                                                          FILED
 1                         NOT FOR PUBLICATION              FEB 09 2012

 2                                                     SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
                                                         O F TH E N IN TH C IR C U IT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5
     In re:                        )      BAP No.      WW-11-1089-PaJuWa
 6                                 )
     ERIC W. KAMIEN and TERRY A.   )      Bk. No.      09-19034-SJS
 7   KAMIEN,                       )
                                   )      Adv. No.     09-01575-SJS
 8                  Debtors.       )
                                   )
 9                                 )
     CAROL ANN PORTER,             )
10                                 )
                    Appellant,     )
11   v.                            )      M E M O R A N D U M1
                                   )
12   ERIC W. KAMIEN; TERRY A.      )
     KAMIEN,                       )
13                  Appellees.     )
     ______________________________)
14
              Submitted without oral argument on February 9, 20122
15
                            Filed - February 9, 2012
16
                Appeal from the United States Bankruptcy Court
17                  for the Western District of Washington
18       Honorable Samuel J. Steiner, Bankruptcy Judge, Presiding
                        ___________________________
19
     Appearances:     Carol Ann Porter, appellant pro se, on brief
20                    Richard J. Wotipka of Broadway Law Group on brief
                      for appellees Eric W. Kamien and Terry A. Kamien
21                       ____________________________
22
          1
23           This disposition is not appropriate for publication.
     Although it may be cited for whatever persuasive value it may
24   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8013-1.
25
          2
             Pursuant to Fed. R. Bankr. P. 8012, the Panel has
26
     unanimously determined that oral argument is not necessary in
27   this appeal, in that the facts and legal argument are adequately
     presented in the briefs and record and the decisional process
28   would not be significantly aided by oral argument.
 1   Before: PAPPAS, JURY and WALLACE,3 Bankruptcy Judges.
 2        Appellant Carol Ann Porter (“Porter”) appeals the
 3   bankruptcy court’s judgment dismissing her complaint to
 4   determine the dischargeability of a debt owed to her by chapter
 5   74 debtors Eric and Terry Kamien (the “Kamiens”) under
 6   § 523(a)(4).   We AFFIRM.
 7                                FACTS5
 8        Porter and the Kamiens became acquainted in 1998 when
 9   Porter and Eric Kamien both worked for Eagle Hardware Stores.
10   Lowe’s Companies, Inc., purchased Eagle Hardware and the
11   employment of Porter and Eric was terminated.   Porter then began
12   her own business, Kitchen Arts, LLC.   Although Porter argues in
13   her opening brief that she and Eric were partners in Kitchen
14   Arts, the bankruptcy court would later find that Eric was a
15   commissioned employee of Porter.    Hr’g Tr. 3:22-23, October 29,
16
17
18
          3
19           Hon. Mark. S. Wallace, Bankruptcy Judge for the Central
     District of California, sitting by designation.
20
          4
             Unless otherwise indicated, all chapter, section and
21   rule references are to the Bankruptcy Code, 11 U.S.C.
22   §§ 101-1532, and to the Federal Rules of Bankruptcy Procedure,
     Rules 1001-9037. The Federal Rules of Civil Procedure are
23   referred to as “Civil Rules.”
          5
24           As discussed below, Porter provided few documents in her
     excerpts, and no citations to the record in her statement of the
25   case and argument. We have exercised our discretion to review
26   the electronic docket from the underlying bankruptcy case, and
     the imaged documents attached thereto. See O’Rourke v. Seaboard
27   Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th
     Cir. 1989); Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),
28   293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

                                   -2-
 1   2010.6
 2        The parties agree that in March 2002, they discussed a
 3   potential real estate project to develop a parcel of property in
 4   Sammamish, Washington (the “Property”).   Porter and the Kamiens,
 5   however, strenuously disagree about the nature of their
 6   discussions.   Porter alleges that the Kamiens proposed formation
 7   of a partnership between the Kamiens and Porter, whereby they
 8   would purchase the Property, remodel the home, sell it, and
 9   split the net profit.   The Kamiens deny there was ever any
10   partnership, asserting that they purchased the Property in April
11   2002 for $279,000, and that title was placed in the Kamiens’
12   names as they were the purchasers of the Property.
13        There is also considerable disagreement about who provided
14   funds for the project and in what amounts.   Porter alleges that
15   she provided $350,000 for the project, but the Kamiens dispute
16   that amount.   Porter alleges that Eric Kamien signed a
17   promissory note in her favor for a loan for the initial funds to
18   use to remodel the Property on July 1, 2002.   The note is for
19   $70,000 and bears interest at 6 percent interest for one year.
20   The Kamiens deny that Eric signed that promissory note, have
21   alleged that the note was forged, and have forwarded the alleged
22   note to the F.B.I. for investigation.
23        The parties agree that the Kamiens moved into the remodeled
24
          6
             Despite this allegation of an earlier partnership, in
25   her Complaint, Porter does not refer to a partnership between
26   her and Eric at Kitchen Arts. Instead, the Complaint states,
     “In or around May 2000, Eric Kamien and Terry Kamien and
27   Plaintff became social friends during the time that Mr. Kamien
     was a salesperson, working with Ms. Porter at Kitchen Arts,
28   LLC[.]” Compl. at ¶ 5.1.

                                    -3-
 1   Property in October 2002.    Then, on June 1, 2004, the Kamiens
 2   took out a home equity loan against the Property in the amount
 3   of $90,000.    The deed of trust executed to secure the loan
 4   indicates that the Kamiens encumbered the Property in their own
 5   names.    There is no mention of a partnership.
 6        On April 21, 2005, Porter recorded a claim of lien against
 7   the Property (the “Lien”).    The Lien recites,
 8        [I]n accordance with a contract with Eric W. Kamien
          and Terry A. Kamien, [Porter] furnished purchase
 9        money, labor and materials consisting of building
          materials for the rebuilding on the [Property] owned
10        by Eric W. Kamien and Terry A. Kamien of a total value
          of Three Hundred Nineteen Thousand Five Hundred Twenty
11        Three hundred [sic] dollars, $319,523.00, of which
          there remains Two Hundred Eighty Seven Thousand [F]ive
12        Hundred Twenty Three hundred [sic] dollars,
          $287,523.00, plus accrued interest . . . and that the
13        lienor served his [sic] notice to owner on April 19,
          2005[.]
14
15   Compl., Exh. C. (emphasis added).      As can be seen, the Lien
16   makes no reference to a partnership, refers to the relationship
17   of Porter and the Kamiens as a “contract” and twice refers to
18   the Kamiens as the “owners” of the Property.
19        Porter sued the Kamiens in state court on March 26, 2008.
20   Porter v. Kamien, case no. 08-2-10187-8SEA (King County Superior
21   Court).    This action was stayed by the bankruptcy filing.    In
22   her state court action, Porter only alleged a breach of
23   contract, made no claims that the parties were engaged in a
24   partnership with fiduciary duties, and made no claim for fraud.
25   Porter filed a First Amended Complaint in the state action on
26   April 10, 2008.    Like the original complaint, it alleged a
27   breach of contract action, and made no reference to a
28   partnership or fiduciary duties.      On January 6, 2009, Porter

                                     -4-
 1   filed a Second Amended Complaint, for the first time alleging
 2   the existence of a partnership relationship among the Kamiens
 3   and Porter and that the Kamiens had breached “Partnership
 4   Fiduciary Duties.”
 5        The Kamiens filed the chapter 7 petition on September 2,
 6   2009.   On schedule A, they claimed fee simple ownership of the
 7   Property, which they valued at $535,000.00.    On schedule F, they
 8   listed a disputed claim by Porter for $350,000 arising out of
 9   the state court lawsuit.
10        On December 7, 2009, acting pro se, Porter commenced the
11   adversary proceeding giving rise to this appeal.    Although not
12   clearly pled, in the complaint Porter appeared to seek a
13   judgment declaring that the $350,000 debt allegedly owed to her
14   by the Kamiens was excepted from discharge; she also sought
15   denial of discharge.
16        The Kamiens filed a motion to dismiss the adversary
17   proceeding under Rule 7012, which incorporates Civil Rule
18   12(b)(6), on January 8, 2010.   They argued that Porter had
19   failed to allege any facts to support a claim to except the debt
20   from discharge under § 523, but rather the facts and law pled
21   showed that she held, at best, a dischargeable breach of
22   contract claim against the Kamiens.
23        Counsel appeared for Porter, and on February 19, 2010,
24   responded to the dismissal motion.    Porter clarified her
25   pleadings, arguing that she had adequately pled a
26   nondischargeability claim under § 523(a)(4) for fraud or
27   defalcation while acting in a fiduciary capacity.    Porter argued
28   that she and the Kamiens were partners in the project to develop

                                     -5-
 1   the Property, and that Washington law imposes on partners a
 2   fiduciary relationship.    Porter also argued that she had
 3   adequately pled sufficient facts to support a denial of
 4   discharge under § 727(a)(2),(3),(4)(A) and (D), because the
 5   Kamiens had knowingly and fraudulently concealed assets,
 6   partnership agreements, business ownerships and made false oaths
 7   and statements, orally and in writing, in connection with their
 8   bankruptcy case.
 9        The Kamiens responded on February 22, 2010, generally
10   asserting that Porter had never argued in her complaint for
11   denial of discharge under § 727, but had only objected to
12   discharge of her debt.    Additionally, the Kamiens noted that
13   they had already been granted a discharge and thus could not be
14   subjected to a denial of discharge under § 727(a).
15        The bankruptcy court held a hearing on the Kamien’s
16   dismissal motion on February 26, 2010.    An order entered on
17   March 4, 2010, indicates that the court had announced its
18   findings and conclusions on the record.    No transcript of the
19   motion hearing was provided in the excerpts of record, nor does
20   one appear in the bankruptcy court’s docket.    According to the
21   order of March 4, the court dismissed any § 727(a) claims for
22   denial of discharge, but denied the motion to dismiss as to any
23   claims for an exception from discharge under § 523(a)(4).
24   Porter did not appeal the order granting dismissal of the § 727
25   claims.
26        The Kamiens filed a counterclaim against Porter on March
27   12, 2010, in which they sought a declaratory judgment that the
28   Lien was invalid, and quieting title to the Property in the

                                     -6-
 1   Kamiens.    Porter responded that she would voluntarily release
 2   the Lien.    However, she asked the bankruptcy court to enter
 3   various orders encumbering the Property.    The Kamiens opposed
 4   Porter’s request.
 5        Kamiens filed a motion for summary judgment on the
 6   counterclaim.    A hearing was held on April 23, 2010.   There is
 7   no transcript in the record, but a short minute entry on the
 8   docket indicates that Porter had not yet released the Lien.     On
 9   April 29, 2010, the bankruptcy court entered an order granting
10   summary judgment in favor of the Kamiens, quieting title to the
11   Property in the Kamiens, and allowing one week for Porter to
12   release the Lien or the bankruptcy court would void the Lien.
13   Porter did not appeal the order granting summary judgment.
14        Trial was held on August 16 and 17, 2010, on Porter’s
15   remaining claim for nondischargeability under § 523(a)(4).
16   Porter and the Kamiens were represented by counsel, and the
17   bankruptcy court heard testimony from nine witnesses: Porter,
18   the Kamiens, Bill Rice (a contractor who worked with the parties
19   on the Property), Rosemary Wardell and Tori Johnson (realtors),
20   Brian Ahrens (certified appraiser), Rob Floberg and Hanna
21   McFarlane (expert witnesses on handwriting and forgery).
22        The bankruptcy court orally announced its decision on
23   October 29, 2010.    According to the transcript in the record,
24   after discussing the facts of the case, the court made the
25   following determinations:
26        The sole issue before the court is whether there
          existed a partnership relationship among the Kamiens
27        and Porter. Hr’g Tr. 5:17—6:1, October 29, 2010.
28        In their testimony, neither the Kamiens nor Porter

                                     -7-
 1   “appeared to me to be credible witnesses. Because of
     that, I was forced to follow and rely primarily on the
 2   paper trail.” Hr’g Tr. 6:2-6.
 3   “[I]f this was a joint venture, I do not understand
     why title was taken only in the name of the Kamiens.”
 4   Hr’g Tr. 6:7-9.
 5   Exhibit 13, a letter of April 18, 2005, from Porter to
     the Kamiens “demands repayment of the loans made for
 6   the purchase and remodel of the house. The letter
     makes no reference to a partnership.” Hr’g Tr. 6:10-
 7   14.
 8   Exhibit 14, the Lien, “makes no reference to a
     partnership.” Hr’g Tr. 6:15-16.
 9
     Exhibit 34, a memo to a Mr. Treppani at World Savings,
10   where Ms. Porter “thanks him for helping her friends
     with the financing of their home.” There is no
11   mention of a joint venture or partnership or that she
     had an interest in the Property. Hr’g Tr. 6:17-21.
12
     The bankruptcy court twice refers to the alleged
13   promissory note attached to the Complaint as a
     forgery. Hr’g Tr. 6:22, 7:1. Regardless of the
14   circumstances surrounding the creation of the
     promissory note, the court observed that it makes no
15   mention of a partnership or joint venture. Hr’g Tr.
     7:1-2.
16
     The original and First Amended Complaint in the state
17   court action are captioned “Complaint for Breach of
     Contract,” and alleges nonrepayment of loans and makes
18   no reference to a partnership or joint venture. Hr’g
     Tr. 7:3-12. It is only with the Second Amended
19   Complaint that for the first time Porter alleges the
     existence of a partnership relationship. The court
20   observed that “[t]his [was] done some five or six
     years after the facts.” Hr’g Tr. 7:13-16.
21
22   The bankruptcy court then concluded:
23        In summary and in conclusion, based on the paper
     trail, I conclude there was no partnership. The
24   exhibits I referred to create, in my opinion, a
     mountain of admissions by Ms. Porter which make it
25   impossible for her to sustain the requisite burden of
     proof.
26        It follows from my conclusion that there was no
     breach of any partnership-related fiduciary duties
27   and, therefore, the judgment must be for the
     [Kamiens]. Hr’g Tr. 7:17-8:1.
28

                              -8-
 1        On February 11, 2011, the bankruptcy court entered a
 2   judgment dismissing the adversary proceeding with prejudice.7
 3   Porter filed a timely appeal on February 25, 2011.
 4                               JURISDICTION
 5        The bankruptcy court had jurisdiction under 28 U.S.C.
 6   §§ 1334 and 157(b)(2)(I) and (J).      We have jurisdiction under 28
 7   U.S.C. § 158.
 8                                  ISSUE
 9        Whether the bankruptcy court clearly erred in ruling that
10   Porter failed to prove the existence of a partnership
11   relationship between Porter and the Kamiens.
12                          STANDARD OF REVIEW
13        The existence of a partnership is a question of fact.
14   Malnar v. Carlson, 910 P.2d 455, 461 (Wash. 1996); Douglas v.
15   Jepson, 945 P.2d 244, 247 (Wash. Ct. App. 1997) (“Whether a
16   partnership exist[s] is a question of fact.”); see also
17   Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 287 B.R.
18   515, 521 (9th Cir. BAP 2002) (“Whether or not parties have
19   entered into a partnership relationship rather than some other
20   form of relationship is a question of fact[.]”).
21        The bankruptcy court’s rulings on questions of fact are
22   reviewed for clear error.   Murray v. Bammer (In re Bammer), 131
23   F.3d 788, 792 (9th Cir. 1997) (en banc); Oney v. Weinberg (In re
24   Weinberg), 410 B.R. 19, 27-28 (9th Cir. BAP 2009).     “The clear
25
26        7
             The bankruptcy court’s judgment also awarded the Kamiens
27   $2,500 for reasonable attorney’s fees incurred in their
     successful prosecution of the counterclaim against Porter.
28   Porter makes no mention of this award in this appeal.

                                     -9-
 1   error standard is significantly deferential and is not met
 2   unless the reviewing court is left with a ‘definite and firm
 3   conviction that a mistake has been committed.’”     Fisher v.
 4   Tucson Unified Sch. Dist., 652 F.3d 1131, 1135 (9th Cir. 2011).
 5                                DISCUSSION
 6        Section 523(a)(4) excepts from discharge debts “for fraud
 7   or defalcation while acting in a fiduciary capacity,
 8   embezzlement or larceny.”    In an action under § 523(a)(4), a
 9   creditor must establish: (1) that an express trust existed
10   between the debtor and creditor; (2) that the debt was caused by
11   the debtor’s fraud or defalcation; and (3) that the debtor was a
12   fiduciary to the creditor at the time the debt was created.
13   Otto v. Niles (In re Niles), 106 F.3d 1456, 1459 (9th Cir.
14   1997); Nahman v. Jacks (In re Jacks), 266 B.R. 728, 735 (9th
15   Cir. BAP 2001).    The creditor bears the burden or proving the
16   facts necessary to establish an exception to discharge under
17   § 523(a) by a preponderance of the evidence.     Grogan v. Garner,
18   498 U.S. 279, 291 (1991); Jett v. Sicroff (In re Sicroff), 401
19   F.3d 1101, 1106 (9th Cir. 2005).
20        The meaning of fiduciary for purposes of § 523(a)(4) is a
21   question of federal law.    Ragsdale v. Haller, 780 F.2d 794, 796
22   (9th Cir. 1986).    Under federal law, a trust giving rise to the
23   fiduciary relationship must be imposed prior to any wrongdoing,
24   and the debtor must have been a trustee prior to and independent
25   of the wrongdoing itself.    Id.    While the meaning of fiduciary
26   is narrowly defined under federal law, “state law is to be
27   consulted to determine when a trust in this strict sense
28   exists.”   Id.

                                        -10-
 1        The Ninth Circuit has previously reviewed Washington law of
 2   partnerships and determined that a partner is a “trustee over
 3   partnership assets for all purposes” and a “fiduciary within the
 4   narrow meaning of § 523(a)(4).”   Lewis v. Short (In re Short),
 5   818 F.2d 693, 695-96 (9th Cir. 1987); Wash. Rev. Code
 6   § 25.05.165(2)8.
 7        Porter argues that the Kamiens breached their fiduciary
 8
          8
 9           The Ninth Circuit in Short based its decision on a
     later-repealed statute, Wash. Rev. Code § 25.04.210(1) (1969)
10   (repealed 1998):
11
          Every partner must account to the partnership for any
12        benefit, and hold as trustee for it any profits
          derived by him without the consent of the other
13        partners from any transaction connected with the
          formation, conduct, or liquidation of the partnership
14        or from any use by him of its property.
15
     (Emphasis added.) The revised statute adopted that year and
16   still in effect incorporates the older provisions without
     substantial change:
17
          General standards of partner’s conduct . . . . (2) A
18        partner’s duty of loyalty to the partnership and the
19        other partners is limited to the following:
          a) To account to the partnership and hold as trustee
20        for it any property, profit, or benefit derived by the
          partner in the conduct and winding up of the
21        partnership business or derived from a use by the
          partner of partnership property, including the
22
          appropriation of a partnership opportunity[.]
23        Rev. Code Wash. § 25.05.165(2)(a) (emphasis added)
          (2011).
24
     The District Court for the Western District of Washington
25   recently reviewed the case law and concluded that, based on In
26   re Short and Wash. Rev. Code § 25.05.165(2), a partner’s “status
     as a fiduciary within the meaning of § 523(a)(4) is definitively
27   established by statute and precedent[.]” Errez v. Auburn Ace
     Holdings, LLC (In re Errez), 2010 WL 5185399, at *2 (W.D. Wash.
28   Dec. 16, 2010).

                                   -11-
 1   duties as partners in the partnership the parties allegedly
 2   created to acquire and develop the Property.    Of course, as the
 3   bankruptcy court would hold, if no partnership existed, the
 4   Kamiens were not fiduciaries as to Porter.
 5        Whether parties intend to form a partnership under
 6   Washington law is determined by four factors:    (1) an express or
 7   implied contract, (2) a common purpose, (3) a community of
 8   interest, and (4) an equal right to a voice, accompanied by an
 9   equal right to control.   Paulson v. County of Pierce, 664 P.2d
10   1202, 1211 (Wash. Ct. App. 1983).     Only the first element — that
11   there was an express or implied contract to form a partnership —
12   is essential.   Id. (citing Carbaneu v. Peterson, 95 P.2d 1043,
13   1050 (Wash. 1939)).
14        After a two-day trial, where the three principal parties —
15   the Kamiens and Porter9 — testified, and over fifty documentary
16   exhibits were admitted, the bankruptcy court found that there
17   was no agreement, express or implied, to form a partnership.
18   The court considered and rejected the testimony of both Porter
19   and the Kamiens as not credible.    We give considerable deference
20   to a court’s findings based on credibility of witnesses.    Rule
21   8013; Anderson v. City of Bessemer City, 470 U.S. 564, 574-75
22   (1985) (“When findings are based on determinations regarding the
23   credibility of witnesses, [Fed. R. Civ. P.] 52(a) [from which
24   Rule 8013 derives] demands even greater deference to the trial
25   court’s findings; for only the trial judge can be aware of the
26
          9
27           There were six other witnesses, but in her brief Porter
     makes no reference to their testimony, and does not explain how
28   their testimony supports any of her positions.

                                    -12-
 1   variations in demeanor and tone of voice that bear so heavily on
 2   the listener’s understanding of and belief in what is said.”).
 3   Anderson is also instructive in this context for its explanation
 4   when an appellate court may disregard a court’s credibility
 5   finding.
 6        Documents or objective evidence may contradict the
          witness’ story; or the story itself may be so
 7        internally inconsistent or implausible on its face
          that a reasonable factfinder would not credit it.
 8        Where such factors are present, the court of appeals
          may well find clear error even in a finding
 9        purportedly based on a credibility determination.
10   Anderson, 470 U.S. at 575.   After making its credibility
11   determination, the bankruptcy court pointed to seven documentary
12   exhibits that the court found inconsistent with Porter’s
13   testimony.   In the court’s words, the exhibits created “a
14   mountain of admissions” by Porter that her relationship to the
15   Kamiens was that of a creditor to a debtor, not partner.     Thus,
16   the credibility determinations of the bankruptcy court, to which
17   we must give great deference, were not contradicted by the
18   documentary evidence.   Indeed, the documentary evidence supports
19   the existence of a creditor-debtor relationship, not a
20   partnership relationship as alleged by Porter.   Based on the
21   bankruptcy court’s credibility determinations as to the oral
22   testimony given by Porter, together with the documentary proof
23   showing that a lender-borrower relationship was established by
24   the parties, as discussed in detail by the bankruptcy court, we
25   conclude that the bankruptcy court did not clearly err in ruling
26   that there was no partnership relationship among the Kamiens and
27   Porter.    Consequently, because there was no partnership, Kamiens
28   breached no fiduciary duties to justify an exception to

                                     -13-
 1   discharge of the Kamiens’ debt to Porter under § 523(a)(4).
 2        In this appeal, Porter has not shown that the bankruptcy
 3   court clearly erred.   Indeed, Porter’s pro se presentation is
 4   ineffective.   Her sole argument is that the trial transcripts
 5   support her position that a partnership existed.     The problems
 6   with Porter’s position are many.
 7        First, the informal brief presented by Porter offers only
 8   conclusory suggestions that the actions of the Kamiens and
 9   Porter demonstrated their intent to form a partnership.     There
10   were no references, specifically or even in general, to contract
11   formation, whether the parties had a common purpose, a community
12   of interest, or an equal right to a voice in partnership,
13   accompanied by an equal right to control.     The brief presents no
14   citations to authority to support any of its conclusory
15   statements.    In effect, Porter asks us to trawl through hundreds
16   of pages of unofficial transcripts to establish her arguments
17   for her.   Neither the Panel nor appellees are obliged to search
18   an entire record unaided for error.     Dela Rosa v. Scottsdale
19   Mem. Health Sys, Inc., 136 F.3d 1241 (9th Cir. 1998); Syncom
20   Cap. Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991).
21        Second, Porter was ordered by the Panel on three occasions
22   to produce both the transcripts for the record, and the exhibits
23   relied on by the bankruptcy court.     She ultimately provided
24   unofficial copies of the transcripts, which she had privately
25   prepared, rather than securing preparation of an official
26   transcript, as ordinarily required by Fed. R. App. P. 10(b).
27   Moreover, Porter did not provide any of the documentary exhibits
28   relied on by the bankruptcy court at trial in reaching its

                                     -14-
 1   decision.
 2        Although the Kamiens have objected to our review of the
 3   unofficial transcripts, they are not prejudiced because we
 4   conclude that the transcripts do not support Porter’s position.
 5   It is true that Porter’s testimony at trial provides facts and
 6   dates which might indicate an intent to form a partnership.
 7   However, that testimony is contradicted by that of the Kamiens.
 8   The bankruptcy court ultimately ruled that neither the Kamiens
 9   nor Porter were credible witnesses.   But, since the documentary
10   evidence supported the court’s decision that no partnership
11   existed, we need not consider accepting Porter’s testimony
12   supporting her position that a partnership existed.
13        Although the bankruptcy court discounted her credibility as
14   a witness at trial, we are able to glean from the transcripts
15   two unquestioned facts that are not affected by that credibility
16   determination.   At one point in her testimony, Porter admits
17   that there is no documentary evidence to show the existence of a
18   partnership.   Trial Tr. 74:3386-3389.10   Second, Porter’s
19   attorney did not object to the admission of the seven documents
20   relied on by the court.   Trial Tr. 81:3711.
21        At the heart of this appeal are the trial exhibits
22   discussed and relied upon by the bankruptcy court for its
23   finding that there was no adequate proof of a partnership:
24   (1) Exhibit 13, where Porter “demands repayment of the loans
25
26       10
             The unofficial transcripts do not provide the date when
27   this testimony occurred. From internal references, we infer
     that the transcripts from pages 74 and 81 were on August 16,
28   2010.

                                    -15-
 1   made for the purchase and remodel of the home.”   Hr’g Tr.
 2   6:10-14; (2) Exhibit 14, the Lien, twice describes the Kamiens
 3   as owner of the Property, characterizes the relationship between
 4   Porter and the Kamiens as a contract and “makes no reference to
 5   a partnership.”   Hr’g Tr. 6:16; (3) Exhibit 34, a memo to a Mr.
 6   Treppani at World Savings, where Ms. Porter “thanks him for
 7   helping her friends with the financing of their home.”   Hr’g Tr.
 8   6:17-21; (4) The promissory note, which is in the form of a debt
 9   instrument, Hr’g Tr. 6:22, 7:1; and (5-7) The State Court
10   Complaint, Amended Complaint, and Second Amended Complaint.   The
11   first two complaints allege a breach of contract, and make no
12   reference to any partnership.   The Second Amended Complaint, for
13   the first time, alleges the existence of a partnership, but this
14   allegation, in the bankruptcy court’s words, was made “five or
15   six years after the facts.”   Hr’g Tr. 7:13-16.   Except for the
16   Second Amended Complaint, none of the documents refers to a
17   partnership and all but the Second Amended Complaint support an
18   interpretation of a debtor-creditor relationship.
19        From the early stages of this appeal, the Panel has
20   instructed Porter to submit these seven documents.   In the
21   Panel’s order of July 27, 2011, denying the Kamiens’ motion to
22   dismiss the appeal, the Panel strongly cautioned Porter of the
23   consequences of failing to file the exhibits:
24        In order to review a factual finding for clear error,
          the record should usually include the entire
25        transcript and all other relevant evidence considered
          by the bankruptcy court. See In Re Friedman, 126 B.R.
26        63, 68 (9th Cir. BAP 1991) (failure to provide an
          adequate record may be grounds for affirmance); In re
27        Burkhart, 84 B.R. 658 (9th Cir. BAP 1988). (Emphasis
          added). . . . No [] exhibits were provided. Based on
28        appellant’s arguments in her informal brief, it

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 1        appears such [] exhibits are necessary in order for
          appellant to have any chance of prevailing on appeal.
 2        If appellant does not provide the [] exhibits, the
          Panel is entitled to assume that she does not believe
 3        there is anything in those documents that will help
          her position on appeal. In re Gionis, 170 B.R. 675,
 4        680-81 (9th Cir. BAP 1994). Failure to provide the []
          exhibits will likely result in summary affirmance of
 5        the bankruptcy court’s decision. See explanatory note
          to 9th Cir. BAP R. 8006-1; Ehrenberg v. Cal. State
 6        Univ., Fullerton Found. (In re Beachport Entm’t), 396
          F.3d 1083, 1087 (9th Cir. 2005); Morrissey v.
 7        Stuteville (In re Morrissey), 349 F.3d 1187 (9th Cir.
          2003).
 8
 9   Panel’s Order of July 27, 2011, at 3-4.
10        Porter was again ordered to produce the trial exhibits in a
11   Clerk’s Order of August 25, 2011.     And finally, the Panel
12   directed Porter to submit the exhibits in its Order of September
13   20, 2011, granting a final extension of time to file the
14   transcripts and exhibits.   Porter never produced the exhibits.
15        As noted above, Porter did file unofficial trial
16   transcripts.   But these transcripts do not support her position
17   because the bankruptcy court did not rely on the parties’
18   testimony in making its decision.     Because Porter has ignored
19   multiple orders of this Panel directing her to provide the trial
20   exhibits relied on by the bankruptcy court in resolving the
21   contested issues of fact,11 we are entitled to assume that the
22   exhibits do not support her position and, indeed, instead
23   buttress the bankruptcy court’s reasons for determining that as
24   a question of fact there was no partnership relationship among
25
          11
26           Along with the unofficial transcripts, Porter did
     include copies of the depositions of Eric and Terry Kamien,
27   without explaining their purpose. The bankruptcy court did not
     refer to these depositions in its decision, but specifically
28   referenced and discussed the seven documents.

                                    -17-
 1   the Kamiens and Porter.    In re Gionis, 170 B.R. at 680-81.
 2   Further, the bankruptcy court’s determination based on
 3   credibility and documentary findings are entitled to deference
 4   by this Panel.   Rule 8013.   On this record, we do not hold a
 5   definite and firm conviction that a mistake was been committed
 6   by the bankruptcy court.    Fisher, 652 F.3d at 1135.   Therefore,
 7   the court was correct in denying Porter’s request for an
 8   exception to discharge under § 523(a)(4).
 9                                 CONCLUSION
10        We AFFIRM the judgment of the bankruptcy court.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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27
28

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