IN RE: Patrick J. HANNON; Elizabeth Hannon, Debtors. Patrick J. Hannon, Plaintiff, Appellant, v. ABCD Holdings, LLC; ABC&D Recycling, INC.; Ware Real Estate, LLC, Defendants, Appellees.
No. 15-2269
United States Court of Appeals, First Circuit.
October 7, 2016
837 F.3d 63
Joel E. Faller, with whom McLaughlin Brothers, P.C. was on brief, for appellees.
Before KAYATTA and BARRON, Circuit Judges, MCAULIFFE,* District Judge.
MCAULIFFE, District Judge.
Patrick J. Hannon (“Hannon“) appeals from the entry of summary judgment denying his petition for a discharge in bankruptcy. See
I. Background
A. Factual Background
In May of 2012, Hannon and his wife, Elizabeth, sought protection from their creditors by filing a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code.1 The Hannons reported total assets of about $6 million, and liabilities of approximately $10.4 million, which included a disputed tax debt of more than $7 million.
Hannon owned and operated a recycling and scrap metal company, ABC&D Recycling, Inc. (“ABC&D Recycling“), as well as a real estate company, Ware Real Estate, LLC (“Ware Real Estate“), which
ABC&D Recycling and Ware Real Estate
Hannon bought ABC&D Recycling and Ware Real Estate with the help of an attorney named George McLaughlin, Esq., who had previously represented Hannon. McLaughlin owned a financing company, Bright Horizon Finance, LLC (“Bright Horizon“), which loaned Hannon the necessary funds. Bright Horizon‘s loan terms included warrant rights, affording it the option to purchase a 50.1 percent interest in each company. On June 21, 2012, after the Hannons filed for bankruptcy protection, Bright Horizon assigned its warrant to ABCD Holdings, LLC (“ABCD Holdings“), another company controlled by McLaughlin, and, on July 17, 2012, ABCD Holdings exercised those warrant rights, thereby obtaining a 50.1 percent ownership interest in both Ware Real Estate and ABC&D Recycling.
A few weeks earlier, on June 27, 2012, McLaughlin, suspecting that business funds were being diverted by Hannon for unauthorized purposes, obtained an ex parte temporary restraining order from the Suffolk County Superior Court. That order temporarily barred Hannon from ABC&D Recycling‘s premises. On July 2, 2012, however, that order was modified to allow Hannon to resume operational control over the business. A short time later, on July 18, 2012, ABCD Holdings removed Hannon as an officer of Ware Real Estate and appointed McLaughlin to replace him. Hannon, however, continued to operate ABC&D Recycling until February 6, 2013, when ABCD Holdings removed him as an officer and director of that company as well. On March 13, 2013, the bankruptcy court approved the sale of Hannon‘s remaining minority interest in both Ware Real Estate and ABC&D Recycling to ABCD Holdings.
Hannon‘s Monthly Operating Reports
Hannon was required to file monthly operating reports (“MORs“) on a standardized form with the United States Trustee‘s office. He did so from May through September of 2012. Hannon says that he provided his counsel with bank statements from the debtor-in-possession accounts and, based on those statements, counsel completed the necessary forms for him. Hannon then reviewed the forms and signed a certification on each MOR which declared “under penalty of perjury” that the report was true and correct “to the best of [his] knowledge and belief.”
The MOR forms require, among other things, that a debtor affirmatively disclose whether funds have been disbursed for the debtor‘s benefit from any account other than a debtor-in-possession account, and, if so, to provide an explanation for such payments. Here, that would include disclosure of disbursements made by ABC&D Recycling and Ware Real Estate for Hannon‘s benefit. The MOR form also instructs the debtor to report the amount of estate disbursements made by outside sources. On all of the relevant MORs, Hannon reported that funds had been disbursed for his and his wife‘s benefit from an account other than a debtor-in-possession account. In May and June of 2012, for example, Hannon‘s MORs identified $1,407.24 and $2,830.30, respectively, as “payments from ABC&D for rent and utilities.” Hannon‘s September MOR also disclosed that funds had been disbursed from “ABC&D for rent and utilities,” but reported that no
Companies Object to Discharge
On July 12, 2013, ABCD Holdings, ABC&D Recycling, and Ware Real Estate (the “Companies“) filed an adversary complaint against Hannon in the bankruptcy proceeding, objecting to his discharge in bankruptcy. Based upon a forensic accounting analysis of the books and records of ABC&D Recycling and Ware Real Estate, the Companies alleged that while Hannon was in control of the businesses, he diverted a substantial amount of business revenue to his own benefit, without authority. According to the Companies, business funds were diverted by means of: (1) Hannon‘s use of business accounts to pay Hannon‘s entirely personal expenses; (2) Hannon‘s withdrawal of funds from business bank accounts for entirely personal use; and (3) Hannon‘s and his family members’ use of business debit cards to cover entirely personal expenses. The Companies asserted that Hannon did not disclose receipt of the majority of those diverted funds on his MORs, as required. They charged that Hannon diverted approximately $99,000 from ABC&D Recycling and Ware Real Estate between May and September of 2012, during which period he only identified approximately $4,200 in disbursements made on his behalf on the MOR forms.
On November 21, 2013, the Companies moved for partial summary judgment on their claim that, because Hannon made a false oath or filed a false account in connection with his bankruptcy proceeding, he should be denied a discharge.
Hannon‘s Proffered Defenses
A hearing was held in the bankruptcy court on the Companies’ motion. The bankruptcy court questioned Hannon about the transactions at issue. Hannon denied that the identified disbursements were made for his personal benefit, stating that nearly all of them (“99.9 percent of them“) had a business purpose. The bankruptcy court took the matter under advisement, but offered Hannon the opportunity to “spell out in detail” his defenses to the multiple diversion claims.
Hannon then retained new legal counsel, who filed a further brief in opposition to the Companies’ motion for partial summary judgment. Hannon retreated from his earlier claim that 99.9 percent of the disbursements had a business purpose, but included an affidavit in which he declared that many of the disbursements and withdrawals from business accounts actually had a business purpose. He also filed an affidavit by Jeffrey M. Dennis, CPA, in which Dennis opined that laypersons (like Hannon, who had a high school education) typically lack the necessary training to
Hannon conceded that $19,323.22 in business disbursements were “incurred for his benefit.” Those transactions included eleven cash withdrawals, which Hannon labeled as “Stipends to Joint Debtor” (his wife); two paychecks to Hannon from ABC&D Recycling; $7,500 in rent payments made to Hannon‘s landlord; $1,500 in payments to a boat storage facility in Maine; retail purchases for groceries, clothing, and entertainment; and video game and music purchases made by Hannon‘s daughters on a business debit card.3
Hannon identified $77,155.91 of the challenged disbursements as having a business purpose, including substantial cash withdrawals used to make cash payments for scrap metal, expenses related to business travel, and expenses associated with transporting and feeding ABC&D Recycling employees.4 He included within that category costs associated with two of his homes, one in Wells, Maine, and another in Truro, Massachusetts. According to Hannon, those vacation homes were used for entertaining potential ABC&D clients, so costs associated with maintaining those homes, as well as monies spent entertaining clients while in residence, qualified as business expenses. Disbursements were made to cover costs for utilities, landscaping, local hardware and liquor store purchases, and meals at nearby restaurants.
Finally, Hannon identified $2,849.99 of the questioned disbursements as having both a personal and a business purpose. He included within that final category utility payments related to his Wells and Truro homes.
Hannon had previously given testimony concerning his Wells and Truro homes at a June 6, 2012, meeting of creditors. In response to questioning by counsel to the United States Trustee, Hannon said that he and his family used the Wells home only occasionally and during the day, and that it needed significant work (as a result of major leaks and a dysfunctional heating system) to make it rentable. The Truro vacation home, he said, was used only “once in a while” and otherwise remained unoccupied. He did not mention any marketing or other business entertainment uses of either property.
B. Procedural History
On June 10, 2014, after fully considering the matter, the bankruptcy judge granted summary judgment in favor of the Companies and declined to grant Hannon a discharge in bankruptcy.
The bankruptcy court took note of the extent and frequency of Hannon‘s omissions, as well as the fact that Hannon had partially disclosed payments made for his benefit by ABC&D Recycling in his May and June MORs. From the undisputed facts, the bankruptcy court determined that the “only plausible conclusion is that [Hannon] acted with reckless indifference to the truth when filing his MORs.” The court decided that it was unnecessary to consider the additional disbursements at issue, because Hannon admitted sufficient unreported payments made on his behalf to resolve the motion for summary judgment.
Hannon appealed to the district court. The district court affirmed the bankruptcy court‘s order on September 22, 2015. This appeal followed.
II. Standard of Review
As recently noted in Rok Builders, LLC v. 2010-1 SFG Venture, LLC, (In re Moultonborough Hotel Group, LLC), 726 F.3d 1, 4 (1st Cir. 2013), “[a]lthough we constitute the second tier of appellate review in this case arising out of a decision by the bankruptcy court in an adversary proceeding, ‘we cede no special deference to the determinations made by the ... district court’ and instead ‘assess the bankruptcy court‘s decision directly.‘” Id. at 4 (quoting City Sanitation, LLC v. Allied Waste Servs. of Mass., LLC (In re Am. Cartage, Inc.), 656 F.3d 82, 87 (1st Cir. 2011)). Our review of the bankruptcy court‘s order granting summary judgment is de novo. Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994) (citations omitted); see also Daniels v. Agin, 736 F.3d 70, 78 (1st Cir. 2013).
The bankruptcy court entered summary judgment under Federal Rule of Bankruptcy Procedure 7056, which expressly “incorporates into bankruptcy practice the standards of Rule 56 of the Federal Rules of Civil Procedure.” In re Varrasso, 37 F.3d at 762. Accordingly, the “legal standards traditionally applicable to motions for summary judgment ... apply without change in bankruptcy proceedings.” In re Moultonborough Hotel Grp., LLC, 726 F.3d at 4 (citations omitted). Summary judgment in bankruptcy proceedings, then, should be granted “only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law.” In re Varrasso, 37 F.3d at 763. “[A]ll reasonable inferences from the facts must be drawn in the manner most favorable to the nonmovant.” Id.
III. Discussion
We begin with a basic principle. “Under [
[
11 U.S.C. § 727 ], by its very nature, invokes competing considerations. On the one hand, bankruptcy is an essentially equitable remedy. As the [Supreme] Court has said, it is an “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103 (1966). In that vein, the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor. Matter of Vickers, 577 F.2d 683, 687 (10th Cir. 1978); In re Leichter, 197 F.2d 955, 959 (3d Cir. 1952), cert. denied, 344 U.S. 914 (1953); Roberts v. W.P. Ford & Son, Inc., 169 F.2d 151, 152 (4th Cir. 1948). “The reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir. 1934).On the other hand, the very purpose of certain sections of the law, like
11 U.S.C. § 727(a)(4)(A) , is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs. The statutes are designed to insure that complete, truthful, and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction. As we have stated, “[t]he successful functioning of the bankruptcy act hinges both upon the bankrupt‘s veracity and his willingness to make a full disclosure.” Matter of Mascolo, 505 F.2d 274, 278 (1st Cir. 1974).
In re Tully, 818 F.2d at 110 (parallel citations omitted). With these principles in mind, we turn to Hannon‘s arguments on appeal.
A. False Oath
The bankruptcy court, invoking the principle that “an unsworn declaration made under penalty of perjury is the equivalent of a verification under oath,” determined that, because Hannon signed the MORs under penalty of perjury, his statements on those forms were made under oath.
Hannon concedes that he presents the argument for the first time on appeal. “[T]herefore, we can consider the argument waived.” Hoover v. Harrington (In re Hoover), 828 F.3d 5, 11 (1st Cir. 2016) (quoting Net-Velazquez v. Wiscovitch-Rentas (In re Net-Velazquez), 625 F.3d 34, 40 (1st Cir. 2010)) (“[A]bsent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.“). However, even if Hannon had presented the argument to the bankruptcy court, it would have likely failed. The verification language used on the MOR is nearly identical to the verification language used on debtor bankruptcy sched-
We do not discern any principled basis upon which to draw a meaningful distinction between the certification language used on the MOR form from that used on a debtor‘s schedules, and think the nearly identical language used on the MOR form would likely constitute a verification under oath for
B. “Knowingly and Fraudulently”
Hannon‘s main argument on appeal relates to the bankruptcy court‘s determination that there was no genuine issue of material fact with respect to his state of mind when he filed the MORs. Hannon asserts that the bankruptcy court incorrectly concluded that the undisputed facts established his knowing and fraudulent state of mind as a matter of law. Relying upon our decision in In re Varrasso, 37 F.3d at 764, he argues that the undisputed facts here—as in In re Varrasso—do not point to only one conclusion about his state of mind, but instead support “conflicting yet plausible inferences---inferences that are capable of leading a rational factfinder to different outcomes in a litigated matter depending on which of them the factfinder draws.” Id. Because the undisputed facts require a choice between two plausible, and conflicting, inferences (reckless conduct or merely careless conduct), he argues, summary judgment was improper.
Hannon says the undisputed facts support an inference that he acted carelessly, but not recklessly. He stresses that he had no reason to conceal the business disbursements made for his personal benefit because, even including those disbursements,
Hannon also points to his “good faith” participation in the bankruptcy process, and his improved reporting practices over time, which also should tend to negate any inference of an intent to deceive. Finally, Hannon argues that accurate MOR reporting was necessarily hampered by his lack of access to underlying financial documentation about the businesses. Files and records were missing, he says, after the brief hiatus between the issuance of the temporary restraining order and his resumption of control over ABC&D‘s operations when the restraining order was modified. All of which, Hannon argues, would readily support a legal conclusion that he acted carelessly, but did not act with reckless indifference to the truth.
A debtor “knowingly and fraudulently” makes a false oath if he “knows the truth and nonetheless willfully and intentionally swears to what is false.” Lussier v. Sullivan (In re Sullivan), 455 B.R. 829, 837 (1st Cir. BAP 2011) (internal quotation marks and citations omitted). “[R]eckless indifference to the truth” has “consistently been treated as the functional equivalent of fraud for purposes of
We of course recognize that it has been repeatedly emphasized, and remains true today, that “[c]ourts use special caution in granting summary judgment as to intent. Intent is often proved by inference, after all, and on a motion for summary judgment, all reasonable inferences must be drawn in favor of the nonmoving party.” Daniels, 736 F.3d at 83. But, “[s]ummary judgment may be warranted even as to such elusive elements as a defendant‘s motive or intent where the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 5 (1st Cir. 1998) (quotations and citations omitted). Here, there are no genuine disputes regarding material facts, and construing the undisputed facts and all reasonable inferences arising from those facts in favor of Hannon, it is still clear that the entry of summary judgment was proper.
First, Hannon‘s reliance on In re Varrasso, 37 F.3d 760, is misplaced, because the undisputed facts here do not support plausible opposing inferences. Hannon concedes that he did not report at least $8,500 in business payments made for his personal benefit on the MORs he filed in May through September of 2012.7 His explana-
To be sure, “a debtor‘s honest confusion or lack of understanding may weigh against an inference of fraudulent intent.” Robin Singh Educ. Servs., Inc. v. McCarthy (In re McCarthy), 488 B.R. 814, 827 (1st Cir. BAP 2013). But, Hannon did properly report some business disbursements made for his personal benefit in May and June of 2012. As the bankruptcy court recognized, those May and June disclosures “demonstrate[] that [Hannon] understood his duty to report such transactions, and was able to obtain the necessary information to do so.” As the bankruptcy court also recognized, the “magnitude of the omissions belies the Debtor‘s assertions that he merely overlooked” reporting a few small personal transactions. In this case Hannon reported a few modest personal transactions; it was the multiple and substantial disbursements made for his benefit that did not make it to the MORs. Moreover, unlike the debtors in Varrasso, Hannon did not rectify the omissions as soon as the creditors’ questioning brought them to light. In re Varrasso, 37 F.3d at 764.
At issue here is not a simple failure to report minor expenditures for miscellaneous expenses. Rather, Hannon repeatedly failed to report thousands of dollars diverted from the businesses for his benefit, while he controlled those businesses. He cannot plausibly contend that he did not know that the businesses paid for his personal rent, clothing, and groceries, as well as his daughters’ clothing and entertainment, over a five-month period. Considered in context, “[t]he amounts here render reckless errors that arguably may have been only negligent if they had concerned less significant items.” Daniels, 736 F.3d at 85.
Hannon‘s claim that he relied in good faith on legal counsel to accurately prepare the forms also founders. As Hannon himself concedes, “reliance on the advice of counsel is no defense when the deficiency ‘should have been evident to the debtor.‘” Appellant‘s Br. at 20 (quoting Tully, 818 F.2d at 111). Hannon‘s argument is undermined both by his demonstrated knowledge of what was required to be disclosed, and his undeniable knowledge that substantial sums spent on his behalf were not disclosed on the forms filled out
Hannon also asserts that a reasonable factfinder could well conclude that he lacked the financial acumen to understand and appreciate the MORs deficiencies. But, as discussed above, in May and June of 2012 Hannon did properly report disbursements made for his benefit. He plainly demonstrated personal awareness of what disclosures were required, and clearly was not unaware that business disbursements made for his benefit had to be reported. It, therefore, “should have been evident” to Hannon that the July, August, and September MORs did not disclose substantial business expenditures made for his benefit. Appellant‘s Br. at 20 (quoting In re Tully, 818 F.2d at 111). As we have warned, “[a] debtor cannot, merely by playing ostrich and burying his head deeply enough in the sand, disclaim all responsibility for statements which he has made under oath.” In re Tully, 818 F.2d at 111.8
While Hannon has no formal training in financial reporting, still, he is hardly unsophisticated. Until recently, he owned and successfully operated two businesses. He entered bankruptcy having accumulated assets of nearly $6 million. Moreover, this is not Hannon‘s first experience with bankruptcy filings and reports. Hannon acknowledges that he was “previously the principal of Embassy Realty, LLC, which had operated as a debtor-in-possession.” Hannon‘s business experience and his past experience with the bankruptcy process undermine his claimed inability to accurately and truthfully complete the MORs due to a lack of financial sophistication.
Finally, Hannon‘s passing contention that his ability to accurately and truthfully disclose all business expenditures made for his benefit was hampered by missing financial documentation is also implausible. Hannon did not provide any explanation as to how access to the allegedly missing business records was a necessary predicate to his truthfully reporting substantial disbursements made on his behalf. Hannon, of course, did have access to all the financial records of ABC&D Recycling and Ware Real Estate through at least the end of June, 2012, yet still did not accurately and truthfully report disbursements made for his benefit on the May and June MORs. “The record in this case shows, at the very least, cavalier indifference and a pattern of disdain for the truth. Meaningful disclosure was accorded much too low a priority.” In re Tully, 818 F.2d at 112.
Reviewing the matter de novo, we recognize this case as one of those uncommon situations in which summary judgment is appropriate notwithstanding that intent, or state of mind, is at issue. We concur in the bankruptcy court‘s determination that Hannon‘s proffered explanations for his significant omissions are so implausible that they do not give rise to a genuine dispute of material fact with respect to his intent.9
C. Materiality
The final critical element, that the debtor‘s statement be materially related to
Neither party disputes on appeal that Hannon‘s omissions were material. We agree. As the bankruptcy court noted, because Hannon‘s omissions “prevented parties in interest from accurately assessing the viability of a reorganization or understanding the Debtor‘s true financial condition,” they were material.
IV. Conclusion
Summary judgment is not commonly available in cases featuring intent as a necessary element, but, as this case illustrates, there are exceptions. Material statements made in the course of judicial proceedings implicate serious interests, and must be as complete and reliable as studied caution will allow. Reckless indifference cannot be countenanced and will provide no protection from sanctions imposed for making false statements under oath.
For the reasons stated above, we affirm the bankruptcy court‘s denial of Hannon‘s discharge pursuant to
MCAULIFFE, DISTRICT JUDGE