In Re Alan Bernard, Linda Bernard, Debtors. Alan Bernard, Linda Bernard v. Clement Sheaffer, Mary Sheaffer

96 F.3d 1279, 36 Collier Bankr. Cas. 2d 1585, 96 Cal. Daily Op. Serv. 7157, 96 Daily Journal DAR 11749, 1996 U.S. App. LEXIS 24950, 1996 WL 539707
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 25, 1996
Docket94-56504
StatusPublished
Cited by109 cases

This text of 96 F.3d 1279 (In Re Alan Bernard, Linda Bernard, Debtors. Alan Bernard, Linda Bernard v. Clement Sheaffer, Mary Sheaffer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Alan Bernard, Linda Bernard, Debtors. Alan Bernard, Linda Bernard v. Clement Sheaffer, Mary Sheaffer, 96 F.3d 1279, 36 Collier Bankr. Cas. 2d 1585, 96 Cal. Daily Op. Serv. 7157, 96 Daily Journal DAR 11749, 1996 U.S. App. LEXIS 24950, 1996 WL 539707 (9th Cir. 1996).

Opinions

Opinion by Judge TROTT; Dissent by Judge O’SCANNLAIN.

TROTT, Circuit Judge:

Alan Bernard and his wife Linda argue that the district court erred when it affirmed the bankruptcy court’s decision to deny discharge of the Bernards’ debts under 11 U.S.C. § 727(a)(2)(A), which provides that a bankruptcy court should not grant discharge where “... the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition....” We affirm the district court because the Bernards violated .this provision when they withdrew over $64,000 from money market and deposit accounts with the admitted intent to hinder the Sheaffers’ attempts to attach the Bernards’ accounts. We need not reach the other issues raised.

We have jurisdiction over the Bernards’ timely appeal under 28 U.S.C. § 158(d). This appeal raises an issue of law which we review de novo.

Background

This case has followed a long and tortuous path and makes bankruptcy seem more like an ordeal than a fresh start. Fortunately, we need little case history to fully illuminate the dispositive issue.

[1281]*1281Alan Bernard and Clement Sheaffer have been television sound technicians for over thirty years. In the 1980s, they were business partners in Cell Communications and shareholders in Cell Communications-U.S.A., Inc. Sheaffer sold his interest in these concerns on November 10, 1987 in exchange for promissory notes from the partnership and the corporation. Bernard was individually liable as a general partner on the partnership note and was a guarantor of the corporate note. The notes went into default, and, on December 20,1990, Clement Sheaffer and his wife Mary sued Alan Bernard on the notes.

On February 15, 1991, the Sheaffers served notice on Bernard that the Sheaffers would apply for a “temporary protective order” in Los Angeles Superior Court. On February 22, the Bernards withdrew $44,-010.61 from Alan’s money market account; on March 8, Linda cashed a check for $20,000 on an account of Alan Bernard Sound (collectively, the “early 1991 withdrawals”). On March 13, the Superior Court granted a temporary protective order instructing Alan Bernard “to make no transfers from any deposit accounts or any other assets other than in the ordinary course of business for fair consideration.” On March 27, the Superior Court issued an order giving the Sheaffers the right to attach Alan Bernard’s property in the amount of $47,878.13. On July 17, the Sheaffers levied on a Bernard account, attaching $1,308. On September 10, 1991, the court granted the Sheaffers a $83,574.98 judgment.

The Bernards filed for Chapter 7 on October 7, 1991. The Sheaffers began an adversary proceeding in which they objected to discharge.

Alan Bernard at first steadfastly testified that he had made the $44,010 withdrawal to finance a vacation. He later testified, under pressure, however, that he had cashed out his account because an attorney had advised him to do so to evade attachment. His counsel as much as concedes his client’s purpose to defeat the impending judgment. Bernard says that he then stashed the cash in a safe at his home. Shortly thereafter, he claims he spent the cash on vacations during which he incurred huge gambling losses. Bernard’s testimony as to all of this is a model of dissemblance and dissimulation. As a result of his purposeful activity, his judgment creditors ended up with little to show for their lawsuit and their promissory notes; and with the help of other questionable transactions by Bernard, the bankruptcy estate became virtually worthless.

On February 3,1994, the bankruptcy court issued a memorandum and order denying discharge on the ground that the Bernards had violated § 727(a)(2)(A). In justifying its decision, the bankruptcy court cited several of the Bernards’ transfers in addition to the early 1991 withdrawals under present discussion. However, it clearly considered the early 1991 withdrawals sufficient by themselves to justify denial of discharge, stating, “[tjhere is no doubt that the Bernards made these transfers with intent to hinder, delay or defraud creditors within one year of the filing for bankruptcy.”

On September 28, 1994, the district court entered an order affirming the bankruptcy court’s decision. The Bernards appealed.

Discussion

11 U.S.C. § 727(a)(2)(A) states:

(a) The court shall grant the debtor a discharge, unless — ...
(2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred
(A) property of the debtor, within one year before the date of the filing of the petition....

In keeping with the “fresh start” purposes behind the Bankruptcy Code, courts should construe § 727 liberally in favor of debtors and strictly against parties objecting to discharge. In re Devers, 759 F.2d 751, 754 (9th Cir.1985). Denial of discharge, however, need not rest on a finding of intent to defraud. Intent to hinder or delay is sufficient. Matter of Smiley, 864 F.2d 562, 568 (7th Cir.1989); In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986). Furthermore, a debtor need not succeed in harming creditors to warrant denial of discharge because “lack of injury to creditors is irrelevant for purposes of deny[1282]*1282ing a discharge in bankruptcy.” In re Adeeb, 787 F.2d at 1343.

The Bernards have admitted they made the early 1991 withdrawals to help fend off the Sheaffers’ attempts to reach the Ber-nards’ assets. These withdrawals were made within one year of the Bernards’ October 7, 1991 filing. Therefore, the only remaining question is whether these withdrawals were “transfers” of property. If they were, then the Bernards violated § 727(a)(2)(A), and the bankruptcy court was correct to deny discharge.

Of course, the Bernards contend that the withdrawals were not transfers in any meaningful sense. By taking money out of the bank, as it were, they claim they merely moved their assets from one of their own pockets to another — they had not “transferred” anything to anyone.

This argument has force and arguably finds some support in out-of-circuit law. For instance, the Seventh Circuit has stated, “[i]n order to justify the refusal of discharge under a section 727(a)(2) transfer, ‘it must be shown that there was an actual transfer of valuable property belonging to the debtor which reduced the assets available to creditor and which was made with fraudulent intent.’ ” Matter of Agnew, 818 F.2d 1284, 1289 (7th Cir.1987) (quoting 4 Collier on Bankruptcy, ¶ 727.02[5] (15th ed. 1986)). At least in theory, the Bernards’ withdrawals did not reduce the assets available to the Sheaffers — these assets merely changed form. Thus, one could plausibly argue that, under Agnew,

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96 F.3d 1279, 36 Collier Bankr. Cas. 2d 1585, 96 Cal. Daily Op. Serv. 7157, 96 Daily Journal DAR 11749, 1996 U.S. App. LEXIS 24950, 1996 WL 539707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alan-bernard-linda-bernard-debtors-alan-bernard-linda-bernard-v-ca9-1996.