                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2005

In Re: Georges
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3423




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Recommended Citation
"In Re: Georges " (2005). 2005 Decisions. Paper 879.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/879


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                                                       NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                            No. 04-3423


                    IN RE: JEAN D. GEORGES,

                                           Debtor

                      GEORGE A. GEORGES,

                                           Appellant

                                  v.

                        JEAN D. GEORGES

                    BARRY SOLODKY, ESQ.,

                                            Trustee




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                      (Dist. Court No. 03-cv-06893)
      District Court Judge: The Honorable Clarence C. Newcomer


             Submitted Under Third Circuit LAR 34.1(a)
                          May 26, 2005

 Before: SCIRICA, Chief Judge, and ALITO and GARTH, Circuit Judges

                    (Opinion Filed: July 8, 2005)
                                  OPINION OF THE COURT


PER CURIAM:

          Relying on 11 U.S.C. § 727(a)(4)(A), George A. Georges (“Mr. Georges”) sought

the dismissal of the bankruptcy petition filed by his ex-wife, Jean D. Georges (“Ms.

Georges”). After a hearing, the Bankruptcy Court entered judgment for Ms. Georges,

finding that Mr. Georges had failed to show that Ms. Georges had committed an act of

fraud with the actual intent to hinder, delay, or defraud a creditor or officer of the estate

when she filed her petition, schedules, and related pleadings. The District Court affirmed.

          Our review of the decision of the District Court is plenary. In re Trans World

Airlines, Inc., 145 F.3d 124, 130 (3d Cir. 1998). Like the District Court, we review the

Bankruptcy Court’s legal determinations de novo, its factual findings for clear error, and

its exercise of discretion for abuse. In re Engel, 124 F.3d 567, 571 (3d Cir. 1997).

          In this appeal, Mr. Georges contends that, contrary to the finding of the

Bankruptcy Court, he satisfied his burden of proof. Alternatively, he argues that if he did

not adduce sufficient evidence, his failure was due to the Bankruptcy Court’s refusal to

allow him to cross-examine Ms. Georges’ counsel for the purpose of showing that

counsel’s advice to Ms. Georges was intended to defraud him. We disagree on both

points.

          First, we agree with the Bankruptcy Court that Mr. Georges did not satisfy his


                                                2
burden of proof. Section 727(a)(4)(a) of the Bankruptcy Code provides, in pertinent part,

that the court shall grant a debtor a discharge unless the debtor “knowingly and

fraudulently, in or in connection with a case[,] made a false oath or account.” 11 U.S.C. §

727(a)(4)(a). The party objecting to discharge has the burden of proof by a

preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 289-90 (1991); Fed.

R. Bankr. P. 4005. The objecting party must prove an “actual intent on the part of the

bankrupt to hinder, delay, and defraud his creditors.” In re Topper, 229 F.2d 691, 692

(3d Cir. 1956) (citation and internal quotations omitted). “[T]he advice of counsel may

provide an excuse for an inaccurate or false oath.” Id. at 693.

       Here, the evidence in the record is sufficient to support the Bankruptcy Court’s

finding that there was insufficient evidence to show that Ms. Georges had an actual intent

to hinder, delay and defraud her creditors. There was evidence that Ms. Georges omitted

marital property from her schedules in reliance on the advice of her bankruptcy attorney.

App. 42. The evidence in the record also showed that the Chapter 7 Trustee in her case

was made aware of the fact that she had failed to list the marital property but that the

Trustee told her that she had properly listed her property. As a result the Trustee did not

require Ms. Georges to amend her schedules. App. 33-35. Viewing all of the relevant

evidence, we see no basis for overturning the finding of the Bankruptcy Court.

       We also reject Mr. Georges’ argument that the Bankruptcy Court improperly

precluded him from cross-examining Ms. Georges’ attorney about the legal advice he had



                                              3
given to his client. Under our rules, the Appellant’s brief was required to contain “a

designation by reference to specific pages of the appendix or place in the proceedings at

which each issue on appeal was raised, objected to, and ruled upon.” LAR 28.1(a)(1). In

this case, Appellant’s brief identifies App. 75-76 as the place in the record where this

objection was raised and ruled upon. After reviewing that portion of the Appendix and

the remainder of the Appendix, we hold that no valid objection to the Bankruptcy Court’s

handling of this matter was preserved.

       At the hearing, Mr. Georges, during his cross-examination of Ms. Georges, offered

into evidence a letter written in 2000 to Ms. Georges by her attorney, Mr. Hess, in which

the attorney expressed personal animosity toward Mr. Georges. App. 68. During a

colloquy with Mr. Georges, the Bankruptcy Court questioned the relevance of the letter,

since Mr. Georges’ complaint was based on Ms. Georges’ omission of certain property

from her schedules and the schedules were completed before Mr. George and Mr. Hess

first met. See App. 68, 72. The Bankruptcy Court also noted that Mr. Georges had not

averred in his complaint that “counsel for [his] ex-wife ha[d] done anything to aid her

fraud or concealment or anything else.” App. 70. Nevertheless, the Bankruptcy Court

admitted the letter. App. 75. The following exchange then occurred:

              MR. GEORGES: Your Honor, I’d like to call Mr. Hess to the
              stand.
              THE COURT: I don’t know if I’m going to allow that. Do
              you have any final questions of your ex-wife?

App. 75-76.

                                             4
       Neither party’s brief suggests that Mr. Georges did anything further to call Mr.

Hess to the stand or that the Bankruptcy Court ever revisited the question. Nor is there

anything additional in the Appendix that bears on this matter. Under these circumstances,

we must reject Mr. Georges’ argument. The Bankruptcy Judge was certainly entitled to

question Mr. Georges about his basis for seeking to call his ex-wife’s attorney to the

stand, and in the exchange quoted above, the Bankruptcy Court did not rule definitively

on the question but merely stated that he did not know whether he would allow Mr.

Georges to call Mr. Hess. We cannot overturn the decision of the Bankruptcy Court on

such a record.

       For the foregoing reasons, we will affirm the order.
