Berger & Associates Attorneys, P.C. v. Kran

760 F.3d 206, 2014 WL 3685939
CourtCourt of Appeals for the Second Circuit
DecidedJuly 25, 2014
DocketDocket No. 13-1931
StatusPublished
Cited by27 cases

This text of 760 F.3d 206 (Berger & Associates Attorneys, P.C. v. Kran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger & Associates Attorneys, P.C. v. Kran, 760 F.3d 206, 2014 WL 3685939 (2d Cir. 2014).

Opinion

SACK, Circuit Judge:

Bradley Ian Berger and his law firm, Berger & Associates Attorneys, P.C., brought suit against Alexander Kran, III, and his law partner in state court in 2004 for outstanding fees owed Berger and his firm (hereinafter referred to collectively as “Berger”) under a referral agreement between the parties. Because Kran’s partnership had failed to file certain documents with the New York State Office of Court Administration as state law requires, Berger had difficulty proving the amount of fees owed. This failure led to discovery sanctions in the state court against the defendants and spurred the parties to settle. Soon thereafter, Kran’s partnership dissolved, his former partner died, and Kran filed for Chapter 7 bankruptcy protection.

Berger filed an adversary proceeding against Kran in the bankruptcy court contending that 11 U.S.C. § 727(a)(8), which bars discharge if a debtor unjustifiably concealed, destroyed, or failed to preserve recorded information “from which the debtor’s financial condition or business transactions might be ascertained,” prevented Kran from obtaining bankruptcy relief. The bankruptcy court (Robert D. Drain, Judge) granted Kran’s motion for summary judgment, and the district court (Kenneth M. Karas, Judge) affirmed. Because we conclude that section 727(a)(3) does not bar discharge under the circumstances presented, we affirm the judgment of the district court.

BACKGROUND

In 1992, David Davidson, a New York lawyer, concluded a referral agreement with Berger. Berger would solicit plaintiffs in personal injury eases through advertising and then refer them to Davidson, who would perform all of the legal work and remit forty percent of the fees received to Berger. The following year, Davidson formed a partnership with Kran under the name Davidson & Kran. The partnership continued the arrangement with Berger until sometime in 1996.

In 2004, Berger brought an action in New York state court against the firm of Davidson & Kran and against Davidson and Kran individually to collect fees due under the agreement. In the discovery phase of the litigation, Berger sought documents related to the cases referred under the agreement. Although Davidson and Kran supplied some of the requested information, they had either lost or destroyed many of the relevant records. Still other records were never created in the first place, even though state law required them to be filed with the New York State Office of Court Administration. See N.Y. Comp. Codes R. & Regs. tit. 22, §§ 603.7, 691.20.

Berger moved for discovery sanctions. Although Davidson and Kran supplied additional responsive documents, the state court concluded that they had willfully obstructed discovery, struck their answer to Berger’s complaint, and directed a trial on [209]*209damages. At trial, Berger’s expert testified that the amount owed under the referral agreement exceeded $2 million. Following trial, the parties began settlement discussions, which culminated in May 2007 in a consent judgment awarding Berger $1.4 million in damages. After the judgment, Davidson & Kran dissolved, and Davidson died soon thereafter. On August 22, 2008, Kran filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code. After examining Kran and reviewing his financial records, the Chapter 7 trustee concluded that Kran possessed no nonexempt property that could be reduced to money for the benefit of his creditors. Report of No Distribution, In re Kran, No. 08-23193-RDD (Bankr.S.D.N.Y. Nov. 18, 2008).1

In December 2008, Berger brought an adversary proceeding seeking to prevent the discharge of Kran’s debts pursuant to section 727(a)(3). Kran moved for summary judgment. Berger cross-moved, arguing that Kran’s failure to produce documents in the referral fee litigation had complicated Berger’s efforts to determine how much was owed under the referral agreement and had led him to accept a settlement far below the amount he had sought in damages. Berger argued that this alone justified denying Kran’s discharge, whether or not the record-keeping failures were temporally related to the bankruptcy.

The bankruptcy court denied Berger’s motion and granted Kran’s motion, concluding that because the amount Berger was owed under the referral agreement had been fixed by the parties’ settlement agreement, the alleged difficulty in determining damages was irrelevant. The bankruptcy court rejected Berger’s contention that section 727(a)(3) did not require a temporal relationship between the alleged failure to preserve records and the bankruptcy. The court concluded instead that the focus of a section 727(a)(3) action was appropriately on the debtor’s financial condition during the bankruptcy and his condition for a reasonable period of time before the filing of the bankruptcy petition.

The district court affirmed, stating that Berger failed to allege-let alone prove— that Kran’s failure to keep the required records had any bearing on the court’s ability to ascertain whether he was capable of repaying his creditors. In re Kran, 493 B.R. 398, 405-06 (S.D.N.Y.2013). Berger appeals.

DISCUSSION

Under Federal Rule of Civil Procedure 56, applicable in adversary proceedings pursuant to Federal Rule of Bankruptcy Procedure 7056, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” This Court “review[s] the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo.” In re Cacioli, 463 F.3d 229, 234 (2d Cir.2006).

Berger argues that 11 U.S.C. § 727(a)(3) bars the discharge of Kran’s debt. Section 727(a)(3) states:

[210]*210The court shall grant the debtor a discharge, unless ... the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, 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 of the circumstances of the case[.] ,

Berger argues that because Kran failed to keep required records relating to the cases referred to him under their agreement, his financial condition could hot be ascertained and his debts should not have been discharged.

In a proceeding under section 727(a)(3), “[t]he initial burden lies with the creditor to show that the debtor failed to keep and preserve any books or records from which the debtor’s financial condition or business transactions might be ascertained.” In re Cacioli, 463 F.3d at 235. We agree with the bankruptcy court that the inquiry into the'debtor’s financial condition is limited to the span from a reasonable period of time before the bankruptcy filing through the pendency of the bankruptcy proceedings.

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Bluebook (online)
760 F.3d 206, 2014 WL 3685939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-associates-attorneys-pc-v-kran-ca2-2014.