Id. at 1294.Davis v. Weddington (In re Weddington), 457 B.R. 102, 111 (Bankr. D. Kan. 2011).Bailey v. Ogden (In re Ogden), No. UT-98-042, 1999 WL 282732, at *7 (10th Cir. BAP Apr. 30, 1999).
” “[A]n omission of assets from a Statement of Affairs or schedule may constitute a false oath under section 727(a)(4)(A).” Davis v. Weddington (In re Weddington), 457 B.R. 102, 113 (Bankr.D.Kan.2011).Boroff v. Tully (In re Tully), 818 F.2d 106, 112 (1st Cir.1987).
In re Cecil Allen WATKINS and Debra Tabla Watkins, Debtors. Kenneth A. Manning, Plaintiff, v. Cecil Allen Watkins and Debra Tabla Watkins, Defendants.In the context of an adversary proceeding in which denial of discharge was asserted under 11 U.S.C. § 727(a)(2) and (a)(4), the following was stated in In re Rule, 2011 WL 841505 (Bankr.E.D.Ky.2011): The grounds for denial of discharge under any provision of 11 U.S.C. § 727(a) must be established by a preponderance of the evidence: In re Scott, 172 F.3d 959, 966–67 (7th Cir.1999). “Denying a chapter 7 debtor his discharge is an extraordinary remedy that is only available when the objecting party supports its claim with evidence that meets the elements of a strictly-construed statute”, In re Weddington, 457 B.R. 102, 110 (Bankr.D.Kansas 2011).J. PHILIP KLINGEBERGER
Where a debtor's intent is clearly fraudulent, advice of counsel is not a defense.Davis v. Weddington (In re Weddington), 457 B.R 102, 114 (Bankr. D. Kan. 2011) (citing Retz v. Samson (In re Samson), 606 F.3d 1189, 1199 (9th Cir. 2010)); In re Miller, 448 B.R. 551, 574 (Bankr. N.D. Okla. 2011) (citing Cuervo v. Snell (In re Snell), 240 B.R. 728, 730-31 (Bankr. S.D. Ohio 1999)) ("The Court will not allow a debtor to hide behind advice of counsel if he or she knows that the purpose of a transfer is to hinder or delay creditors.").
See e.g., In re Weddington, 457 B.R. 102, 110 (Bankr. D. Kan. 2011). That's essentially the position that the Debtor takes here – he does not take issue with the Plaintiffs' claims that he had made false statements in his Schedules and Statement of Financial Affairs, but he does deny that the same were made with any fraudulent intent.
§ 727(a)(4)(A). Davis v. Weddington (In re Weddington), 457 B.R. 102, 113 (Bankr. D. Kan. 2011) (citations omitted). 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 fundamental purpose of § 727(a)(4) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations." Davis v. Weddington (In re Weddington), 457 B.R. 102, 113 (Bankr. D. Kan. 2011) (citing In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010); see also In re Bushey, 568 B.R. 821, 830 (Bankr. D.N.M. 2017) (creditors should not have to "dig out the truth"). A false oath is "material" if it bears a relationship to debtor's estate or concerns discovery of assets or existence of disposition of debtor's property.
Summary judgment is not appropriate when different ultimate inferences may be drawn from the facts. Davis v. Weddington (In re Weddington ), 457 B.R. 102, 111 (Bankr. D. Kan. 2011) (citing Sec. Nat. Bank v. Belleville Livestock Comm'n Co. , 619 F.2d 840, 847 (10th Cir. 1979) ). Because the facts here are subject to multiple interpretations as to intent, the Court concludes Plaintiffs are not entitled to summary judgment on their Section 727(a)(4)(A) claim against T Brown or S Brown.C. Summary Judgment on Plaintiffs' Section 727(a)(5) Claim Must be Denied with Respect to S Brown but is Granted with Respect to T Brown . A bankruptcy court has broad power under Section 727(a)(5) to decline to grant a discharge where a debtor inadequately explains a shortage, loss, or disappearance of assets.
Additionally, debtors cannot rely on the advice of counsel defense regarding errors in the Schedules and Statement of Financial Affairs where debtors have declared under penalty of perjury that they have read the documents, and to the best of their knowledge, the documents were true and correct.In re Weddington, 457 B.R. 102 (Bankr. D. Kan. 2011). In re Crest By The Sea, LLC, 522 B.R. 540, 550 (Bankr. D.N.J. 2014).
"The fundamental purpose of § 727(a)(4) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations." Davis v. Weddington (In re Weddington) , 457 B.R. 102, 113 (Bankr. D. Kan. 2011) (citing Retz , 606 F.3d at 1196 ). By concealing his participation in these pre-petition business transactions, Mr. Bushey caused his creditors to have to dig out the truth.False oaths—OFA and Schedules