
17   third amended Schedule B.   In fact, Thomas averred, he and his
18   attorneys discussed First Beacon with the chapter 7 trustee at a
19   meeting with him that took place sometime in June 2009.
20        In their original and in all of their amendments to
21   Schedule B, the Cummings disclosed that the value of Thomas’s
22   interest in All State was “unknown.”      Thomas explained that he
23   did so because
24        [he] didn’t know what it was – what [he] could get –
          [he] didn’t think [he] could get anything for it, cause
25        [sic] we were losing money, so – but [he] didn’t know,
          so [he] just used “unknown.”
26
27   Tr. of January 5, 2012 hr’g, 37:22-25.      He contended that it was
28   difficult to determine the value of his interest in All State

                                        7
 1   because the prospect for All State’s “future revenues [was]
 2   questionable.”   Tr. of January 5, 2012 hr’g, 38:9-10.   He
 3   explained that All State
 4        had no fixed assets, plus the management agreements
          were only 30 days. So anybody that’s going to look at
 5        buying a management company would not – wouldn’t do so
          with a 30-day contract. This would – you know, that’s
 6        the nature of the business.
 7   Tr. of January 5, 2012 hr’g, 38:4-8.   Thomas further explained
 8   that though All State had funds in its bank account, those funds
 9   were earmarked for expenses, such as property taxes and insurance
10   escrows.   Moreover, All State’s liabilities exceeded the funds in
11   its bank account.   The Cummings asserted the same “unknown” value
12   for Thomas’s interest in First Beacon.
13        Despite the fact that the Cummings had valued Thomas’s
14   interests in All State and First Beacon as “unknown,” they
15   offered to purchase them from the bankruptcy estate.     In a letter
16   dated July 21, 2009 (“offer letter”), the Cummings advised the
17   chapter 7 trustee that All State and First Beacon
18        [were] of essentially no value absent [Thomas’s]
          ongoing involvement. All State . . . and now First
19        Beacon Management Company, LLC, [were] management
          companies which provide a service and [had] no
20        intrinsic value. The management contracts [were] by
          their terms, terminable by one party on thirty days’
21        notice, which [made] the service provided even more
          fragile. All of those management relationships [were]
22        based more on [Thomas] than the entity . . . .
23   They concluded that, based on the circumstances, the value of the
24   bankruptcy estate’s interests in All State and First Beacon
25   “[did] not exceed $2,500.”
26        In the Disclosure of Compensation of Attorney for Debtors
27   (“attorney fee disclosure”), one of the Cummings’ attorneys,
28   Arturo Thompson, reported that, on May 20, 2009, All State paid

                                      8
 1   the Polsinelli law firm $50,000 “for the purpose of supplying the
 2   Cummings with postpetition legal services” (“law firm funds”).
 3   Thomas explained that the law firm funds represented his
 4   postpetition wages for services he performed for All State.    The
 5   Cummings reported in their Declaration of Evidence of Employers’
 6   Payments within 60 Days (“employer payment declaration”)(main
 7   case docket no. 16) that they had not received any payment
 8   advices, pay stubs or other evidence of payment from any employer
 9   within 60 days prepetition.
10        Interestingly, Thomas later testified at the one-day trial
11   on January 5, 2012, that he had “borrowed from friends” some of
12   the law firm funds.   Tr. of January 5, 2012 hr’g, 53:7-9.   He
13   deposited these borrowed funds into All State’s bank account and
14   then “wrote the check from All State.”   Tr. of January 5, 2012
15   hr’g, 53:13-17.
16        Thomas initially represented that he was not drawing a
17   salary from All State but from First Beacon in April 2009.     He
18   later claimed, however, that in May 2009, at the time he and
19   Patricia filed for bankruptcy, he was earning $8,000 per month
20   income as property manager for All State, “still performing some
21   functions for All State because of the bankruptcy.”   Tr. of
22   January 5, 2012 hr’g, 16:2-3.
23        He explained:
24        There were many, many, many schedules and a lot of
          information that was required from All State
25        Management. And as you can imagine I had to pay
          employees and I had to put in a lot of time myself, so
26        I did get money for that from All State.
27   Tr. of January 5, 2012 hr’g, 16:3-7.   Thomas also claimed that he
28   was not receiving any income from First Beacon at that time.

                                      9
 1        The UST filed the complaint on October 22, 2009 (“UST
 2   adversary proceeding”).   It sought to deny the Cummings their
 3   discharge under § 727(a)(2)(B) for concealing postpetition their
 4   interests in First Beacon and the values of their interests in
 5   All State and First Beacon by not disclosing them in their
 6   original schedules.   The UST also alleged that the Cummings
 7   transferred the law firm funds with the intent to hinder, delay
 8   or defraud creditors and/or officers of the estate under
 9   § 727(a)(2)(B).   It further sought to deny the Cummings their
10   discharge under § 727(a)(4)(A) for not disclosing their interest
11   in First Beacon and the values of their interests in All State
12   and First Beacon in their original Schedule B.
13        The Cummings filed an answer to the complaint, generally
14   denying the UST’s allegations and asserting several affirmative
15   defenses.   They ultimately contended that they “did not commit
16   any material improper act or omission and that any act or
17   omission was timely cured.”
18        Approximately a year before the January 5, 2012 trial in the
19   UST adversary proceeding, the chapter 7 trustee filed a complaint
20   against All State, First Beacon and the Cummings (“chapter 7
21   trustee complaint” or “chapter 7 trustee adversary proceeding”)
22   (adv. proc. no. 10-00247).    He contended that First Beacon was an
23   asset belonging to the bankruptcy estate.   The chapter 7 trustee
24   alleged that the Cummings were using All State and First Beacon
25   to place bankruptcy estate assets beyond his reach.   He therefore
26   sought appointment of a receiver to operate First Beacon.
27        The chapter 7 trustee further sought a temporary restraining
28   order and/or preliminary injunction against the Cummings to stop

                                      10
 1   them from transferring any accounts and/or funds belonging to All
 2   State and/or First Beacon.   He also sought to substantively
 3   consolidate the Cummings’ bankruptcy case with All State’s
 4   bankruptcy case to enable him to proceed with liquidating All
 5   State’s assets and recovering them for the benefit of the
 6   creditors in both All State and the Cummings’ bankruptcy cases.
 7        The chapter 7 trustee and the Cummings eventually entered
 8   into a settlement agreement (main case docket no. 313).   Under
 9   the settlement agreement, the chapter 7 trustee agreed to dismiss
10   with prejudice the chapter 7 trustee complaint against the
11   Cummings in exchange for payments totaling $115,000 from the
12   Cummings.   He also agreed to release his claims to All State and
13   First Beacon.   The chapter 7 trustee further agreed not to oppose
14   the Cummings’ discharge unless he found additional undisclosed
15   assets or determined that a disclosed asset had been materially
16   misrepresented to him.   He and the Cummings also agreed that the
17   settlement agreement would not bind “any person or entity who
18   [was] not a party” to it.
19        Before the trial in the UST adversary proceeding, the UST
20   and the Cummings submitted a joint pretrial statement wherein
21   they stipulated to certain facts.    Among the undisputed facts,
22   the Cummings conceded the following: (1) they did not disclose
23   their interest in First Beacon in their original Schedule B and
24   original SOFA filed on June 1, 2009, and in the second amended
25   Schedule B filed on June 22, 2009; (2) they disclosed their
26   interest in First Beacon in the third amended Schedule B and
27   second amended SOFA, both filed on August 20, 2009; (3) they
28   valued their interest in First Beacon as “unknown” in their third

                                     11
 1   amended Schedule B and second amended SOFA filed on August 20,
 2   2009; (4) they disclosed Thomas’s interest in All State in the
 3   original Schedule B and original SOFA, though they valued his
 4   interest as “unknown”; and (5) All State remitted the law firm
 5   funds postpetition as a retainer for legal services to be
 6   rendered to the Cummings.
 7        The UST and the Cummings also included in the joint pretrial
 8   statement a list of exhibits they intended to present at trial.
 9   Among them, the UST submitted the entire file in the Cummings’
10   bankruptcy case, the employer payment declaration and First
11   Beacon’s bank account statements14 as evidence to be considered
12   by the bankruptcy court at trial.
13        The UST and the Cummings also provided a list of witnesses
14   in the joint pretrial statement.      Among its witnesses, the UST
15   had the chapter 7 trustee, Larry Warfield, testify at trial.
16        Thomas testified extensively.      When asked why he decided to
17   form First Beacon, Thomas explained that he did it to “start
18   clean with a new management company,” free from the “stigma of
19   [his personal] bankruptcy” that he believed had attached to All
20   State.    Tr. of January 5, 2012 hr’g, 13:22-25.
21        Thomas insisted that he did not intentionally omit his
22   interest in First Beacon from the schedules and SOFA.     He further
23   claimed that he intended neither to include false information in
24   the schedules and SOFA nor to conceal his interest in First
25   Beacon.   He claimed that he did not intend to hide First Beacon’s
26
          14
27          The UST submitted bank statements for the periods ending
     March 31, 2009, April 30, 2009, May 29, 2009, June 29, 2009,
28   June 30, 2009, July 31, 2009, and August 31, 2009.

                                      12
 1   existence; he intended for its existence to be known throughout
 2   the course of the bankruptcy.   Thomas explained that he had
 3   delayed filing for bankruptcy until First Beacon was formed “so
 4   it could be part of the schedules that [the Cummings] provided to
 5   the [chapter 7 trustee] . . . . and [to] make sure everything was
 6   out in the open,” because he knew First Beacon to be an asset.
 7   Tr. of January 5, 2012 hr’g, 23:17-18, 24:6-7.
 8        Thomas also contended that he never intended to hinder or
 9   defraud creditors by authorizing the transfer of the law firm
10   funds.
11        He further insisted that he never intended to hinder or
12   defraud creditors by delaying inclusion of his interest in First
13   Beacon in the schedules and SOFA or by valuing his interests in
14   First Beacon and All State as “unknown.”   Thomas averred that he
15   did not know the value of his interests in First Beacon and All
16   State at the time he and Patricia filed their original schedules
17   and SOFA.
18        At the end of the trial, the bankruptcy court instructed
19   counsel for the Cummings and counsel for the UST to submit
20   closing briefs by January 20, 2012.   The bankruptcy court then
21   informed them that it would take the matter under advisement on
22   January 23, 2012.
23        A month after trial, the bankruptcy court issued its minute
24   order, which set forth its factual findings and legal
25   conclusions.   The bankruptcy court denied the Cummings’ discharge
26   based on its factual findings and legal conclusions.
27        The bankruptcy court found that the Cummings knowingly and
28   fraudulently made multiple false oaths relating to their

                                     13
 1   bankruptcy case under § 727(a)(4)(A), based on Thomas’s testimony
 2   at trial and the information (or lack thereof) in their
 3   schedules.
 4        It highlighted the various actions taken by Thomas and his
 5   attorneys prepetition.   The bankruptcy court noted that, in an
 6   email dated April 15, 2009, to Arturo Thompson, Thomas stressed
 7   that the timing of the Cummings’ bankruptcy filing “[was]
 8   critical based upon First Beacon Management [would] be officially
 9   taking over the management of various apartment communities
10   May 1st, 2009.”   Two weeks later, Thomas entered into a
11   management agreement with First Beacon, leased several of his
12   vehicles to First Beacon and opened a new bank account on its
13   behalf.   The bankruptcy court therefore concluded that the
14   Cummings’ omission of First Beacon from their original Schedule B
15   and SOFA was not “an innocent mistake,” given the great and
16   hurried lengths Thomas and his attorneys took prepetition to form
17   First Beacon to facilitate the Cummings’ “post-bankruptcy fresh
18   start.”
19        The bankruptcy court further determined that Thomas’s
20   testimony lacked credibility.   For example, with respect to the
21   law firm funds, Thomas testified at trial that they represented
22   future earnings for his services to All State.   But the
23   bankruptcy court pointed out that he never disclosed that the law
24   firm funds represented future income, even though § 521(a)(1)(vi)
25   required the Cummings to disclose “‘any reasonably anticipated
26   increase in income’ for the year after they filed for
27   bankruptcy.”
28        The bankruptcy court also noted the Cummings’ omission of

                                     14
 1   the First Beacon leases from their schedules.   The Cummings
 2   claimed in their original schedules that they owned no vehicles,
 3   even though they had leased them to First Beacon in May 2009.
 4        In addition, the bankruptcy court found suspect the low
 5   August 2009 closing balance of First Beacon’s bank account.      It
 6   pointed out that from April 2009 to June 2009, First Beacon’s
 7   bank account had more than $100,000; by August 2009, however,
 8   First Beacon’s bank account held but a few thousand dollars.     The
 9   bankruptcy court believed that the Cummings had a prepetition
10   interest in the funds in First Beacon’s bank account but did not
11   disclose their interest in the funds in their schedules.
12        On February 29, 2012, the bankruptcy court entered an order
13   denying the Cummings their chapter 7 discharge.   The Cummings
14   timely appealed.
15                               JURISDICTION
16        The bankruptcy court had jurisdiction under 28 U.S.C.
17   §§ 1334 and 157(b)(2)(J).   We have jurisdiction under 28 U.S.C.
18   § 158.
19                                  ISSUE
20        Did the bankruptcy court err in denying the Cummings their
21   chapter 7 discharge?
22                          STANDARD OF REVIEW
23        We review the bankruptcy court’s factual findings for clear
24   error and its legal conclusions de novo.    See Retz v. Samson
25   (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).    We review de
26   novo mixed questions of fact and law, where the historical facts
27   are established, the legal rules are undisputed, and the issue is
28   whether the facts satisfy the legal rule.   See id.

                                      15
 1        A bankruptcy court’s fact determination is clearly erroneous
 2   if it is illogical, implausible or without support in the record.
 3   Id. (citing United States v. Hinkson, 585 F.3d 1247, 1261-62 &
 4   n.21 (9th Cir. 2009)(en banc)).    If the bankruptcy court’s
 5   “account of the evidence is plausible in light of the record
 6   viewed in its entirety,” we may not reverse it, “even though
 7   convinced that had [we] been sitting as the trier of fact, [we]
 8   would have weighed the evidence differently.”    Anderson v. City
 9   of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985).       “Where
10   there are two permissible views of the evidence, the factfinder’s
11   choice between them cannot be clearly erroneous.”    Id. at 574.
12        We give great deference to the bankruptcy court’s
13   determinations regarding the credibility of witnesses because the
14   bankruptcy court, as the trier of fact, had the opportunity to
15   note “variations in demeanor and tone of voice that bear so
16   heavily on the listener’s understanding of and belief in what is
17   said.”    Id. at 575 (internal quotation marks omitted).
18            We may affirm on any ground supported by the record.
19   Shanks, 540 F.3d at 1086.
20                                 DISCUSSION
21        The Cummings raise two main arguments on appeal: (1) the
22   bankruptcy court improperly considered and based its ruling on
23   allegations not presented in the complaint as grounds for the
24   denial of their discharge, and (2) the UST failed to prove
25   elements under § 727(a)(4)(A).    Before we address their
26   arguments, we first need to outline the general principles that
27   guide our review of denials of chapter 7 discharges.
28        “In keeping with the ‘fresh start’ purposes behind the

                                       16
 1   Bankruptcy Code, courts should construe § 727 liberally in favor
 2   of debtors and strictly against parties objecting to discharge.”
 3   Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).
 4   We are mindful, however, that the Bankruptcy Code “limits the
 5   opportunity for a completely unencumbered new beginning [provided
 6   by the discharge] to the honest but unfortunate debtor.”
 7   In re Boyajian, 564 F.3d 1088, 1092 (9th Cir. 2009)(quoting
 8   Grogan v. Garner, 498 U.S. 279, 286-87 (1991)(quotation marks
 9   omitted)).
10        The party objecting to the debtor’s discharge must prove, by
11   a preponderance of the evidence, that the debtor’s actions or
12   conduct falls within one of the exceptions to discharge under
13   § 727.    See Grogan v. Garner, 498 U.S. at 287 (establishing
14   preponderance of evidence standard for parties objecting to
15   discharge under § 523).   The objecting party therefore must show
16   that the debtor acted with “actual, rather than constructive,
17   intent.”   Retz, 608 F.3d at 1196 (quoting Khalil v. Developers
18   Surety & Indem. Co. (In re Khalil), 379 B.R. 163, 172 (9th Cir.
19   BAP 2007)(quotation marks omitted)).
20   A.   The bankruptcy court properly considered the UST’s
          allegations and properly applied the burden of proof15
21
22
          15
            The Cummings also contend that the bankruptcy court erred
23   in basing the denial of their discharge under § 727(a)(2)(A) and
     (B), in part, on the assumption that they had taken funds out of
24
     First Beacon’s bank account. They argue that there is no
25   evidence in the record indicating that the funds belonged to them
     and that they had withdrawn and transferred the funds out of
26   First Beacon’s bank account.
27        Reviewing the record before us, we agree that there is no
     evidence showing that they owned any of the funds in First
28   Beacon’s bank account or that they withdrew and transferred funds
                                                        (continued...)

                                      17
 1        1.      Factual allegations
 2        The Cummings complain that the bankruptcy court considered
 3   allegations not presented by the UST in the complaint as grounds
 4   for denial of their discharge under § 727(a)(4)(A).   They target
 5   the bankruptcy court’s reliance on their non-disclosures of:
 6   (1) the law firm funds as Thomas’s postpetition wages to be
 7   earned as All State’s property manager, and (2) the First Beacon
 8   vehicle leases, as support for its ruling.   The Cummings contend
 9   that they did not have a sufficient opportunity to address these
10   allegations at trial because they were not set forth in the
11   complaint.
12        As the UST points out, however, the Cummings had agreed in
13   the joint pretrial statement to allow the UST to submit the
14   employer payment declaration, as well as the entire file in their
15   bankruptcy case, as evidence at trial.   The bankruptcy court was
16   entitled to consider any evidence presented to it at trial and to
17   base its decision on any grounds within the claims alleged,
18   supported by the evidence.    See Tevis v. Wilke, Fleury, Hoffelt,
19   Gould & Birney, LLP (In re Tevis), 347 B.R. 679, 695 (9th Cir.
20   BAP 2006)(“It is the bankruptcy court’s responsibility to
21   evaluate the evidence presented . . . . [for] [it] has an
22   obligation to consider all of the evidence properly presented,
23
          15
           (...continued)
24
     out of it. The only evidence pertaining to First Beacon’s bank
25   account consists of the bank statements submitted by the UST.
     The bank statements simply list the dates and amounts of various
26   deposits and withdrawals, various check numbers and balance
27   amounts. The bank statements do not identify any person who
     owns, deposits or withdraws the funds. However, as noted in fn.
28   4 supra, we need not examine the bankruptcy court’s
     determinations under § 727(a)(2)(A) and (B).

                                        18
 1   and to give it the weight that it deserves.”).   The bankruptcy
 2   court therefore did not err in considering and relying on these
 3   documents in making its ruling because the Cummings explicitly
 4   agreed to allow them to be submitted into evidence.
 5        The Cummings argue that had they known that the omission of
 6   the First Beacon vehicle leases from their schedules would be at
 7   issue at trial, they would have directed the bankruptcy court to
 8   consider their amended Schedule G.    The Cummings claim that the
 9   amended Schedule G “identified each of the contracts applicable
10   to these vehicles as an unexpired lease.”
11        But, as the UST points out, the Cummings did not disclose
12   the First Beacon vehicle leases in their original or amended
13   Schedule G.    Rather, they listed their own leases with the
14   various vehicle dealerships; they made no reference to First
15   Beacon at all in their original or amended Schedule G.   The
16   Cummings only disclosed the First Beacon vehicle leases through
17   Thomas’s testimony at trial.
18        2.   Burden of proof
19        The Cummings claim that the bankruptcy court shifted the
20   burden of proof to them, instead of the UST.   Instead of basing
21   the denial of the Cummings’ discharge on evidence provided by the
22   UST, the bankruptcy court interpreted the uncontested facts as “a
23   calculated fraud [i.e., actual fraudulent intent]” rather than as
24   “an innocent collection of circumstances.”   Appellants’ Opening
25   Brief at 17.    The bankruptcy court also based its ruling, in
26   large part, on Thomas’s testimony at trial, which it found
27   unconvincing.
28        “Proof by the preponderance of the evidence means that it is


                                      19
 1   sufficient to persuade the finder of fact that the proposition is
 2   more likely true than not.”   United States v. Arnold & Baker
 3   Farms (In re Arnold & Baker Farms), 177 B.R. 648, 654 (9th Cir.
 4   BAP 1994), aff’d 85 F.3d 1415 (9th Cir. 1996), cert. denied sub
 5   nom., Arnold & Baker Farms v. United States, 519 U.S. 1054
 6   (1997).   Here, the UST had the burden of presenting evidence
 7   sufficient to show that the Cummings knowingly and fraudulently
 8   made false oaths as to material facts relating to their case
 9   under § 727(a)(4)(A).
10        The bankruptcy court did not shift the burden of proof to
11   the Cummings by considering the circumstantial evidence of the
12   undisputed facts and the conflicting (and often contradictory)
13   testimony of Thomas in making its determination.   The Cummings
14   themselves agreed to the undisputed facts in the joint pretrial
15   statement.   Thomas also willingly proffered his testimony to
16   counter the UST’s allegations; the bankruptcy court simply found
17   his testimony not credible.   More important, there is ample
18   evidence to support the bankruptcy court’s findings under
19   § 727(a)(4)(A).
20   B.   The bankruptcy court did not err in denying the Cummings’
          discharge under Section 727(a)(4)(A)
21
22        Under § 727(a)(4)(A), the bankruptcy court shall grant a
23   discharge to the debtor unless he or she “knowingly and
24   fraudulently, in or in connection with the case . . . made a
25   false oath or account.”   “A false statement or an omission in the
26   debtor’s bankruptcy schedules or statement of financial affairs
27   can constitute a false oath.”   Retz, 606 F.3d at 1196 (quoting
28   Khalil, 379 B.R. at 172, aff’d, 578 F.3d 1167, 1168 (9th Cir.


                                     20
 1   2009)(expressly adopting BAP’s statement of applicable law)
 2   (quotation marks omitted)).    A false oath may involve either “an
 3   affirmatively false statement or an omission from the debtor’s
 4   schedules.”   Searles v. Riley (In re Searles), 317 B.R. 368, 377
 5   (9th Cir. BAP 2004)(citations omitted).    “A false oath is
 6   complete when made.    The fact of prompt correction of an
 7   inaccuracy or omission may be evidence probative of lack of
 8   fraudulent intent.”    Id.   The purpose of § 727(a)(4)(A) is to
 9   make sure “that the trustee and creditors have accurate
10   information without having to conduct costly investigation.”       Id.
11   (quoting Khalil, 606 F.3d at 1196)(quotation marks omitted)).
12        To prevail on a § 727(a)(4)(A) claim, the plaintiff must
13   show that: “(1) the debtor made a false oath in connection with
14   the case; (2) the oath related to a material fact; (3) the oath
15   was made knowingly; and (4) the oath was made fraudulently.”       Id.
16   at 1197 (quoting Roberts v. Erhard (In re Roberts), 331 B.R. 876,
17   882 (9th Cir. BAP 2005)(quotation marks omitted)).
18        1.   False oath
19        The Cummings contend that their delayed disclosure of
20   Thomas’s interest in First Beacon does not constitute a false
21   oath under § 727(a)(4)(A).    They acknowledge that they did omit
22   Thomas’s interest in First Beacon in their original and second
23   amended Schedule B.    The Cummings claim, however, that they
24   believed that it had been included in the original and second
25   amended Schedule B at the time of filing.
26        As the UST points out, whether the Cummings knew about the
27   omission concerns the third element under § 727(a)(4)(A).     The
28   fact that the Cummings omitted this information from their


                                       21
 1   schedules is enough to satisfy the first element.     See Searles,
 2   317 B.R. at 377 (“A false oath is complete when made.”).
 3        Moreover, this is not the only omission the Cummings made in
 4   their schedules.   Although the Cummings eventually disclosed
 5   Thomas’s interest in First Beacon, they did not disclose
 6   Patricia’s interest in it; in every iteration of their
 7   Schedule B, they maintained that only Thomas had an ownership
 8   interest in First Beacon.16   They also did not disclose the First
 9   Beacon vehicle leases; they simply listed their own leases with
10   the various vehicle dealerships.      The Cummings further did not
11   disclose that the law firm funds transfer purportedly represented
12   Thomas’s postpetition wages as property manager for All State.
13   Item number 17 on Schedule I requires the debtor to “[d]escribe
14   any increase or decrease in income reasonably anticipated to
15   occur within the year following the filing of this document
16   . . . .”   The Cummings left item number 17 blank in their
17   Schedule I.   They never filed an amended Schedule I in their
18   bankruptcy case.
19        The Cummings also made false statements in their schedules.
20   They maintained in every iteration of their Schedule B that
21   Thomas’s interests in First Beacon and All State had “unknown”
22   values.    Thomas even testified that he had characterized the
23   value of his interest in All State as “unknown” because he
24
25
          16
            The instructions on Schedule B state that if “the debtor
26   is married, state whether husband, wife, both or the marital
27   community own the property by placing an ‘H,’ ‘W,’ ‘J,’ or ‘C’ in
     the column labeled ‘Husband, Wife, Joint or Community.’” The
28   Cummings consistently listed “H” in the original and the
     amendments to Schedule B.

                                      22
 1   “didn’t think [he] could get anything for it” and that it was
 2   difficult to determine the value of his interest in All State
 3   because the prospect of its “future revenues was questionable.”
 4   But in the offer letter, the Cummings claimed that Thomas’s
 5   interests in First Beacon and All State “did not exceed $2,500,”
 6   and they ultimately settled with the chapter 7 trustee for
 7   $115,000.   Despite his assertions to the contrary, Thomas was
 8   able to determine that his interests in All State and First
 9   Beacon had at least some value.
10        2.     Material fact
11        “A fact is material if it bears a relationship to the
12   debtor’s business transactions or estate, or concerns the
13   discovery of assets, business dealings, or the existence and
14   disposition of the debtor’s property.”    Retz, 606 F.3d at 1198
15   (quoting Khalil, 379 B.R. at 173).     A false statement or omission
16   may be material even if creditors do not suffer direct financial
17   prejudice from it.   Fogel Legware of Switzerland, Inc. v. Wills
18   (In re Wills), 243 B.R. 58, 63 (9th Cir. 1999).    An omission or
19   misstatement is material if it “detrimentally affects
20   administration of the estate.”    Id. (quoting Wills, 243 B.R. at
21   63 (quotation marks omitted)).    More specifically, if the
22   omission or misstatement “adversely affects the trustee’s or
23   creditors’ ability to discover other assets or to fully
24   investigate the debtor’s pre-bankruptcy dealing and financial
25   condition,” then the omission or misstatement may be considered
26   material.   Wills, 243 B.R. at 63 (quoting 6 King, Collier on
27   Bankruptcy ¶ 727.04[1][b]).
28        The Cummings contend that the omission of their interest in


                                       23
 1   First Beacon from their schedules did not materially harm the
 2   administration of their bankruptcy estate, especially as they
 3   quickly amended their schedules to correct the omission.
 4   Moreover, they believe that even if they had disclosed their
 5   interest in First Beacon in their original Schedule B, “nothing
 6   would have happened differently in the administration of [their
 7   bankruptcy] estate.”   The chapter 7 trustee still would have
 8   entered into the settlement agreement with the Cummings, they
 9   assert, as it provided a benefit to the bankruptcy estate.
10        Contrary to their assertions, the Cummings’ omissions and
11   misstatements did adversely affect the chapter 7 trustee’s
12   administration of the bankruptcy estate.   At trial, the chapter 7
13   trustee testified that the Cummings’ omissions and subsequent
14   amendments to their schedules created a “cat and mouse game, or
15   [the game of] go fish.”   Tr. of January 5, 2012 hr’g, 57:22-23.
16   The chapter 7 trustee explained that
17        [E]very time we would discover an asset that [the
          Cummings] failed to list, they would amend the
18        schedules again. And when they did the amendment they
          didn’t do just the amendment as relates to that one
19        issue, they would then fully amend their schedules,
          which caused us to have to go through the comparison of
20        what was on the original, what was on the amended. And
          then when it was amended again we’d have to go do that
21        again.
22   Tr. of January 5, 2012 hr’g, 57:8-15.
23        The chapter 7 trustee also testified that the Cummings’
24   omission of Thomas’s interest in First Beacon and the value of
25   his interest raised concerns for him; namely “whether or not
26   First Beacon was going to be a bust out for All State. . . .
27   [b]ecause there was no reference to First Beacon on the petitions
28   and schedules.”   Tr. of January 5, 2012 hr’g, 61:4-6.   He stated


                                     24
 1   that he faced difficulties in trying to “get an understanding of
 2   what was going on;” he explained that he was “constantly being
 3   bombarded with walls being placed up for knowledge [he was]
 4   trying to gain.”   Tr. of January 5, 2012 hr’g, 64:8-11.   Despite
 5   his efforts, the chapter 7 trustee was unable to make any
 6   determination to his satisfaction as to the value of First
 7   Beacon.
 8        The Cummings contend that “nothing different” would have
 9   happened in the administration of their bankruptcy case, even if
10   they had disclosed Thomas’s interest in First Beacon and the
11   value of his interests in First Beacon and All State.   They
12   further claim that the settlement agreement actually provided a
13   benefit to the bankruptcy estate by adding to the funds available
14   for distribution to creditors.
15        The Cummings’ characterization of the settlement agreement
16   is disingenuous.   Had they fully disclosed their interest in
17   First Beacon and the value of their interests in All State and
18   First Beacon, the chapter 7 trustee would not have had to
19   initiate the adversary proceeding.    The chapter 7 trustee had
20   initiated the adversary proceeding against the Cummings, All
21   State and First Beacon, in part, to help him proceed with
22   liquidation of All State’s assets, if any, and recovery of the
23   same for the benefit of creditors.
24        The chapter 7 trustee also characterized the settlement
25   agreement as a “surrender.”   He explained that he entered into
26   the settlement agreement with the Cummings mainly because he
27   would never realize enough funds to satisfy even the
28   administrative claims as he was “just getting eaten alive with


                                      25
 1   attorney’s fees.”   Tr. of January 5, 2012 hr’g, 66:13-14.
 2        Based on the chapter 7 trustee’s testimony, the Cummings’
 3   omissions and misstatements indeed adversely affected the
 4   administration of their bankruptcy estate.   We therefore conclude
 5   that the bankruptcy court did not err in determining that the
 6   Cummings’ omissions and misstatements concerned material facts
 7   within the meaning of § 727(a)(4)(A).
 8        3.   Knowingly made
 9        A debtor “acts knowingly if he or she acts deliberately and
10   consciously.”   Retz, 606 F.3d at 1198 (quoting Khalil, 379 B.R.
11   at 173)(quotation marks omitted)).    The Cummings assert that they
12   did not deliberately and consciously omit from their schedules
13   their interests in First Beacon and the value of their interests
14   in First Beacon and All State.   They raise the same defense for
15   their misstatements concerning the law firm funds.
16        The Cummings would like us to believe that they had
17   overlooked these omissions and misstatements when they filed
18   their schedules.    We discern no error in the bankruptcy court’s
19   conclusion that these omissions and misstatements did not result
20   from “an innocent mistake.”   At trial, Thomas testified that he
21   had reviewed the original schedules.    He also had signed the
22   original schedules under penalty of perjury, attesting that he
23   had reviewed them and that they were true and correct.   Given the
24   flurry of activity that took place prepetition around First
25   Beacon, we agree with the bankruptcy court that First Beacon
26   would be “clearly and consistently on their minds.”
27        We also find no error in the bankruptcy court’s conclusion
28   that the Cummings deliberately and consciously misstated their


                                      26
 1   income in their Schedule I.      Thomas offered contradictory
 2   testimony as to the source of the law firm funds.     He first
 3   testified at trial that the law firm funds represented his
 4   postpetition wages for his services as All State’s property
 5   manager.    Thomas later testified that he had obtained loans from
 6   friends to put together some of the law firm funds.     Notably,
 7   though the Cummings amended their Schedule B numerous times, they
 8   did not amend their Schedule I to include this information.
 9   Based on the record before us, we conclude that the bankruptcy
10   court did not err in finding that the Cummings knowingly made
11   false oaths in connection with their bankruptcy case.
12        4.      Fraudulent intent
13        To establish fraudulent intent, the UST must prove that the
14   Cummings: (1) made omissions or misstatements in their schedules;
15   (2) that they knew were false at the time they made them; and
16   (3) made them with the intention and purpose of deceiving their
17   creditors.    Retz, 606 F.3d at 1199 (quoting Khalil, 379 B.R. at
18   173 (quotation marks omitted)).     “Intent is usually proven by
19   circumstantial evidence or by inferences drawn from the debtor’s
20   conduct.”    Id. (citing Devers v. Bank of Sheridan, Mont.
21   (In re Devers), 759 F.2d 751, 753-54 (9th Cir. 1985)).      Reckless
22   indifference or disregard for the truth may be circumstantial
23   evidence of intent, but are not enough alone to constitute
24   fraudulent intent.    Id. (citing Khalil, 379 B.R. at 173-75).
25        The Cummings cite their prompt notification of the formation
26   of First Beacon to their attorneys as proof that they did not
27   intend to conceal Thomas’s interest in First Beacon.     They also
28   claim that they furnished the chapter 7 trustee with copies of


                                        27
 1   First Beacon’s lease agreement concerning the office space.     They
 2   contend that they took these actions all before they filed their
 3   third amended Schedule B.    When the Cummings realized their
 4   omission, they “promptly” filed amendments to their schedules.
 5        It took the Cummings until August 2009 and two amendments in
 6   the meantime to “rectify” their omissions in their Schedule B.
 7   Even then, they still did not list Patricia’s interest in First
 8   Beacon in the second amended Schedule B and the following
 9   amendments to Schedule B.    We do not consider three months as
10   necessarily a short period of time in which to file amendments to
11   schedules to correct material non-disclosures.   If the Cummings
12   realized that they omitted from their schedules their interest in
13   First Beacon, it should not have taken them three months to
14   “rectify” their mistake.    Of course, the omission of Patricia’s
15   interest in First Beacon never was rectified.
16        Even more telling as to the Cummings’ fraudulent intent is
17   Thomas’s contradictory testimony regarding the source of the law
18   firm funds.   The Cummings did not amend their Schedule I to
19   reflect the increase in their income from the alleged
20   postpetition wage advance.   They did not mention the First Beacon
21   vehicle leases in their Schedule G, even though they entered into
22   the leases two weeks before they filed for bankruptcy protection.
23   The Cummings ultimately disclosed that they had directly leased
24   the vehicles from the vehicle dealerships, but they never
25   mentioned that they leased those same vehicles to First Beacon,
26   as Thomas later testified at trial.
27        Given these circumstances, we conclude that the bankruptcy
28   court’s finding as to the Cummings’ fraudulent intent was not


                                      28
 1   illogical, implausible or unsupported by the record.    We
 2   therefore conclude that the bankruptcy court did not err in
 3   denying the Cummings’ discharge under § 727(a)(4)(A).
 4                              CONCLUSION
 5        Based on our review of the record, we conclude that
 6   sufficient evidence exists to support the bankruptcy court’s
 7   determination under § 727(a)(4)(a).   The bankruptcy court thus
 8   did not err in denying the Cummings’ discharge.   We therefore
 9   AFFIRM.
10
11
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13
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15
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