                                                           FILED
                                                            DEC 02 2011
 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 No.   EC-10-1316-JuKiD
                                   )
 6   MARTY WAYNE DONOHUE,          )        Bk. No.   09-20986
                                   )
 7                  Debtor.        )        Adv. No. 09-2241
     ______________________________)
 8   MARTY WAYNE DONOHUE,          )
                                   )
 9                  Appellant,     )
                                   )
10   v.                            )        M E M O R A N D U M*
                                   )
11   PETER C. BRONSON and CAROLYN )
     P. BRONSON,                   )
12                                 )
                    Appellees.     )
13   ______________________________)
14               Argued and Submitted on November 16, 2011
                         at Sacramento, California
15
                            Filed - December 2, 2011
16
               Appeal from the United States Bankruptcy Court
17                 for the Eastern District of California
18      Honorable Christopher M. Klein, Bankruptcy Judge, Presiding
                    ____________________________
19
     Appearances:     Philippa Lauben, Esq. argued for Appellant Marty
20                    Wayne Donohue; Peter C. Bronson, Esq. argued for
                      Appellee Carolyn Bronson and himself pro se.
21                    ______________________________
22   Before:   JURY, KIRSCHER, and DUNN, Bankruptcy Judges.
23
24
25
26        *
            This disposition is not appropriate for publication.
     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.
28   See 9th Cir. BAP Rule 8013-1.

                                      -1-
 1            Appellant, chapter 71 debtor Marty Wayne Donohue, appeals
 2   from the bankruptcy court’s judgment entered in favor of
 3   appellees, Peter and Carolyn Bronson (the “Bronsons”).      The
 4   judgment denied debtor his discharge under § 727(a)(3) based on
 5   his failure to keep and preserve records for his businesses and
 6   personal affairs.      We AFFIRM.
 7                                  I.   FACTS
 8            Michael Donohue, debtor’s father, owned and operated a
 9   construction business under the name of River City Construction
10   (“River City”) with California Contractor License Number 330020.
11   The Bronsons hired River City to perform construction and other
12   work on their property in Penn Valley, California, which they
13   planned to develop as an equestrian facility.      The record shows
14   that when the Bronsons hired River City, debtor was managing the
15   business and in the process of acquiring it from his father who
16   was semi-retired.2
17            Mrs. Bronson first contacted debtor in 2006 to install
18   fencing on the Bronsons’ property after she saw an ad for River
19   City in an equestrian publication called Equestrian Connection.
20   After the fencing was installed, the Bronsons hired River City
21
22        1
            Unless otherwise indicated, all chapter, section and rule
23   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
     “Rule” references are to the Federal Rules of Bankruptcy
24   Procedure and “Civil Rule” references are to the Federal Rules of
     Civil Procedure.
25
          2
26          Debtor testified that he had a dba as River City
     Construction so that he could manage the bank account. Debtor
27   also testified that he claimed all the income from the business
     as his own and paid his father a salary. Hr’g Tr. at 61
28   (July 21, 2010).

                                         -2-
 1   to do additional work on the property on a project-by-project
 2   basis.   The projects included, among other things, the
 3   correction of an improperly assembled barn which the Bronsons
 4   had ordered as a kit, an irrigation system, a septic system,
 5   building arenas, installation of entry gates, grading, and
 6   substantial plantings for erosion control.    These projects
 7   spanned two years.
 8        For each project, River City submitted a bid proposal to
 9   the Bronsons.   Change orders were also handled through the bid
10   proposal process.    With few exceptions, the proposals were not
11   signed by the Bronsons, and none were signed by River City.     The
12   bids typically required payment in full or a substantial portion
13   prior to delivery.   Mrs. Bronson wrote the checks for those
14   payments which eventually added up to $400,000.    The bid
15   proposals are part of the Bronsons’ record on appeal.
16        As time went by, the Bronsons became dissatisfied with the
17   quality of River City’s work and its failure to complete work
18   for which the Bronsons had paid in advance.   The Bronsons
19   documented the numerous deficiencies in a November 19, 2007
20   letter sent to debtor and his father (collectively, the
21   “Donohues”).
22        On February 22, 2008, River City recorded two mechanic’s
23   liens against the Bronsons’ property in the sum of $59,450.
24   This amount allegedly reflected unpaid invoices.   The record
25   reflects that neither of the Donohues could ever point to an
26   invoice which the Bronsons had not paid.
27        On May 2, 2008, the Bronsons wrote to the Donohues,
28   asserting that River City’s liens were improper because they had

                                     -3-
 1   paid for all the work.     They further maintained that the work
 2   done by River City was substandard and documented more than a
 3   hundred deficiencies in the letter.     Finally, the Bronsons
 4   informed the Donohues that they would be taking legal action to
 5   expunge the liens and recover damages.
 6            The Donohues later caused River City to unconditionally
 7   release the mechanic’s liens against the Bronsons’ property.
 8                              Bankruptcy Events
 9            On January 21, 2009, debtor filed his chapter 7 petition.
10   Debtor’s Schedule D showed creditors holding secured claims in
11   the amount of over $2.3 million, of which $1 million was
12   unsecured.     Schedule E showed approximately $15,000 owed to the
13   Internal Revenue Service3 and Amended Schedule F showed
14   unsecured claims in the amount of $426,000.     Some of the secured
15   and unsecured debts listed on debtor’s schedules belonged to
16   River City.
17            In his Statement of Financial Affairs, debtor listed 2007
18   and 2008 income from River City as $68,499 and $25,000,
19   respectively.     Debtor stated that he had no other income from
20   employment or operation of a business during the two years
21   immediately preceding the commencement of his case.
22            On April 21, 2009, the Bronsons filed an adversary
23   proceeding against debtor, seeking damages in excess of
24   $350,000, which included $130,000 paid to River City that debtor
25   allegedly diverted for his own use, and $220,000 representing
26
27
          3
            The IRS filed two proofs of claim in debtor’s case for the
28   sum of $515,000.

                                       -4-
 1   the cost of remediating River City’s improper or illegal work on
 2   the Bronsons’ property.      The Bronsons also sought punitive
 3   damages.
 4            The Bronsons alleged that these yet to be determined
 5   damages were nondischargeable debts under § 523(a)(2) and (6).
 6   The § 523(a)(2) claim was based on debtor’s alleged
 7   misrepresentations made to the Bronsons in connection with River
 8   City’s work on their property and the § 523(a)(6) claim was
 9   based on River City’s alleged improper filing of the mechanic’s
10   liens against their property.
11            The complaint also sought denial of debtor’s discharge
12   under § 727(a)(2) and (3).      The § 727(a)(2) claim alleged that
13   debtor had transferred or concealed property such as motor
14   vehicles, gold, securities, cash, jewelry and other valuable
15   personal property with the intent to defraud his creditors.       The
16   § 727(a)(3) claim alleged that debtor had failed to keep or
17   preserve recorded information from which his financial condition
18   or business transactions might be ascertained.
19            Debtor answered the complaint by denying all allegations
20   and asserting twelve affirmative defenses.
21            The bankruptcy court held a two-day trial on the matter.4
22
          4
23          On January 27, 2009, Michael Donohue filed a chapter 7
     petition (Bankruptcy Case No. 09-21354). On May 4, 2009, the
24   Bronsons filed an adversary proceeding against him (Adv. No. 09-
     02265), alleging claims for relief under § 523(a)(2) and (6).
25   Although the Bronsons filed separate complaints against debtor
26   and his father, the bankruptcy court consolidated the adversary
     proceedings for trial. On August 3, 2010, the bankruptcy court
27   entered judgment for Michael Donohue and against the Bronsons.
     We take judicial notice of the relevant pleadings docketed and
28                                                      (continued...)

                                       -5-
 1   On July 15, 2010, Mrs. Bronson and debtor testified.        At the
 2   completion of the Bronsons’ case in chief, debtor’s attorney
 3   moved under Civil Rule 52(c)5 for judgment on partial findings
 4   based on her assertion that the Bronsons had failed to meet
 5   their burden of proof on their § 727(a)(2) and (3) claims.        The
 6   bankruptcy court granted the motion on the § 727(a)(2) claim,
 7   but found sufficient evidence to proceed on the § 727(a)(3)
 8   claim.       On July 21, 2010, the court heard further testimony from
 9   Mrs. Bronson, debtor and other witnesses.
10            On August 2, 2010, the bankruptcy court placed its findings
11   of fact and conclusions of law and order for judgment on the
12   record.      The court found that the Bronsons had not proven their
13   claims under § 523(a)(2) or (6).         On the § 727(a)(3) claim, the
14   court found that based on the totality of exhibits in the record
15   and debtor’s testimony, it was persuaded that adequate records
16   were not kept or preserved, particularly with respect to River
17   City, which was debtor’s responsibility.        The court stated that
18   in more than twenty years on the bench, it had never come into
19   contact with such a weak collection of records.        Based on the
20   evidence presented, the court found debtor had no justification
21   for his failure to keep or preserve records under the
22   circumstances of the case.
23
24            4
           (...continued)
     imaged in Michael Donohue’s underlying bankruptcy case and the
25
     adversary proceeding which were not included in the record.
26   Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R.
     227, 233 n.9 (9th Cir. BAP 2003).
27
          5
            Civil Rule 52(c) is made applicable to bankruptcy cases by
28   Rule 7052.

                                        -6-
 1        On August 3, 2010, the bankruptcy court entered judgment
 2   for the Bronsons on their § 727(a)(3) claim.          Debtor filed a
 3   timely appeal.
 4                             II.    JURISDICTION
 5        The bankruptcy court had jurisdiction over this proceeding
 6   under 28 U.S.C. §§ 1334 and 157(b)(2)(J).          We have jurisdiction
 7   under 28 U.S.C. § 158.
 8                                   III.    ISSUE
 9        Whether the bankruptcy court erred in denying debtor his
10   discharge under § 727(a)(3).
11                       IV.   STANDARDS OF REVIEW
12        On appeal of a denial of discharge under § 727(a), we
13   review the bankruptcy court’s findings of fact for clear error
14   and conclusions of law de novo, and we apply de novo review to
15   “mixed questions” of law and fact that require consideration of
16   legal concepts and the exercise of judgment about the values
17   that animate the legal principles.           Oney v. Weinberg (In re
18   Weinberg), 410 B.R. 19, 28 (9th Cir. BAP 2009).
19        A bankruptcy court’s factual finding is clearly erroneous
20   if it is illogical, implausible, or without support in the
21   record.   Retz v. Samson ((n re Retz), 606 F.3d 1189, 1196 (9th
22   Cir. 2010) (citing United States v. Hinkson, 585 F.3d 1247,
23   1261-62 & n.21 (9th Cir. 2009) (en banc)).
24        We may affirm on any ground supported by the record.
25   Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
26                              V.     DISCUSSION
27        Section § 727(a)(3) states that a bankruptcy court shall
28   grant the debtor a discharge, unless —

                                            -7-
 1             [T]he debtor has concealed, destroyed, mutilated,
               falsified, or failed to keep or preserve any recorded
 2             information, including books, documents, records, and
               papers, from which the debtor’s financial condition or
 3             business transactions might be ascertained, unless
               such act or failure to act was justified under all of
 4             the circumstances of the case.
 5   Section 727(a)(3) is a broadly worded statute prohibiting
 6   numerous acts in relation to “any recorded information.”         The
 7   only qualification is that the recorded information concealed,
 8   falsified, or not kept or preserved by a debtor, must be such
 9   from which one “might” be able to ascertain the debtor’s
10   financial condition or business transactions.
11             The statute’s purpose is to protect creditors by requiring
12   debtors to make accurate disclosures regarding their financial
13   affairs.      Caneva v. Sun Cmtys. Operating Ltd. P’ship (In re
14   Caneva), 550 F.3d 755, 761 (9th Cir. 2008).       As a policy matter,
15   and consistent with the statutory construction of other
16   exceptions to discharge, § 727(a)(3) is strictly construed
17   against the moving party and liberally in favor of the debtor.
18   Id.
19             As the parties objecting to debtor’s discharge under
20   § 727(a)(3), the Bronsons had the initial burden of proving, by
21   a preponderance of the evidence,6 “‘(1) that the debtor failed
22
23
           6
            See Grogan v. Garner, 498 U.S. 279, 287 (1991)
24   (preponderance of the evidence applies to discharge exceptions).
     “The burden of showing something by a ‘preponderance of the
25   evidence,’ . . . ‘simply requires the trier of fact to believe
26   that the existence of a fact is more probable than its
     nonexistence before [he] may find in favor of the party who has
27   the burden to persuade the [judge] of the fact’s existence.’”
     Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
28   Trust for So. Cal., 508 U.S. 602, 622 (1993).

                                        -8-
 1   to maintain and preserve adequate records, and (2) that such
 2   failure makes it impossible to ascertain the debtor’s financial
 3   condition and material business transactions.’”      Id.   Once the
 4   Bronsons met their initial burden on these elements, “‘the
 5   burden of proof then shifts to the debtor to justify the
 6   inadequacy or nonexistence of the records.’”      Id.
 7            Debtor argues on appeal that the evidence submitted during
 8   the trial does not support the bankruptcy court’s decision to
 9   deny him a discharge under § 727(a)(3).      In that regard, debtor
10   has taken a two-pronged approach:       First, debtor contends that
11   the bankruptcy court erred in denying his motion under Civil
12   Rule 52(c) at the close of the Bronsons’ case in chief on
13   July 15, 2010.7     Second, debtor contends that the court erred in
14   denying his discharge after hearing all the evidence.      We
15   address each argument below.
16   A.       Debtor’s Civil Rule 52(c) Motion
17            According to debtor, the Bronsons failed to present a prima
18   facie case for denial of his discharge under § 727(a)(3) by the
19   close of their case in chief on July 15, 2010.
20            Civil Rule 52(c) provides:
21            If a party has been fully heard on an issue during a
22
          7
23          Debtor refers to the motion as one for a directed verdict.
     Motions for directed verdicts are now called motions for judgment
24   as a matter of law and are governed by Civil Rule 50. This rule
     applies in bankruptcy cases only if the matter is tried before a
25   jury. See Rule 9015(c). Because the trial was a bench trial,
26   debtor’s motion for a directed verdict was a motion for a
     judgment on partial findings under Civil Rule 52(c). The
27   bankruptcy court apparently treated the motion as one for
     judgment under Civil Rule 52(c), and we shall do the same for
28   purposes of appeal.

                                       -9-
 1        nonjury trial and the court finds against the party on
          that issue, the court may enter judgment against that
 2        party on a claim or defense that, under the
          controlling law, can be maintained or defeated only
 3        with a favorable finding on that issue. The court
          may, however, decline to render any judgment until the
 4        close of the evidence . . . .
 5   Given the rule’s use of the permissive “may,” the bankruptcy
 6   court had full discretion to defer entering judgment until it
 7   had heard all the evidence.    We cannot conclude in this case
 8   that the bankruptcy court abused its discretion, especially in
 9   light of our affirmance of the court’s factual findings.
10        Moreover, it is undisputed that after the denial of
11   debtor’s motion, he proceeded to offer evidence on his own
12   behalf at the July 21, 2010 hearing.   Where a party introduces
13   evidence on his own behalf after he has moved for relief under
14   Rule 52(c), he waives his right to relief under Rule 52(c).      See
15   Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007).
16   Therefore, we test the sufficiency of the evidence on appeal by
17   reviewing the entire record.   Id.; Gaffney v. Riverboat Servs.,
18   451 F.3d 424, 451 n.29 (7th Cir. 2006).
19   B.   The Bronsons’ Proof Of Missing Information
20        Debtor contends the bankruptcy court clearly erred by
21   finding that he failed to keep and preserve records from which
22   his financial condition or business transactions might be
23   ascertained.
24        Under Civil Rule 52(a)(6), “[f]indings of fact, whether
25   based on oral or other evidence, must not be set aside unless
26   clearly erroneous, and the reviewing court must give due regard
27   to the trial court’s opportunity to judge the witnesses’
28   credibility.”   Where there are two plausible views of the

                                     -10-
 1   evidence, “the factfinder’s choice between them cannot be
 2   clearly erroneous.”   Anderson v. City of Bessemer City, N.C.,
 3   470 U.S. 564, 574 (1985).   Moreover, findings based on
 4   determinations regarding the credibility of witnesses “demand[]
 5   even greater deference to the trial court’s findings; for only
 6   the trial judge can be aware of the variations in demeanor and
 7   tone of voice that bear so heavily on the listener’s
 8   understanding of and belief in what is said.”   Id. at 575.
 9        After reviewing the testimony and exhibits in the record
10   provided to us, we find no reversible error in the bankruptcy
11   court’s fact determination.   The bankruptcy court made a
12   credibility determination regarding debtor’s testimony about his
13   records (or lack thereof) and was otherwise unconvinced by
14   debtor’s testimony that he had kept records — especially as they
15   pertained to River City’s business.
16        The evidence in the record shows that debtor treated River
17   City’s business and assets as his own; that debtor engaged in
18   automotive-related businesses and commingled funds from those
19   businesses with the funds of River City; and that debtor was
20   unable to account for the more than $400,000 he received from
21   the Bronsons.   Most significantly, the record reveals that
22   debtor was missing substantial categories of documents:     (1) any
23   organized documents which related to receipts or other
24   information regarding car sales; (2) cancelled checks or other
25   records which supported River City’s income and payment of
26   expenses; and (3) records relating to debtor’s personal affairs,
27   household expenditures or budgets.
28        We need not recite all the evidence (or lack thereof) which

                                    -11-
 1   supports the bankruptcy court’s finding, but highlight the
 2   missing information with the following excerpts of debtor’s
 3   unsubstantiated testimony:
 4            • Debtor explained through his testimony that he listed and
 5   brokered a couple dozen cars and that he sometimes made a
 6   commission.     Debtor could not estimate how much he received in
 7   any given year from his “hobby.”     Hr’g Tr. at 33-35 (July 21,
 8   2010).
 9            • When Mr. Bronson questioned debtor about his interests in
10   a BMW, debtor testified that at one point a customer of River
11   City wanted work done, but did not have the money to pay for it.
12   The customer had a BMW for sale which debtor agreed to take in
13   exchange for the work.     Debtor testified that he never owned the
14   vehicle, but he sold the vehicle to pay his material costs and
15   the men that worked on the job, so he didn’t get the car.     Hr’g
16   Tr. at 26-27 (July 21, 2010).     When asked if he received $9,500
17   for the BMW, debtor answered:     “I believe so, yeah.”   Id. at 28.
18   When asked how much he netted from the sale, debtor answered:
19   “A few thousand dollars probably.”       Id. at 33.
20            • Debtor testified that although he believed the Bronsons
21   owed River City money, he could not point to an invoice showing
22   an unpaid amount.     Debtor testified that he did not have all the
23   bid proposals or parts of them.8     Debtor further testified that
24   it was “kind of hard to tell exactly where we’re at and actually
25   really what was paid, because I don’t have check numbers on all
26
          8
27          Debtor contended that some of these documents were “lost”
     on his computer, but he never substantiated which records he
28   thought were lost or gave any detail as to how they were lost.

                                       -12-
 1   of these.   So I never could really determine what was paid and
 2   what was not paid.”   Hr’g Tr. at 192-93 (July 15, 2010).
 3   Finally, debtor testified that there had never been an
 4   accounting of the various invoices during the project and
 5   conceded that there may have been bid proposals that were not
 6   reflected in the documents that he maintained.    Id. at 193.
 7         • Debtor was unable to explain how the Bronsons’ advance
 8   payments for the construction of their gate were spent.     In this
 9   regard, the bankruptcy court made a factual finding that debtor
10   had never ordered the gate that the Bronsons had paid for in
11   advance.    Hr’g Tr. at 8 (August 2, 2010).   During the trial,
12   Mr. Bronson asked debtor what he did with the $9,000 they paid
13   him for their gate.   Debtor testified that he purchased part of
14   the materials, and part of the money sat in the account.    Debtor
15   further testified that the money was no longer in the account,
16   simply stating that it got used over the years and that, as the
17   times got tough, the money got spent.    Hr’g Tr. at 57 (July 21,
18   2010).   “I mean I don’t know exactly when your money got spent.”
19   Id.
20         • Mr. Bronson questioned debtor about his personal
21   financial status and living expenses; specifically, how did
22   debtor pay $4100 in monthly rent payments when his Statement of
23   Financial Affairs showed that his income for the year preceeding
24   the bankruptcy filing was $25,000.     Debtor testified that the
25   “source” of payment was “the stuff dealing with autos or River
26   City construction money that comes in . . . .    It’s all run
27   through my bank account.”   Hr’g Tr. at 162-63 (July 15, 2010).
28         On appeal, debtor is adamant that he had client files, bank

                                     -13-
 1   statements, invoices, and “everything else” for River City’s
 2   business.     However, besides the bid proposals, there are no bank
 3   statements or invoices in the record on appeal, and it does not
 4   appear that they were presented to the trial court.     Debtor also
 5   maintains that he gave tax returns and bank statements to the
 6   trustee.     The fact that debtor may have been forthcoming in
 7   producing those records to the trustee is insufficient.9        “The
 8   terms of [§] 727(a)(3) do not condition a debtor’s discharge on
 9   the presentation of the documents that he did keep and
10   preserve.”     In re Caneva, 550 F.3d at 764.   In any event,
11   debtor’s tax returns and bank statements are but summaries of
12   information and incomplete unless debtor provided source
13   materials.     We found no source materials in the record on
14   appeal.
15            Given the lack of documentation in the record, it is
16   apparent in this case that the bankruptcy court’s decision
17   rested almost entirely on debtor’s testimony and credibility
18   determinations.     Debtor’s testimony shows that he could not
19   confirm his commissions from car sales or how much he made from
20   the sale of the BMW.     Debtor admitted that he was missing bid
21   proposals for the Bronsons’ projects.     Debtor admitted that he
22   did not have check numbers for the Bronsons’ payments so he
23   could not determine what was paid or not paid.     Finally, nothing
24   in debtor’s testimony established that his income from River
25   City and his automotive related businesses was sufficient to pay
26
          9
27          The bankruptcy court also took the view that it drew no
     inference from the fact that the trustee had not objected to
28   debtor’s discharge.

                                       -14-
 1   his personal expenses.   We thus conclude that debtor’s testimony
 2   provided a plausible basis for the bankruptcy court to find that
 3   debtor failed to keep or preserve records from which his
 4   financial condition and business transactions could be
 5   ascertained.
 6        It is not enough that Debtor merely recite from
          records ostensibly ‘kept in his head’ and detail from
 7        memory what transactions he engaged in and how the
          funds were dissipated. Records of substantial
 8        completeness and accuracy are necessary in order that
          they may be checked against Debtor’s oral statements.
 9        Creditors, in other words, are not required to rely on
          a debtor’s oral representations concerning these
10        matters without also having some independent means of
          substantiating such representations.
11
12   In re Juzwiak, 89 F.3d 424, 429-30 (7th Cir. 1996).
13        In short, we found no documentary proof in the record for
14   the majority of the transactions debtor describes in his
15   testimony.   Without being able to trace the financial history of
16   debtor’s various businesses, it is impossible to fully
17   understand debtor’s finances in this case.   Accordingly, the
18   bankruptcy court correctly found that the Bronsons met their
19   burden of proof on their prima facie case.
20   C.   Debtor’s Proof of Justification
21        The bankruptcy court found that debtor’s failure to keep
22   and preserve records was not justified considering all the
23   circumstances in the case.   “‘Justification for [a] bankrupt’s
24   failure to keep or preserve books or records will depend
25   on . . . whether others in like circumstances would ordinarily
26   keep them.’”   In re Caneva, 550 F.3d at 763.   This is an
27   objective inquiry.
28        In considering the nature of River City’s business, the

                                    -15-
 1   court concluded a contracting business would require
 2   documentation such as contracts.   The court explained that it
 3   had not seen a single contract for construction for any of the
 4   Bronsons’ projects.   The court viewed debtor as running River
 5   City’s business as though he were a handyman.    In other words,
 6   an informal “I do the work and you pay for it” approach.
 7        Debtor’s brief on appeal misconstrues the court’s comments
 8   regarding River City’s use of bid proposals rather than a formal
 9   document called a “contract” for its business.    The point was
10   that River City did not have the most basic records, used by
11   other construction businesses in like circumstances, that would
12   have documented its business transactions with the Bronsons or
13   other customers.    Debtor’s reliance on the bid proposals is
14   misplaced when the proposals were missing crucial information,
15   not the least of which were the signatures of the parties.
16        Debtor attempts to justify the lack of records for River
17   City on the grounds that he was in the process of taking over
18   his father’s business, he had no formal training or education,
19   he relied on the services of his CPA to manage the tax returns
20   and his wife performed data entry.     According to debtor, he did
21   all that was necessary for a person reasonably to assume that
22   his records were adequate and accurate.
23        It does not appear that debtor made these arguments in the
24   bankruptcy court.   Debtor’s opening brief did not cite to any
25   portion of the record where his training or education was
26   discussed.   In general, we do not consider an issue raised for
27   the first time on appeal.   Cold Mountain v. Garber, 375 F.3d
28   884, 891 (9th Cir. 2004).   Even so, the bankruptcy court found

                                     -16-
 1   that as between debtor’s father and debtor, it was debtor’s
 2   responsibility to keep the books and records of River City based
 3   upon the circumstances surrounding their “transaction” for the
 4   transition of the business from father to son.   On appeal,
 5   debtor does not contend this finding is clearly erroneous.
 6   Indeed, the record shows that debtor was essentially treating
 7   the business as his own even though a formal transfer from
 8   father to son had not taken place.
 9        The bankruptcy court further stated, after listening
10   carefully to the testimony of debtor’s wife, Sabrina Donohue,
11   that she was filing whatever debtor gave her to file and
12   recording whatever debtor gave her to record.    This finding,
13   based on credibility determinations, is also one we do not
14   disturb on appeal.   Accordingly, even if debtor had preserved
15   his arguments for purposes of this appeal, we conclude that the
16   record supports the bankruptcy court’s finding that debtor
17   failed to prove that the lack of records was justified under the
18   circumstances of the case.
19                            VI.   CONCLUSION
20        For the reasons stated, we AFFIRM.
21
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