FILED
NOV 19 2013
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 In re: ) BAP No. WW-13-1230-TaDJu
)
6 THOMAS R. HAZELRIGG, III, ) Bk. No. 11-22731-TWD
)
7 Debtor. ) Adv. No. 12-01966-TWD
______________________________)
8 )
THOMAS R. HAZELRIGG, III, )
9 )
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
UNITED STATES TRUSTEE, )
12 )
Appellee. )
13 )
14 Argued on October 17, 2013 at Seattle, Washington
Submitted on October 23, 2013**
15
Filed - November 19, 2013
16
Appeal from the United States Bankruptcy Court
17 for the Western District of Washington
18 Honorable Timothy W. Dore, Bankruptcy Judge, Presiding
19 Appearances: Marc S. Stern argued for appellant Thomas R.
Hazelrigg, III; William Lewis Courshon argued for
20 appellee United States Trustee.
21
22
*
This disposition is not appropriate for publication.
23 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
**
Prior to oral argument before The Honorable Randall L.
26 Dunn and The Honorable Laura S. Taylor, The Honorable Frank Kurtz
27 recused himself from consideration of the appeal. The matter was
reassigned to Judge Taylor, Judge Dunn and The Honorable Meredith
28 A. Jury. Following reassignment, submission was deferred until
Judge Jury listened to the recording of the oral argument and the
Panel discussed the merits of the appeal.
1 Before: TAYLOR, DUNN, and JURY, Bankruptcy Judges.
2 INTRODUCTION
3 The United States Trustee (“UST”) moved for summary judgment
4 on her adversary complaint objecting to the discharge of debtor
5 Thomas R. Hazelrigg, III (“Debtor”) under § 727(a)(3)1 and
6 (a)(5). The bankruptcy court granted relief under § 727(a)(5).
7 The Debtor moved for reconsideration, which the bankruptcy court
8 denied. He appeals from the order denying his motion for
9 reconsideration. We AFFIRM.
10 FACTS
11 On October 31, 2011, creditors of the Debtor commenced an
12 involuntary Chapter 7 proceeding against him. Prior to this
13 time, the Debtor was a well-known financier and businessman in
14 the Seattle area. He also was an associate of an individual
15 named Michael Mastro (“Mastro”). Mastro was formerly a major
16 Seattle real estate developer and, like the Debtor, was
17 involuntarily placed into chapter 7 bankruptcy. In fact,
18 James F. Rigby, the chapter 7 trustee in Mastro's bankruptcy
19 case, was one of the petitioning creditors in the Debtor’s
20 involuntary case.
21 The order for relief (“Relief Order”) was entered in
22 February of 2012.2 The Debtor subsequently filed schedules and a
23
1
24 Unless otherwise indicated, all chapter and section
references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532.
25 All “Rule” references are to the Federal Rules of Bankruptcy
Procedure and “Civil Rule” references are to the Federal Rules of
26
Civil Procedure.
27 2
We take judicial notice of certain documents
28 (continued...)
2
1 statement of financial affairs (“SOFA”). Other than stating his
2 name and address on the petition and executing the documents, the
3 schedules and SOFA were blank; the Debtor, instead, asserted a
4 blanket Fifth Amendment privilege next to each signature block.
5 Pursuing an obvious need for additional information, the UST
6 moved to compel the Debtor to file amended and complete schedules
7 and a SOFA or to assert a Fifth Amendment privilege to each
8 question. The bankruptcy court agreed and entered an order
9 directing the Debtor to comply. He submitted a first and then a
10 second set of amended schedules and a SOFA. The Debtor listed
11 one vehicle in his amended Schedule B - a 2008 PT Cruiser – and
12 disclosed that two cars were sold to Carmax approximately one or
13 two years prior to petition; he did not describe these vehicles
14 or provide any other details of the transactions.
15 Based on a Rule 2004 order, the UST issued a document
16 subpoena (“Subpoena”) to the Debtor. In an attached document,
17 the UST outlined a request for documents regarding the transfer,
18 disposition, or ownership of certain assets owned or previously
19 owned by the Debtor, assets neither scheduled nor otherwise
20 referenced in the Debtor’s amended schedules or SOFA.
21 Apparently, as part of the investigation in the Mastro bankruptcy
22 case, the UST came into possession of a balance sheet dated
23
24
25
2
(...continued)
26 electronically filed in the Debtor’s bankruptcy case. See
27 O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),
887 F.2d
955, 957-58 (9th Cir. 1989); Atwood v. Chase Manhattan Mortg. Co.
28 (In re Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
3
1 July 31, 2008 (“Balance Sheet”),3 detailing the Debtor's assets
2 (and their value) as of that date. Using this document, the UST
3 expressly identified the following assets in the Subpoena: five
4 luxury vehicles valued at $459,000; fees receivable valued at
5 $1,145,500; and real estate owned personally and indirectly,
6 valued at $49,956,350 (including the assets described in footnote
7 four, collectively hereafter, the “Assets”).4
8 The Debtor responded to the Subpoena (“Subpoena Response”),
9 once again asserting a blanket Fifth Amendment privilege to the
10 UST’s inquiry; he did not, however, produce any documentation.
11 Afterward, he supplemented his response with a copy of the
12 vehicle registration certificate and car insurance for the
13 PT Cruiser. This was the extent of his document production in
14 response to the Subpoena.
15 In response, the UST commenced an adversary proceeding
16 against the Debtor, objecting to the Debtor’s discharge under
17 § 727(a)(2), (a)(3), (a)(4), and (a)(5). Among other things, the
18 adversary complaint alleged that the Debtor owned the Assets in
19 2008, but failed to account for the transfer, disposition, or
20 ownership of the Assets in the bankruptcy case.
21
22 3
At oral argument, the Debtor conceded that he did not
dispute the authenticity of the document.
23
4
24 The luxury vehicles included a: 2006 Mercedes CLK 350;
2007 Range Rover RHS; 2008 Bentley GT; 2005 Bentley Azure; and
25 2009 Bentley Brookland.
The Subpoena also identified the following assets: Art
26 collection – $900,000; Plasma Drive stock - $400,000; Note and
27 Contracts Receivable - $13,892,452; Centurion Financial Group -
$13,000,000; Mukilteo Lots - $300,000; Dogwood Meadows -
28 $4,696,368; and Bontrager Judgment - $1,438,456.
4
1 The Debtor immediately sought dismissal of the adversary
2 complaint under Civil Rule 12(b) and (c) (“Motion to Dismiss”),
3 arguing that the UST failed to plead the elements of fraud with
4 particularity as required by Civil Rule 9(b). The bankruptcy
5 court denied the motion (“Dismissal Order”) and ordered the
6 Debtor to answer the adversary complaint.
7 The UST subsequently moved for summary judgment (“MSJ”), but
8 only as to the § 727(a)(3) and (a)(5) claims. In support of the
9 MSJ, she attached the declaration of Thomas Buford (“Buford”),
10 counsel for the UST; she also attached the Subpoena, Balance
11 Sheet, and Subpoena Response and supplemental response, among
12 other documents.
13 In his declaration, Buford detailed the various efforts
14 undertaken by the UST to serve the Debtor with the Subpoena. He
15 declared that other than copies of the car registration and
16 insurance for the PT Cruiser, the Debtor had not produced any
17 other documents responsive to the Subpoena.
18 In his response to the MSJ (“MSJ Response”), the Debtor
19 contested the service and timeliness of the Subpoena. He
20 complained that early in the adversary proceeding, the UST
21 delivered digital discs to his attorney, containing thousands of
22 electronic files of the Debtor’s financial records not previously
23 available to him. He blamed his failure to provide documents
24 personally on the death of his bookkeeper, Ann Stockton
25 (“Stockton”), and the fact that “her computer suffered a fatal
26 crash” such that any information regarding a backup “died with
27 her.” The Debtor finally discussed the disposition of the
28 Seattle residences, two valuable chandeliers, and other art
5
1 pieces.
2 The Debtor attached only two declarations in opposition to
3 the MSJ: his attorney’s declaration and the declaration of
4 Steffen Jacobson, husband of the late bookkeeper. He did not
5 personally submit a declaration and provided no other documentary
6 evidence. The attorney’s declaration echoed the MSJ Response and
7 attached the Subpoena Response already presented by the UST.
8 Jacobson confirmed his wife’s death in October of 2011 and the
9 post-October 2011 destruction or loss of all her physical and
10 computer records relating to Debtor.
11 Following presentation of arguments at the MSJ hearing, the
12 bankruptcy court orally ruled; it denied summary judgment on the
13 § 727(a)(3) claim, but granted summary judgment on the
14 § 727(a)(5) claim. Relying on the Balance Sheet, the bankruptcy
15 court determined that the UST made her prima facie case under
16 § 727(a)(5). In particular, it determined that the Debtor’s
17 explanations regarding the luxury cars listed on the Balance
18 Sheet were inadequate. It noted, for example, that the amended
19 SOFA vaguely referenced a transfer of two cars to Carmax, but
20 lacked descriptive information as to the cars or transactions.
21 It further noted that the Balance Sheet listed millions in
22 receivables, none of which were scheduled by the Debtor, save for
23 one account that he valued at zero dollars.
24 The bankruptcy court observed that while the Debtor made
25 numerous statements regarding the missing Assets, he provided no
26 evidence to support his assertions. His declaratory evidence
27 addressed the records issue, the bankruptcy court determined, but
28 did not constitute admissible evidence that accounted for the
6
1 missing Assets.
2 Following the hearing, the bankruptcy court entered an order
3 (“Judgment”)5 granting relief to the UST on the § 727(a)(5)
4 claim. The Judgment contained a Civil Rule 54(b) certification.
5 Undeterred, the Debtor moved for reconsideration (“Motion to
6 Reconsider”) on the § 727(a)(5) determination under Rule 9023 and
7 Civil Rule 59. He argued, among other things, that
8 reconsideration was warranted because he had asserted a valid
9 Fifth Amendment privilege. Rejecting this argument, the
10 bankruptcy court denied the motion (“Reconsideration Order”),
11 determining that the Debtor failed to properly invoke the
12 privilege in response to the MSJ. In doing so, it noted that
13 based on an earlier hearing in the bankruptcy case (ostensibly,
14 the UST’s motion to compel amended schedules), both the Debtor
15 and Stern were acutely aware that to the extent the Debtor wished
16 to invoke the Fifth Amendment privilege, he was required to do so
17 on a question-by-question basis. Therefore, blanket assertions
18 of privilege in prior documents and the Debtor’s subsequent
19 reference to those blanket assertions was insufficient to raise
20 the issue of privilege in response to the MSJ.
21
5
22 Where an appeal is taken from a final, entered order and
there is no objection to the lack of a separate judgment, the
23 separate document rule is deemed waived. See Bankers Trust Co.
24 v. Mallis,
435 U.S. 381, 386 (1978).
While the document here is titled “Order Regarding Motion
25 for Summary Judgment,” the bankruptcy court deemed it a final
order and it contains no findings of fact. Neither party
26 objected to the lack of a separate document. Thus, we construe
27 it as final for the purposes of this appeal. See also Fed. R.
Civ. P. 58(c)(2)(B) (incorporated into adversary proceedings by
28 Rule 7058).
7
1 The Debtor timely appealed from the Reconsideration Order.
2 JURISDICTION
3 The bankruptcy court had jurisdiction under 28 U.S.C.
4 §§ 1334 and 157(b)(2)(J). We have jurisdiction over this appeal
5 pursuant to
28 U.S.C. § 158.
6 ISSUES
7 1. Did the bankruptcy court err in granting summary judgment on
8 the § 727(a)(5) claim?6
9 2. Did the bankruptcy court err in denying the Debtor’s Motion
10 to Dismiss as to the § 727(a)(5) claim?
11 3. Did the bankruptcy court err in denying the Debtor’s Motion
12 to Reconsider under Civil Rule 59(e)?
13 STANDARDS OF REVIEW
14 We review de novo a bankruptcy court’s decision to grant
15 summary judgment. Marciano v. Fahs (In re Marciano),
459 B.R.
16 27, 35 (9th Cir. BAP 2011), aff'd,
708 F.3d 1123 (9th Cir. 2013).
17 We may affirm summary judgment on any ground supported by the
18 record. Cusano v. Klein,
264 F.3d 936, 950 (9th Cir. 2001).
19 A motion to dismiss is also reviewed de novo. See Barnes v.
20 Belice (In re Belice),
461 B.R. 564, 572 (9th Cir. BAP 2011).
21 Denial of a motion to reconsider is reviewed for an abuse of
22 discretion. Morrissey v. Stuteville (In re Morrissey),
349 F.3d
23 1187, 1189 (9th Cir. 2003).
24 Abuse of discretion is a two-prong test; first, we determine
25 de novo whether the bankruptcy court identified the correct legal
26
6
27 Neither party addresses the denial of summary judgment on
the § 727(a)(3) claim, and, thus, we do not address that issue on
28 appeal.
8
1 rule for application. See United States v. Hinkson,
585 F.3d
2 1247, 1261-62 (9th Cir. 2009) (en banc). If not, then the
3 bankruptcy court necessarily abused its discretion. See
id. at
4 1262. Otherwise, we next review whether the bankruptcy court’s
5 application of the correct legal rule was clearly erroneous; we
6 will affirm unless its findings were illogical, implausible, or
7 without support in inferences that may be drawn from the facts in
8 the record. See
id.
9 DISCUSSION
10 A. The Scope of Appeal.
11 On appeal, the Debtor, in part, argues that the bankruptcy
12 court erred when it denied the Motion to Dismiss under Civil
13 Rule 12(b) and (c). The Dismissal Order was an interlocutory
14 order, which merged into the Judgment. See Am. Ironworks &
15 Erectors, Inc. v. N. Am. Constr. Corp.,
248 F.3d 892, 897 (9th
16 Cir. 2001). Because the Judgment contained a Civil Rule 54(b)
17 certification, it is a final judgment. See Fed. R. Civ. P. 54(b)
18 (incorporated into adversary proceedings by Rule 7054); see also
19 Belli v. Temkin (In re Belli),
268 B.R. 851, 855-56 (9th Cir. BAP
20 2001). The Motion to Reconsider tolled the time to appeal the
21 Judgment. See Fed. R. Bankr. P. 8002(b)(2). The latter then
22 merged into the order disposing of the Motion to Reconsider.
23 Even so, the scope of review is limited to the issues
24 directly on appeal and other issues either “inextricably
25 intertwined” with the issues on appeal or those issues essential
26 to resolution of the order on appeal. See Swint v. Chambers
27 Cnty. Comm'n,
514 U.S. 35, 45 (1995).
28 Here, the issue on appeal is the denial of the Debtor's
9
1 discharge under § 727(a)(5). The Debtor assigns error to the
2 Dismissal Order based on the UST's failure to plead fraud with
3 particularity in the adversary complaint. Assertions of fraud,
4 misrepresentation, and concealment, however, relate to claims
5 under § 727(a)(2) or (a)(4), not § 727(a)(5). Further, the
6 claims under § 727(a)(2), (a)(3), and (a)(4) are neither
7 “inextricably intertwined” with the issue on appeal nor essential
8 to resolution of the order on appeal. Thus, the Motion to
9 Dismiss is irrelevant to our consideration of the § 727(a)(5)
10 claim.
11 We begin with the summary judgment issue.
12 B. The bankruptcy court did not err in granting summary
13 judgment in favor of the UST on the § 727(a)(5) claim.
14 Summary judgment is appropriate when there is no genuine
15 dispute of material fact, and, when viewing the evidence most
16 favorably to the non-moving party, the movant is entitled to
17 prevail as a matter of law. Fed. R. Civ. P. 56 (incorporated
18 into adversary proceedings by Rule 7056); Celotex Corp. v.
19 Catrett,
477 U.S. 317, 322-23 (1986). Substantive law governs
20 the materiality of a fact; thus, a fact is material if, under
21 applicable substantive law, it may affect the outcome of the
22 case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
23 All justifiable inferences are drawn in favor of the non-moving
24 party.
Id. at 255.
25 The movant must first identify: "those portions of the
26 pleadings, depositions, answers to interrogatories, and
27 admissions on file, together with the affidavits, if any, which
28 it believes demonstrate the absence of a genuine [dispute] of
10
1 material fact." Caneva v. Sun Cmtys. Operating Ltd. P'ship
2 (In re Caneva),
550 F.3d 755, 761 (9th Cir. 2008) (citing Celotex
3 Corp.,
477 U.S. at 323). The movant must meet its initial burden
4 as to all elements of the claim for relief. Once the movant
5 meets its burden, the burden shifts to the non-moving party to
6 "set out specific facts showing a genuine issue for trial."
Id.
7 (citing Fed R. Civ. P. 56(e)(2)).
8 The non-moving party, however, cannot rest on mere
9 allegations or denials in his or her pleadings. Rather, the
10 non-moving party must present admissible evidence showing that
11 there is a genuine dispute for trial. Fed. R. Civ. P. 56(e). As
12 such, "[b]riefs and oral argument do not constitute evidence."
13 In re Hill,
450 B.R. 885, 892 (9th Cir. BAP 2011); see also
14 British Airways Bd. v. Boeing Co.,
585 F.2d 946, 952 (9th Cir.
15 1978).
16 In general, the bankruptcy court must grant a discharge to
17 an individual chapter 7 debtor unless one of the twelve
18 enumerated grounds in § 727(a) is satisfied. In the spirit of
19 the “fresh start” principles that the Bankruptcy Code embodies,
20 claims for denial of discharge are liberally construed in favor
21 of the debtor and against the objector to discharge. Khalil v.
22 Developers Sur. & Indem. Co. (In re Khalil),
379 B.R. 163, 172
23 (9th Cir. BAP 2007), aff'd,
578 F.3d 1167 (9th Cir. 2009). The
24 objector to discharge, thus, bears the burden to prove by a
25 preponderance of the evidence that the debtor's discharge should
26 be denied under an enumerated ground of § 727(a). Id.
27 One basis for denial of discharge exists where the chapter 7
28 debtor fails “to explain satisfactorily, before determination of
11
1 denial of discharge . . . any loss of assets or deficiency of
2 assets to meet the debtor's liabilities.”
11 U.S.C. § 727(a)(5).
3 To establish a prima facie case under § 727(a)(5), the objector
4 to discharge must demonstrate that:
5 (1) [the] debtor at one time, not too remote from the
bankruptcy petition date, owned identifiable assets;
6 (2) on the date the bankruptcy petition was filed or
order of relief granted, the debtor no longer owned the
7 assets; and
(3) the bankruptcy pleadings or statement of affairs do
8 not reflect an adequate explanation for the disposition
of the assets.
9
10 Retz v. Sampson (In re Retz),
606 F.3d 1189, 1205 (9th Cir.
11 2010).
12 Once the objector makes a prima facie case, the burden
13 shifts to the debtor to offer credible evidence regarding the
14 disposition of the missing assets.
Id. at 1205. The sufficiency
15 of the debtor's explanation, if any, is a question of fact. See
16
id. The bankruptcy court has broad discretion in making this
17 determination. See
id.
18 On appeal, the Debtor argues that the bankruptcy court erred
19 in granting summary judgment because: (1) a valid assertion of
20 the Fifth Amendment privilege constitutes a satisfactory
21 explanation under § 727(a)(5); (2) the Balance Sheet was issued
22 outside of any “look-back” period, whether one or two years, and
23 therefore was too remote; and (3) the UST should have, but never
24 asked the Debtor about the subject losses of assets.
25 As a preliminary matter, we observe that neither the first
26 nor second issues were raised before the bankruptcy court in
27
28
12
1 connection with the MSJ.7 The Debtor invoked the Fifth Amendment
2 privilege per a blanket assertion in the first paragraph of the
3 Subpoena Response; but, he did not assert or invoke the privilege
4 in his MSJ Response; he did not submit a declaration or affidavit
5 with the MSJ Response where he asserted or invoked the privilege;
6 and he did not assert or invoke the privilege at the MSJ hearing.
7 In sum, he never raised it in response to the § 727(a)(5) claim.
8 Therefore, we decline to consider this issue in connection with
9 review of the MSJ. See Padgett v. Wright,
587 F.3d 983, 985 n.2
10 (9th Cir. 2009) (per curiam).
11 Even if we considered the Fifth Amendment privilege issue,
12 however, the negative inferences that the bankruptcy court may
13 make from a debtor invoking the Fifth Amendment privilege would
14 not be helpful to the Debtor here. See, e.g., Leonard v.
15 Coolidge (In re Nat’l Audit Def. Network),
367 B.R. 207, 216
16 (Bankr. D. Nev. 2007) (where a debtor asserts the Fifth Amendment
17 privilege in a civil matter, the bankruptcy court is entitled to
18 make an adverse inference provided that corroborating evidence
19 exists).
20 Similarly, the Debtor did not assert that the Balance Sheet
21 was issued outside of the appropriate “look-back” period in
22 response to the MSJ. The record shows that, as with the Fifth
23 Amendment privilege issue, he first raised this argument only in
24 the Motion to Reconsider. Thus, we also decline to consider this
25
26
7
27 The Debtor just barely raised the third issue in the MSJ
Response, asserting an absence of evidence that the chapter 7
28 trustee had “asked for anything.”
13
1 issue in connection with the MSJ.8 See Padgett,
587 F.3d at 985
2 n.2.
3 The Debtor maintains that the bankruptcy court erred in
4 determining that he failed to explain the loss of assets because,
5 according to the Debtor, the UST was required to first ask him
6 about the assets allegedly missing, which she allegedly never
7 did. He appears to argue that because a Rule 2004 examination
8 was never scheduled, the UST never made the requisite inquiry.
9 Based on our de novo review of the record, the UST made her
10 prima facie case for denial of discharge under § 727(a)(5), and
11 the Debtor failed to raise any genuine dispute of material fact.
12 Thus, the UST was entitled to judgment as a matter of law.
13 The UST provided documentary and declaratory evidence that
14 at or around the end of July of 2008, the Debtor owned the
15 Assets. As noted by the bankruptcy court, this fact was not
16 refuted by the Debtor; in fact, the Debtor conceded this point at
17 oral argument. The UST further provided evidence that following
18
19
8
Even if we considered this issue, however, we assign no
20 error to the bankruptcy court’s ultimate determination on the
21 issue of the time period between the Balance Sheet and the
petition date. The UST presented the Balance Sheet as evidence
22 in support of the MSJ. As stated above, the Debtor failed to
raise this argument before the bankruptcy court, let alone
23 present any controverting evidence. The bankruptcy court, thus,
24 implicitly determined that no triable issue of fact existed as to
whether the Balance Sheet was “too remote” from the petition
25 date.
The undisputed facts of the extraordinary quantum of luxury
26 items and the Debtor’s sophisticated business certainly support
27 this determination. Therefore, on this record, the bankruptcy
court did not err in concluding that there was no genuine dispute
28 as to the time period issue.
14
1 entry of the Relief Order in February of 2012, the Debtor no
2 longer owned the Assets. Again, and also as noted by the
3 bankruptcy court, this fact was not refuted with evidence by the
4 Debtor. The Debtor’s unsworn statements claiming that some of
5 the Assets were executed on in his case or in other bankruptcy
6 cases or that the dip in the real estate market explained the
7 loss of the Assets are not admissible evidence. Without the
8 support of admissible evidence, these statements fall far from
9 demonstrating a genuine dispute of material fact.
10 Finally, the UST demonstrated that neither the Debtor's
11 amended schedules nor SOFA provided an adequate explanation for
12 the disposition of the missing Assets. For example, the second
13 amended SOFA reflected the sale of two cars to Carmax, but failed
14 to provide any details of the transactions, including
15 descriptions of the cars sold. Thus, the UST made her prima
16 facie case under § 727(a)(5).
17 Having concluded that the UST met her burden, the burden
18 shifted to the Debtor to offer a satisfactory explanation as to
19 the disposition of the missing Assets. The bankruptcy court
20 determined that the Debtor failed to show that there existed a
21 genuine dispute on this issue for trial. On this record, we
22 concur.
23 Once again, the Debtor did not submit a declaration or
24 affidavit in opposition to the MSJ. The only evidence presented
25 by the Debtor were the declarations of his attorney and Jacobson.
26 As pointed out by the bankruptcy court, however, these
27 declarations fail to show a triable issue of fact. The
28 declarations - and the Jacobson declaration, in particular –
15
1 address issues relating to proper recordkeeping.
2 The Balance Sheet delineated five luxury cars collectively
3 valued at $459,000 in 2008, yet the Debtor’s amended schedules
4 solely reflected a PT Cruiser. The document also reflected
5 substantial fee receivables; but the Debtor only scheduled one
6 account receivable with an “indeterminate” value. The Debtor's
7 amended SOFA vaguely disclosed a transfer of two cars to Carmax
8 with no additional information. Even if the Debtor’s statements
9 in response to the MSJ were admissible evidence – which they are
10 not – the executions on his real properties and the dip in the
11 real estate market fail to account for the missing luxury
12 vehicles or fee receivables. In sum, the Debtor failed to
13 proffer admissible evidence explaining the disposition of the
14 missing Assets.
15 We also reject the Debtor's assertion that the UST never
16 asked him about the missing Assets; this argument extols form
17 over substance and is without merit. The record shows that the
18 UST issued the Subpoena, which specifically identified the
19 Assets, and that she requested an accounting. The adversary
20 complaint and MSJ both identified the same missing assets. There
21 is no requirement that the UST inquire about missing assets
22 through a personal examination of the Debtor. Under these
23 circumstances, the Subpoena, adversary complaint, and MSJ were
24 each and independently a sufficient form of inquiry for the
25 purposes of § 727(a)(5).
26 Finally, we reject the notion that the UST’s possession of
27 voluminous Debtor financial documents provided a defense or
28 otherwise supported the Debtor's position. First, the Debtor
16
1 never provided any evidence that, generally, all or some of these
2 documents explained the transfers or disposition of all or some
3 of the missing Assets. Second, the Debtor never specifically
4 identified which particular documents, if any, provided the
5 requisite explanation. The Debtor, thus, never supported his
6 broad assertion with evidence creating a triable fact issue.
7 On this record, the UST established a prima facie case under
8 § 727(a)(5). The Debtor failed to set forth any specific facts
9 showing a triable factual dispute regarding the missing Assets.
10 Therefore, the bankruptcy court did not err in granting summary
11 judgment on the § 727(a)(5) claim.
12 C. The bankruptcy court did not err in denying the Debtor’s
13 Motion to Dismiss on the § 727(a)(5) claim.
14 Dismissal of a complaint under Civil Rule 12(b)(6) may be
15 based on either a lack of a cognizable legal theory or the
16 absence of sufficient facts alleged under a cognizable legal
17 theory. Johnson v. Riverside Healthcare Sys., LP,
534 F.3d 1116,
18 1121 (9th Cir. 2008) (citation omitted). Courts must construe
19 the complaint in the light most favorable to the non-moving party
20 and accept all well-pleaded factual allegations as true. Id.;
21 Knox v. Davis,
260 F.3d 1009, 1012 (9th Cir. 2001). Under either
22 instance, the essential inquiry is whether the allegations are
23 well-pled; a court is not bound by conclusory statements,
24 statements of law, or unwarranted inferences cast as factual
25 allegations. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-57
26 (2007).
27 As noted above, the Debtor did not directly address issues
28 related to § 727(a)(5) in his Motion to Dismiss or on appeal as
17
1 related to that motion. And, again, the Motion to Dismiss was
2 based on the UST’s alleged failure to plead the fraud claims for
3 relief with particularity, an alleged deficiency that is
4 irrelevant to a § 727(a)(5) claim for relief. In any event,
5 having resolved that the bankruptcy court properly granted
6 summary judgment on the § 727(a)(5) claim, we conclude that the
7 UST necessarily pled enough facts in the adversary complaint to
8 state a plausible claim for relief. It consequently follows that
9 the bankruptcy court did not err in denying the Motion to Dismiss
10 on the § 727(a)(5) claim.
11 D. The Debtor waived any argument as to the Reconsideration
12 Order; but, in any event, the bankruptcy court did not err
13 in denying the Debtor’s Motion to Reconsider Under Civil
14 Rule 59(e).
15 Under Civil Rule 59(e), the bankruptcy court may reconsider
16 a previous order or judgment, but only if it: (1) is presented
17 with newly discovered evidence that was not available at the time
18 of the original hearing; (2) committed clear error or made an
19 initial decision that was manifestly unjust; or (3) there is an
20 intervening change in controlling law. Fadel v. DCB United LLC
21 (In re Fadel),
492 B.R. 1, 18 (9th Cir. BAP 2013).
22 The Debtor advances no argument as to why the bankruptcy
23 court abused its discretion in denying the Motion to Reconsider.
24 Consequently, this issue is deemed waived, and we do not consider
25 it on appeal. See Padgett,
587 F.3d at 985 n.2.
26 Even if we examined the issue of reconsideration, on this
27 record, the bankruptcy court did not abuse its discretion in
28 denying the Motion to Reconsider. In his motion, the Debtor
18
1 either rehashed the same arguments that he made in opposing the
2 MSJ or presented new legal theories and facts that he could have
3 – but failed to – raise in connection with the MSJ. To the
4 extent that the Debtor raised the Fifth Amendment privilege issue
5 on reconsideration, he absolutely did not do so in responding to
6 the MSJ before the bankruptcy court, either in writing or at the
7 MSJ hearing. Those arguments, thus, are inappropriate grounds
8 for a reconsideration motion. See In re Fadel, 492 B.R. at 18
9 (citation omitted). Therefore, on this record, the bankruptcy
10 court did not abuse its discretion in denying the Motion to
11 Reconsider.
12 CONCLUSION
13 For the reasons set forth above, we AFFIRM the bankruptcy
14 court.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
