Caneva v. Sun Communities Operating Ltd. Partnership

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: MARC SCOTT 
CANEVA,
Debtor,
No. 07-15686
MARC SCOTT CANEVA,
Appellant,  D.C. No.
CV-06-01311-MHM
v. OPINION
SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP,
Appellee.

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted October 24, 2008*
San Francisco, California
Filed November 5, 2008
Before: Alfred T. Goodwin, Robert R. Beezer, and
Jay S. Bybee, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
15129
15132 IN THE MATTER OF: CANEVA
COUNSEL
Roberta J. Sunkin, Allan D. NewDelman, P.C., Phoenix, Ari-
zona, for the plaintiff-appellant.
Edwin B. Stanley, Simbro & Stanley, Scottsdale, Arizona, for
the defendant-appellee.
OPINION
PER CURIAM:
Marc Scott Caneva (Caneva) appeals the district court’s
order affirming the bankruptcy court’s grant of summary
judgment in favor of Sun Communities Operating Limited
Partnership (Sun). The bankruptcy judgment denied Caneva
discharge pursuant to 11 U.S.C. § 727(a)(3) because it was
undisputed that Caneva had failed to keep or preserve records
with respect to certain business entities that he owned or con-
trolled and with respect to a payment of $500,000 to one
Anita Bowden. Caneva assigns error to both judgments,
IN THE MATTER OF: CANEVA 15133
asserting that “genuine issues of material fact” can be found
in the record.
The district court had jurisdiction pursuant to 28 U.S.C.
§ 158(a). We have jurisdiction pursuant to 28 U.S.C.
§ 158(d). We affirm the challenged judgment.
FACTS AND PROCEDURAL HISTORY
Prior to filing his voluntary Chapter Seven Petition, Caneva
owned or controlled numerous business entities, recreational
vehicle and mobile home parks in Florida, and an airplane.
Sun, one of Caneva’s creditors, filed an adversary complaint
objecting to discharge pursuant to 11 U.S.C. § 727(a)(3) and
(a)(4)(A), and objecting to dischargeability pursuant to 11
U.S.C. § 523(a)(4).
Sun argued that Caneva was not entitled to discharge under
11 U.S.C. § 727(a)(3) because he had failed to keep or pre-
serve records from which his financial condition or business
transactions could be accurately ascertained. Throughout the
course of the bankruptcy proceedings, Caneva had filed multi-
ple amendments to his bankruptcy Schedules and Statement
of Financial Affairs. In his final amendment to Schedule B,
listing his personal property, Caneva listed fifteen business
entities in which he held stock or interests and stated that
“[t]he extent of his interest and the status of several of the
entities is unknown. The debtor has made his best effort to list
all he knows and if additional information becomes available,
additional amendments will be made.”
Sun questioned Caneva about the nature of his interests in
these companies and the existence of financial records for
them during a Bankruptcy Rule 2004 Examination. Caneva
admitted that he kept no records for the entities, despite the
fact that some of them had business operations and others
existed as holding companies for active businesses. Caneva
also admitted during the Rule 2004 Examination that he had
15134 IN THE MATTER OF: CANEVA
no documentation regarding the payment of $500,000 to
Bowden as a brokerage fee for a $20 million loan that Caneva
stated he did not receive, although he indicated that Sun could
contact the Federal Bureau of Investigation for details on
Bowden’s criminal prosecution and conviction.
Sun moved for summary judgment. It argued that Caneva
violated 11 U.S.C. § 727(a)(3) by failing to keep or preserve
records, 11 U.S.C. § 727(a)(4)(A) by failing to satisfactorily
explain the loss or diminution of assets, and 11 U.S.C.
§ 523(a)(4) by committing fraud or defalcation while acting in
a fiduciary capacity. The bankruptcy court granted summary
judgment on the § 727(a)(3) claim and denied Caneva dis-
charge. Neither the bankruptcy court nor the district court
reached the § 727(a)(4)(A) diminution of assets or § 523(a)(4)
fraud questions.
The bankruptcy court applied the analysis described in
Lansdowne v. Cox (In re Cox), 41 F.3d 1294 (9th Cir. 1994),
and found that Sun had shown a prima facie case that Caneva
failed to keep or preserve adequate records and that such fail-
ure made it impossible for Sun to accurately determine his
financial condition and the nature and extent of material busi-
ness transactions. The court stated that “[t]his case presents a
situation factually different than most cases where the ques-
tion is whether the information produced was adequate”
because Caneva admitted to “not providing any documenta-
tion on several business entities and transactions” despite
admitting “that some had operations or held assets as holding
companies.” The court found this to be fatal, reasoning that
“[b]y definition . . . the failure to have any documents or
records is inadequate” because “the absence of any documents
for these entities makes it impossible to determine their value,
their significance and their impact on [Caneva’s] estate.”
After finding that Sun had shown a prima facie case, the
bankruptcy court found that Caneva failed to carry his burden
of explaining why his failure to keep or preserve records was
IN THE MATTER OF: CANEVA 15135
justified under the circumstances. The court faulted Caneva
for “simply parrot[ing] back in his affidavit the text of Section
727(a)(3), conclusorily denying its elements,” rather than pro-
viding affidavits or testimony from the accountants who set
up the companies that might have supported his assertion that
nothing related to these entities existed because there was
nothing to document.
Caneva filed a motion to reconsider, which the bankruptcy
court denied, and then appealed to the district court. The dis-
trict court affirmed the orders granting summary judgment
and denying Caneva’s motion to reconsider. It focused on
Caneva’s admissions during the Rule 2004 Examination that
“he had no books or records for several of his business enti-
ties despite that some of the entities had business operations”
and “that he had no documents to substantiate an alleged
$500,000 transfer to Anita Bowden . . . .” This appeal fol-
lowed.
STANDARD OF REVIEW
“The roles of this Court and the district court are essentially
the same in the bankruptcy appellate process.” Parker v.
Community First Bank (In re Bakersfield Westar Ambulance,
Inc.), 123 F.3d 1243, 1245 (9th Cir. 1997) (citing In re DAK
Indus., 66 F.3d 1091, 1094 (9th Cir. 1995)). Thus, we directly
review the bankruptcy court’s decision. Id. “We review the
bankruptcy court’s grant of summary judgment de novo,” and
must view the evidence in the light most favorable to the non-
moving party and “determine whether there are any genuine
issues of material fact and whether the bankruptcy court cor-
rectly applied the substantive law.” Id. (citing Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996)). A material fact
is one that, “under the governing substantive law . . . could
affect the outcome of the case.” Thrifty Oil Co. v. Bank of
America Nat’l Trust & Savings Ass’n, 322 F.3d 1039, 1046
(9th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A genuine issue of material fact exists
15136 IN THE MATTER OF: CANEVA
when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. The party moving for summary judgment must initially
identify “those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
meets its burden, the non-moving party must “set out specific
facts showing a genuine issue for trial.” Fed R. Civ. P.
56(e)(2).
DISCUSSION
I. Failure to Keep or Preserve Records
[1] Section 727(a) of the Bankruptcy Code provides that a
debtor is entitled to discharge unless one of eight conditions
is met. 11 U.S.C. § 727(a)(1)-(8). Under 11 U.S.C.
§ 727(a)(3), the court shall grant the debtor discharge unless:
the debtor has concealed, destroyed, mutilated, falsi-
fied, or failed to keep or preserve any recorded infor-
mation, including books, documents, records, and
papers, from which the debtor’s financial condition
or business transactions might be ascertained, unless
such act or failure to act was justified under all the
circumstances of the case.
[2] We have stated that the purpose of § 727(a)(3) is to
make discharge dependent on the debtor’s true presentation of
his financial affairs. Cox, 41 F.3d at 1296 (citation omitted).
The disclosure requirement removes the risk to creditors of
“the withholding or concealment of assets by the bankrupt
under cover of a chaotic or incomplete set of books or
records.” Burchett v. Myers, 202 F.2d 920, 926 (9th Cir.
1953). The statute does not require absolute completeness in
making or keeping records. Rhoades v. Wikle, 453 F.2d 51, 53
IN THE MATTER OF: CANEVA 15137
(9th Cir. 1971). Rather, the debtor must “present sufficient
written evidence which will enable his creditors reasonably to
ascertain his present financial condition and to follow his
business transactions for a reasonable period in the past.” Id.This exception to dischargeability, however, “should be
strictly construed in order to serve the Bankruptcy Act’s pur-
pose of giving debtors a fresh start.” Industrie Aeronautiche
v. Kasler (Matter of Kasler), 611 F.2d 308, 310 (9th Cir.
1979) (citation omitted).
A creditor states a prima facie case under § 727(a)(3) by
showing “ ‘(1) that the debtor failed to maintain and preserve
adequate records, and (2) that such failure makes it impossible
to ascertain the debtor’s financial condition and material busi-
ness transactions.’ ” Cox, 41 F.3d at 1296 (quoting Meridian
Bank v. Alten, 958 F.2d 1226, 1232 (3d Cir. 1992)). After
showing inadequate or nonexistent records, “the burden of
proof then shifts to the debtor to justify the inadequacy or
nonexistence of the records.” Id. (citations omitted).
Caneva argues that because he turned over a substantial
quantity of documents to both the bankruptcy trustee and Sun,
a genuine issue of material fact necessarily exists as to
whether these documents were adequate to determine his
financial condition and business transactions notwithstanding
his admission that he has no records for some of his business
entities. Caneva further contends that because Sun could have
obtained information about Bowden from the public record
generated by her criminal prosecution, the district court erred
in finding that his admission that he had no records related to
the payment of $500,000 to Bowden established a violation of
§ 727(a)(3).
[3] We disagree. The Seventh Circuit has held that
§ 727(a)(3) “places an affirmative duty on the debtor to create
books and records accurately documenting his business
affairs.” Peterson v. Scott (In re Scott), 172 F.3d 959, 969 (7th
Cir. 1999) (citing In re Juzwiak, 89 F.3d 424, 429 (7th Cir.
15138 IN THE MATTER OF: CANEVA
1996)). The court also noted that when a debtor is sophisti-
cated and carries on a business involving substantial assets,
“creditors have an expectation of greater and better record
keeping.” Id. at 970 (citing Juzwiak, 89 F.3d at 428). Prior to
filing for bankruptcy, Caneva owned or controlled numerous
business entities, owned an aircraft, and had substantial
assets. He argues that because many of his business entities
were holding companies or did not conduct business opera-
tions, records for them may not exist. Caneva has asked Sun,
the bankruptcy and district courts, and now this court to disre-
gard the affirmative duty that § 727(a)(3) imposes on a debtor
to keep and preserve records, take him at his word that he has
no records because there was nothing to record, and focus
instead on what might be learned from the boxes of records
he did keep and eventually offered to the bankruptcy court. In
other words, he says that if there is a needle in this haystack,
it is up to the court to find it.
[4] Caneva’s continued focus throughout these proceedings
on the quantity of the records that he produced misses the cru-
cial point that the total absence of records related to his busi-
ness entities and to his alleged $500,000 payment to Bowden
necessarily makes it impossible for Sun to accurately deter-
mine his financial condition and business transactions.
[5] As the Third Circuit has stated “ ‘[c]omplete disclosure
is in every case a condition precedent to the granting of the
discharge, and if such a disclosure is not possible without the
keeping of books or records, then the absence of such
amounts to that failure to which the act applies.’ ” Meridian
Bank, 958 F.2d at 1230 (quoting In re Underhill, 82 F.2d 258,
259-60 (2d Cir. 1936)). Without the records that Caneva
admitted he did not keep, Sun cannot determine what assets
his business entities held or may still hold, what assets passed
through them and where they might have gone, and what their
present value is, if anything. Without any documentation
related to the payment to Bowden, Sun cannot determine the
details of that transaction or verify that it actually took place.
IN THE MATTER OF: CANEVA 15139
[6] Caneva’s testimony given during the Bankruptcy Rule
2004 Examination unequivocally establishes that he failed to
keep or preserve any recorded information related to certain
of his business entities and to the $500,000 payment to Bow-
den. Although § 727(a)(3) does not demand absolute com-
pleteness in a debtor’s records, it does require a debtor to keep
and preserve records that will enable his creditors to accu-
rately ascertain his financial condition and business transac-
tions. See Rhoades, 453 F.2d at 53. Thus, we hold that when
a debtor owns and controls numerous business entities and
engages in substantial financial transactions, the complete
absence of recorded information related to those entities and
transactions establishes a prima facie violation of 11 U.S.C.
§ 727(a)(3). Likewise, we hold that when a debtor transfers a
substantial amount of money to a third party, the failure to
keep any documentation evidencing the terms of the transfer
or the fact that the payment actually took place establishes a
prima facie violation of 11 U.S.C. § 727(a)(3).
II. The Debtor’s Burden to Justify the Failure to Keep
or Preserve Records
[7] If a creditor establishes a prima facie violation of
§ 727(a)(3), a debtor may show that he is nonetheless entitled
to discharge by establishing that his failure to keep or pre-
serve records was justified under the circumstances of his
case. See 11 U.S.C. § 727(a)(3); Cox, 41 F.3d at 1296-97.
Thus, after Sun put forth evidence that established that no
question of material fact existed as to Caneva’s failure to keep
or preserve records, Caneva could have avoided summary
judgment by presenting evidence sufficient to show that a
question of material fact did exist as to whether such failure
was justified under the circumstances of his case. Aside from
a conclusory statement tracking the language of § 727(a)(3) in
his affidavit in opposing summary judgment, however,
Caneva made no effort to present evidence tending to show
that the business entities for which he admitted no records
existed were of the type that would not generate records.
15140 IN THE MATTER OF: CANEVA
Likewise, he has not presented any evidence that might justify
his failure to keep records regarding the $500,000 payment to
Bowden.
In Cox, we stated that “ ‘[j]ustification for [a] bankrupt’s
failure to keep or preserve books or records will depend on
. . . whether others in like circumstances would ordinarily
keep them.’ ” 41 F.3d at 1299 (quoting Matter of Russo, 3
B.R. 28, 34 (Bankr. E.D.N.Y. 1980)). The Third Circuit has
stated that the fact that a debtor was honest in producing all
the records he had was not sufficient to satisfy the require-
ments of § 727(a)(3); rather, it is a condition to obtaining a
discharge in bankruptcy “ ‘either that the bankrupt shall pro-
duce such records as are customarily kept by a person doing
the same kind of business, or that he shall satisfy the bank-
ruptcy court with adequate reasons why he was not in duty
bound to keep them.’ ” Meridian Bank, 958 F.2d at 1232(quoting White v. Schoenfeld, 117 F.2d 131, 132 (2d Cir.
1941)). Rather than attempting to provide justification, how-
ever, Caneva has continuously asserted that the fact that he
produced some records creates a question of material fact as
to whether those records were adequate. In briefing to this
court, Caneva asserted that because he did not believe that
Sun had met its initial burden of establishing that the records
he did keep were not adequate, he did not have to show that
a question of material fact existed as to whether his failure to
keep records with respect to certain of his business entities
and the payment to Bowden was justified under the circum-
stances of his case. Thus, the only explanation that Caneva
has submitted that purports to justify his failure to keep or
preserve such records is the statement in his affidavit that the
circumstances of his business dealings justified the absence of
any records he did not possess. He did not disclose the so-
called circumstances of his business entities.
[8] Although it may appear to be unsympathetic to a debtor
to expect him or her to explain by books and records that a
corporation or other entity conducted no business, our cases
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establish that a conclusory statement in an affidavit that an
absence of records is justified is not enough to avoid summary
judgment. See FTC v. Publ’g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affi-
davit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”) (citing
Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993);
United States v. One Parcel of Real Property, 904 F.2d 487,
492 n.3 (9th Cir. 1990)). Caneva’s failure to provide an expla-
nation for the lack of records regarding the $500,000 payment
to Bowden is even more egregious. The transfer of a half mil-
lion dollars is the kind of transaction for which most business
entities would preserve some record. Caneva has not offered
any hypothesis, much less pointed out a genuine issue of
material fact, the answer to which would justify his failure to
keep a record of the transaction.
CONCLUSION
In support of its motion for summary judgment, Sun sub-
mitted uncontested testimony from Caneva that he did not
have records with respect to certain of his business entities
and to a $500,000 payment to a third party. Sun carried its
burden under 11 U.S.C. § 727(a)(3) by establishing a prima
facie case (1) that Caneva had failed to keep or preserve
records and (2) that such failure made it impossible to ascer-
tain his financial condition and material business transactions.
The prima facie case shifted to Caneva the burden to avoid
summary judgment by showing that a genuine issue of mate-
rial fact existed with respect to whether his failure was justi-
fied under the circumstances of his case. Instead of attempting
to shoulder this burden, Caneva focused almost exclusively
on his assertion that he had produced boxes of unidentified
documents which by themselves created a question of mate-
rial fact as to whether those documents were adequate.
This is not enough. The terms of 11 U.S.C. § 727(a)(3) do
not condition a debtor’s discharge on the presentation of the
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documents that he did keep and preserve. Rather, the statute
imposes an affirmative duty on the debtor to keep and pre-
serve recorded information that will allow his creditors to
ascertain his financial condition and business transactions. A
debtor who has admitted to owning businesses for which he
kept no recorded information and to transferring a substantial
sum of money without retaining any documentation has not
kept or preserved information within the meaning of the stat-
ute, and must provide a justification for this failure that goes
beyond a conclusory statement in an affidavit that he is enti-
tled to discharge.
The district court’s order affirming the bankruptcy court’s
grant of summary judgment is AFFIRMED.