Fox v. Miller

589 B.R. 659
CourtDistrict Court, C.D. California
DecidedAugust 1, 2018
DocketCASE NO. CV 17-8302-R; Bankruptcy No. 2:15-bk-24399-BB; Adversary No. 2:16-ap-01235-BB
StatusPublished
Cited by3 cases

This text of 589 B.R. 659 (Fox v. Miller) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. Miller, 589 B.R. 659 (C.D. Cal. 2018).

Opinion

MANUEL L. REAL, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on appeal from the United States Bankruptcy Court for the Central District of California. Appellant filed his opening brief on February 26, 2018. (Dkt. 11). This Court took the matter under submission on April 12, 2018.

On September 17, 2015, Appellant filed for chapter 7 bankruptcy. On April 10, 2017, Appellee filed the First Amended Complaint, which states two claims alleging that Appellant's discharge should be denied under 11 U.S.C. § 727(a)(3). Appellee moved for summary judgment on the second claim. On November 1, 2017, the bankruptcy court granted the motion and entered judgment in favor of Appellee. The bankruptcy court held that (1) there was no genuine dispute of material fact that Appellant failed to keep or preserve records from which the trustee could ascertain Appellant's financial condition, as required by § 727(a)(3), and (2) there was no genuine dispute of material fact that Appellant's failure to keep books and records was not justified.

Appellant appeals the bankruptcy court's November 1, 2017, Order granting summary judgment. This Court has jurisdiction over the appeal under 11 U.S.C. § 158. The issues on appeal are:

1. Do triable issues of material fact exist as to whether Appellant failed to keep or preserve books and records as required by 11 U.S.C. § 727(a)(3) ?
2. Do triable issues of material fact exist as to whether Appellant's conduct was justified under the circumstances of the case?

"We review the bankruptcy court's grant of summary judgment de novo, and must *662view 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 correctly applied the substantive law." In re Caneva , 550 F.3d 755, 760 (9th Cir. 2008). A material fact is one that, "under the governing substantive law...could affect the outcome of the case." Id. A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment must initially identify the evidence which it believes demonstrates that there is no genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." In re Caneva , 550 F.3d at 761.

Facts

Appellant was a Certified Public Accountant for a few years in the 1950s. He also attended law school but did not graduate. Appellant was admitted to the California State Bar in 1958. In 1956, Appellant co-founded the business Barry's Jewelers. Appellant managed the business until 1989. He sold his interest in the business in or around 1995. After this, but before petitioning for bankruptcy, Appellant invested in over thirty-five real properties through numerous single purpose entities.

On September 17, 2015, Appellant filed a voluntary petition for chapter 7 bankruptcy. During the initial meeting of the creditors, Appellant acknowledged that he had not filed tax returns since 2012, stating "that just didn't seem to be a top priority." When asked where Appellant keeps his legal papers he responded, "I don't." When asked who would have possession of legal documents, such as old tax returns, Appellant stated, "[d]uring all the litigation I gave whatever documents I had to the different attorneys." When asked about a $175,000 debt owed to Charlotte Burch-Leeds, he simply stated that "[s]he lent me some money to pay for some legal fees." When asked questions regarding the Bearbiz Irrevocable Trust ("Bearbiz"), he stated that he "thinks [Bearbiz] was some trust [he] used to own," but did not know what happened to the assets in Bearbiz. When asked "who would have the documents necessary to prepare 2013 and 2014 taxes for you?" Appellant stated, "I don't think anybody has." When asked what Appellant would have done with documents necessary to prepare 2013 and 2014 taxes, Appellant responded, "I have no idea."

At the end of the meeting, Appellee's counsel gave Appellant's counsel a list of document requests (the "341(a) Requests").1 In response, Appellant produced *663a banker's box containing approximately 3,000 pages of documents (the "Produced Documents"). After reviewing the Produced Documents, Appellee concluded that Appellant did not respond to a number of document requests. At the second meeting of the creditors, Appellant's counsel acknowledged, "I get that you haven't received everything. He just doesn't have anything else to give."

The Produced Documents are all of the documents in Appellant's possession, custody, or control that are responsive to the 341(a) Requests. The Produced Documents did not include a single document related to Bearbiz, including documents related to any loans or investments by Bearbiz. The Produced Documents did not include an asset list for the Fox Family Trust for any year between 2012 and Petition Date. The Produced Documents did not contain a single K-1 issued to Defendant in the year of 2013, 2014 or 2015. The Produced Documents did not include a single K-1 from Bearbiz for any tax year. The Produced Documents did not include a single document related to Appellant's Charles Schwab account.

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Bluebook (online)
589 B.R. 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-miller-cacd-2018.