FILED
OCT 12 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
6 In re: ) BAP No. CC-10-1199-KiPaD
)
7 SAMUEL E. FANDAY, ) Bk. No. SV 08-15139-MT
)
8 Debtor. ) Adv. No. SV 08-1569-MT
______________________________)
9 )
BARRY COE, )
10 )
Appellant, )
11 )
v. ) M E M O R A N D U M1
12 )
SAMUEL E. FANDAY, )
13 )
Appellee. )
14 ______________________________)
15 Argued and Submitted on September 23, 2011
at Pasadena, California
16
Filed - October 12, 2011
17
Appeal from the United States Bankruptcy Court
18 for the Central District of California
19 Honorable Maureen A. Tighe, Bankruptcy Judge, Presiding
_____________________________________
20
Appearances: Barry Coe, appellant, argued pro se;
21 No appearance by appellee, Samuel E. Fanday.
_____________________________________
22
Before: KIRSCHER, PAPPAS, and DUNN, Bankruptcy Judges.
23
24
25
26
1
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 8013-1.
1 Appellant-creditor, Barry Coe (“Coe”), appeals a judgment
2 from the bankruptcy court in favor of debtor-appellee, Samuel E.
3 Fanday (“Fanday”), on Coe’s nondischargeability claims under
4
11 U.S.C. §§ 523 and 727.2 We AFFIRM.
5 I. FACTUAL AND PROCEDURAL BACKGROUND
6 A. Prepetition Events.
7 Fanday and Coe are both chemical engineers and former
8 classmates from Georgia Tech. Fanday is the inventor of a water
9 treatment technology that removes heavy metals from industrial
10 wastewater — the Pellu formula. Between the mid-1990's and
11 approximately 2005, Fanday had been working as an independent
12 contractor treating wastewater for various businesses. Fanday
13 had also incorporated a business named Pellu Systems Georgia,
14 Inc. in 1999. Fanday moved to California in 2000 to work as a
15 wastewater consultant for the U.S. Air Force.
16 In late 2005, Fanday had the opportunity to do business with
17 U.S. Filter. Fanday’s current operation was not adequate to meet
18 U.S. Filter’s demands, so he contacted Coe to discuss a possible
19 business partnership. Coe agreed to partner with Fanday. Fanday
20 was to supply the Pellu formula technology and customer; Coe was
21 to supply the necessary funding and engineering skills to set up
22 the manufacturing facility. Coe, who lived in New York, moved to
23 California in February 2006, and the men immediately began
24 setting up the business. Prior to Coe’s arrival, Fanday located
25 a warehouse in Gardena, California for the manufacturing
26
2
Unless otherwise indicated, all chapter, section and rule
27 references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532, and
to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
28 The Federal Rules of Civil Procedure are referred to as “FRCP.”
- 2 -
1 facility. To save money, the men agreed to live in the office
2 portion of the warehouse.
3 The men decided to incorporate the business under the name
4 Pellu Systems, Inc. Pellu Systems, Inc. was to offer chemical
5 treatment and environmental consulting services. On June 11,
6 2006, Fanday and Coe entered into a self-drafted “Promissory
7 Agreement/Agreement of Intent” (the “Agreement”), a two-page
8 document which set forth their respective obligations and other
9 financial and management details of the corporation. The men
10 were to each hold 50% of the shares, and all company decisions
11 were to be unanimous. Coe’s to-date expenditure of $75,000 on
12 equipment and supplies was to be a loan to Pellu Systems, Inc.,
13 which was to be repaid with company profits “within a reasonable
14 time of this [A]greement.” The Pellu formula was to be kept in a
15 safe deposit box accessible only to Fanday and Coe. The men
16 further agreed that:
17 No partner shall attempt or engage in any activity
related to a hostile buyout of the other partner or form
18 or engage in activity with another similar company as
Pellu in terms of material content of business, unless
19 other partner agrees.
20 Fanday and Coe filed their Articles of Incorporation for Pellu
21 Systems, Inc. on June 19, 2006.
22 The relationship between the men quickly deteriorated and
23 Pellu Systems, Inc. never came to fruition. Between June and
24 September 2006, local police responded to disturbances at the
25 warehouse on at least eight occasions. One altercation between
26 the men in August 2006 resulted in Coe assaulting Fanday, which
27 caused Fanday to seek a temporary restraining order in state
28 court in September 2006. Coe also sought a restraining order
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1 against Fanday, but he later withdrew it. Fanday moved out of
2 the warehouse and in with his cousin, Akie Noah (“Noah”), in or
3 around August 2006. Coe ultimately had expended approximately
4 $87,000 for Pellu Systems, Inc. by the time the men parted.
5 In September 2006, Coe sued Fanday in state court for breach
6 of contract, breach of fiduciary duty, intentional interference
7 with business relations, and injunctive relief. A default
8 judgment was entered against Fanday in September 2007 for
9 $371,747.89 (which included Coe’s lost investment, moving
10 expenses, estimated lost profits of U.S. Filter for one year, and
11 interest). Fanday, and his agents or employees, were further
12 enjoined and prohibited from “using, licensing, advertising,
13 promoting, disclosing, selling, or in any way commercializing the
14 Pellu Water Treatment System and Formula,” as it is “the property
15 of Pellu Systems, Inc.” and “all information of any nature
16 whatsoever related to the Pellu Water Treatment System and
17 Formula is the exclusive and confidential trade secret of Pellu
18 Systems, Inc.” Notably, the default judgment did not state
19 whether Coe prevailed on his claim for breach of contract, breach
20 of fiduciary duty, or intentional interference with business
21 relations. When Coe suspected that Fanday may have been using,
22 in some fashion, the Pellu formula with his new employer,
23 Wastech, Coe moved to amend the default judgment to include
24 Fanday’s fictitious business names - Pellu Chemical Company and
25 Pellu Systems, Inc. The amended judgment was entered in January
26 ///
27 ///
28 ///
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1 2008.3 Coe obtained a Writ of Execution for the default judgment
2 in June 2008. In that same month, Coe began garnishing Fanday’s
3 wages.
4 B. Postpetition Events.
5 Fanday filed a voluntary chapter 7 petition on July 22,
6 2008. A § 341 creditor’s meeting was held on August 28, 2008.
7 Coe attended the meeting. During questioning by the chapter 7
8 trustee, Fanday testified that since he and Coe parted, he had
9 been working as a chemist at Wastech for significantly reduced
10 pay. Fanday further testified that Coe had sued Wastech,
11 alleging that Wastech was wrongfully using the Pellu formula.
12 Fanday also stated that Coe had stolen, and was still in
13 possession of, the intellectual property associated with the
14 Pellu formula, including Fanday’s computer that contained work he
15 did for the U.S. Air Force. When Coe asked Fanday whether he was
16 in possession of any intellectual property related to Pellu
17 Systems, Inc., Fanday responded “no.” When Coe asked Fanday
18 whether he had licensed or allowed anyone else to use the Pellu
19 formula, Fanday responded “no.” The trustee then followed up
20 with the same question regarding licensing of the Pellu formula
21
3
On September 16, 2011, just one week before oral argument,
22 Coe filed additional exhibits he wanted the Panel to consider.
The exhibits include the pleadings Coe filed in the state court
23 in support of his motion to amend the default judgment. We are
unclear whether these exhibits were ever presented to the
24 bankruptcy court. See Kirshner v. Uniden Corp. of Am.,
842 F.2d
1074, 1077 (9th Cir. 1988)(papers neither filed with the court,
25 admitted into evidence, nor otherwise considered generally cannot
be part of the record on appeal). Even if they were presented,
26 Coe appears to be submitting them as “proof” of his damages
incurred for Fanday’s subsequent alleged violation of the
27 injunction. As we explain in more detail below, because Coe
failed to quantify any such damages before the bankruptcy court,
28 the additional exhibits do not help his case.
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1 (or any other formula invented by Fanday); Fanday responded that
2 he had no such licensing agreement.
3 On October 27, 2008, Coe, appearing pro se, filed an
4 adversary complaint against Fanday seeking to except his default
5 judgment from discharge under § 523(a)(4) and (a)(6), and seeking
6 to deny Fanday’s discharge pursuant to § 727(a)(2), (a)(3), and
7 (a)(4)(A) and (D). To support his nondischargeability claims,
8 Coe alleged the following facts. During the formation of Pellu
9 Systems, Inc., Fanday had asked Coe to add Noah as a business
10 partner. Although Noah had helped build the manufacturing
11 facility, Coe did not know Noah to have any wastewater expertise
12 or the ability to bring new customers, so Coe declined. Because
13 Coe refused to add Noah as a partner, in August 2006 Fanday told
14 Coe that he was “bailing out” of the business and that he was
15 going to “shut down the company.” Fanday also refused to do any
16 further business with U.S. Filter. Fanday then asked Coe to sell
17 his shares of Pellu Systems, Inc. to Noah for $20,000, which is
18 far less than Coe had invested. When Coe refused to sell, Fanday
19 told Coe to get the equipment out of the warehouse and leave.
20 When Coe refused to leave, Fanday attempted to have Coe removed
21 by showing police a lease different from the one Coe signed and
22 that did not contain Coe’s name, all in an effort to eliminate
23 Coe and allow Fanday and Noah to continue the business. However,
24 since Pellu Systems, Inc.’s business license was in Coe’s name,
25 police did not remove Coe from the premises. Fanday then
26 attempted, unsuccessfully, to dissolve the corporation by sending
27 a notice to the Secretary of State. Thereafter, according to
28 Coe, Fanday refused to meet with Coe or return to the business.
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1 Coe alleged that Fanday knew his malicious actions would
2 financially harm Coe and cause him to lose his investment. Coe
3 further alleged that Fanday had violated the state court
4 injunction by using the Pellu formula with Wastech under various
5 fictitious names. Coe alleged that he and Fanday had an express
6 fiduciary relationship by way of the Agreement, and that Fanday’s
7 actions constituted a defalcation for purposes of § 524(a)(4).
8 Coe alleged these same acts by Fanday were willful and malicious
9 and caused Coe to lose his entire investment in Pellu Systems,
10 Inc. in violation of § 523(a)(6).
11 To support his claims for denying Fanday’s discharge under
12 § 727, Coe alleged that Fanday was in possession of the Pellu
13 formula, and Wastech had been advertising the Pellu formula on
14 its website since 2007. Therefore, Fanday had misrepresented at
15 the § 341 creditor’s meeting that he had no intellectual
16 property, such as formulas related to wastewater treatment, and
17 he concealed his intellectual property by failing to report it on
18 his schedules, in violation of § 727(a)(3) and (a)(4)(A). Coe
19 contended that Fanday should be denied discharge under
20 § 727(a)(2) because Fanday had used a fictitious address for Coe
21 in order to delay and discourage Coe from attending the § 341
22 creditor’s meeting.
23 Fanday, also appearing pro se, filed an answer on
24 November 24, 2008. The answer was essentially a letter offering
25 Fanday’s abbreviated version of the facts; it did not
26 specifically deny any of Coe’s allegations. Fanday requested
27 that the bankruptcy court “dismiss Barry Coe’s motion as a waste
28 of the court’s precious time.”
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1 On December 4, 2008, Coe filed a “demurrer” to Fanday’s
2 answer contending that it failed to controvert any of Coe’s
3 allegations. Coe requested that the bankruptcy court enter a
4 “default judgment to dismiss debtor’s bankruptcy case.”
5 According to the bankruptcy court docket, no proof of service of
6 the demurrer was ever filed, and Coe never set the matter for
7 hearing. Other than the demurrer, no other pretrial motions or
8 briefs were filed.
9 Trial on Coe’s complaint proceeded on July 17, 2009. Both
10 Fanday and Coe appeared pro se. None of the witnesses either of
11 the men intended to call appeared.4 Although Fanday and Coe were
12 ordered to submit all trial exhibits by June 17, Coe brought his
13 exhibits with him the morning of trial. Fanday objected to the
14 late exhibits. The court determined that it would decide later
15 which exhibits were admissible since perhaps none of them were
16 even relevant.
17 The court allowed Coe ten minutes to present his opening
18 argument. Since his argument was very detailed, the court
19 considered it as part of his direct testimony. Fanday did not
20 object to this ruling. In addition to reiterating the
21 allegations in his complaint, Coe testified that Fanday became
22 resentful when Coe refused to pay for certain improvements to the
23 facility that Coe thought were impractical, such as installing a
24 $24,000 piping system. Coe stated that his refusal to add Noah
25
4
Coe explained that Noah was willing to appear, but that he
26 was in Africa and would not be returning for two weeks. The
bankruptcy court opted to take Coe’s and Fanday’s testimony and
27 deal with any other witnesses later. Notably, Noah also failed
to appear at the second day of trial on August 3, 2009, when he
28 was presumably back in town.
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1 as a partner was another point of contention that caused Fanday
2 to abandon the business and the deal with U.S. Filter. Coe
3 testified that Fanday breached his fiduciary duty when he went
4 behind Coe’s back to find another manufacturing site and new
5 investors. Finally, Coe testified about what Fanday had stated
6 at the § 341 creditor’s meeting. Coe did not include in his
7 exhibits a copy of the transcript from Fanday’s § 341 creditor’s
8 meeting.
9 In his opening argument, Fanday contended that because the
10 men had not yet incorporated their business, Fanday had to sign
11 the warehouse lease in the name of his wholly-owned corporation,
12 Pellu Systems Georgia. Fanday stated that he sent copies of the
13 lease documents to Coe in New York only for his review, not to
14 sign. As for additional improvements to the facility, Fanday
15 explained that the equipment Coe had purchased would not satisfy
16 the water demands of U.S. Filter or comply with city fire codes,
17 but Coe disagreed. According to Fanday, Coe had no more money to
18 invest in the business and they could not start manufacturing as
19 it existed. This situation prompted Fanday to solicit Noah as a
20 partner. Fanday offered to sell 20% of his shares to Noah for
21 cash to finish the facility, but Coe refused. Then, the
22 altercations began, so Fanday asked Coe to leave, particularly
23 since Fanday was liable under the lease and he was concerned Coe
24 might destroy the warehouse. Coe refused to leave. Fanday
25 stated that after he moved out, Coe took everything out of the
26 warehouse, including what Fanday claimed were his personal
27 effects.
28 Coe then asked the bankruptcy court to apply issue
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1 preclusion to the default judgment. The court was willing to
2 consider it; however, Coe had not provided copies of the
3 complaint or the proof of service, and the copy of the judgment
4 he provided appeared incomplete.
5 After questioning Coe about the details of his alleged
6 damages, the bankruptcy court continued the trial to August 3,
7 2009, to allow Coe time to submit the necessary documents from
8 the state court proceedings and the transcript from the § 341
9 creditor’s meeting.
10 The second day of trial went as scheduled on August 3, 2009.
11 Coe continued on with his direct testimony, much of which was a
12 repeat from July 17. Coe admitted that perhaps small
13 modifications were needed before Pellu Systems, Inc. could fully
14 operate, but, in his opinion, they were ready to start
15 manufacturing. Coe further testified that at one point he
16 offered to sell his shares to Noah for $50,000, but Fanday would
17 not discuss it and instead called the police. Finally, according
18 to Coe, he, Fanday and Noah met a few days later on August 16,
19 2006, to reconcile and discuss their options. They considered
20 selling the equipment, breaking up the company, or going forward.
21 Coe submitted into evidence notes from this meeting. Fanday and
22 Coe had decided to go forward, and they created a list of duties
23 for each of the men to complete for the business to become
24 operational. However, according to Coe, the next day Fanday and
25 Noah appeared at the warehouse telling Coe to leave because Coe’s
26 name was not on the lease. The police were called, and this is
27 when Coe discovered the fraudulent lease that did not contain
28 Coe’s signature. At that point, the business was over, and Coe
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1 lost his investment.
2 On Fanday’s cross-examination of Coe, Coe admitted that he
3 was not familiar with the regulatory requirements for the
4 manufacturing facility. The men proceeded to argue about whether
5 a secondary containment system was required, whether they even
6 discussed the issue, and whether Coe refused to pay for it. The
7 men then argued about whether their facility had sufficient water
8 pressure to satisfy local fire codes. Coe then admitted that he
9 had left California and the company for the entire month of July
10 2006. During that month, Fanday had called Coe asking him for a
11 check to cover July rent. According to Fanday, the check
12 bounced, but Coe could not recall if he even sent a check to
13 Fanday or that it had bounced. Coe did admit, however, that he
14 refused to pay rent for July and August, believing that Fanday
15 should pay it. Ultimately, Noah loaned the men $5,600 to pay
16 rent expenses for the months of July and August. Fanday and Coe
17 then argued about whether another $60,000 was needed to complete
18 the facility to satisfy U.S. Filter’s first order. Coe also
19 admitted that he was in possession of company property, but he
20 denied having any of Fanday’s clothing and other personal
21 effects.
22 Fanday then gave his direct testimony. Fanday testified
23 that while Coe was in New York for the month of July, he had
24 asked Coe to come back and finish building the facility or they
25 were going to lose the deal with U.S. Filter. According to
26 Fanday, Coe stated that he did not care about losing his
27 investment because he had money from selling his home. Fanday
28 further testified that the men argued about the sufficiency of
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1 the water supply and whether Coe would pay for Fanday’s
2 recommended plumbing system. In Fanday’s opinion, Coe’s idea of
3 using a residential garden hose to fill two 1,500 gallon tanks
4 for chemical blending was inadequate. At this point, Fanday
5 believed Coe had no more money to invest, and he began looking
6 for other investors like Noah. According to Fanday, the men
7 needed another $60,000 for more tanks, raw chemicals, packing
8 equipment, and operational cash for three to six months. Coe
9 would not accept another partner or provide any needed cash.
10 Without more cash, the business could not proceed. At that
11 point, Fanday left. Fanday then took a job as a chemist with
12 Wastech. Coe suspected that Fanday was using the Pellu formula
13 at Wastech in violation of the injunction and called Wastech’s
14 Vice President, Paul,5 and threatened him with litigation. In
15 response, Paul arranged a meeting with Coe at Paul’s attorney’s
16 office. Coe informed Paul that he owned the Pellu formula and
17 that he had documentation to prove his ownership out in his car.
18 Coe then allegedly went outside to get the documents and never
19 returned. Coe objected to Fanday’s testimony about this meeting
20 as hearsay, which the bankruptcy court overruled. Fanday was
21 eventually laid off from Wastech.
22 On Coe’s cross-examination of Fanday, Fanday admitted he
23 never told Coe that the lease Coe signed was not the final lease
24 submitted to the landlord. Fanday further admitted that he asked
25 Coe to leave because they were being evicted from the warehouse.
26 However, Fanday had no documentation to prove the eviction, and
27
5
We could not locate Paul’s last name anywhere in the
28 record.
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1 he could not explain why they were being evicted when Noah had
2 paid the July and August rent. After more discussion of that
3 issue, the bankruptcy court reminded Coe that he had ten minutes
4 left for cross-examination. Coe did not object to this time
5 limit. For the remainder of Fanday’s cross-examination, the men
6 blamed each other for causing the business’s demise and argued
7 about who walked away first and why. After the ten minutes
8 expired, the court allowed Coe to ask one more question. One
9 question turned into many about Fanday’s testimony at the § 341
10 creditor’s meeting, which the court allowed. Fanday admitted he
11 told the trustee that Coe was in possession of all information
12 regarding the Pellu formula for Pellu Systems, Inc., and that he
13 was a chemist at Wastech. Fanday further admitted that he had
14 since patented the Pellu formula in the name of Pellu Systems
15 Georgia because Coe had stolen the trade secret. Coe then
16 attempted to ask Fanday whether he reported the patent on his
17 Schedule B, but Fanday seemed confused by the question and the
18 court directed Coe to move on. The men then began to discuss the
19 value of the Pellu formula, but the court cut them off and
20 directed them to present their closing arguments, for which they
21 were allowed five minutes.
22 In his closing argument, Coe asserted that he had shown
23 Fanday violated § 727 by concealing the Pellu formula - a
24 valuable intangible asset - at both the § 341 creditor’s meeting
25 and in his Schedule B. Coe further asserted that he had met his
26 burden of proof on his claims under § 523(a)(4) and (a)(6). In
27 Fanday’s closing argument, he denied receiving any money from
28 licensing the Pellu formula.
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1 Before making its oral ruling, the bankruptcy court admitted
2 all of the exhibits submitted by both parties. As for the
3 preclusive effect of the default judgment, the bankruptcy court
4 determined that issue preclusion did not apply. First, the
5 record was not clear as to whether Fanday was served with the
6 summons and complaint. Second, the issue had not been
7 necessarily decided because the judgment failed to state upon
8 which grounds it found in favor of Coe - either breach of
9 fiduciary duty or breach of contract.6
10 Although the court found that Fanday was a fiduciary to Coe
11 as a matter of California law based upon the Agreement, Coe had
12 failed to prove his debt was nondischargeable under either
13 § 523(a)(4) or (a)(6), or that Fanday should be denied a
14 discharge under § 727.
15 As for Coe’s claims under § 523(a)(4) and (a)(6), the court
16 found that Fanday had not abandoned the business and that no
17 malicious injury had occurred; this was merely a business
18 partnership that had gone sour. The men had drafted a very poor
19 agreement that did not detail sufficiently who had responsibility
20 for what aspects of the business. Based upon both men’s
21 testimony, it appeared the business was undercapitalized from the
22 start; the total costs and business plan were never spelled out.
23 From the beginning, significant disagreements occurred over how
24 to run the business, including how much money Coe should
25 contribute. When another partner was needed, the parties could
26
27 6
Coe does not dispute the bankruptcy court’s ruling on the
preclusive effect of the default judgment. In any event, we see
28 no error in that ruling.
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1 not even agree on who had the greater technical expertise or who
2 would provide the lead on regulatory requirements, whether or not
3 Coe needed “jar” training, and what type of technical oversight
4 such a highly regulated area would need. Further, no marketing
5 plan existed setting forth what was required, who would implement
6 it, and when. The two men could not agree on basic, essential
7 items to run a business, which led to extreme mistrust and
8 miscommunication. In short, both men were at fault for the
9 business’s demise. Both men wanted it their way, they could not
10 reach an agreement, and so they were unable to move forward at
11 that point. They both were trying to take advantage of the
12 other. As for the alleged fraudulent lease, the court found that
13 no proof existed showing the lease was in fact false, and Coe’s
14 belief that as a business owner his name should have been on the
15 lease was “just an example of some of the ridiculous
16 misunderstanding and false impressions [he] had with respect to
17 this business.” Trial Tr. (Aug. 3, 2009) 135:14-16.
18 As for Coe’s § 727 claims, the bankruptcy court found that
19 Fanday did not conceal assets or make false statements at the
20 § 341 creditor’s meeting or in his schedules. Since Coe was in
21 possession of all of the company assets, no assets existed for
22 Fanday to conceal.
23 Notably, the court found that both men were evasive in their
24 testimony; they had selectively remembered facts and each left
25 out critical facts in telling the sequence of events.
26 Although the court announced its ruling at the end of trial
27 on August 3, 2009, it did not enter the judgment until April 27,
28
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1 2010. Coe timely appealed the judgment on June 3, 2010.7
2 II. JURISDICTION
3 The bankruptcy court had jurisdiction under 28 U.S.C.
4 §§ 1334 and 157(b)(2)(J). We have jurisdiction under 28 U.S.C.
5 § 158.
6 III. ISSUES
7 1. Did the bankruptcy court err by not ruling on Coe’s demurrer
8 to Fanday’s answer?
9 2. Did the bankruptcy court abuse its discretion when it
10 allowed Coe fifteen minutes for cross-examination?
11 3. Did the bankruptcy court err when it entered judgment in
12 favor of Fanday on Coe’s claims under § 523(a)(4) and (a)(6)?
13 4. Did the bankruptcy court err when it entered judgment in
14
7
Since the judgment was entered on April 27, 2010, any
15 appeal had to be filed by May 11, 2010. On May 21, 2010, which
was 10 days after the appeal time had run, Coe filed a motion to
16 extend time to file an appeal under Rule 8002(c). Coe contended
that he was not expecting the judgment to be entered at that
17 time, and because he was out of town between late April and early
May, he did not receive notice of the judgment until after the
18 appeal time had expired. Under Rule 8002(c)(2):
19 A request to extend the time for filing a notice of
appeal must be made by written motion filed before the
20 time for filing a notice of appeal has expired, except
that such a motion filed not later than 21 days after the
21 expiration of the time for filing a notice of appeal may
be granted upon a showing of excusable neglect. An
22 extension of time for filing a notice of appeal may not
exceed 21 days from the expiration of the time for filing
23 a notice of appeal otherwise prescribed by this rule or
14 days from the date of entry of the order granting the
24 motion, whichever is later (emphasis added).
25 On May 26, 2010, the bankruptcy court entered an order granting
Coe a 14-day extension. The court determined that the long delay
26 between the completion of the trial and entry of the judgment
constituted excusable neglect. Therefore, Coe’s motion was
27 timely because it had been filed in less than 21 days after
May 11, 2010. According to the May 26 order, Coe had until
28 June 9, 2010, to file his notice of appeal.
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1 favor of Fanday on Coe’s claims under § 727(a)(4)(A) and (D)?8
2 IV. STANDARDS OF REVIEW
3 In discharge appeals, the Panel reviews the bankruptcy
4 court's findings of fact for clear error and conclusions of law
5 de novo, and applies de novo review to “mixed questions” of law
6 and fact that require consideration of legal concepts and the
7 exercise of judgment about the values that animate the legal
8 principles. Oney v. Weinberg (In re Weinberg),
410 B.R. 19, 28
9 (9th Cir. BAP 2009). A court's factual finding is clearly
10 erroneous if it is illogical, implausible, or without support in
11 the record. Retz v. Samson (In re Retz),
606 F.3d 1189, 1196
12 (9th Cir. 2010)(citing United States v. Hinkson,
585 F.3d 1247,
13
8
Coe also appeals the bankruptcy court’s decision on the
14 garnishment issue. On August 15, 2008, Fanday moved for return
of garnished checks being held by the L.A. County Sheriff’s
15 Department in favor of Coe. After a hearing on September 17,
2008, the court ordered that the garnished checks in the amount
16 of $1,014.60 be returned to Fanday (“Return Order”). On
October 15, 2008, Coe moved to reconsider the Return Order,
17 contending that he did not receive proper notice of the
garnishment hearing. The court heard Coe’s motion on
18 November 19, 2008, and entered an order on November 24, 2008,
vacating the Return Order due to improper service on Coe. The
19 November 24 order further stated that a new hearing on the
propriety of the garnishment matter would be heard on
20 December 10, 2008.
At the December 10 hearing, the court decided that Coe’s
21 filing of the adversary complaint against Fanday had resolved the
garnishment issue. If Fanday had improperly obtained the
22 garnished wages from the Sheriff prior to the November 24 order
vacating the Return Order, Coe was to take that up with the
23 Sheriff. The bankruptcy court entered an order denying Coe’s
motion to reconsider on December 12, 2008.
24 We believe the order from December 12, 2008, was a final
order, which had to be appealed by December 22, 2008 (under the
25 former Rule 8002). If so, then Coe’s appeal of that issue is
untimely, and we lack jurisdiction over it. Even if we have
26 jurisdiction, any prepetition garnishment was likely a
recoverable preference under § 547 in any event (and not Coe’s to
27 keep), and any postpetition garnishment would have been stayed
under § 362. Therefore, we are unable to grant Coe any effective
28 relief even if his appeal is timely.
- 17 -
1 1261-62 & n.21 (9th Cir. 2009)(en banc)). Even if two views of
2 the evidence are possible, “the trial judge’s choice between them
3 cannot be clearly erroneous.” Beauchamp v. Hoose (In re
4 Beauchamp),
236 B.R. 727, 729-30 (9th Cir. BAP 1999).
5 The bankruptcy court’s decision to grant a Rule 15(b) motion
6 is reviewed for an abuse of discretion. Galindo v. Stoody Co.,
7
793 F.2d 1502, 1512-13 (9th Cir. 1986). We also review the
8 bankruptcy court’s decisions regarding management of litigation
9 for an abuse of discretion. FTC v. Enforma Natural Prods.,
10
362 F.3d 1204, 1212 (9th Cir. 2004). To determine whether the
11 bankruptcy court abused its discretion, we conduct a two-step
12 inquiry: (1) we review de novo whether the bankruptcy court
13 “identified the correct legal rule to apply to the relief
14 requested” and (2) if it did, whether the bankruptcy court's
15 application of the legal standard was illogical, implausible or
16 “without support in inferences that may be drawn from the facts
17 in the record.” Hinkson,
585 F.3d at 1261-62.
18 V. DISCUSSION
19 Coe raises numerous issues on appeal. For the most part,
20 Coe disputes the bankruptcy court’s findings of fact.
21 Significantly, the bankruptcy court explicitly found as a
22 threshold matter that both Coe and Fanday were evasive in their
23 testimony, selectively remembered facts, and left out critical
24 facts in testifying as to the sequence of events. When findings
25 are based, as in this case, on determinations regarding the
26 credibility of witnesses, we give even greater deference to the
27 bankruptcy court’s findings. Hansen v. Moore (In re Hansen),
28
368 B.R. 868, 874-75 (9th Cir. BAP 2007). This greater deference
- 18 -
1 is applied because the bankruptcy court, as the trier of fact,
2 had the opportunity to note “variations in demeanor and tone of
3 voice that bear so heavily on the listener’s understanding of and
4 belief in what is said.” Anderson v. City of Bessemer City,
5 N.C., 470 U.S. 564, 575 (1985). With this in mind, we now review
6 the issues on appeal.
7 A. The bankruptcy court did not err when it did not rule on
Coe’s demurrer; Fanday’s defenses at trial were allowed
8 under FRCP 15(b).
9 Coe argues that the bankruptcy court’s failure to rule on
10 his demurrer9 before trial improperly allowed Fanday to raise
11 defenses at trial that he had failed to raise in his answer, and
12 Coe was particularly prejudiced when Fanday was allowed to
13 testify about the business’s need for $60,000. Coe further
14 argues that Fanday’s defenses were waived under
15 FRCP 12(h)(1)(B)(ii). We disagree.
16 First of all, FRCP 12(h)(1)(B)(ii),10 as incorporated by
17 Rule 7012, does not apply here because Fanday never asserted the
18 FRCP 12(b) defenses of: lack of personal jurisdiction, improper
19 venue, insufficient process, or insufficient service of process.
20 Second, in reviewing the bankruptcy court docket, the absence of
21 a proof of service indicates that Fanday was never served with
22 the demurrer. Coe also failed to file a notice of the motion or
23 set the matter for hearing as required under Local Rule 9013-1.
24
9
A “demurrer” does not exist in Federal litigation but is
25 the California equivalent to a motion to dismiss for failure to
state a claim under FRCP 12(b)(6). Tucker v. Interscope Records,
26 Inc.,
515 F.3d 1019, 1033 n.14 (9th Cir. 2008).
27 10
FRCP 12(h)(1)(B)(ii) provides that a party waives any
defense listed in FRCP 12(b)(2)-(5) by failing to include it in a
28 responsive pleading or in an amendment allowed by FRCP 15(a)(1).
- 19 -
1 Moreover, Coe never raised the demurrer issue during the two days
2 of trial. Nothing in the record indicates that the bankruptcy
3 court even knew about Coe’s demurrer. As such, the court could
4 not have erred for failing to rule on it.
5 Admittedly, Fanday’s answer is woefully inadequate. So is
6 Coe’s complaint. Generally, allegations not denied in the answer
7 are deemed admitted under FRCP 8(b)(6). However, Fanday’s answer
8 requesting that the bankruptcy court dismiss Coe’s complaint
9 could be construed as a general denial of all of Coe’s
10 allegations. Even if not, once the trial had been conducted,
11 FRCP 15(b) permitted amending the pleadings to conform to the
12 evidence. Yadidi v. Herzlich (In re Yadidi),
274 B.R. 843, 851
13 (9th Cir. BAP 2002).
14 FRCP 15(b), as incorporated by Rule 7015(b), provides:
15 When an issue not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated
16 in all respects as if raised in the pleadings. A party
may move - at any time, even after judgment - to amend
17 the pleadings to conform them to the evidence and to
raise an unpleaded issue. But failure to amend does not
18 affect the result of the trial of that issue.
19 When facts probative of claims actually alleged in the pleadings
20 come into evidence at trial without objection, the factual issues
21 are tried by implied consent of the parties. In re Yadidi, 274
22 B.R. at 851-52. Under FRCP 15(b), such factual issues are
23 required to be treated in all respects as if they had been raised
24 in the pleadings. Id. at 852 (citing Campbell v. Trs. of Leland
25 Stanford Jr. Univ.,
817 F.2d 499, 506 (9th Cir. 1987)).
26 Despite Fanday’s inarticulate answer, Coe questioned Fanday
27 at trial about why he left the business. In Coe’s cross-
28 examination of Fanday and, more importantly, during Fanday’s
- 20 -
1 direct examination, Coe never objected to Fanday’s testimony
2 regarding the $60,000, which Fanday raised on several occasions.
3 Although neither party moved to amend the pleadings under
4 FRCP 15(b), the lack of a motion does not change the outcome.
5 “[FRCP] 15(b) is designed to be automatic and is not waived by
6 omission to make a timely motion. The key question is whether
7 there has been the requisite consent of the parties. If the
8 court enters judgment on an issue litigated by consent without
9 the pleadings having been formally amended, the lack of amendment
10 does not matter.” Id. at 851.
11 Accordingly, the bankruptcy court did not err by not ruling
12 on Coe’s demurrer, and it did not abuse its discretion by
13 amending the pleadings to conform to the evidence submitted at
14 trial.
15 B. The bankruptcy court did not abuse its discretion when it
allowed Coe fifteen minutes for cross-examination.
16
17 Coe contends that the bankruptcy court violated Coe’s due
18 process rights by giving him only fifteen minutes to cross-
19 examine Fanday, which was insufficient to prove his case. Coe
20 further contends the court erred by not allowing re-direct and
21 re-cross examination. We reject Coe’s arguments.
22 The bankruptcy court did not err by not allowing re-cross
23 examination because Coe never requested it. As for his other
24 argument, Coe cites no authority (other than the Fourteenth
25 Amendment of the U.S. Constitution) to support his contention
26 that the fifteen minute time limitation imposed on his cross-
27 examination of Fanday was an abuse of discretion. Generally, a
28 district court may impose reasonable time limits on a trial.
- 21 -
1 Gen. Signal Corp. v. MCI Telecomms.,
66 F.3d 1500, 1508 (9th Cir.
2 1995). We are not persuaded that fifteen minutes in this case
3 was unreasonable.
4 Coe had approximately two days to present his case. He
5 never objected to this time limit. On both days, each of the men
6 were allowed to testify, virtually uninterrupted, for a
7 significant period of time. As plaintiff, with the burden of
8 proof, Coe was given even more time than Fanday. The bankruptcy
9 court regularly kept both sides informed of the time remaining
10 throughout the trial. After Coe had been cross-examining Fanday
11 for some time, the bankruptcy court announced that Coe had 10
12 more minutes on cross. Coe did not object, but responded, “Oh,
13 okay.” Trial Tr. (Aug. 3, 2009) 106:9. It was up to Coe to use
14 his time wisely. When the 10 minutes expired, the court allowed
15 time for one more question. Nonetheless, the court allowed Coe
16 to ask several more questions before he was finally instructed to
17 stop.
18 By ensuring that Coe had time to conduct cross-examination
19 of Fanday, even if limited to what Coe claims was fifteen
20 minutes, the bankruptcy court satisfied the requirements of due
21 process. See Harries v. United States,
350 F.2d 231, 236 (9th
22 Cir. 1965)(a limitation on cross-examination denies due process
23 only if it is “so severe as to constitute a denial” of the right
24 to cross-examine). As such, we see no abuse of discretion.
25 C. The bankruptcy court did not err when it entered judgment in
favor of Fanday on Coe’s claims under § 523(a)(4) and
26 (a)(6).
27 1. Coe’s claim under § 523(a)(4).
28 Section 523(a)(4) provides that “a discharge under section
- 22 -
1 727 . . . of this title does not discharge an individual debtor
2 from any debt - . . . (4) for fraud or defalcation while acting
3 in a fiduciary capacity, embezzlement, or larceny.” Whether a
4 relationship is a fiduciary one within the meaning of § 523(a)(4)
5 is a question of federal law. In re Weinberg,
410 B.R. at 28
6 (citing Ragsdale v. Haller,
780 F.2d 794, 795 (9th Cir. 1986)).
7 However, we rely in part on state law to ascertain whether the
8 requisite trust relationship exists. Cal-Micro, Inc. v. Cantrell
9 (In re Cantrell),
329 F.3d 1119, 1124 (9th Cir. 2003). In the
10 dischargeability context, the fiduciary relationship must arise
11 from an express or technical trust that was imposed before and
12 without reference to the wrongdoing that caused the debt. In re
13 Weinberg,
410 B.R. at 28.
14 The bankruptcy court found that Fanday was a fiduciary to
15 Coe under California law based upon the provisions of the
16 Agreement. Fanday does not dispute this finding on appeal, and
17 we offer no opinion on the matter. Nonetheless, whether or not
18 Fanday was a fiduciary to Coe, Coe failed to offer any evidence
19 to support defalcation under § 523(a)(4).
20 “Defalcation” occurs when a fiduciary misappropriates or
21 fails to account for trust funds or money held in a fiduciary
22 capacity. Id. (citing Lewis v. Scott (In re Lewis)),
97 F.3d
23 1182, 1186 (9th Cir. 1996). See Woodworking Enters., Inc. v.
24 Baird (In re Baird),
114 B.R. 198, 204 (9th Cir. BAP 1990)(“In
25 the context of § 523(a)(4), the term ‘defalcation’ includes
26 innocent, as well as intentional or negligent defaults so as to
27 reach the conduct of all fiduciaries who were short in their
28 accounts.”). None of Fanday’s conduct constitutes a defalcation
- 23 -
1 for purposes of § 523(a)(4). Even assuming Fanday was in a
2 fiduciary relationship with Coe, Coe never alleged, or proved at
3 trial, that Fanday held funds in trust and/or that Fanday
4 misappropriated or failed to account for any funds. Thus, Fanday
5 could not have committed defalcation, and Coe’s claim under
6 § 523(a)(4) fails. We reject Coe’s argument that the bankruptcy
7 court erred when it concluded Coe lacked the necessary funds to
8 go forward with the business, so therefore Fanday did not commit
9 defalcation. How much money Coe had or did not have to invest
10 has no bearing on whether Fanday committed defalcation.
11 We conclude, on this record, that the bankruptcy court did
12 not err when it found in favor of Fanday on Coe’s claim for a
13 defalcation under § 523(a)(4).11
14 2. Coe’s claim under § 523(a)(6).
15 Section 523(a)(6) excepts from discharge debts resulting
16 from willful and malicious injury by the debtor to another entity
17 or to the property of another entity. Thus, by a preponderance
18 of the evidence, the creditor must prove that the debtor’s
19 conduct in causing the claimant’s injuries was both willful and
20 malicious. Carrillo v. Su (In re Su),
290 F.3d 1140, 1146-47
21 (9th Cir. 2002).
22 “Willfulness” requires proof that the debtor deliberately or
23
24 11
On appeal, Coe contends that Fanday failed to account for
funds he received when he sold some scaffolding that had been
25 given to Pellu Systems, Inc. by U.S. Filter. This question of
fact, which is not supported by any evidence in the record, was
26 never raised before the bankruptcy court. We generally do not
consider an issue raised for the first time on appeal, where the
27 trial court had no opportunity to consider it. El Paso v. Am. W.
Airlines, Inc. (In re Am. W. Airlines, Inc.),
217 F.3d 1161, 1165
28 (9th Cir. 2000).
- 24 -
1 intentionally injured the creditor, and that in doing so, the
2 debtor intended the consequences of his act, not just the act
3 itself. Kawaauhau v. Geiger,
523 U.S. 57, 60-61 (1998). For a
4 “malicious injury” to occur, the creditor must prove that the
5 debtor: (1) committed a wrongful act; (2) done intentionally;
6 (3) which necessarily causes injury; and (4) was done without
7 just cause or excuse. Carrillo v. Su (In re Su),
290 F.3d 1140,
8 1146-47 (9th Cir. 2002).
9 Based on our review of the evidence presented, Coe does not
10 have a claim under § 523(a)(6). We agree with the bankruptcy
11 court’s finding that this was nothing more than a business
12 partnership that had gone sour. Both men were at fault for the
13 business’s demise. They had no real plan, no real concept of
14 what was required for a business of this magnitude, and could not
15 seem to agree on anything. Police were called on numerous
16 occasions for disturbances at the warehouse. After a few months,
17 it was clear that these two men could not work together. Even if
18 Fanday’s actions were wrongful, intentional, and caused Coe
19 injury, Fanday had just cause to leave the business. However, no
20 evidence suggests that Fanday intended maliciously to injure Coe.
21 The willfulness element is also lacking.
22 As for the lease issue, the bankruptcy court specifically
23 found that no fraudulent lease existed. However, even if Fanday
24 presented police with a fraudulent lease, Coe suffered no
25 cognizable injury from that act; he was not removed from the
26 warehouse. We also reject Coe’s contention that the bankruptcy
27 court erred in ruling that the Agreement itself was the reason
28 the business failed. The men’s poorly drafted business agreement
- 25 -
1 was just one of many facts the court determined caused the
2 business’s demise. Finally, we reject Coe’s argument that the
3 bankruptcy court improperly allowed Fanday’s hearsay testimony
4 about what “Paul said” when Fanday was not at the meeting with
5 Coe, Paul, and Paul’s attorney. Such testimony was irrelevant
6 because what occurred or did not occur between Coe and Paul at
7 that meeting has no bearing on Fanday’s conduct, which is at
8 issue here.
9 To the extent Coe contends that he suffered post-judgment
10 damages12 due to Fanday’s willful violation of the injunction by
11 wrongfully using the Pellu formula at Wastech, Coe failed to
12 present evidence of any such damages before the bankruptcy court.
13 Further, even assuming Fanday has violated the injunction, the
14 “intent” element is lacking. Nothing in the record supports
15 Coe’s contention that Fanday’s continued use of the Pellu formula
16 was done with the specific intent to injure Coe.
17 Therefore, we conclude that the record amply supports the
18 bankruptcy court’s decision to find in favor of Fanday on Coe’s
19 claim under § 523(a)(6).
20 D. The bankruptcy court did not err when it entered judgment in
favor of Fanday on Coe’s claims under § 727(a)(4)(A) and
21 (D).
22 Section 727 is to be construed liberally in favor of debtors
23
12
As Coe informed the bankruptcy court at trial, his
24 damages of $371,747.89 in the default judgment included Coe’s
lost investment, moving expenses, estimated lost profits of U.S.
25 Filter for one year, and interest. The judgment did not include,
and could not have included, damages for Fanday’s subsequent
26 alleged violation of the injunction. Thus, any damages Coe
incurred as a result of that alleged conduct had to be pled in
27 his adversary complaint and proven at trial. Coe admitted at
oral argument that he failed to quantify any such damages before
28 the bankruptcy court.
- 26 -
1 and strictly against the creditor. First Beverly Bank v. Adeeb
2 (In re Adeeb),
787 F.2d 1339, 1342 (9th Cir. 1986). The burden
3 is on the party opposing discharge to prove by a preponderance of
4 the evidence that discharge should be denied. Grogan v. Garner,
5
498 U.S. 279, 289 (1991).
6 1. Coe’s claims under § 727(a)(4)(A) and (D).
7 a. Elements of § 727(a)(4)(A) and (D).
8 Section 727(a)(4)(A) provides that a court should grant a
9 discharge to a debtor, unless the debtor knowingly and
10 fraudulently, in or in connection with the case, made a false
11 oath or account. To deny a debtor a discharge under
12 § 727(a)(4)(A) based on a false oath, the plaintiff must show:
13 “(1) the debtor made a false oath in connection with the case;
14 (2) the oath related to a material fact; (3) the oath was made
15 knowingly; and (4) the oath was made fraudulently.” Roberts v.
16 Erhard (In re Erhard),
331 B.R. 876, 882 (9th Cir. BAP 2005). “A
17 false statement or an omission in the debtor’s bankruptcy
18 schedules or statement of financial affairs can constitute a
19 false oath.” Khalil v. Developers Sur. & Indem. Co. (In re
20 Khalil),
379 B.R. 163, 172 (9th Cir. BAP 2007). A finding of
21 fraudulent intent (or lack thereof) is a finding of fact reviewed
22 for clear error. Adeeb, 787 F.2d at 1342.
23 Section 727(a)(4)(D) supports the denial of discharge when
24 the debtor knowingly and fraudulently withheld from an officer of
25 the estate any recorded information, including books, documents,
26 records, and papers, relating to the debtor’s property or
27 financial affairs.
28
- 27 -
1 b. Disposition of the issues.
2 For his claim under § 727(a)(4)(A), Coe alleged that Fanday
3 made a false oath in his bankruptcy schedules by failing to
4 disclose his intellectual property asset of a water treatment
5 formula. Coe further alleged that Fanday made a similar false
6 oath at the § 341 creditor’s meeting by stating that he did not
7 own any intellectual property regarding a water treatment
8 formula. For his claim under § 727(a)(4)(D), Coe alleged that
9 Fanday withheld “documentation of his assets in his bankruptcy
10 schedules.” Since Coe did not allege, or prove at trial, that
11 Fanday failed to produce any particular financial documents to
12 the trustee, his only claim at issue is whether Fanday made a
13 false oath or omission in his bankruptcy schedules in violation
14 of § 727(a)(4)(A).
15 The bankruptcy court found that Fanday did not conceal
16 assets or make false statements at the § 341 creditor’s meeting
17 or in his schedules. Specifically, the court found that Fanday
18 could not conceal any assets when they were all left admittedly
19 in Coe’s possession.
20 Coe contends that the bankruptcy court erred when it
21 determined that Fanday did not make false oaths in his schedules
22 or at the § 341 creditor’s meeting about not owning the Pellu
23 formula because the manifest weight of evidence showed otherwise:
24 i.e., Fanday used the formula to blend chemicals for the U.S. Air
25 Force for years before partnering with Coe; Fanday admitted that
26 the formula was valuable; Fanday has continued to profit from the
27 formula at Wastech; and Fanday has since patented the formula in
28 2009.
- 28 -
1 At the § 341 creditor’s meeting, Fanday stated that he was
2 not in possession of any intellectual property related to Pellu
3 Systems, Inc. Fanday further testified that Coe had stolen, and
4 was still in possession of, the intellectual property associated
5 with the Pellu formula, including Fanday’s computer that
6 contained work he did for the U.S. Air Force. When Coe asked
7 Fanday whether he had licensed or allowed anyone else to use the
8 Pellu formula, Fanday responded “no.” When the trustee followed
9 up with the same question regarding licensing of the Pellu
10 formula, or any other formula Fanday invented, Fanday responded
11 that he had no such licensing agreement.
12 Contrary to Coe’s assertion, in reviewing the § 341
13 creditor’s meeting transcript Fanday never stated that he did not
14 “own” the Pellu formula or any other wastewater treatment
15 formulas. Fanday was only asked whether he was in possession of
16 any intellectual property related to Pellu Systems, Inc., and
17 whether he had any licensing agreement regarding the Pellu
18 formula or any other formula he invented. The bankruptcy court
19 correctly found that Coe admitted he was in possession of nearly
20 all of Pellu Systems, Inc.’s property. Fanday further stated he
21 was not receiving any money from licensing agreements for any
22 wastewater treatment formulas he invented, including the Pellu
23 formula. Coe failed to produce any evidence of a licensing
24 agreement.
25 As for not reporting the Pellu formula in his Schedule B,
26 the record is unclear whether the formula is owned by Pellu
27 Systems Georgia, Pellu Systems, Inc., or Fanday himself. At one
28 point, Coe had asserted to Paul at Wastech that he owned the
- 29 -
1 formula. Without establishing that Fanday owns the Pellu
2 formula, Coe could not prove that Fanday made a false oath in not
3 reporting it. Thus, the bankruptcy court did not clearly err in
4 finding that Fanday made no false oath in his Schedule B.
5 Accordingly, we see no error in the bankruptcy court’s
6 decision to find in favor of Fanday on Coe’s claims under
7 § 727(a)(4)(A) and (D).13
8 VI. CONCLUSION
9 Based on the foregoing reasons, we AFFIRM.
10
11
12
13
14
15
16
17
18
13
The bankruptcy court articulated findings on Coe’s claims
19 under § 727(a)(4)(A) and (D). However, Coe also asserted claims
under § 727(a)(2) and (a)(3). Coe does not assign any error by
20 the bankruptcy court for not ruling on these additional claims,
or raise this issue on appeal. Nonetheless, to the extent the
21 court did not articulate findings on these additional claims, we
AFFIRM. See Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1295
22 (9th Cir. 1998)(we may affirm on any basis found in the record).
Coe’s allegation that Fanday’s use of a fictitious address
23 for Coe to prevent Coe from attending the § 341 creditor’s
meeting does not support a claim under either § 727(a)(2)(A) or
24 (B). In any event, Coe attended the meeting and questioned
Fanday. As for his claim under § 727(a)(3), Coe’s mere
25 allegation that Fanday “conceal[ed] documentation of his assets”
is clearly insufficient to establish a prima facie case.
26 Furthermore, no evidence at trial established that Fanday had
concealed any documents that related to his financial condition
27 or business transactions. In fact, Coe admitted that he was in
possession of Fanday’s computer, which Fanday testified held all
28 of his business records.
- 30 -
