OPINION
Before the Court are the Motions of (1) David G. Sonders (“Sonders”) for Partial' Summary Judgment (“Sonders Motion”) and (2) First Union National Bank (“First Union”) for Summary Judgment (the “First Union Motion”) on their respective Complaints objecting to discharge of the Debtor pursuant to 11 U.S.C. § 727(a)(5).
1
In support of his Motion, Sonders presents his affidavit to support documents obtained from the official records filed with the United States Bankruptcy Court and the Office of Public Records of the United States Senate.
2
In response to the Sonders Motion, Debtor presented her affidavit
3
and certain
For the reasons that follow below, the Court finds that Sonders and First Union (collectively the “Movants”) have met their burden for entry of judgment. I will therefore sustain their objection to, and deny entry of, the Debtor’s Chapter 7 discharge pursuant to § 727(a)(5).
BACKGROUND
The Debtor is a former member of the United States House of Representatives (One Hundred Third Congress January 3, 1993-January 3, 1995). A graduate of the University of Pennsylvania and former CBS New Foundation fellow (Columbia University), she worked as a television journalist for twenty-five years, has written three books, and has offered testimony before United States House of Representative and Senate Subcommittees on family issues. After her Congressional term concluded, she was named the head of the American delegation to the United Nation Fourth World Congress on Women in Beijing and later became the President of the Women’s Campaign Fund. Debtor’s Dep. at 73-75 and Exhibit MMM-5. She filed this voluntary petition for bankruptcy (the “Petition”) on February 10, 2000 (the’ “Petition Date”). 6
Sonders and First Union are creditors of the Debtor and filed their adversary proceedings on April 4 and June 23, 2001, respectively, alleging that the Debtor has failed to explain satisfactorily the disposition of significant assets in violation of § 727(a)(5) of the Bankruptcy Code. The following facts are undisputed:
I. In May 1996,
7
the Debtor and her husband purchased a homeowners’s insur-
II.The Debtor sold 15,595 shares of Charming Shoppes stock in February 1999 and another 1847 shares in January 2000, for which she received a total of $63,771 (the “Charming Shoppes Proceeds”). Amended Statement of Financial Affairs ¶10.
III. On January 7, 2000, the Debtor sold ten shares of General Electric stock and seventy-one shares of PNC Bank Stock for $1,382.61 and $2,772.98, respectively (collectively the “Misc. Stock Proceeds”). Ex. MMM-24 to First Union Mot. The Misc. Stock Proceeds are not listed in the Debtor’s Amended Bankruptcy Schedules nor is the sale of or disposition of the Misc. Stock Proceeds disclosed in her Amended Statement of Financial Affairs.
IV. Between 1997 and 1999, the Debtor and her husband borrowed money from various friends and acquaintances in various amounts, totaling $1,477,500 (the “Personal Loan Assets”).
9
The Debtor concedes that these loans were made to her and her husband jointly.
10
The Personal Loan Assets are not listed in the Debtor’s Amended Bankruptcy Schedules nor are any transfers of the Personal Loan Assets
V. On August 15, 1999 and February 25, 2000, the Debtor signed and filed personal financial statements, prepared by her husband, with the United States Senate in connection with her candidacy for the Senate (the “Senate Financial Disclosure”). The Senate Financial Disclosure indicates an ownership interest in various securities and note receivables valued at a minimum of $1.3 million. Rule 2004 Exam at 175; Ex. E to Sonders Motion. 11
VI. On or about September 24, and October 24, 1999, the Debtor wrote two checks in the amounts of $7,500 and $5,000, respectively, from a Prime Bank account in the name of the Debtor and her husband, to her housekeeper Roberta McClean (“the McClean Payments”). Ex. “J” to Sonders Mot. The McClean Payments are not disclosed in the Debtor’s Amended Statement of Financial Affairs.
VII. In January 2000, the Debtor sold several personal items to Nancy Chasen (the “Chasen Transaction”) for $5,000 (the “Chasen Proceeds”). Amended Statement of Financial Affairs. ¶ 10. The Chasen Proceeds are not listed in the Debtor’s Amended Schedules, but her discovery responses indicate that Ms. Chasen paid the proceeds directly to Northfield Mount Herman School, the school attended by the Debtor’s son, Andrew. Debtor’s Obj. and Resp. to Sonders’ First Set of Interrogs. ¶ 27, Ex. “G” to Sonders Mot.
DISCUSSION
Summary judgment is warranted only where “the pleadings, depositions, answers to interrogatories and admissions on file, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
12
Thus, when deciding a summary judgment motion, the court’s task is not to resolve questions of fact, but to determine whether there is in fact any genuine issue of fact to be resolved at trial.
Anderson v. Liberty Lobby, Inc.,
It is the moving party’s burden to demonstrate the absence of genuine issues of material fact.
Drexel v. Union Prescription Centers, Inc.,
Section 727(a)(5) of the Bankruptcy Code states that a court will grant the debtor a discharge unless “the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities.” 11 U.S.C. § 727(a)(5). Movants, as plaintiffs, bear the burden of proof. Fed. R. Bankr.P. 4005 (“At a trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the objection”). Further, under § 727(a)(5), the plaintiff also bears the initial burden of production:
i.e.,
to establish, by a preponderance of the evidence, that the debtor had a cognizable interest in a specific identifiable property at a time not too far removed from the bankruptcy which she now no longer possesses.
13
Pyramid Technology Corp. v. Cook (In re Cook),
What constitutes a “satisfactory” explanation is a matter of discretion for the court,
Buzzelli,
The word “satisfactorily,” ... may mean reasonable, or it may mean that the court, after having heard the excuse, theexplanation, has that mental attitude which finds contentment in saying that he believes the explanation- — he believes what the [debtors] say with reference to the disappearance or the shortage.... He no longer wonders. He is contented.
Id.
at 846
(quoting In re Shapiro & Or-nish,
It is important to note that, for the purposes of a § 727(a)(5) inquiry, the court is not concerned with whether the disposition of the assets was proper under the Bankruptcy Code, but rather only whether the explanation satisfactorily describes what happened to the assets.
Buzzelli,
While the objections to discharge found in § 727 are to be strictly construed against the creditor and liberally in favor of the debtor,
Rosen v. Bezner,
So important is this concept of disclosure, that § 727(a)(5) includes no subjective element of proving wrongful scienter such as an intent to defraud or hinder creditors.
See Cook,
Applying these standards, I now examine the alleged loss and/or deficiency of assets upon which the Movants base their motions.
I. Diminution of Personal Property
The Movants rely upon the fact that the Debtor represented to her insurance company having an interest in personal property worth $810,535 in May 1996 and not recalling any significant dispositions of her property since 1989, while attributing approximately $19,217 of value to the personal property in which she claims an interest in her Amended Schedule B. First Union Mem. at 8-9. There is no genuine issue of fact that the Debtor made these representations as they are admitted in her Answer to the Complaint. A plaintiff makes out a
prima fade
case where it shows that the debtor has listed assets in her bankruptcy schedules less than she has previously presented herself to be worth.
Buzzelli,
Before turning to the Debtor’s explanation, it is clear that the comparisons urged by Movants are not completely accurate nor for that matter is the Debtor’s explanation of the support for her latest estimate of value. The $810,535 valuation purports to be the value in 1996 of all tangible personal property owned by
Debt- or and her husband.
The $19,217 value is derived from the Slosberg Appraisals which provide the orderly liquidation value of the
Debtor’s property
as of February and April of 2000. Ex. MMM-3 to Debt- or’s Dep. (Amend.Sched.B).
15
To arrive at the Debtor’s interest in the household goods and artwork and collectibles which represent the items appraised by Slosberg, the Schedule B attachment reflects a calculation which deducts from the total appraised value of such property approximately $15,585 of assets Debtor asserts to be holding for third parties
16
and divides
The Debtor attributes the disparity between the property value provided to Nationwide and the value recorded in her schedules to her reliance on two different appraisals secured at different times and for different purposes.
17
Rule 2004 Exam at 287-88; Debtor’s Dep. at 176. She claims that the representation to Nationwide in 1996 is based upon the Young Inventory done subsequent to a 1992 fire in her residence and supplemented by the opinion of her husband. The Young Inventory is a 93-page, hand-written document reflecting a meticulously detailed room by room listing of household items on a form dated February 2 through 6, 1992.
18
Ex. “C” to Mem. Opp. Sonders Mot.
19
While it
The Debtor when examined about the Young Inventory had little recollection or understanding of its significance. Other than stating that it was created after a fire in the marital home, she never elucidates what its purpose was. She testifies that after the fire numerous items of furniture, rugs, clothing, and other possessions were replaced or repaired, some at great expense. Debtor’s Dep. at 122, 126-27, 132, 139. However, the significance of that statement as relates to the Young Inventory was never clarified. The Slosberg Appraisal makes no mention of, much less any attempt to reconcile, itself with the Young Inventory, and the Debtor’s testimony is simply too vague to bridge the gap. If the Debtor is claiming that the Young Inventory and Slosberg Appraisals explain the loss in value in her personal property, “the burden [is] on the Debtor to prove what [s]he alone claim[s] was obvious from [her] records.”
Cook,
The Debtor argues that she has identified individuals from Slosberg and Young as well as her husband who' have knowledge and whom she will subpoena for trial to provide testimony on this issue. Memorandum in Opposition to First Union Motion (“Mem. Opp. First Union Mot.”) at 3-
4;
Mem. Opp. Sonders Mot. at 5. In relying on this response, the Debtor has misconstrued her burden of production both under the Bankruptcy Code and Rules. Under § 727(a)(5), merely identifying persons with knowledge will not suffice. Once the plaintiff has made' out a
prima facie
case, as the Movants have here, the Debt- or must come forward with a satisfactory
For these reasons, I find that the Debt- or has failed to satisfactorily explain the loss of approximately $775,000 worth of assets (the difference between the $810,000 represented in May 1996 and the $35,000 now claimed in her Amended Schedule B). 20
II. Loss of the Stock Proceeds
1. The Charming Shoppes Proceeds
The Movants have correctly noted that the Debtor made two separate sales of Charming Shoppes stock, aggregating receipts of $63,771 (the “Charming Shoppes Proceeds”), within a year of the Petition Date. Despite disclosing the sale of the stock, the Debtor failed to account for the Charming Shoppes Proceeds in her Schedules. Amend. Statement of Fin. Affairs, ¶ 10; Amend. Sched. B. These facts are not contested by the Debtor. The Mov-ants have thus made out a prima facie case under § 727(a)(5) by identifying a specific asset in which the Debtor had a cognizable interest (ie., the Charming Shoppes Proceeds) at a time not too far removed from the bankruptcy and which is now no longer available.
I find, however, that with respect to this asset the Debtor’s testimony is sufficient to meet her burden of production. She testified, in relevant part, as follows:
Q: And why did you sell [15,595 shares of] that stock in February 1999?
A: It was at the request of my husband.
Q: Do you know why he requested you do that?
A: He needed the money.
Q: And did you give that $50,140 [representing the proceeds from the 15,595 shares] to him?
A: Yes
Debtor’s Dep. at 71-72. At this point, the Court is not concerned with whether such a transfer to her husband was proper. My inquiry under § 727(a)(5) is only whether the explanation satisfactorily describes what happened to this asset. With regard to the February 1999 proceeds, her testimony satisfactorily explains the disposition
The Debtor’s deposition testimony as to the January 2000 sale is ambiguous when read in conjunction with her earlier testimony:
Q: [You sold] 1,847 shares of Charming Shoppes and received $18,681; is that accurate?
A: To the best of my knowledge.
Q: Why did you sell that stock?
A: For the same reason.
Q: And what did you do with the $13,631?
A: My husband handled it.
Id.
(emphasis added). The Debtor authorized the January 2000 sale of stock for the same reason as the first, because her husband needed the money. Although she fails to state as much, one could therefore infer that she also gave these proceeds to Mr. Mezvinksy. Given that I must make all inferences in favor of the Debtor and refrain from any determination as to credibility,
Boyle v. Allegheny County, Pa.,
2. The Misc. Stock Proceeds
First Union also presented brokerage account statements showing that, on January 7, 2000, the Debtor sold ten shares of General Electric stock and seventy-one shares of PNC Bank Stock for $1,382.61 and $2,772.98, respectively (collectively the “Misc. Stock Proceeds”). Ex. MMM-24 to First Union Mot. The sale of this stock is not disclosed in the Debtor’s Amended Statement of Financial Affairs, nor are the Mise. Stock Proceeds accounted for in her amended schedules. First Union has thus made out a prima facie case by showing the Debtor’s cognizable interest in the Mise. Stock Proceeds of $4,155.59 as of January 7, 2000, which the Debtor no longer possesses.
The burden now shifts to the Debtor to satisfactorily explain the loss of the Mise. Stock Proceeds. The Debtor, however, fails to address the Mise. Stock Proceeds in her opposition to the First Union Motion. Indeed, her deposition testimony is that she has no recollection of ever having owned or sold the General Electric or PNC Bank stock. Debtor’s Dep. at 163-65. In light of the account statements evidencing otherwise, I find that the Debt- or has failed to satisfactorily explain the loss of the Mise. Stock Proceeds, totaling $4,155.59.
III. Loss of Inheritance
First Union alleges that, although the Debtor disclosed a beneficial interest in the estate of her deceased mother, Mildred Margolies, estimated at $7,500 in her Amended Schedule B, her interest in the estate should have been much greater. First Union Mem. at 12. First Union relies upon account statements from brokerage accounts held by Mildred Margo-lies and showing that (1) Mrs. Margolies had investments worth $257,156.31 as of December 31, 1998, (2) that the accounts
These documents fail to prove First Union’s point. Under Pennsylvania law, “an interest in property established by a will takes effect at the time of the testator’s death unless the testator expresses a contrary intent.”
Doyle v. U.S.,
IV. Loss of the Personal Loan Assets
First Union correctly notes that the uncontested facts show that the Debtor and her husband borrowed the Personal Loan Assets aggregating $1,477,500 between 1997 and 1999. 22 It is likewise undisputed that the Personal Loan Assets are not accounted for anywhere in her bankruptcy schedules. Thus, First Union has made out a prima facie case by showing the Debtor had a cognizable interest in the Personal Loan Assets at a time not too far removed from the Petition Date which she no longer possesses.
The burden of production now shifts to the Debtor to provide a satisfactory explanation as to the loss of or deficiency in the Personal Loan Assets. The Debtor’s testimony is that, “to the best of [her] recollection,” $27,500 was used for general living expenses. Rule 2004 Exam at 147. General and vague assertions that money was spent on living expenses, however, are insufficient under § 727(a)(5) absent documentary corroboration.
Carter,
Other than the foregoing, the Debtor’s testimony regarding the Personal Loan Assets is either that (a) she lacks knowledge as to how the assets were used or (b) her husband handled her financial affairs. Rule 2004 Exam at 148-49, 152-55, 209. “[T]he law, [however,] forbids the debtor from absolving himself of the responsibility of explaining the loss ... by merely pointing the finger at another.”
Chusid, 1998
WL 42292 at *5 (rejecting as insufficient under § 727(a)(5) the debtor’s assertion that his son handled all his finances);
Cook,
Finally, the Debtor asserts in her opposition brief that her husband will be subpoenaed to testify at trial and will be able to provide explanations as to what happened to the Personal Loan Proceeds. Mem. Opp. First Union Mot. at 6. This assertion, as noted above, disregards her burden of production at this stage. Once a plaintiff establishes a
prima facie
case of lost assets under § 727(a)(5), as First Union has here, the Debtor is obligated to provide a satisfactory explanation. Moreover, since First Union has met its burden in the context of a summary judgment motion, the Debtor cannot simply defer her response until trial. She must provide that explanation, with evidence, here and now.
McIntyre, supra,
V. Loss of Interest Under Deed of Trust
First Union alleges, that on August 22, 1997, the Debtor executed an Irrevocable Deed of Trust, under which the Debtor’s husband, as settlor, was to transfer certain undisclosed assets to the trust created by this document (the “Trust”) and under which the Debtor was a beneficiary and co-trustee. First Union Mem. at 14-15. The Debtor authenticated her signature on the Deed of Trust, but lacked any recollection and denied understanding what the document was. Debtor’s Dep. at 173-75.
Although the Deed of Trust states that the settlor will transfer assets listed in “Schedule A,” to the Trustees, there is no such schedule attached to the Deed of Trust. Ex. MMM-28 to Debtor’s Dep. Nor has First Union provided any evidence that any assets were, in fact, ever deposited into the Trust. If there is no trust res, the trust never comes into existence.
In re Cavalier,
VI. The Senate Financial Statement Assets
The Movants have shown that in latter
The burden now shifts to the Debtor to provide a satisfactory explanation for the disposition of the Senate Financial Disclosure Assets. Turning to her deposition testimony, her sole explanation is that her husband handled her finances and prepared the Senate Financial Disclosure. 26 Rule 2004 Exam at 173. As discussed above, mere identification of an individual with knowledge is wholly insufficient to meet the burden under both § 727(a)(5) and Bankruptcy Rule 7056. I therefore find that the Debtor has failed to satisfactorily explain the disposition of the Senate Financial Statement Assets, valued at over $1.3 million.
VII. The Ivory Coast Assets
The Movants allege that, five months before the Petition Date, the Debtor and her husband made representations in a “Settlement Agreement” with First Union that the Mezvinskys had substantial assets in the Ivory Coast of Africa worth at least $460,000 (the “Ivory Coast Assets”). Ex. “F” to Sonders Mot.
The Settlement Agreement, however, is simply too vague and unclear to make out a
prima facie
case for the Movants. The referenced portion of the Settlement Agreement simply states that: “The Mez-vinskys have a right, title and interest in the Ivory Coast Funds and that the amount of such funds is sufficient to satisfy their payment obligations
as set forth in paragraph I
of this Agreement.” Ex. “F” to Sonders Mot. at ¶ 11(c); Sonders Mem. at 13 (emphasis added). Paragraph 4, in turn, gives the Mezvinskys the option of paying either: (1) $100,000 on or before September 30, 1999; or (2) $120,000 at any time between October 1-31, 1999, plus interest at a daily per diem rate of $25.97, beginning October 1, 1999; or (3) $120,000 at any time between November 1-30, 1999, plus interest at a daily per diem of $28.33, beginning October 1, 1999; or (4) $130,000 at any time between December 1-31, 1999, plus interest at a daily per diem of $30.69, beginning October 1, 1999. Ex. “F” to Sonders Mot. at ¶40>). It would thus
Nor does the Settlement Agreement’s definition of “Ivory Coast Funds” — as “all funds from investments in the Ivory Coast” in which the Mezvinskys have any legal or equitable interest — help meet Movants’ burden under § 727(a)(5) of showing a “specifically identifiable” asset. Moreover, the definition includes a space for insertion of a bank name and account number which was never filled in, raising questions as to whether the exhibit is in fact the final agreement between the parties. Ex. “F” ¶ 10(e). The Movants have failed to make out a prima facie case with respect to the Ivory Coast Assets.
VIII. Transfers to Roberta McClean
The Movants also allege that the Debtor has failed to satisfactorily explain the loss of the McClean Payments totaling $12,500. First Union Mem. at 15; Sonders Mem. at 13-14. This argument is without merit. The Court’s concern under § 727(a)(5) is solely a matter of identifying where assets went, not whether the transfer of assets was proper. There is perhaps no better an explanation as to where specific funds went than a check which clearly identifies a payee. In short, Movants’ own allegation provides a satisfactory explanation as to where the funds went; if they existed, they went to Roberta McClean.
IX. The Chasen Proceeds
Finally, as it is unclear from his motion whether Sonders is raising the Chasen Transaction in the context of his § 727(a)(5) argument or simply characterizing it as a fraudulent conveyance, I address it briefly herein. As noted above, the Debtor disclosed the Chasen Transaction in her Amended Statement of Financial Affairs and explained in discovery that the Chasen Proceeds were paid by Ms. Chasen directly to Northfield Mount Herman School, the school attended by the Debtor’s son, Andrew. Sonders Mem. at 14-15 (citing Debtor’s response to Interrogatories). Sonders does not present any evidence, or even allege, that the Chasen Proceeds did not in fact go to Northfield Mount Herman School. As my inquiry at this point is solely whether the Debtor’s explanation satisfies the Court as to where the proceeds went, not whether the payment to the school was a fraudulent transfer under the Code, I find that Sonders’ own averments and supporting evidence are a satisfactory explanation under § 727(a)(5) as to the disposition of the Chasen Proceeds.
CONCLUSION
Sonders and/or First Union
27
have established that: (1) the Debtor represented she and her husband to have furnishings, art and other tangible personal property worth $810,535 as of May 1996; (2) the Debtor represented the value of this category of personal property to be only $35,434 in her bankruptcy schedules; (3) the Debtor borrowed $1,477,500 within two to three years of the Petition Date; (4) these loan proceeds are not accounted for in her bankruptcy schedules; (5) the Debt- or made representations in August 1999
The above facts are not disputed, and they established a prima facie case under § 727(a)(5), placing the burden upon the Debtor to provide a satisfactory explanation for the loss of or deficiency in these assets. The Debtor’s responses have failed to set forth specific facts showing there is a genuine issue for trial, namely her ability to provide a satisfactory explanation. Moreover, her reliance on a proffer that the witnesses she intends to call at trial will provide satisfactory explanations, is insufficient to defeat the entry of summary judgment under Rule 56. For these reasons, I find that the Movants have met their burden of proof that there are no genuine issues of material fact regarding the Debtor’s failure to explain satisfactorily the loss or deficiency of assets under 11 U.S.C. § 727(a)(5) and that they are entitled to a judgment as a matter of law.
While it is well accepted that § 727 is to be construed liberally in favor of a debtor, the benefit of the discharge nevertheless comes with the condition of complete candor with the court and creditors. The Debtor is an intelligent, highly educated and sophisticated professional person. Her background is in communications. As a journalist and author, she explained the affairs of the day to the public. As a Congresswoman, she analyzed and made determinations regarding the expenditure of public funds and this nation’s budget. Yet her consistent response to questions asked by her creditors about the disposition of her assets is lack of knowledge or “my husband handled it,” a mantra that is completely at odds with her public persona, background, and accomplishments. In her memoranda filed in both adversary cases, she disputes the “sophisticated” label advanced by Movants contending that “she like many women of her generation, relied upon her husband, Edward Mezvin-sky, to handle the financial affairs of their family.” Mem. Opp. First Union Mot. at 3; Mem Opp. Sonders Mot. at 3. To the extent that this explanation could ever be found sufficient to discharge a debtor’s duty to satisfactorily explain the loss or depreciation of her assets, it certainly would not be found to do so here.
28
Debt- or is not at all like the women of her generation that she seeks to identify with. She was a Congresswoman, and thereafter headed the United Nation Fourth World Congress on Women in Beijing and later
It is not for this Court to pass judgment on how the Debtor chose to manage her financial affairs prior to this bankruptcy case. However, when she filed for bankruptcy relief and invoked the protection of this Court, she forfeited the right to remain ignorant of the disposition of her assets. Without regard to her credibility, I must assume as true in the context of a summary judgment motion her testimony that her husband, not she, handled her financial matters without consultation with or disclosure to her of any details. However, her failure as a debtor seeking discharge to make any attempt to discover and disclose the facts surrounding the transactions put at issue by the Movants is fatal to her cause. I can only conclude that her continued ignorance and/or lack of understanding of the facts that surround the loss and deterioration of millions of dollars of assets and funds owned by her with her husband is a matter of choice. While this approach may serve her well in connection with matters in litigation elsewhere, her failure to provide a satisfactory explanation regarding the transactions at issue will preclude her from earning a discharge in this bankruptcy case. Finding that the Debtor here has not fulfilled her duty of disclosure as a debtor under the bankruptcy law, the objections of Son-ders and First Union to the Debtor’s discharge are granted.
Notes
. The Sonders Motion seeks to deny the Debt- or a discharge on the grounds of 11 U.S.C. §§ 727(a)(2),(a)(3), (a)(4) as well as (a)(5). At argument on the First Union Motion, Debtor’s counsel acknowledged that an adverse decision on the identical (a)(5) grounds pressed by First Union and Sonders would render a decision on the other issues raised by the Sonders Motion unnecessary. I concur. Accordingly, I do not reach those other grounds.
. Those documents are as follows: Exhibit A Schedule B, Personal Property; Exhibit B Schedule C, Property Claimed as Exempt; Exhibit D Statement of Financial Affairs; and Exhibit E United States Senate Public Financial Disclosure Report for New Employee and Candidate Reports.
In re Leonard,
.Rather than submit an affidavit of specific sworn facts, Debtor presents a general affidavit in which she swears to the truth of the facts set forth in the Memorandum in Opposition to the Sonders’ Motion ("Mem. Opp. Sonders Mem.”). Since much of the Memorandum is argument and many of the facts
. The documents submitted are the following: Exhibit A Indictment in United States of America v. Edward M. Mezvinsky; Exhibit B Appraisal Reports prepared by Barry S. Slos-berg Inc. ("Slosberg Appraisals”) and Exhibit C Young Adjustment Co. inventory (“Young Inventory”).
. Since no similar attestation or any other evidence was submitted in opposition to the First Union Motion, Debtor relies entirely on the Sonders Motion record to support her response. Since both First Union and Debtor have utilized this "incorporation” approach, I shall deem them to have waived any objection to this evidentiary shortcut.
. I shall take judicial notice of the docket entries in this case. Fed.R.Evid. 201, incorporated in these proceedings by Fed.R.Bankr.P. 9017.
See Maritime Elec. Co., Inc. v. United Jersey Bank,
. The Complaint and Answer pinpoint the date of this representation to the insurance company as occurring in May 1996 while the deposition testimony refers to May 1999.
. For purposes of comparison with the $810,535 insurance estimate, the Debtor’s scheduled values must be doubled as to property owned jointly by her and her husband. See discussion infra § II.A.
. The individual loans consist of the following:
(1) $27,500 from Connie Williams (the "Williams Loan”) within two years of filing the Petition. Rule 2004 Exam at 145-47;
(2) $100,000 from Janet Boyle (the "Boyle Loan”) sometime in 1998 or 1999. Rule 2004 Exam at 148-49;
(3) $1,100,000 from Richard Snyder (the "Snyder Loan”) in 1998 or 1999. Rule 2004 Exam at 208-09;
(4) $150,000 from Gerald Segal (the "Segal Loan”) over several months in 1999. Rule 2004 Exam at 153-54, 198-99; and
(5) $100,000 from Donald Spero (the “Spe-ro Loan”) in 1997. Rule 2004 Exam at 152-53.
. The Debtor expressly testified that both she and her husband signed for the Williams, Segal and Boyle Loans. Rule 2004 Exam at 196-99, 203-04. Her testimony regarding the Spero Loan does not make it entirely clear whether it was made either to her directly or to both her and her husband. Id. at 152-53. The Debtor testified as to her status as co-debtor on the Segal and Snyder Loans. Id. at 206-08. Finally, all five lenders are listed as unsecured creditors on the Debtor’s Schedule F in the same amounts as the loans discussed above, and the Debtor has not contested her status as co-debtor on these loans.
. Exhibit E to the Sonders Motion is the completed form "United States Senate Public Financial Disclosure Report for New Employee and Candidate Reports.” The form requires assets to be disclosed within a range of values. The $1.3 million aggregate value represents the minimum value for each asset disclosed therein by the Debtor.
. Federal Rule of Civil Procedure 56 is incorporated by Federal Rule of Bankruptcy Procedure 7056.
. With respect to the time period for which a debtor is required to account for her financial condition under § 727(a)(5), one court, after reviewing Code and Act cases, that found long-term inquiry to be relevant stated:
Thus, it is clear that the temporal depth of the inquiry permissible under §§ 727(a)(3) and 727(a)(5) cannot be set according to a rigid rule; it must be determined only on a case-by-case basis, bearing in mind that, under the statute, "... the interests protected are those of creditors and ... the [debtor] is required to take such steps as ordinary fair dealing and common caution dictate to enable the creditors to learn what he did with his estate.” Koufman v. Shein-wald,83 F.2d 977 , 980 (1st Cir.1936); In re Kinney,33 B.R. 594 , 596 (Bankr.N.D.Ohio 1983).
In re Losinski,
. Notably Debtor does not contend that this alleged unexplained loss is too far removed from the filing of the bankruptcy case to be probative. If, however, the representation occurred in 1996 (see n. 2 supra), the statement to the insurance company may have occurred almost four years before the petition was filed, unlike the other representations considered here which were made within one or two years of the commencement of this case. However, the age of the representation is mitigated by the extent of the loss and the existence of other unexplained losses, and thus will be considered even if made four years ago.
. There are actually two appraisals as exhibits to Amended Schedule B. The first lists property appraised at a total liquidation value of $34,260 as of February 5, 2000. The second appraisal is much shorter and lists personal property appraised at a total liquidation value of approximately $5,050 as of April 12, 2000. The second appraisal consisting of art and antiques is labeled an "addendum.” In an attachment to Amended Schedule B, Debt- or refers to the later addendum as adding value of $5,359 (versus $5,050) and includes two additional addenda to the Slosberg Appraisals which add another $8,500 to the property valued. The additional addenda are not attached. No explanation is provided for the multiple addenda.
.Again for the purpose of § 727(a)(5), it is the existence of an explanation, not the propriety of the transfer, that is at issue. Wheth
. The only other explanation provided by the Debtor is that some items of furniture were not as valuable as she originally thought. Debtor’s Dep. at 117-21, 176. However these statements alone are too vague and generalized to provide evidence to rebut the demonstrated erosion of value of her personal property. Since the Debtor provided no specific details as to the basis of her misperception nor quantified the impact on the valuation of the furniture, the testimony is insufficient to create a factual issue for trial.
. This is consistent with the Debtor’s testimony that the fire occurred in January 1992. Debtor's Dep. at 104, 115.
. I note that exhibits and other papers supporting and opposing summaty judgment "must be of such a quality as to be admissible at trial.”
Kohr v. Johns-Manville Corp.,
Rule 56(e) does not require parties to authenticate documents where the appellant failed to challenge the authenticity of the documents in district court. An evidentiary objection, not raised in district court, is waived on appeal. This rule is equally applicable to a summary judgment motion asit is for a trial. Consequently, Rule 56(e) defects such as unsworn or uncertified affidavits, deposition testimony or unauthenticated documents, are waived and those pieces of evidence will be admissible in a summary judgment proceeding if no motion to strike has been made at the district court level.
11 James Wm. Moore et al., Moore's Federal Practice § 56.14[2][c], at 56-184.1-56-185 (3d ed.2001).
Neither Sonders nor First Union challenged the authenticity of the Young Inventory and thus while it has other deficiencies as eviden-tiary support, I will consider its lack of authenticity waived. This evidentiary flaw was apparent in a number of the documents placed of record not only by the Debtor but by Sonders and First Union as well. In no case was an objection lodged and thus the authenticity deficiencies of these documents are likewise considered waived by Debtor.
. First Union also alleges that, while the Debtor’s Amended Schedules show only $523 in cash holdings, prior to the Petition Date, she and her husband represented to various financial institutions that they had cash holdings between $50,000 and $70,000. First Union Mem. at 8. In support of this allegation, First Union simply points to a mass of financial statements and handwritten notes which appear to span the time period 1987 to 1999, Ex. MMM-6 to Debtor’s Dep., making no attempt to explain how it reaches the amount of $50,000 to $75,000 or to identify when the Debtor allegedly represented herself as having these cash holdings. As noted above, it is not for this Court to make sense out of a mass of disorganized records to evaluate a party's position. Thus with respect to the alleged loss of cash, I find on this record that First Union has failed to identify an asset with sufficient specificity so as to trigger the Debtor’s duty to explain.
. I acknowledge First Union's argument that the Debtor’s testimony appears somewhat inconsistent, namely that it appears that the Charming Stock Proceeds from the January 2000 stile may have been wired directly to the account of her mother, Mildred Margolies. Debtor’s Dep. at 160-61. There was no questioning or testimony, however, as to whether Mr. Mezvinsky had access or control over this account. This simply raises an additional issue of material fact as to whether she can provide a credible and satisfactory explanation.
. The Debtor concedes that these loans were made to her and her husband. See supra n. 10.
. Debtor supports her response by reference to the U.S. Attorney’s indictment against her husband: “It is clear from the allegations of that indictment that the funds at issue were handled by Edward Mezvinsky.” Mem. Opp. First Union Mot. at 5-6 and Ex. A to Sonders Motion. While there is no evidentiary challenge to use of this hearsay document,
see Ruffalo’s Track Serv.
v.
National Ben-Franklin Ins. Co.,
. The first page of the statement is dated by the Debtor on August 15, 1999, but the date and time stamp from the Senate indicates receipt on October 29, 1999. Ex. "E” to Sonders Mot.
. Such disclosure, made under penalty of civil and criminal penalty for knowingly and willfully filing false testimony, is required pursuant to the Ethics in Government Act of 1978, as codified, 5 U.S.C. app. 4, § 101 et. seq.
.The Debtor fails to address these assets whatsoever in her memoranda opposing the First Union and Sonders Motions.
. Sonders and First Union have proven that the Debtor has failed to satisfactorily explain the loss of tangible and intangible personal property of approximately $2.0 million. First Union has also proven that the Debtor has failed to satisfactorily explain the loss of loan proceeds and miscellaneous stock of another $1.5 million.
.
Compare Wilmington Trust Co. v. Jarrell (In re Jarrell),