               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-2640

                   IN RE: JOHN J. DIAMOND, III,

                                  Debtor

              --------------------------------------

                       PREMIER CAPITAL, INC.,

                        Plaintiff, Appellant,

                                     v.

                        JOHN J. DIAMOND, III,

                         Defendant, Appellee.
                        _____________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

          Hon. Steven J. McAuliffe, U.S. District Judge
                     ______________________

                              Before
                    Torruella, Circuit Judge,
                  Rosenn, Senior Circuit Judge,*
                      Howard, Circuit Judge.
                      ______________________

         Randall L. Pratt was on brief for appellant.
         James F. Molleur was on brief for appellee.


                              July 13, 2004



    *
       Of the United States Court of Appeals for the Third
Circuit, sitting by designation.
            ROSENN, Senior Circuit Judge.     A bankruptcy proceeding is

almost always disappointing to creditors.       This is especially true

for creditors who have had no commercial transactions over the

years with a debtor and have derived no profits from him over time.

The bankruptcy is especially frustrating to a large unsecured

creditor whose credit arises out of a loan to the debtor who, as in

this case, has a substantial annual income with the apparent

capacity to pay the debt over a reasonable period of time.

            The task of this court, however, is not to philosophize

over the purpose or policy of bankruptcy proceedings, but to review

the decision of the bankruptcy judge in this case to ascertain

whether his findings of fact were clearly erroneous or whether he

committed legal errors.       Premier Capital, Inc. (Premier), the

principal   creditor   of   John   J.    Diamond,   the   debtor,   opposed

Diamond’s discharge in bankruptcy for unlawful transfer, unlawful

concealment, and false oath in violation of the Bankruptcy Code.

After a hearing and the taking of testimony, the Bankruptcy Court

found no violation by Diamond.          Premier appealed to the United

States District Court for the District of New Hampshire.                 It

affirmed the Bankruptcy Court’s decisions.           Premier appealed to

this court.    We also affirm.

                                   I.

            The following facts are undisputed. Diamond defaulted on

the two promissory notes that he executed in favor of Premier in


                                   -2-
1986 and 1987.    In May 1999, Premier brought an action in a New

Hampshire state court and obtained a judgment in the amount of

$131,215.12 plus statutory interest and costs.    Subsequently, the

parties unsuccessfully attempted to negotiate a settlement of the

judgment.

            In the course of the negotiation, Diamond resubmitted an

unsigned affidavit to Premier on June 1, 2000, which was first

submitted in January 1999.     The affidavit purported to list his

assets and liabilities, but did not include his ownership interest

in two corporations, Dafil, Inc., and Real Estate Settlement

Services, Inc.    Diamond resubmitted the affidavit to Premier.   On

July 10, 2000, Premier obtained a trustee attachment. Between July

18 and 26, 2000, Diamond liquidated assets that he held in an

investment account with Solomon Smith Barney and a life insurance

policy that he owned with the Prudential Insurance Company of

America.    Diamond deposited the proceeds in the trust account of

his then counsel, Terrie Harman.       In a letter, dated July 21,

2000, addressed to counsel for Premier, attorney Harman informed

him that the Internal Revenue Service (IRS) was the holder of a

priority claim in the approximate amount of $75,000.     She stated

that she had advised Diamond to file a Chapter 7 bankruptcy

petition, and that the bankruptcy would yield nothing to Premier.

Attorney Harman attached draft Schedules A through F to her letter

in connection with Diamond’s proposed bankruptcy filing, and tax


                                 -3-
returns for the years of 1997 and 1998.            The attached schedules

disclosed Diamond’s ownership interest in the two corporations and

a completed and another pending transfer of funds to attorney

Harman’s trust account.       Draft Schedule E also disclosed unsecured

tax liabilities, but having priority, in the amount of $75,000.

           On October 6, 2000, Diamond filed a petition under

Chapter 13 of the Bankruptcy Code.          This was converted on October

24, 2000, to a Chapter 7 petition.          Diamond, a real estate broker,

was   acting   on   several   real    estate   deals   when   he   filed   for

bankruptcy.     His petition failed to list these transactions as

executory contracts or as contingent commissions.

           In March 2001, Premier filed a six-count complaint in the

Bankruptcy Court, seeking denial of Diamond’s discharge pursuant to

§§ 727(a)(2) and 727(a)(4) of the Bankruptcy Code.            The Bankruptcy

Court, Vaughn, C.J., conducted a two-day trial in August 2002.             In

March 2003, the court issued a memorandum opinion dismissing all

counts of Premier’s complaint.         Premier appealed the dismissal of

three of its counts to the District Court. These counts challenged

Diamond’s transfer of funds to attorney Harman’s trust account, his

failure to disclose ownership interest in the two corporations, and

his failure to disclose real estate brokerage commissions due him

on his bankruptcy schedules.         The counts also attacked his alleged

false testimony in a creditors’ meeting.               The District Court,

McAuliffe, J., by a memorandum opinion, affirmed the Bankruptcy


                                      -4-
Court’s dismissal of the three counts.          This appeal followed.

                                   II.

          The District Court had appellate jurisdiction under 28

U.S.C. §§ 158(a)(1) and 158(c)(1).         We have appellate jurisdiction

to review the District Court’s decision under 28 U.S.C. § 158(d).

          “Notwithstanding the fact that we are the second-in-time

reviewers, we cede no special deference to the district court’s

determinations.     Rather,    our    review     directly      addresses   the

bankruptcy court’s decision.       We scrutinize that court’s findings

of fact for clear error and its conclusions of law de novo.”

Gannett v. Carp (In re Carp), 340 F.3d 15, 21 (1st Cir. 2003)

(citations omitted).

          The application of the Bankruptcy Code to a
          particular case poses a mixed question of law
          and fact, which this court reviews for clear
          error unless the bankruptcy court’s analysis
          was based on a mistaken view of the legal
          principles involved.   Under the clear error
          standard, the trier’s findings of fact and the
          conclusions drawn therefrom ought not to be
          set aside unless, on the whole of the record,
          we form a strong, unyielding belief that a
          mistake has been made. It follows that if the
          bankruptcy court’s findings are supportable on
          any reasonable view of the record, we are
          bound to uphold them.

Id. at 22 (internal citations and quotation marks omitted).

                                   III.

          Section   727(a)    of   the     Bankruptcy   Code    enumerates   a

debtor’s conduct that can preclude a Chapter 7 debtor’s discharge



                                     -5-
in bankruptcy.   Premier invoked §§ 727(a)(2)(A) and (a)(4)(A) as a

bar to Diamond’s discharge.    Section 727(a) provides in relevant

part:

          The court shall grant the debtor a
          discharge, unless . . .
          (2) the debtor, with intent to hinder, delay,
          or defraud a creditor or an officer of the
          estate charged with custody of property under
          this   title,   has   transferred,    removed,
          destroyed, mutilated, or concealed, or has
          permitted   to   be   transferred,    removed,
          destroyed, mutilated, or concealed . . . (A)
          property of the debtor, within one year before
          the date of the filing of the petition. . . .
          [or]
          (4) the debtor knowingly and fraudulently, in
          or in connection with the case . . . (A) made
          a false oath or account.

11 U.S.C. § 727(a)(2)(A) and (a)(4)(A).

          To deny a discharge to a debtor under § 727(a)(2), an

objector must show by a preponderance of the evidence that (1) the

debtor transferred, removed, or concealed (2) his or her property

(3) within one year of the petition filing date (for prepetition

transfers) (4) with intent to hinder, delay or defraud a creditor.

Groman v. Watman (In re Watman), 301 F.3d 3, 7 (1st Cir. 2003).

Under § 727(a)(4)(A), a debtor can be denied a discharge only if he

(1) knowingly and fraudulently made a false oath, (2) relating to

a material fact in connection with the case.    Boroff v. Tully (In

re Tully), 818 F.2d 106, 110 (1st Cir. 1987).

          Exceptions to discharge are narrowly construed
          in furtherance of the Bankruptcy Code’s fresh
          start policy, and, for that reason, the


                                -6-
               claimant must show that his claim comes
               squarely within an exception enumerated in
               Bankruptcy Code § 523(a).       The statutory
               requirements for a discharge are construed
               liberally in favor of the debtor and the
               reasons for denying a discharge to a bankrupt
               must be real and substantial, not merely
               technical and conjectural. On the other hand,
               we have noted that the very purpose of . . . §
               727(a)(2) . . . is to make certain that those
               who seek the shelter of the bankruptcy code do
               not play fast and loose with their assets or
               with the reality of their affairs.

Palmacci v. Umpierrez (In re Umpierrez), 121 F.3d 781, 786 (1st

Cir.   1997)       (internal   citations,      quotation     marks    and    brackets

omitted).

                                         IV.

               Premier alleged in count three of its complaint that

during       the   period   July   18,   2000    to   July   26,     2000,    Diamond

transferred the sale proceeds from the liquidation of his Solomon

Smith Barney account and Prudential life insurance policy to the

trust account of his attorney, Terrie Harman, with the intent to

hinder, delay or defraud Premier.              Diamond did not dispute that he

transferred the funds, and that the transfers occurred after

Premier had obtained a trustee process on other accounts held by

him.     The funds transferred were not subject to Premier’s trustee

process.

               The Bankruptcy Court concluded that count three must fail

for    two    reasons.      First,   Attorney      Harman    “identified”       those

transfers to Premier, “some of which had not yet occurred,” in the


                                         -7-
draft bankruptcy schedules attached to her letter of July 21, 2000.

Second, Diamond “maintained control of these funds,” even though

they had been transferred to his attorney’s trust account.                     The

Bankruptcy Court reasoned further:

            Although bankruptcy had not yet been filed,
            [Premier], with knowledge of these transfers,
            took no action to place a lien on the funds.
            The mere fact that these transfers were
            immediately disclosed to [Premier] negates any
            evidence of intent to hinder, delay or defraud
            [Premier].

            Section 727 requires a showing of actual intent, nothing

less.    In re Watman, 301 F.3d at 8.            “The determination of actual

intent is a finding of fact.            Often, the intent issue will turn on

the     credibility     and    demeanor     of   the    debtor,    and    in   such

circumstances,     we    typically       defer   to    the   bankruptcy     court’s

conclusions.”     Id. (citations omitted).

            On   appeal,      Premier    does    not   dispute    the    Bankruptcy

Court’s findings of fact underlying its conclusion that there was

no evidence to show that Diamond had the actual intent to “hinder,

delay or defraud.”            Instead, Premier cites a number of cases,

especially In re Watman, 301 F.3d at 8 (listing a seven-factor test

for showing fraudulent intent), to support its argument that

Diamond had the actual intent to defraud it.

            We   are    not     convinced      that    the   Bankruptcy     Court’s

dismissal of Premier’s count three is clearly erroneous. It is not

disputed that attorney Harman disclosed a completed transfer and


                                         -8-
another pending transfer of funds to her trust account in draft

Schedule B (personal property) attached to her letter of July 21,

2000.     Attorney Harman clearly informed Premier that IRS was the

holder of a priority claim in the amount of $75,000, and that all

assets of Diamond’s bankruptcy estate would be used to satisfy the

IRS priority claim.     Premier does not dispute the IRS claim.        The

record shows that IRS recorded a tax lien in the amount of

$12,544.20 against Diamond on July 21, 2000.          There is nothing

covert, therefore, about Diamond’s transfer of funds to attorney

Harman.     Additionally, the transferred funds were not legally

beyond Premier’s reach.       Premier could have placed a lien on the

funds, but took no action.

            Because the Bankruptcy Court’s findings of facts and its

conclusion are supportable on a reasonable view of the record, we

are bound to uphold them.      In re Carp, 340 F.3d at 22.

                                    V.

            Premier alleged in count one that Diamond should be

denied a discharge because, with the intent to hinder, delay, or

defraud,     he   concealed   his   ownership   interest   in    the   two

corporations, Diafil, Inc., and Real Estate Settlement, Inc., in

his unsigned affidavit resubmitted in June 2000.                It is not

disputed that Diamond failed to list the two corporations in that

affidavit.

            Diamond testified that he was in a state of stress as a


                                    -9-
result of his son’s substance abuse problem and the dissolution of

his marriage, which ended in divorce in September 2000.               As to the

affidavit, he testified that, since it was being prepared for the

purpose of settlement negotiations, he included only assets that

could readily be turned into cash.             He did not believe that his

ownership interest in the two closely-held corporations had any

readily ascertainable value to a third party. The Bankruptcy Court

found   his     testimony   credible     and    his    explanation    logical.

Furthermore, as found by the Bankruptcy Court, attorney Harman

disclosed Diamond’s ownership interest in the two corporations in

draft Schedules B and F attached to her letter of July 21, 2000.

Diamond also disclosed the same information in his bankruptcy

filings.

           On    appeal,    Premier   does     not   dispute   the   Bankruptcy

Court’s findings of fact underlying its conclusion that there is no

evidence to show that Diamond had the actual intent to defraud

Premier.   Instead, Premier argues only that it was not for Diamond

to decide which assets had value and need be disclosed.                    This

argument, however, is not sufficient to show that the court’s

conclusion is clearly erroneous.               Although Diamond failed to

disclose his ownership interest in an earlier unsigned affidavit,

he nonetheless disclosed the information in the draft bankruptcy

schedules sent to Premier more than three months before he filed

for bankruptcy.      He also disclosed the same information in the


                                      -10-
bankruptcy filings.

           Because the Bankruptcy Court’s findings of facts and its

conclusion are supportable on a reasonable view of the record, we

are bound to uphold them.   In re Carp, 340 F.3d at 22.

                                VI.

           Premier asserted in count five of the complaint that

pursuant to § 727(a)(4) of the Bankruptcy Code, Diamond should be

denied a discharge because he gave a false oath by failing to list

the real estate commissions due him in his bankruptcy filings, and

gave false testimony in a creditors’ meeting.

           Diamond testified at trial that he did not know what an

executory contract was, and that he did not believe that the

commissions were his until the real estate transaction actually

closed.    Although it seems incredible that a real estate broker

would not know what was an executory contract, the Bankruptcy Court

found his testimony credible for a “lay person” and his explanation

valid.    The court noted the “debate” in case law regarding when a

real estate broker was deemed to have earned his commissions.   See

Parsons v. Union Planters Bank (In re Parsons), 262 B.R. 475, 478-

79 (B.A.P. 8th Cir. 2001) (noting that under Missouri law, the

general rule, as it is in many states, is that a real estate

commission is earned when the broker or agent produces a buyer

“ready, willing and able to buy” on the terms specified by the

seller, whether or not the sale is completed, but where the sale’s


                                -11-
contract is conditional, such as upon the closing of the sale, the

contract does not become an enforceable obligation and the broker

does not earn a commission until the conditions are met); Tully v.

Taxel (In re Tully), 202 B.R. 481 (B.A.P. 9th Cir. 1996) (noting

the general rule that once a broker locates a buyer who is ready,

willing, and able to buy the property on terms acceptable to the

seller, the broker has earned the commission, even though the

commission is not paid until a post-petition closing, but where a

debtor derives   post-petition   commissions    under   a   pre-petition

contract, and such commissions are dependent upon the continued

services of the debtor, they do not constitute property of the

estate).

           On appeal, Premier argues that Diamond had an affirmative

duty to disclose in his bankruptcy filings any ownership interest,

including all equitable interest.   Premier also disagrees with the

Bankruptcy Court’s crediting of Diamond’s testimony that he did not

know what was an executory contract.       Premier notes that Diamond

did not leave petition Schedule G (Executory Contract) blank, but,

instead, chose to answer “none.”        Premier asserts that Diamond’s

explanation was insufficient to rebut the inference of fraud.

            We note that Premier has not alleged or briefed that at

the time Diamond filed for bankruptcy he had either secured a

“ready, willing and able” buyer or closed a real estate transaction

to have earned the undisclosed commissions.       The question here is


                                 -12-
not whether the commissions should be deemed to be property of

Diamond’s bankruptcy estate.             Premier’s brief indicates that the

trustee eventually recovered more than $30,000 from Diamond’s

unreported executory contracts and commissions.                  The issue here is

whether the Bankruptcy Court committed a clear error in concluding,

based on its view of the evidence, that Diamond did not knowingly

and fraudulently make a false oath or account in his bankruptcy

filings.

             “[T]he existence of false or inaccurate statements is

not,   in   and    of   itself,    sufficient      cause    to   deny     a   debtor’s

discharge    unless     it    is   shown    that    these   were       knowingly     and

fraudulently      made.”       Santana     Olmo v.    Quinones     Rivera      (In   re

Quinones Rivera), 184 B.R. 178, 185 (D.P.R. 1995) (citing Commerce

Bank & Trust Co. v. Burgess (In re Burgess), 955 F.2d 134, 136 (1st

Cir. 1992), abrogated on other grounds, Field v. Mans, 516 U.S. 59

(1995); In re Tully, 818 F.2d at 110).              A determination concerning

the    presence    of    fraudulent       intent    largely      depends      upon   an

assessment    of    the      credibility     and    demeanor      of    the    debtor.

Therefore,    deference       here   to    the     bankruptcy     court’s     factual

findings is particularly appropriate.               In re Burgess, 955 F.2d at

137.

            Because the Bankruptcy Court’s findings of facts and its

conclusions of law are supportable on a reasonable view of the

record, we are bound to uphold them.               In re Carp, 340 F.3d at 22.


                                         -13-
                               VII.

            For the reasons set forth above, the District Court’s

decision affirming the Bankruptcy Court’s dismissal of Premier’s

counts one, three and five is affirmed.   Each party is to bear its

own cost.




                               -14-
