FILED OCT 07 2015 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. OR-14-1145-FJuKi ) 6 SALLY JANE BRANDENFELS, ) Bk. No. 13-32532-ELP7 ) 7 Debtor. ) Adv. No. 13-03159-ELP ______________________________) 8 ) SALLY JANE BRANDENFELS, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) TICOR TITLE INSURANCE CO., ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on September 25, 2015 at Seattle, Washington 15 Filed – October 7, 2015 16 Appeal from the United States Bankruptcy Court 17 for the District of Oregon 18 Honorable Elizabeth L. Perris, Bankruptcy Judge, Presiding 19 Appearances: James Huffman argued for Appellant Sally Jane 20 Brandenfels; Jonathan Mark Radmacher of McEwen Gisvold LLP argued for Appellee Ticor Title 21 Insurance Co. 22 Before: FARIS, JURY and KIRSCHER, Bankruptcy Judges. 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8024-1. 1 INTRODUCTION 2 Appellant Sally Jane Brandenfels (“Appellant” or 3 “Ms. Brandenfels”) appeals from the bankruptcy court’s denial of 4 discharge under 11 U.S.C. § 727(a)(3) (2005).1 Because we hold 5 that the trial court did not err in determining that 6 Ms. Brandenfels’s financial records were inadequate or 7 nonexistent, we AFFIRM. 8 FACTUAL AND PROCEDURAL BACKGROUND2 9 Oregon Holly Company (“Oregon Holly”) is owned and operated 10 11 1 Unless specified otherwise, all chapter and section 12 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy 13 Procedure, Rules 1001-9037. 14 2 Ms. Brandenfels cites the transcript of the trial before 15 the bankruptcy court, but fails to include the relevant portions of the transcript in her excerpts of record. See Rule 16 8018(b)(1)(F) (2014) (an appellant’s appendix must include “any relevant transcript or portion of it”). We are not obligated to 17 examine portions of the record not included in the excerpts of record. See Kritt v. Kritt (In re Kritt), 190 B.R. 382, 386-87 18 (9th Cir. BAP 1995); 9th Cir. BAP R. 8009-1 (“The Panel is 19 required to consider only those portions of the transcript included in the excerpts of the record.”). 20 Ms. Brandenfels also fails to provide support in the record 21 for many of her arguments. The Panel is not obligated to search the entire record for error. See Dela Rosa v. Scottsdale Mem’l 22 Health Sys., Inc., 136 F.3d 1241 (9th Cir. 1998); Fed. R. App. P. 23 10(b)(2).
24 Moreover, Ms. Brandenfels’s appendix lumps numerous distinct documents into single tabs, contrary to 9th Circuit BAP Rule 25 8018(b)-1(b) (“Documents in a paper appendix shall be divided by 26 tabs.”). Puzzlingly, her opening brief does not refer to most of the documents included in the appendix. 27 Despite these deficiencies, we will consider all relevant 28 documents provided to us.
2 1 by Ms. Brandenfels or her husband and is engaged in the business 2 of producing and selling holly wreaths. Oregon Holly was 3 incorporated in Oregon in 1993. 4 In April 2008, Ms. Brandenfels or her husband incorporated 5 Oregon Holly Wreaths Company (“Oregon Holly Wreaths”) in Oregon. 6 Appellee Ticor Title Insurance Co. (“Appellee” or “Ticor”) 7 alleges that Oregon Holly Wreaths “actually conducts no business, 8 or simply conducts the business of Oregon Holly Company, under a 9 new name.” 10 On June 24, 2010, Ticor filed suit against Ms. Brandenfels 11 and Oregon Holly for breach of a promissory note. In July 2012, 12 the court entered a judgment in Ticor’s favor for $149,999 13 against Ms. Brandenfels and Oregon Holly. 14 Beginning in or around December 2012, Ticor issued writs of 15 garnishment for Oregon Holly’s and Ms. Brandenfels’s accounts at 16 St. Helens Community Federal Credit Union (“St. Helens FCU”). At 17 some point thereafter, Ms. Brandenfels opened an account at Wauna 18 Federal Credit Union (“Wauna FCU”) on behalf of Oregon Holly or 19 Oregon Holly Wreaths. Ms. Brandenfels testified that she opened 20 the account “so that Ticor wouldn’t be able to go get money owned 21 by Oregon Holly[.]” She deposited checks made out to Oregon 22 Holly and her husband into the Wauna FCU account, thus 23 commingling corporate and personal funds. 24 Around this same time, Ms. Brandenfels also began taking 25 cash withdrawals from Oregon Holly’s and Oregon Holly Wreath’s 26 bank accounts. She testified that she took these withdrawals to 27 pay contract labor in cash. Ms. Brandenfels admitted that she 28 often did not receive any receipts for those payments and that
3 1 her Quickbooks files did not always reflect those transactions. 2 While Ms. Brandenfels’s records prior to December 2012 documented 3 cash payments for contract labor, there are no such records 4 beginning in December 2012. 5 Ms. Brandenfels used credit cards for both business and 6 personal expenses, without differentiating the expenses in her 7 records and sometimes without even including such transactions in 8 her records. Moreover, she sometimes withdrew cash from the 9 corporate accounts for mixed business and personal purposes, 10 without documenting the split in her records. 11 Ms. Brandenfels also used money from the business accounts 12 for personal purposes or purposes that are not clearly business- 13 related. For example, Ms. Brandenfels wrote a $2,500 check to 14 “Cash” that she paid to a neighbor out of Oregon Holly’s Wauna 15 FCU account. She stated that it was to repay a loan from November 16 or December 2012,3 but she did not record either the loan or the 17 repayment in her Quickbooks files. Ms. Brandenfels also used 18 Oregon Holly’s funds to pay for legal services provided to the 19 estate of her deceased father-in-law.4 Ms. Brandenfels 20 21 3 The record is unclear as to whether the loan constituted a 22 business or personal expense, as Ms. Brandenfels testified that the loan related to postage. However, she could not explain why 23 she wrote the check out to “Cash” as opposed to the neighbor personally. 24 4 The record is unclear as to the nature of the law firm’s 25 services. On the one hand, Ms. Brandenfels testified that her 26 father-in-law’s estate owed the law firm money, so it might be inferred that she was paying non-business debt out of company 27 funds. On the other hand, she also implied that the payment may be related to the companies’ use of holly and andromeda from the 28 (continued...)
4 1 acknowledged that taking money from the St. Helens FCU account 2 and depositing it into the Wauna FCU account allowed her to avoid 3 garnishment and repay such creditors. 4 Ms. Brandenfels admitted that, after Ticor’s garnishment 5 became effective, she used Oregon Holly Wreaths’s accounts to 6 7 4 (...continued) 8 land held in trust by the estate, which may be a legitimate business expense. She testified: 9 Q. Who owed Mr. Vanden Bos money? 10 A. The estate. Q. What estate? 11 A. The trust. The estate of Carl 12 Brandenfels. Q. Is that your husband’s deceased 13 father? A. Yes. 14 Q. And why did your deceased father’s 15 estate owe Mr. Vanden Bos money? A. Because we grow variegated holly and 16 andromeda that we use from that estate. We have 500 trees of andromeda that we planted 17 on that estate. And we use that. . . . . 18 Q. Did [Mr. Vanden Bos] provide legal 19 services? A. Yes. For the –- I’m not sure. 20 Q. You thought it was for the estate, but you’re not sure? 21 A. No, I know that we owe –- that it is an estate bill, and that we paid that bill 22 because we use variegated holly and andromeda 23 from that estate, that trust. Q. So Oregon Holly Company paid Mr. 24 Vanden Bos for legal services he provided to your husband’s father’s estate? 25 A. Correct. 26 Trial Tr. (Day 1) at 69:4-70:14 (Jan. 22, 2014). In any event, 27 she testified that she could not point to any documentation reflecting an agreement for Oregon Holly or Oregon Holly Wreath 28 to pay the trust’s debts.
5 1 conduct Oregon Holly’s business, pay Oregon Holly’s debts, and 2 avoid garnishment. She stated that “Oregon Holly Company and 3 Oregon Holly Wreaths worked jointly together to try to pay the 4 debts [of Oregon Holly].” She decided as an officer and 5 controller of Oregon Holly “to transfer these funds or to cash 6 these funds not into Oregon Holly Company account but into an 7 Oregon Holly Wreaths Company account[.]” 8 In April 2013, Ms. Brandenfels filed for chapter 7 9 bankruptcy. Ticor timely initiated an adversary proceeding 10 against Ms. Brandenfels and Oregon Holly. Among other things, 11 Ticor objected to Ms. Brandenfels’s discharge under § 727(a)(3). 12 The bankruptcy court held a trial on January 22-23, 2014. 13 On February 12, 2014, the court issued its oral ruling in Ticor’s 14 favor regarding its § 727(a)(3) claim.5 The court based its 15 decison on three deficiencies in Ms. Brandenfels’s records. 16 First, Ms. Brandenfels failed to document the use of cash 17 withdrawn from the corporate accounts, particularly after Ticor 18 5 19 Ticor also argued that the bankruptcy court should deny Ms. Brandenfels’ discharge under §§ 727(a)(2)(A) and 20 727(a)(4)(A), but the bankruptcy court rejected these claims. Regarding the § 727(a)(2)(A) claim for transferring or concealing 21 the debtor’s assets to hinder or delay creditors, the court stated that Ticor failed to allege and prove a piercing of the 22 corporate veil theory in order to hold Ms. Brandenfels liable for 23 the transfer of assets between Oregon Holly and Oregon Holly Wreaths. Furthermore, regarding Ms. Brandenfels’s personal 24 assets, the court held that Ms. Brandenfels likely did not intend to hinder or delay creditors, but rather just deposited personal 25 money into whatever account was readily accessible. Regarding 26 the § 727(a)(4)(A) claim for false oaths, the court found that Ms. Brandenfels did not knowingly, intentionally, or fraudulently 27 make a false oath on her bankruptcy schedules regarding certain bank accounts, because she thought those accounts were her 28 mother’s accounts.
6 1 began garnishing Oregon Holly’s primary bank account. The court 2 calculated a discrepancy totaling $41,000 between 2010 and 2012, 3 with a $28,000 discrepancy in 2012, when Ticor began its 4 collection efforts. She testified that she used the cash to pay 5 contract labor, but she produced no records to confirm her 6 statements. The court also highlighted Ms. Brandenfels’s 7 testimony that she opened new bank accounts and moved assets from 8 Oregon Holly to Oregon Holly Wreaths to avoid paying Oregon 9 Holly’s creditors. Considering these facts together, the court 10 concluded that the missing records made it impossible to 11 determine whether she had misused the funds: “Ms. Brandenfels was 12 concealing the contract labor cash payments or [sic] under cover 13 of a chaotic or incomplete set of records. Another possibility 14 is she was doing something else with the cash. We’ll just never 15 know.” 16 The second deficiency is “the lack of clarity between cash 17 withdrawals and credit card payments that satisfy business 18 obligations and those that satisfy Ms. Brandenfels’s personal 19 obligations.” The bankruptcy court noted that Ms. Brandenfels 20 used her various credit cards and withdrew cash indiscriminately 21 for both business and personal uses, but seldom recorded those 22 transactions or distinguished between personal and business use. 23 For example, the court calculated that Ms. Brandenfels made 24 credit card payments of approximately $9,500 in 2012 from one of 25 Oregon Holly Wreath’s accounts, but her records fail to indicate 26 whether and to what extent the payments were for business 27 expenses, as opposed to personal expenses. 28 The third deficiency is the “string of payments to third
7 1 parties that were made with company money but do not appear to be 2 company expenses.” For example, Ms. Brandenfels paid law firms 3 from Oregon Holly Wreath’s account for undefined services related 4 to her deceased father-in-law’s estate. She testified that the 5 records do not show that Oregon Holly or Oregon Holly Wreaths had 6 been the beneficiaries of the legal services. She also issued a 7 $2,500 check to repay a loan from a neighbor, but did not keep a 8 record of the loan or the repayment. 9 Based on these three deficiencies, the bankruptcy court 10 denied Ms. Brandenfels’s discharge pursuant to § 727(a)(3). 11 Ms. Brandenfels timely filed her notice of appeal on March 30, 12 2014. 13 JURISDICTION 14 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 15 §§ 1334 and 157(b)(2)(J). We have jurisdiction under 28 U.S.C. 16 § 158. 17 ISSUE 18 Whether the bankruptcy court erred in denying Appellant’s 19 discharge for failure to maintain adequate records under 20 § 727(a)(3). 21 STANDARDS OF REVIEW 22 In an action for denial of discharge, we review: (1) the 23 bankruptcy court’s determinations of the historical facts for 24 clear error; (2) its selection of the applicable legal rules 25 under § 727 de novo; and (3) its determinations of mixed 26 questions of law and fact de novo. Searles v. Riley 27 (In re Searles), 317 B.R. 368, 373 (9th Cir. BAP 2004), aff’d, 28 212 Fed. App’x 589 (9th Cir. 2006).
8 1 De novo review is independent and gives no deference to the 2 trial court’s conclusion. Roth v. Educ. Credit Mgmt. Agency 3 (In re Roth), 490 B.R. 908, 915 (9th Cir. BAP 2013) (citing 4 Warfield v. Salazar (In re Salazar), 465 B.R. 875, 878 (9th Cir. 5 BAP 2012)). Conversely, review for clear error is “significantly 6 deferential,” and an appellate court should not reverse unless it 7 is left with “a definite and firm conviction that a mistake has 8 been committed.” Id. (quoting Baker v. Mereshian 9 (In re Mereshian), 200 B.R. 342, 345 (9th Cir. BAP 1996)). We 10 give great deference to the bankruptcy court’s findings that are 11 based on its determinations of witness credibility. Retz v. 12 Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). 13 DISCUSSION 14 A. Appellee did not waive its § 727(a)(3) argument. 15 Ms. Brandenfels first contends that Ticor waived its 16 argument under § 727(a)(3) because Ticor did not reference 17 § 727(a)(3) in its trial memorandum or its opening statement. We 18 disagree. 19 First, we note that Ms. Brandenfels failed to include 20 Ticor’s trial memorandum in her excerpts of record. “The 21 appellants bear the responsibility to file an adequate record, 22 and the burden of showing that the bankruptcy court’s findings of 23 fact are clearly erroneous.” Kritt, 190 B.R. at 387 (citing 24 Burkhart v. FDIC (In re Burkhart), 84 B.R. 658, 660 (9th Cir. BAP 25 1988)). “Appellants should know that an attempt to reverse the 26 trial court’s findings of fact will require the entire record 27 relied upon by the trial court be supplied for review.” Id. 28 (quoting Burkhart, 84 B.R. at 661). We are not obligated to comb
9 1 through the lower court’s docket in search of support for 2 Ms. Brandenfels’s arguments. Nevertheless, we will exercise our 3 discretion to take judicial notice of the trial memorandum, which 4 is available on the bankruptcy court’s docket. See O’Rourke v. 5 Seabord Surety Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957- 6 58 (9th Cir. 1989). 7 Second, we are not persuaded that Ticor waived its 8 § 727(a)(3) argument by omitting it from its trial memorandum. 9 Ms. Brandenfels argues that a party’s failure to include in its 10 trial memorandum an argument based on a properly pleaded claim 11 for relief precludes it from making that argument during the 12 trial. Ms. Brandenfels cites no authority for the proposition, 13 and we have found no such authority. 14 Third, both the bankruptcy court and the parties addressed 15 § 727(a)(3) at trial. The bankruptcy court noted at the outset 16 that Ticor’s § 727(a)(3) argument was not included in its trial 17 memorandum and specifically asked Ticor’s counsel whether Ticor 18 intended to abandon that argument. In response, Ticor’s counsel 19 affirmed that the argument was “an important part of it.”6 20 21 6 The bankruptcy court requested clarification as to Ticor’s position on its § 727(a)(3) claim: 22 23 THE COURT: I did want to ask you one question. 24 MR. RADMACHER: Yes? THE COURT: What about the 727(a)(3) 25 claim? Is it abandoned or just not addressed 26 in the trial memo? That was –- that’s the records claim. 27 MR. RADMACHER: I think -- no, it isn’t mentioned, perhaps -- but, no, that’s an 28 (continued...)
10 1 During the course of trial, the court repeatedly addressed the 2 issue of the adequacy of the “books and records.”7 Finally, 3 Ticor raised its § 727(a)(3) argument in its closing statement.8 4 Lastly, Ms. Brandenfels has not identified any prejudice 5 that she suffered as a result of the omission of Ticor’s 6 § 727(a)(3) argument from its trial memorandum. As discussed 7 above, this issue was repeatedly addressed during trial, 8 Ms. Brandenfels did not raise her waiver argument at the trial 9 level, and Ms. Brandenfels’s counsel even specifically addressed 10 11 6 (...continued) 12 important part of it. THE COURT: Okay. 13 MR. RADMACHER: The corporate records are –- 14 THE COURT: I just wanted clarification 15 since it isn’t separately talked about in the trial memo. 16 Trial Tr. (Day 1) at 7:8-17. 17 7 For example, the bankruptcy court stated: 18 19 Here’s the problem in this case. There’s two problems in this case from the standpoint 20 that we’re applying 727 in this case. The first problem is the hinder and delay 21 problem. The second problem is the books and 22 records are awful.
23 Trial Tr. (Day 1) at 166:1-5. 8 24 Among other things, Ticor argued: “With respect to books and records, . . . [t]here’s no separate accounts for the 25 companies of any kind. . . . [T]here’s no documentation of 26 inter-company transfers. . . . There’s no . . . effort to have separate accounting. . . . Undocumented cash is withdrawn and 27 expended. . . . And the final piece is her personal ability and knowledge, she clearly knows what she could do.” Trial Tr. 28 (Day 2) at 103:17-104:7 (Jan. 23, 2014).
11 1 the issues of cash payments and the adequacy of records in his 2 opening and closing statements. 3 Thus, Ticor did not abandon its § 727(a)(3) argument. 4 B. The bankruptcy court did not err in granting judgment in favor of Appellee pursuant to § 727(a)(3). 5 6 Ms. Brandenfels argues that the bankruptcy court erred in 7 finding her records inadequate under § 727(a)(3)’s two-part test. 8 We find no error. 9 Section 727(a)(3) provides that the bankruptcy court must 10 deny a discharge when: 11 the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or 12 preserve any recorded information, including books, documents, records, and papers, from 13 which the debtor’s financial condition or business transactions might be ascertained, 14 unless such act or failure to act was justified under all of the circumstances of 15 the case[.] 16 § 727(a)(3). 17 The Ninth Circuit has stated “that the purpose of 18 § 727(a)(3) is to make discharge dependent on the debtor’s true 19 presentation of his financial affairs.” Caneva v. Sun Cmtys. 20 Ltd. P’ship (In re Caneva), 550 F.3d 755, 761 (9th Cir. 2008) 21 (citing Lansdowne v. Cox (In re Cox), 41 F.3d 1294, 1296 (9th 22 Cir. 1994)). This “requirement removes the risk to creditors of 23 ‘the withholding or concealment of assets by the bankrupt under 24 cover of a chaotic or incomplete set of books or records.’” Id. 25 (quoting Burchett v. Myers, 202 F.2d 920, 926 (9th Cir. 1953)). 26 This exception to dischargeability “should be strictly construed 27 in order to serve the Bankruptcy Act’s purpose of giving debtors 28 a fresh start.” Id. (quoting Industrie Aeronautiche v. Kasler
12 1 (In re Kasler), 611 F.2d 308, 310 (9th Cir. 1979)). 2 The debtor must “present sufficient written evidence which 3 will enable his creditors reasonably to ascertain his present 4 financial condition and to follow his business transactions for a 5 reasonable period in the past.” Id. (quoting Rhoades v. Wikle, 6 453 F.2d 51, 53 (9th Cir. 1971)). To assess the sufficiency of 7 those records under § 727(a)(3), the court engages in a two-part 8 analysis. First, a creditor makes a prima facie case by showing 9 “(1) that the debtor failed to maintain and preserve adequate 10 records, and (2) that such failure makes it impossible to 11 ascertain the debtor’s financial condition and material business 12 transactions.” Id. (quoting Cox, 41 F.3d at 1296). If the 13 creditor meets his burden of showing inadequate or nonexistent 14 records, “the burden of proof then shifts to the debtor to 15 justify the inadequacy or nonexistence of the records.” Id. 16 (quoting Cox, 41 F.3d at 1296). 17 1. The bankruptcy court correctly held that Appellee established a prima facie case under § 727(a)(3). 18 19 The first step of the two-part test requires Ticor to 20 establish that Ms. Brandenfels’s records are inadequate and that 21 it is impossible to ascertain her financial condition and 22 material business transactions. Ms. Brandenfels had “an 23 affirmative duty . . . to create books and records accurately 24 documenting [her] business affairs.” Id. at 762 (quoting 25 Peterson v. Scott (In re Scott), 172 F.3d 959, 969 (7th Cir. 26 1999)). “Complete disclosure is in every case a condition 27 precedent to the granting of the discharge, and if such a 28 disclosure is not possible without the keeping of books or
13 1 records, then the absence of such amounts to that failure to 2 which the act applies.” Id. at 762 (quoting Meridian Bank v. 3 Alten, 958 F.2d 1226, 1230 (3d Cir. 1992)). 4 Ms. Brandenfels implies that the bankruptcy court should 5 only be concerned with whether or not it can ascertain her 6 ultimate financial situation. For example, she argues in her 7 opening brief that the court could piece together an “adequate 8 picture” of her finances, because it “was able to conclude that 9 over the period of three calendar years, her family earned 10 $98,000 . . . .” She contends that her records are complete 11 because she provided nearly 1,500 pages of her financial records, 12 which “include all of the relevant bank accounts, tax returns, 13 and profit and loss statements, and the Quickbooks detail for 14 these accounts of her transactions . . . . Every material 15 transaction is accounted for.” She argues that Ticor was able to 16 “fully scrutinize” her records, because it asked her to admit 17 that “almost all of the deposits to the account were payable to 18 ‘Oregon Holly’ or to ‘Oregon Holly Company.’” She states that 19 “[t]he tax returns accounted for all of the money that the 20 defendant had any access to.” She relies on Caneva for the 21 proposition that her records only need to demonstrate (1) the 22 debtor’s business entities’ assets; (2) the assets that pass 23 through the business entities; and (3) the present value of those 24 assets. 25 However, Ms. Brandenfels ignores Caneva’s mandate that a 26 debtor must “present sufficient written evidence which will 27 enable his creditors reasonably to ascertain his present 28 financial condition and to follow his business transactions for a
14 1 reasonable period in the past.” Caneva, 550 F.3d at 761 (quoting 2 Rhoades, 453 F.2d at 53) (emphasis added). As we have stated 3 recently, “where a business is involved, simply producing a 4 bottom line number as to income earned, expenses incurred, or 5 losses suffered during a calendar year may be insufficient. . . . 6 This is particularly true in the context of a cash intensive 7 business where creditors cannot easily identify possible 8 preferences or fraudulent transfers without more detail.” 9 Hussain v. Malik (In re Hussain), 508 B.R. 417, 425 (9th Cir. BAP 10 2014). It is not enough for Ms. Brandenfels to provide records 11 about her overall financial situation; she must also provide 12 records adequate to allow creditors to trace all of her 13 transactions. 14 The bankruptcy court enumerated three areas in which it 15 found Ms. Brandenfels’s records to be deficient: (1) lack of 16 documentation of cash payments to contract labor; (2) lack of 17 clarity between business and personal credit card payments and 18 cash withdrawals; and (3) payments to third parties that were 19 made with company money for non-business expenses. We address 20 each in turn. 21 a. Cash payments to contract workers 22 First, the bankruptcy court’s foremost concern was the 23 undocumented cash withdrawals and claimed cash payments to 24 contract workers. The bankruptcy court calculated a discrepancy 25 of over $41,000 between 2010 and 2014. The court noted that the 26 unaccounted funds amount to 22.5 percent of Ms. Brandenfels’s 27 total contract labor costs. In 2012, around the time Ticor began 28 its collection actions, the discrepancy more than quadrupled, to
15 1 $28,000 from $6,200 the previous year. After Ticor’s garnishment 2 became effective, Ms. Brandenfels’s records do not reflect a 3 single payment by check to contract labor, even though records 4 from the three previous years show dozens of checks for that 5 purpose during the same season. Furthermore, Ms. Brandenfels 6 admitted that she opened new bank accounts and moved assets from 7 Oregon Holly to Oregon Holly Wreaths to avoid paying creditors. 8 Based on these facts, the bankruptcy court concluded that she 9 “was concealing the contract labor cash payments . . . under 10 cover of a chaotic or incomplete set of records[,]” or “doing 11 something else with the cash.” 12 On appeal, Ms. Brandenfels argues that her records 13 adequately account for all of the cash payments to contract 14 labor. She contends that “[t]here was no shortage of records or 15 missing transactions,” although she quickly admits that she 16 failed to include one of her accounts and does not have records 17 for November and December 2012.9 She claims that payments to 18 contract labor during this time are recorded in her bank 19 statements, which reflect multiple “round number” checks. 20 Finally, she argues generally that she “could explain each and 21 every one of her transactions.” 22 The bankruptcy court did not commit clear error in its 23 consideration of Ms. Brandenfels’s cash transactions. Her 24 records do not allow a creditor to “determine the details of that 25 9 26 Ms. Brandenfels argues that “she had failed to include one of her accounts in the Quickbooks exhibit D, but she provided 27 6 years of back records, and missed only November and December of 2012, and all profit and loss statements through April 2013.” 28 Opening Br. at 12.
16 1 transaction or verify that it actually took place.” Caneva, 2 550 F.3d at 762. There is no indication whom Ms. Brandenfels 3 paid, or how much she paid a particular person. The bankruptcy 4 court meticulously combed through 1,500 pages of 5 Ms. Brandenfels’s records and calculated a $41,000 deficiency, 6 which Ms. Brandenfels does not challenge on appeal. Rather, 7 Ms. Brandenfels argues that her payments to contract labor, while 8 not recorded in her business records, are reflected in her bank 9 statements, which the bankruptcy court “did not notice.”10 10 However, the bank statements fail to identify the payee or the 11 purpose of the transaction, and we cannot assume that the checks 12 and cash withdrawals were all used to pay contract labor. The 13 bankruptcy court was in the best position to evaluate the facts 14 before it, and we find no clear error in its findings. See Retz, 15 606 F.3d at 1196. 16 At oral argument, Ms. Brandenfels argued that, even if her 17 records were insufficient, her oral explanation at trial was 18 sufficient to cure the deficiency. Ms. Brandenfels did not offer 19 any authority in support of this proposition, other than to claim 20 that “jury instructions” permitted such an interpretation. This 21 contention is unpersuasive, not least because there is no right 22 to a jury trial in a § 727 action. More importantly, 23 Ms. Brandenfels’s argument ignores the fact that § 727(a)(3) 24 10 Ms. Brandenfels does not provide us with any citation to 25 the record evidencing that she directed the bankruptcy court to 26 the St. Helens FCU bank statements as the source of the cash to pay contract labor. Given that she admittedly inundated the 27 court with approximately 1,500 pages of documents and apparently could not explain the discrepancies at the time of trial, we 28 cannot say the bankruptcy court erred.
17 1 requires the debtor to keep and maintain “books, documents, 2 records, and papers,” not merely oral explanations or 3 recollections. Section § 727(a)(3) requires “sufficient written 4 evidence,” Caneva, 550 F.3d at 761, because a debtor’s post- 5 bankruptcy oral statements can be unreliable or subject to 6 manipulation. 7 Ms. Brandenfels also claimed at oral argument that Ticor had 8 copies of the checks evidencing payment to contract labor and 9 should have offered them at trial. However, Ticor did not bear 10 the burden of supplementing her deficient books and records. If 11 Ms. Brandenfels had other documents that would have completed her 12 records, she could and should have offered them at trial. She 13 provides no convincing explanation of her failure to do so. 14 Ms. Brandenfels also does not dispute her earlier testimony 15 that she transferred assets between bank accounts to avoid 16 garnishment. Coupling this testimony with the large cash 17 discrepancy suspiciously coinciding with Ticor’s collection 18 actions, we share the bankruptcy court’s concern that 19 Ms. Brandenfels intended to engage in “withholding or concealment 20 of assets . . . under cover of a chaotic or incomplete set of 21 books or records.” Caneva, 550 F.3d at 761 (quoting Burchett, 22 202 F.2d at 926). The bankruptcy court did not err in finding 23 Ms. Brandenfels’s records inadequate to explain the cash 24 transactions under § 727(a)(3). 25 b. Mixed personal and business expenses 26 Second, the bankruptcy court stated that Ms. Brandenfels 27 would mingle business and personal expenses, but would rarely 28 differentiate the expenses in her records. The court totaled
18 1 $9,500 in credit card payments in 2012, but the records do not 2 reflect the extent the payments concerned personal expenses or 3 business expenses. The court also noted that Ms. Brandenfels 4 obtained cash back of approximately $5,000 between November 2012 5 and January 2013, but did not maintain any records regarding 6 those funds. Similarly, Ms. Brandenfels’s ATM withdrawals that 7 were split between business and personal expenses were not 8 adequately recorded in her financial records. 9 We find no error in the bankruptcy court’s findings that 10 Ms. Brandenfels failed to produce adequate records regarding her 11 co-mingled personal and business expenses. She does not attempt 12 to explain the credit card charges of $9,500 or the cash 13 withdrawals of $5,000, other than to state–-without any citation 14 to the record--that she was able to account for all of her 15 transactions. 16 Ms. Brandenfels’s only other argument is that “both personal 17 and small business records were considered together in order to 18 determine the status of the defendant’s financial affairs. It is 19 incongruous to consolidate the finances for this analysis, and 20 then to insist on segregating them to critique her records.” 21 Opening Br. at 14. Ms. Brandenfels misses the point. Reviewing 22 the personal and business records together is necessary to 23 ascertain Ms. Brandenfels’s overall financial condition, but 24 Ms. Brandenfels was also obligated to keep adequate records of 25 her businesses’ finances such that a creditor could follow the 26 individual transactions. See Caneva, 550 F.3d at 761 (the 27 debtor’s records must allow a creditor “to follow his business 28 transactions for a reasonable period in the past” (citation
19 1 omitted)). The bankruptcy court did not err in finding that 2 Ms. Brandenfels’s failure to do so renders her records incomplete 3 and inadequate. 4 c. Non-business expenses 5 Third, the bankruptcy court found that Ms. Brandenfels’s 6 records did not adequately explain payments to third parties that 7 were made with company money for non-business expenses. 8 Ms. Brandenfels states generally that she had offered “a valid 9 explanation” and notes that the “unidentified neighbor” to whom 10 she paid $2,500 of company funds was identified by name at trial. 11 In fact, Ms. Brandenfels utterly failed at trial to provide any 12 written records explaining these transactions. Therefore, we 13 find no error in the bankruptcy court’s findings. 14 Thus, the bankruptcy court correctly determined that Ticor 15 made a prima facie showing of the incompleteness and inadequacy 16 of Ms. Brandenfels’s records. 17 2. The bankruptcy court correctly held that Appellant failed to justify her inadequate records. 18 19 Since the bankruptcy court did not err in finding that 20 Ms. Brandenfels failed to maintain and preserve adequate records, 21 the burden then shifts to Ms. Brandenfels to justify the 22 inadequacy of her records. The bankruptcy court stated that Ms. 23 Brandenfels argued at trial that her records “were justified 24 under all the circumstances of this case. . . . She’s had two 25 bouts of cancer; her husband is not well after his stroke; the 26 economic downturn in 2008 hit her business particularly hard, and 27 as a result [she] has been struggling to keep her business afloat 28 almost singlehandedly.” The court concluded, however, that,
20 1 “[n]otwithstanding [Ms. Brandenfels’s situation], these records 2 are still not adequate under 727(a)(3).” 3 On appeal, Ms. Brandenfels does not assign any error to this 4 finding.11 The only mention of her burden is a passing statement 5 that, “[e]ven if the plaintiff may have met its burden of proof, 6 the missing records for November and December have been 7 adequately explained under the burden shifting analysis of 8 Caneva.” The record, however, contains no such explanation. 9 Ms. Brandenfels also conceded at oral argument that she did not 10 assign error to the second prong on appeal, because she felt that 11 the burden never shifted from Ticor to her. Therefore, the 12 bankruptcy court correctly found that Ms. Brandenfels failed to 13 carry her burden to justify the inadequacy of her records. 14 C. The bankruptcy court did not err in selecting the appropriate legal standard. 15 16 For her second point of error, Ms. Brandenfels contends that 17 the bankruptcy court applied an erroneous standard in determining 18 the adequacy of the records at issue. However, Ms. Brandenfels 19 fails to present any argument on this matter in her opening 20 brief.12 21 11 22 Ms. Brandenfels’s first question on appeal asks only, “Did the plaintiff meet its burden of proof to demonstrate that 23 the debtor’s records were not adequate under 11 USC § 727(a)(3)[?]” 24 12 We note that Ms. Brandenfels includes a subsection 25 entitled “Standard for adequacy” toward the end of her opening 26 brief. However, even construing Ms. Brandenfels’s arguments liberally, we cannot discern any proper assignment of error by 27 the bankruptcy court. Ms. Brandenfels cites Caneva and a number of other Ninth Circuit cases for the general test to determine 28 (continued...)
21 1 As the Ninth Circuit has stated, “we cannot ‘manufacture 2 arguments for an appellant’ and therefore we will not consider 3 any claims that were not actually argued in appellant’s opening 4 brief. Rather, we ‘review only issues which are argued 5 specifically and distinctly in a party’s opening brief.’” 6 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 7 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 8 977 (9th Cir. 1994)). “Significantly, ‘[a] bare assertion of an 9 issue does not preserve a claim.’” Id. (quoting D.A.R.E. Am. v. 10 Rolling Stone Magazine, 270 F.3d 793, 793 (9th Cir. 2001)). 11 Ms. Brandenfels identifies the bankruptcy court’s application of 12 an “erroneous legal standard to the adequacy of the defendant’s 13 records” as one of her points of error, yet fails to 14 “specifically and distinctly” argue that point anywhere in her 15 opening brief. See id.; Rule 8014(a)(8) (2014) (an appellant’s 16 brief must include “the argument, which must contain the 17 appellant’s contentions and the reasons for them, with citations 18 to the authorities and parts of the record on which the appellant 19 relies”). 20 Moreover, in response to the Panel’s questions at oral 21 argument, Ms. Brandenfels’s counsel said that he was not 22 challenging the bankruptcy court’s articulation of the legal 23 standard, but rather was arguing that the bankruptcy court erred 24 in its application of the relevant standard to the facts. 25 26 12 (...continued) 27 the adequacy of records, but does not identify any way in which the bankruptcy court applied an erroneous standard, especially 28 given that the court also relied primarily on Caneva.
22 1 Thus, we hold that the bankruptcy court did not err in 2 selecting the appropriate legal standard. 3 CONCLUSION 4 For the reasons set forth above, we AFFIRM the bankruptcy 5 court’s nondischargeability judgment. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28