FILED
AUG 09 2017
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-16-1356-KuFTa
)
6 JENNIFER ANN EVANS, ) Bk. No. 2:14-bk-22827-VZ
)
7 Debtor. ) Adv. No. 2:14-ap-01619-VZ
______________________________)
8 )
JEFFREY TRAINOR, )
9 )
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
JENNIFER ANN EVANS, )
12 )
Appellee. )
13 ______________________________)
14 Argued and Submitted on May 18, 2017
at Pasadena, California
15
Filed – August 9, 2017
16
Appeal from the United States Bankruptcy Court
17 for the Central District of California
18 Honorable Vincent Zurzolo, Bankruptcy Judge, Presiding
19 Appearances: Peter Alan Davidson of Ervin Cohen and Jessup
argued for appellant; Dennis McGoldrick argued for
20 appellee.
21
Before: KURTZ, FARIS and TAYLOR, Bankruptcy Judges.
22
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION
2 Jeffrey Trainor appeals from a judgment after trial in
3 favor of Chapter 71 debtor Jennifer Ann Evans, which judgment
4 denied him any relief on his objection to discharge complaint.
5 The bankruptcy court found that it had “significant issues”
6 with Evans’ credibility and also found that the bankruptcy
7 schedules Evans submitted on her own behalf and on behalf of her
8 wholly-owned company were among the worst the court had seen in
9 28 years on the bench – in terms of misstatements and omissions.
10 The bankruptcy court nonetheless ultimately found that Evans did
11 not harbor an intent to deceive her creditors or the bankruptcy
12 trustee when she knowingly made the material misstatements and
13 omissions.
14 Under the applicable clearly erroneous standard, we cannot
15 say that the bankruptcy court’s decision finding no intent to
16 deceive was illogical, implausible or without support in the
17 record. Accordingly, we AFFIRM.
18 FACTS
19 At one time, Trainor had both personal and business
20 relationships with Evans. Trainor initially was Evans’ business
21 partner, but the parties later took steps to recharacterize
22 Trainor’s equity investment in Evans’ clothing manufacturing
23 company – Evans Production Co-Op LLC – as a loan. Later, when
24 Evans did not repay the loan, Trainor sued the Co-Op in state
25
26 1
Unless specified otherwise, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all "Rule" references are to the Federal Rules of Bankruptcy
28 Procedure, Rules 1001-9037.
2
1 court to recover the principal loan amount, interest and
2 attorney’s fees.
3 This litigation ultimately led to the Co-Op filing a
4 chapter 11 petition. Trainor filed a motion to dismiss or
5 convert the Co-Op’s chapter 11 case, which in turn resulted in
6 the conversion of the Co-Op’s bankruptcy case to chapter 7. The
7 motion to dismiss or convert was based in large part on asserted
8 errors and omissions in the Co-Op’s bankruptcy schedules and its
9 statement of financial affairs. Even though Evans knew of many
10 of the errors and omissions in the Co-Op’s schedules and
11 statement of financial affairs by no later than February 2014 –
12 when the Co-Op’s § 341(a) meeting of creditors was held – Evans
13 only filed amendments to the Co-Op’s bankruptcy commencement
14 documents after Trainor filed his May 2014 motion to dismiss or
15 convert.
16 In July 2014, around the same time Trainor’s motion to
17 convert was granted, Evans filed her personal bankruptcy case.
18 Trainor filed his objection to discharge complaint in September
19 2014. The sole relevant claim for relief sought to deny Evans
20 her discharge based on §§ 727(a)(4)(A) and 727(a)(7) and based on
21 the numerous errors and omissions in the Co-Op’s bankruptcy
22 commencement papers and in Evan’s personal bankruptcy
23 commencement papers.2
24 Roughly one year later, Trainor filed a summary judgment
25 motion which resulted in summary adjudication in favor of Trainor
26
2
27 Trainor’s complaint also stated a claim for relief under
§ 727(a)(6), but he has not challenged on appeal the bankruptcy
28 court’s ruling denying him relief under that subsection.
3
1 on all issues except for those regarding Evans’ state of mind –
2 whether she knowingly and fraudulently made the misstatements and
3 omissions in her own schedules and statement of financial affairs
4 and in the Co-Op’s filings. As the bankruptcy court put it:
5 Evans made multiple false statements under oath of
material facts in Co-op’s Schedules and Statement of
6 Financial Affairs, its Amended Schedules and in her own
Schedules; however, whether Evans made the statements
7 with fraudulent intent is a controverted issue of
material fact which must be determined at trial . . . .
8
9 Findings Of Fact And Conclusions Of Law In Support Of Order On
10 Motion For Summary Judgment Or, In The Alternative, For Summary
11 Adjudication Of Issues (Nov. 23, 2015) at 14:6-9.3
12 The findings and conclusions contained a lengthy listing of
13 specific, admitted misstatements and omissions from Evans’ and
14 the Co-Op’s bankruptcy commencement documents. Most of these
15 same admissions were carried forward as admitted facts in the
16 parties’ joint pretrial stipulation.4
17 After a one-day trial on the state of mind issues, at which
18 only Evans testified, the bankruptcy court orally stated its
19 findings of fact from the bench.5 The bankruptcy court first
20
3
Neither party included the summary judgment findings of
21
fact and conclusions of law in their excerpts of record. But we
22 can take judicial notice of this document’s filing and contents.
O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),
887 F.2d
23 955, 957–58 (9th Cir. 1989); Mullis v. Bankr. Ct.,
828 F.2d 1385,
1388 & n.9 (9th Cir. 1987).
24
4
The specific misstatements and omissions are identified in
25 the discussion section set forth below.
26 5
The judgment refers to written findings of fact and
27 conclusions of law, but there were no such written findings and
conclusions issued after trial. Perhaps the bankruptcy court was
28 (continued...)
4
1 gave a general assessment of Evans’ credibility. Without
2 specifying precisely on which subjects it found Evans credible
3 and which it did not, the court stated that Evans’ credibility
4 fell somewhere in the middle of the pack in terms of witnesses
5 who had testified before the court. At the same time, the court
6 also stated it had “significant issues” concerning Evans’
7 credibility. The court offered the following explanation in
8 support of its general credibility finding:
9 There are many witnesses who have a very difficult time
answering the question that is asked of them. They
10 attempt to avert or evade the question and offer
sometimes an explanation, but sometimes not even an
11 explanation, an attempt to shunt away from the question
itself and to place blame or responsibility for the
12 target of the question on somebody else and you [Evans]
did that repeatedly.
13
14 Hr’g Tr. (Sept. 21, 2016) at 123:6-13.
15 Next, the bankruptcy court noted that the purpose of the
16 trial was to enable the court to determine whether Trainor could
17 establish, by a preponderance of the evidence, that Evans
18 knowingly and fraudulently made the admitted misstatements and
19 omissions.
20 The court found that Evans knew that at least several of her
21 material misrepresentations were false when she made them –
22 particularly those regarding the Co-Op’s income, the IRS’s levies
23 on property of the Co-Op, the amounts of the IRS’s claims, and
24 insider payments from the Co-Op to herself and her mother. The
25
5
26 (...continued)
referring to the findings and conclusions it entered when it
27 granted summary adjudication in favor of Trainor. Regardless,
the key findings we must examine were made orally on the record,
28 immediately following the trial.
5
1 court specifically pointed to: (1) Evans’ protestations of
2 ignorance as to the existence of her misstatements and omissions;
3 (2) her asserted reliance on others to fill in the schedules
4 correctly; and (3) her repeated inability to “notice” the extant
5 defects in the documents when she reviewed and signed them under
6 penalty of perjury. The bankruptcy court indicated that these
7 statements and conduct were inexplicable, not credible, reckless
8 or a combination of all three. On that basis, the court
9 determined that Evans knowingly made at least some of the
10 material misstatements and omissions.
11 On the same evidence, however, the bankruptcy court declined
12 to find an intent to deceive. The court gave significant weight
13 to what it perceived as a lack of motive. As the court
14 explained:
15 I looked very carefully in trying to understand what
advantage or benefit Ms. Evans would gain from looking
16 at all of these false statements, especially in light
of the fact that she knew she was being scrutinized,
17 not only by Mr. Trainor but by the IRS, which was a
precipitating factor in the Co-op filing. I mean
18 sometimes when people are chased by creditors they lie
and hide assets, but I just don’t see that kind of non-
19 disclosure or false statement of fact here that leads
to the inference that she acted fraudulently.
20
21 Hr'g Tr. (Sept. 21, 2016) at 127:18-128:2.
22 The bankruptcy court conceded that it only could recall a
23 few instances in 28 years on the bench when it had seen worse
24 examples of misstatements and omissions in schedules and
25 statements of financial affairs. The bankruptcy court further
26 acknowledged Evans’ continuing obligation to correct the
27 documents once she admitted to learning of their inaccuracy and
28 her failure to do so. Notwithstanding these additional factors,
6
1 the court ultimately found that “[i]t’s very close, but I just
2 don’t see enough there to draw that inference” that Evans acted
3 fraudulently. Hr’g Tr. (Sept. 21, 2016) at 128:17-18.
4 The bankruptcy court entered its judgment in favor of Evans
5 on October 6, 2016, and Trainor timely appealed.
6 JURISDICTION
7 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
8 §§ 1334 and 157(b)(2)(J), and we have jurisdiction under
9 28 U.S.C. § 158.
10 ISSUE
11 Did the bankruptcy court commit reversible error when it
12 denied Trainor relief on his claim under §§ 727(a)(4)(A) and
13 727(a)(7)?
14 STANDARDS OF REVIEW
15 In objection to discharge appeals: “(1) the [bankruptcy]
16 court’s determinations of the historical facts are reviewed for
17 clear error; (2) the selection of the applicable legal rules
18 under § 727 is reviewed de novo; and (3) the application of the
19 facts to those rules requiring the exercise of judgments about
20 values animating the rules is reviewed de novo.” Retz v. Samson
21 (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010) (quoting
22 Searles v. Riley (In re Searles),
317 B.R. 368, 373 (9th Cir. BAP
23 2004) aff'd, 212 Fed. Appx. 589 (9th Cir. 2006)).
24 Whether a debtor has the requisite fraudulent intent is a
25 question of fact reviewed under the clearly erroneous standard.
26 See In re
Retz, 606 F.3d at 1197. Under that standard, we only
27 can reverse if the bankruptcy court’s finding was illogical,
28 implausible or without support in the record.
Id. at 1199.
7
1 DISCUSSION
2 Under § 727(a)(4)(A), the bankruptcy court must deny the
3 debtor a discharge when the debtor knowingly and fraudulently
4 makes a false oath or account in or in connection with the case.
5 Misstatements and omissions in the debtor’s bankruptcy schedules
6 or statement of financial affairs can qualify as false oaths for
7 purposes of § 727(a)(4)(A). In re
Retz, 606 F.3d at 1196 (citing
8 Khalil v. Developers Sur. & Indem. Co. (In re Khalil),
379 B.R.
9 163, 172 (9th Cir. BAP 2007), aff’d and adopted,
578 F.3d 1167,
10 1168 (9th Cir. 2009)). Among other things, § 727(a)(7) bars the
11 debtor’s discharge when, during the pendency of the debtor’s
12 case, or within one year of the debtor’s petition filing, the
13 debtor engages in the same type of conduct prohibited by
14 § 727(a)(4)(A) in connection with another bankruptcy case.
15 A plaintiff bringing a claim under § 727(a)(4)(A) must prove
16 by a preponderance of the evidence that: “(1) the debtor made a
17 false oath in connection with the case; (2) the oath related to a
18 material fact; (3) the oath was made knowingly; and (4) the oath
19 was made fraudulently.” In re
Retz, 606 F.3d at 1197 (quoting
20 Roberts v. Erhard (In re Roberts),
331 B.R. 876, 882 (9th Cir.
21 BAP 2005)). To establish a § 727(a)(7) claim based on the same
22 type of conduct, the same elements logically are required, albeit
23 the “false oath” must be made in another bankruptcy case.
24 Here, the only issue in dispute on appeal is whether Evans
25 fraudulently made the bankruptcy commencement document
26 misstatements and omissions in her own bankruptcy case and in the
27 Co-Op’s case. All of the other elements in support of Trainor’s
28 §§ 727(a)(4)(A) and (a)(7) claims were established during the
8
1 course of the adversary proceeding by summary adjudication or
2 after trial, and Evans has not cross-appealed the bankruptcy
3 court’s other rulings.
4 The fraudulent intent required is the same type of actual
5 fraudulent intent that would be required to prove a common law
6 fraud claim. In re
Roberts, 331 B.R. at 884. Constructive
7 fraudulent intent will not suffice.
Id. Accord In re Khalil,
8 379 B.R. at 172. To establish the debtor’s fraudulent intent,
9 the plaintiff must show: (1) that the debtor made the
10 misstatements or omissions; (2) that he or she knew they were
11 false at the time he or she made them; and “(3) that he [or she]
12 made them with the intention and purpose of deceiving the
13 creditors.” In re
Khalil, 379 B.R. at 173 (citing In re Roberts,
14 331 B.R. at 884) (emphasis added).
15 This appeal hinges on the third factor. The bankruptcy
16 court’s ruling on the other § 727(a)(4)(A) elements established
17 the existence of the first two intent factors. Seldom do
18 fraudfeasors break down and admit that they intended to deceive.
19 Instead, intent to deceive typically is inferred from
20 circumstantial evidence regarding the debtor’s conduct, demeanor
21 and the nature and extent of his or her misstatements and
22 omissions. In re
Roberts, 331 B.R. at 884. For instance, a
23 pattern of falsity, a reckless indifference to the truth and a
24 failure to amend bankruptcy commencement documents to correct
25 known errors and omissions all can be probative of intent to
26 deceive – but none of these types of conduct, in isolation, is
27 the equivalent of an intent to deceive. See In re Khalil,
28 379 B.R. at 174-76. Indeed, in Khalil, this panel adopted the
9
1 reasoning from Garcia v. Coombs (In re Coombs),
193 B.R. 557
2 (Bankr. S.D. Cal. 1996), which stated in part:
3 Neither sloppiness nor an absence of effort by the
debtor supports, by itself, an inference of fraud.
4 Courts which hold otherwise are simply devising a
court-made prophylactic rule that the debtor must make
5 substantial effort to provide accurate and complete
schedules. Had the Congress intended to make such a
6 rule, it could have done so easily . . . .
7 The essential point is that there must be something
about the adduced facts and circumstances which suggest
8 that the debtor intended to defraud creditors or the
estate. For instance, multiple omissions of material
9 assets or information may well support an inference of
fraud if the nature of the assets or transactions
10 suggests that the debtor was aware of them at the time
of preparing the schedules and that there was something
11 about the assets or transactions which, because of
their size or nature, a debtor might want to conceal.
12
13 In re
Coombs, 193 B.R. at 565 (emphasis added).
14 That being said, we also stated in Khalil that, while proof
15 of the debtor’s motivation to deceive can be probative of the
16 debtor’s intent to deceive, such proof is not a pre-requisite for
17 finding an intent to deceive. As we explained in Khalil:
18 Motive can support a finding of knowing and fraudulent
intent, but it is not indispensable. A bankruptcy
19 court might find that a debtor's reckless indifference
to the truth is part of an attempt to fly “below the
20 trustee’s radar screen” . . . or to protect family or
friends from intrusive discovery or preference or
21 fraudulent transfer actions, or simply to make
investigation difficult for the bankruptcy trustee or
22 creditors. Alternatively, the court might never know
the debtor's motive, but the number of misstatements or
23 omissions, or the size or nature of a single one, might
suffice to support a finding that a debtor knowingly
24 and fraudulently made a false oath or account.
25 In re
Khalil, 379 B.R. at 176 (citing Hansen v. Moore
26 (In re Hansen),
368 B.R. 868, 878 (9th Cir. BAP 2007)).
27 On appeal, Trainor argues that the bankruptcy court
28 committed an error of law by effectively requiring a showing of
10
1 Evans’ motivation for allegedly wanting to deceive her creditors
2 and the Co-Op’s creditors. We understand why Trainor makes this
3 argument. When the bankruptcy court declined to find an intent
4 to deceive, it distinguished this case from other cases where an
5 intent to deceive had been found by noting the absence, here, of
6 any apparent advantage or benefit that Evans might have derived
7 from the nature and extent of the misstatements and omissions she
8 made.
9 Even so, we simply do not read the bankruptcy court’s
10 reasoning as based on a per se rule that it would not or could
11 not find an intent to deceive absent an apparent motivation for
12 deception. Instead, when read in context, we understand the
13 court’s reasoning to mean that, given the facts and circumstances
14 of this particular case, including Evans’ testimony, her demeanor
15 on the stand, and the nature and extent of her admitted
16 misstatements and omissions, and because it did not perceive
17 anything in the misstatements and omissions suggesting that Evans
18 wanted to conceal the true facts from her creditors or the
19 Co-Op’s creditors, the court could not find an intent to deceive.
20 In this sense, the bankruptcy court’s reasoning here echoes the
21 reasoning Khalil adopted from Coombs; the court’s reasoning did
22 not impose motive to defraud as a prerequisite to finding an
23 intent to deceive – as Khalil warned against.
24 Alternately, Trainor argues on appeal that the bankruptcy
25 court’s factual findings that Evans had no motive to defraud and
26 no intent to deceive were clearly erroneous.
27 We acknowledge that there was ample evidence in the record
28 that would have supported findings of a motive to defraud and an
11
1 intent to deceive. As the bankruptcy court pointed out, Evans’
2 bankruptcy filing and the Co-Op’s bankruptcy filing were among
3 the worst bankruptcy filings the court had ever seen in terms of
4 errors and omissions. The bankruptcy court also correctly
5 recognized that Evans’ failure to correct the Co-Op’s and her own
6 schedules by amendment also could help support a finding of
7 intent to deceive. On top of these circumstances weighing in
8 favor of a fraudulent intent finding, there were the
9 misstatements and omissions themselves.
10 Some of the misstatements and omissions seem relatively
11 innocuous in terms of assessing Evans’ motive and intent. These
12 include: (1) an omission of a minor balance in the Co-Op’s bank
13 account; (2) deviations in the valuing of the Co-Op’s inventory
14 and furniture; (3) the failure to report one lawsuit against the
15 Co-Op; (4) the failure to report one or two executory contracts;
16 (5) an error in the listing of the Co-Op’s twenty largest
17 creditors; and (6) the failure to correctly report in the Co-Op's
18 bankruptcy commencement documents Evans’ personal items held at
19 the Co-Op. None of these misstatements and omissions are
20 necessarily indicative of fraudulent motive or an intent to
21 deceive.
22 But there were a number of other misstatements and omissions
23 that could be considered quite indicative of fraudulent motive
24 and intent to deceive. These include: (1) erroneous reporting of
25 the Co-Op's 2012 “business income” as $60,061.00 when it actually
26 was $734,963.52; (2) erroneous reporting of the Co-op's 2013
27 “business income” as $52,188.00 when it actually was $707,540.00;
28 (3) numerous unreported out-of-the-ordinary-course transfers and
12
1 payments from the Co-Op to Evans during the two years prior to
2 the Co-Op’s bankruptcy; (4) omission or erroneous reporting of
3 payments to other family members; (5) omission from the Co-Op’s
4 schedules of the Co-Op’s claims against Evans; (6) scheduling of
5 Evans as a creditor of the Co-Op when she was not a creditor;
6 (7) Evans not scheduling the Co-Op as one of her creditors;
7 (8) erroneous reporting of the IRS’s secured claim against the
8 Co-Op in the amount of $253,678 when it actually was $116,302.34;
9 (9) omitting the IRS’s unsecured priority claim in the amount of
10 $13,757.11; (10) misstating the amounts the Co-Op owed to Evans’
11 mother, stepfather and grandmother; and (11) omitting from the
12 Co-Op’s schedules Evans’ status as a co-debtor on a number of
13 debts owed to the IRS, the Employment Development Department and
14 others.
15 In terms of assessing Evans’ motive and intent, there were
16 yet other misstatements and omissions that fall somewhere in
17 between the two extremes set forth above. These include:
18 (1) omitting from the Co-Op’s Schedule F some of its unsecured
19 creditors; (2) failing to list any secured creditors on the
20 Co-Op’s amended schedules; (3) not listing a particular unsecured
21 creditor – Richard Avila – who was paid postpetition for a
22 prepetition debt; (4) not listing payments to a particular
23 creditor – Dan Taylor – who was paid within the 90-day preference
24 period; (5) erroneously identifying the date the Co-Op paid a law
25 firm retainer as January 13, 2013, when the retainer actually was
26 paid in 2014; and (6) mis-scheduling of the IRS’s and Employment
27 Development Department’s claims as unsecured claims in Evans’
28 personal schedules.
13
1 Our acknowledgment of the existence of substantial evidence
2 permitting the bankruptcy court to reasonably infer Evans’ motive
3 to defraud and intent to deceive, however, does not mandate
4 reversal. The critical question we must answer is whether, on
5 the record presented, it was unreasonable for the court to infer
6 that Evans did not have a motive to defraud and an intent to
7 deceive despite all the evidence available that would have
8 permitted such inferences. See generally United States v.
9 Hinkson,
585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)
10 (identifying third clearly erroneous factor as whether the
11 subject finding is “without support in inferences that may be
12 drawn from the record”). We hold that the bankruptcy court’s
13 inference that Evans had no motive to defraud or intent to
14 deceive was not unreasonable.
15 Even though the bankruptcy court expressed some concern
16 regarding the credibility of some of Evans’ statements, it
17 obviously credited Evans’ testimony in which she expressed
18 confusion over the meaning of a number of terms like “co-debtor,”
19 “insider” and “executory contract” and how that confusion
20 negatively affected the information she provided in her schedules
21 and statement of financial affairs. For instance, as result of
22 her confusion, Evans did not disclose in her initial statement of
23 financial affairs certain insider payments made to herself and
24 her sister-in-law (who for a time was employed by the Co-Op as
25 its bookkeeper). As Evans testified:
26 I did not think of myself [or my sister-in-law] as an
insider. I didn’t understand the term. I thought an
27 insider was -- it sounds naive, but I thought it was
someone scandalous that you were passing things to. I
28 didn’t know it was myself as the CEO or the formal
14
1 bookkeeper who was paid formally.
2 Trial Tr. (Sept. 21, 2016) at 80:7-12.
3 Similarly, the following colloquy between Evans and
4 plaintiff’s counsel demonstrates her confusion over the term
5 executory contract and how that confusion led to conflicting
6 answers regarding whether a certain advertising contract needed
7 to be listed as an executory contract:
8 Q. When you amended the schedules in Schedule G, you
didn’t list MnM Publishing. Why was that?
9
A. . . . For the revised schedules, it would have been
10 changed due to the attorney saying it needed to be done
differently. I was very up front about what it was. I
11 wasn’t sure what -- how it should be handled and I took
their advice on it and I signed based on their advice
12 on filling out the schedules.
13 Q. But you knew that you did have an executory contract
with MnM Publishing when –
14
A. I don’t what an executive --
15
Q. -- when co-op filed bankruptcy, correct?
16
A. I still do not know what an executory contract is.
17
18 Trial Tr. (Sept. 21, 2016) at 64:3-65:2.
19 At bottom, time and time again, Evans in essence claimed
20 ignorance, confusion, naivete, and haplessness as explanations
21 for her many errors and omissions. The bankruptcy court
22 obviously credited many of these explanations, as nothing else
23 explains the bankruptcy court’s finding on Evans’ lack of
24 deceitful intent. “‘[W]henever, from facts found, other facts
25 may be inferred which will support the judgment, such inferences
26 will be deemed to have been drawn. The findings of fact by a
27 trial court must receive such a construction as will uphold,
28 rather than defeat, its judgment.’” Brock v. Big Bear Market
15
1 No. 3,
825 F.2d 1381, 1384 (9th Cir. 1987) (quoting Wells Benz,
2 Inc. v. United States,
333 F.2d 89 (9th Cir. 1964)).
3 As an appellate review panel, we are not entitled to
4 substitute our view of the evidence for that of the bankruptcy
5 court. Anderson v. City of Bessemer City,
470 U.S. 564, 573
6 (1985). “Where there are two permissible views of the evidence,
7 the factfinder's choice between them cannot be clearly
8 erroneous.”
Id. at 574. It makes no difference that we likely
9 would have decided the case differently.
Id. at 573. The
10 limitations on our appellate review are clear: we cannot reverse
11 unless one or more of the factual findings underpinning the
12 bankruptcy court’s decision were illogical, implausible or
13 unsupported by the record. See In re
Retz, 606 F.3d at 1199. We
14 perceive no such reversible error here. The bankruptcy court
15 considered all of the evidence before it, which included Evans’
16 course of conduct, her knowledge that she was being aggressively
17 pursued by both Trainor and the IRS, her numerous misstatements
18 and omissions, her testimony at trial, her demeanor on the stand,
19 her apparent level of financial sophistication (both as an
20 individual and as a business person), her excuses for not
21 providing more accurate bankruptcy commencement documents, and
22 her sometimes mediocre credibility in that regard. The
23 bankruptcy court effectively concluded that Evans had acted
24 cavalierly but not with a motive to defraud or an intent to
25 deceive. We cannot say that this conclusion was illogical,
26 implausible or without support in the record, so we must affirm.
27 CONCLUSION
28 For the reasons set forth above, we AFFIRM the bankruptcy
16
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