In Re Deborah M. Cox, Debtor. Deborah M. Cox v. Paul Lansdowne, Trustee

904 F.2d 1399, 22 Collier Bankr. Cas. 2d 1754, 1990 U.S. App. LEXIS 9117, 20 Bankr. Ct. Dec. (CRR) 1043, 1990 WL 74638
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 8, 1990
Docket89-35081
StatusPublished
Cited by89 cases

This text of 904 F.2d 1399 (In Re Deborah M. Cox, Debtor. Deborah M. Cox v. Paul Lansdowne, Trustee) 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 Deborah M. Cox, Debtor. Deborah M. Cox v. Paul Lansdowne, Trustee, 904 F.2d 1399, 22 Collier Bankr. Cas. 2d 1754, 1990 U.S. App. LEXIS 9117, 20 Bankr. Ct. Dec. (CRR) 1043, 1990 WL 74638 (9th Cir. 1990).

Opinions

EUGENE A. WRIGHT, Circuit Judge:

In a case involving massive securities fraud, flight in the dark of night from angry creditors, and avoidance of the law for several months, we consider whether the bankruptcy court erred in denying a discharge in bankruptcy for failure to maintain books and records as required under 11 U.S.C. § 727(a)(3).

BACKGROUND

After marrying in 1973, Stephen and Deborah Cox resided in or around Medford, Oregon. She taught school until 1980, when she quit working after having her first child. At that time, Mr. Cox provided the family’s sole support. Mrs. Cox did not know the source of funds used to maintain the couple’s lifestyle.

Over the years of their marriage, she signed numerous documents, in which she became, with Stephen, a co-owner of at least 14 parcels of real estate, a partner in at least two partnerships, and an officer or director in at least four corporations. Her signature appearing on additional documents had been forged.

Deborah did not participate actively in any of these ventures. She did not discuss business matters with Stephen, nor did she inquire into matters concerning business transactions, including those involving herself. She admitted that she kept no books or records for any of the businesses or property in which she had an interest.

After dark on September 24, 1984, the family left Medford for Monterey, California. Stephen told Deborah they were leaving to get away from angry creditors. When they arrived in San Francisco, he was informed that an angry creditor was looking for him in Medford. They took the next flight to Hawaii, where they lived as fugitives for several months.

On October 29, 1984, an involuntary bankruptcy proceeding was filed against Deborah. After the couple’s second child was born in May 1985, they returned to California. In July, after learning that the FBI was about to seek a warrant for her arrest, she left Stephen and returned to Oregon. She met then with government agents and the trustee in bankruptcy. Stephen’s whereabouts are apparently unknown and he is apparently a fugitive from justice.

The trustee filed this adversary action in bankruptcy court, objecting to Mrs. Cox’s discharge. After a four-day trial, the court denied the discharge for failing to maintain books and records as required by 11 U.S.C. § 727(a)(3). It found that the records presented to the court were inadequate. Although Mrs. Cox was in some respects a victim of her husband’s actions, it found [1401]*1401that she was an intelligent and educated person. The court concluded that “a self-imposed curtain of ignorance” was an inadequate legal justification under § 727(a)(3).

The Bankruptcy Appellate Panel affirmed in an unpublished memorandum, one judge dissenting. We have jurisdiction of this appeal of the BAP decision under 28 U.S.C. § 158(d).

DISCUSSION

I. Standard of Review

We review the BAP’s decision de novo. In re Two “S” Corp., 875 F.2d 240, 242 (9th Cir.1989). Because this court is in as good a position as the BAP to review the findings of the bankruptcy court, we review the bankruptcy court’s factual findings for clear error, and its conclusions of law de novo. In re Taylor, 884 F.2d 478, 480 (9th Cir.1989); Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986).

In the context of discharges we have applied a more deferential standard. “Because the right to a discharge is a matter generally left to the sound discretion of the bankruptcy judge, we disturb this determination only if we find a gross abuse of discretion.” Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984) (emphasis added) (citing Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.1982)). Our cases have not defined what is a “gross abuse of discretion.” 1

We must defer to the bankruptcy court’s conclusion that the discharge should be denied unless its factual findings are clearly erroneous or it applies the incorrect legal standard. See Tenn v. First Hawaiian Bank, 549 F.2d 1356, 1357 (9th Cir.) (in applying the gross abuse of discretion standard in discharge cases, “[fjindings of fact will not be overturned unless found to be clearly erroneous.”), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Hunt v. National Broadcasting Company, Inc., 872 F.2d 289, 292 (9th Cir.1989) (in the context of preliminary injunctions, “the court abuses its discretion if it did not apply the correct legal standard ..., or if it misapprehended the underlying substantive law.”).

II. Application of 11 U.S.C. § 727(a)(3)

The bankruptcy court denied Deborah’s discharge under 11 U.S.C. § 727(a)(3), which states in relevant part:

(a) The court shall grant the debtor a discharge, unless—
(3) the debtor has ... 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 ... failure to act was justified under all the circumstances of the case;

The purpose of this statute is “to make the privilege of discharge dependent on a true presentation of the debtor’s financial affairs.” In re Underhill, 82 F.2d 258, 260 (2d Cir.) (applying the predecessor provision of § 727(a)(3) in the Bankruptcy Act of 1898), cert. denied, 299 U.S. 546, 57 S.Ct. 9, 81 L.Ed. 402 (1936). “Creditors are not required to risk 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).

A. Bankruptcy Court’s Finding of Inadequate Records

We first determine whether the bankruptcy court’s finding that Deborah [1402]*1402failed to keep or maintain adequate records was clearly erroneous. See In re Horton, 621 F.2d 968, 971 (9th Cir.1980).

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904 F.2d 1399, 22 Collier Bankr. Cas. 2d 1754, 1990 U.S. App. LEXIS 9117, 20 Bankr. Ct. Dec. (CRR) 1043, 1990 WL 74638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-deborah-m-cox-debtor-deborah-m-cox-v-paul-lansdowne-trustee-ca9-1990.