Matter of Beaubouef, 966 F.2d 174 (5th Cir. 1992). · Go Syfert
Matter of Beaubouef, 966 F.2d 174 (5th Cir. 1992). Cases Citing This Book View Copy Cite
674 citation events (575 in the last 25 years) across 81 distinct courts.
Strongest positive: Kevin M. Epstein, United States Trustee v. Elizabeth Yetman Chavez (txwb, 2025-10-30)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Kevin M. Epstein, United States Trustee v. Elizabeth Yetman Chavez (5×) also: Cited as authority (rule), Cited "see"
Bankr. W.D. Tex. · 2025 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) J.A.S. Farms, Inc. v. Toribio (4×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2024 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) Doctors Hospital at Renaissance, Ltd. v. Sanchez (3×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2023 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) Wilson v. Silva (3×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2022 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) Epstein v. Busby (3×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2021 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
discussed Cited as authority (verbatim quote) Hannon v. ABCD Holdings, LLC
1st Cir. · 2016 · quote attribution · 1 verbatim quote · confidence high
false oaths sufficient to justify the denial of discharge include ... a false statement or omission in the debtor's schedules
examined Cited as authority (verbatim quote) Lowry v. Croft (In re Croft) (3×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2013 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) Randall v. Atkins (In Re Atkins) (3×) also: Cited as authority (rule)
Bankr. W.D. Tex. · 2011 · quote attribution · 1 verbatim quote · confidence high
it makes no difference that does not intend to injure his creditors when he makes a false statement. creditors are entitled to judge for themselves what will benefit, and what will prejudice, them.
examined Cited as authority (verbatim quote) Comerica Bank v. Rajabali (In Re Rajabali) (3×) also: Cited as authority (rule), Cited "see"
Bankr. S.D. Tex. · 2007 · quote attribution · 1 verbatim quote · confidence high
suggesting that an opportunity to clear up inconsistencies and omissions with amended schedules may be considered in analyzing findings of actual intent to defraud
examined Cited as authority (verbatim quote) Porobil v. Autry (3×) also: Cited "see"
5th Cir. · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
the subject matter of a false oath is "material," and thus sufficient to bar discharge, if it bears a relationship to the bankrupt's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.
discussed Cited as authority (quoted) Buckeye Retirement Co. v. Heil (In Re Heil) (2×) also: Cited as authority (rule)
Bankr. E.D. Tenn. · 2003 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the debtor shall appear and submit to examination under oath at the meeting of creditors under section 341(a) of this title.
discussed Cited as authority (rule) In re: Steven Boyd Mitchell and Jana Diane Mitchell
Bankr. N.D. Tex. · 2025 · confidence medium
The Plaintiff, however, successfully brought to light Mr. Mitchell’s prepetition acquisition of the Savor Ownership Interest and the prepetition transfer (relinquishment/cancellation) of such interest during the course of the 98 See Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); see also Cadle Co. v. Duncan (In re Duncan), 562 F.3d 688, 695 (5th Cir. 2009). 99 See Hughes v. Wells (In re Wells), 426 B.R. 579, 599 (Bankr.
examined Cited as authority (rule) In re: James Varga; Lisa L. Lambert, United States Trustee for Region 6 v. James Varga, ITI (3×) also: Cited "see"
Bankr. N.D. Tex. · 2025 · confidence medium
Fraudulent Intent An objecting party may prove fraudulent intent by showing either an actual intent to deceive on the part of the debtor or by showing the debtor’s reckless indifference to the truth.172 And while it has been recognized that “a discharge cannot be denied when items are omitted from the schedules by honest mistake,”173 it has also been recognized that “the cumulative effect of false 172 Packer, 816 F.3d at 95 ; Sholdra, 249 F.3d at 382 . 173 Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); see also Neary v. Harding (In re Harding), Adversary N…
cited Cited as authority (rule) In re THEODORE E. HARRIS, JR., and JO CAROL HARRIS
Bankr. W.D. Tenn. · 2025 · confidence medium
Keeney at 686, quoting, Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992).
discussed Cited as authority (rule) In re: Elise Nicole Arango; Marie Duncan Earthman v. Elise Nicole Arango (2×) also: Cited "see"
Bankr. S.D. Tex. · 2025 · confidence medium
Cadle Co. v. Pratt (In re Pratt), 411 F.3d 561, 566 (5th Cir. 2005) (quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 179 (5th Cir. 1992) (quotations omitted)).
discussed Cited as authority (rule) In re: Keith Darrell Palmer v. US Trustee, 7 (2×)
Bankr. S.D. Tex. · 2025 · confidence medium
False statements include false testimony at a creditor meeting or Rule 2004 examination, and the filing of schedules or statements with material omissions and an intent to mislead creditors.129 Defendant failed to accurately identify his income 124 See supra, III.1. 125 11 U.S.C. § 727 (a)(4)(A). 126 Mandel v. White Nile Software, Inc. (In re Mandel), No. 20-40026, 2021 WL 3642331 , at *6 (5th Cir. Aug. 17, 2021) (quoting Matter of Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992)). 127 Id. 128 See Bankr.
discussed Cited as authority (rule) Black v. Triplett, Jr. (2×)
E.D. Tex. · 2025 · confidence medium
In re Beaubouef, 966 F.2d at 178.
discussed Cited as authority (rule) Black v. Triplett, Jr. PURSUANT TO COURT ORDER, DOCKET IN THE LEAD CASE AS DIRECTED (2×)
E.D. Tex. · 2025 · confidence medium
In re Beaubouef, 966 F.2d at 178.
discussed Cited as authority (rule) Mey v. Phillips (2×) also: Cited "see"
Bankr. M.D. Tenn. · 2025 · confidence medium
Materiality is established when a statement “‘bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.’” Keeney, 227 F.3d at 686 (quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Mey v. Thompson (2×) also: Cited "see"
Bankr. M.D. Tenn. · 2025 · confidence medium
Materiality is established when a statement “‘bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.’” Keeney, 227 F.3d at 686 (quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Asbach v. Adams
Bankr. E.D. La. · 2025 · confidence medium
Although “[a]n omission of an asset can constitute a false oath,” Cadle Co. v. Pratt (In re Pratt), 411 F.3d 561, 566 (5th Cir. 2005), “a discharge cannot be denied when items are omitted from the schedules by honest mistake,” Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992).
discussed Cited as authority (rule) Keils v. Villarreal
Bankr. N.D. Tex. · 2024 · confidence medium
“To establish a false oath under this section, the creditor must show that ‘(1) [the debtor] made a statement under oath; (2) the statement was false; (3) [the debtor] knew the statement was false; (4) [the debtor] made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case.’” Cadle Co. v. Pratt (In re Pratt), 411 F.3d 561, 566 (5th Cir. 2005) (alterations in original) (quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 179 (5th Cir. 1992)).
examined Cited as authority (rule) Coleman County State Bank v. Boyd (3×) also: Cited "see, e.g."
Bankr. N.D. Tex. · 2024 · confidence medium
Pursuant to the Complaint, Coleman broadly alleges that Mr. Boyd intentionally failed to be forthcoming with information in the Bankruptcy Case, identifying a litany of examples of alleged misstatements and material omissions in his Filed Original Schedules, Filed Amended Schedules, and Filed SOFA.146 “The bankruptcy schedules and statement of financial affairs of a debtor serve a vital role for creditors in a bankruptcy case, in that they ensure that adequate and truthful information is available to trustees and creditors ... without the need for further investigation to determine whether o…
discussed Cited as authority (rule) Blu Hawk Enterprises, Inc. v. Cournoyer (2×) also: Cited "see, e.g."
Bankr. N.D. Tex. · 2023 · confidence medium
Specifically, Blu Hawk contends that Mr. Cournoyer’s original and amended Schedules and Statements of Financial Affairs contain the following false oaths: • Mr. Cournoyer failed to disclose and list (i) Ms. Gurren as an unsecured creditor in Schedule E/F, (ii) Ms. Gurren’s income in Schedule I, or (iii) Ms. Gurren’s share of the expenses in Schedule J; 38 Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); Sholdra v. Chilmark Fin.
discussed Cited as authority (rule) Anthony Hicks
Bankr. W.D. Ky. · 2023 · confidence medium
Keeney, 227 F.3d at 686 . 8 Whether the subject matter of the false oath is “material” is whether or not it “bears a relationship to the bankrupt’s business transactions or estate, or concerns to the discovery of assets, business dealings or the existence and disposition of his property.” Keeney, 227 F.3d at 685 , quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992).
discussed Cited as authority (rule) Randolph v. Hicks
Bankr. W.D. Ky. · 2023 · confidence medium
Keeney, 227 F.3d at 686 . 8 Whether the subject matter of the false oath is “material” is whether or not it “bears a relationship to the bankrupt’s business transactions or estate, or concerns to the discovery of assets, business dealings or the existence and disposition of his property.” Keeney, 227 F.3d at 685 , quoting Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992).
discussed Cited as authority (rule) Bell Nunnally & Martin LLP v. Kuper (2×) also: Cited "see, e.g."
Bankr. N.D. Tex. · 2023 · confidence medium
Appx. 860, 862 (5th Cir. 2004); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992). 48 Packer, 816 F.3d at 95 ; see also Sholdra v. Chilmark Fin.
cited Cited as authority (rule) The Guarantee Company of North America USA v. Dowdy
Bankr. E.D. Tex. · 2023 · confidence medium
LLP (In re Sholdra), 249 F.3d 380, 382 (5th Cir. 2001) (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Bank of New York v. Kogut
Ill. App. Ct. · 2023 · confidence medium
“Full disclosure of assets and liabilities in the schedules required to be filed by one seeking relief under Chapter 7 is essential, because the schedules ‘serve the important purpose of insuring that adequate information is available for the Trustee and creditors without need for investigation to determine whether the information provided is true.’ ” Matter of Beaubouef, 966 F.2d 174, 179 (5th Cir. 1992) (quoting In re Urban, 130 B.R. 340, 344 (Bankr.
cited Cited as authority (rule) Leyva v. Braziel
Bankr. N.D. Tex. · 2023 · confidence medium
See 6 COLLIER ON BANKRUPTCY ¶ 727.04 (16th 2023); In re Beaubouef, 966 F.2d at 178.
discussed Cited as authority (rule) Randall Vernon Keylor - Adversary Proceeding
Bankr. N.D. Tex. · 2023 · confidence medium
But given Keylor’s persistent pattern of inaccurate and omitted disclosures – which, at best, can be characterized as a reckless disregard 100 Packer, 816 F.3d at 95 ; Sholdra, 249 F.3d at 382 . 101 Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); see also Neary v. Harding (In re Harding), Adversary No. 14-03078, 2015 WL 222482 , at *5 (Bankr.
discussed Cited as authority (rule) U. S. Trustee v. Jenkins (2×)
Bankr. N.D. Miss. · 2023 · confidence medium
Feb. 17, 2012) (citing , 966 F. 2d at 178). 42 , 966 F. 2d at 178 (citing 4 ¶ 727.04[1], at 727-59 (15th ed. 1992)). trustee.
discussed Cited as authority (rule) Vara v. Motil
Bankr. N.D. Ohio · 2023 · confidence medium
The plaintiff must thus prove “1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement related materially to the bankruptcy case.” Keeney, 227 F.3d at 685 (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Weisbart v. Siddiqi (2×) also: Cited "see, e.g."
Bankr. E.D. Tex. · 2023 · confidence medium
LLP (In re Sholdra), 249 F.3d 380, 382 (5th Cir. 2001) (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Vara v. Motil
Bankr. N.D. Ohio · 2023 · confidence medium
A statement is material if it “ ‘bears a 29 relationship to the [debtor’s] business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of property.’ ” Id. at 686 (quoting Beauboeuf v. Beauboeuf (In re Beauboeuf), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Russell Lee Cunningham
Bankr. E.D. Tenn. · 2022 · confidence medium
The Court agrees that “the existence of more than one falsehood, together with [Defendant’s] failure to take advantage of the opportunity to clear up all inconsistencies and omissions when he filed his amended schedules, constituted reckless indifference to the truth and, therefore, the requisite intent to deceive.” Beaubouef v. Beaubouef (Matter of Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); see also Lewis v. Summers (In re Summers), 320 B.R. 630, 643 (Bankr.
discussed Cited as authority (rule) Newton v. Cunningham
Bankr. E.D. Tenn. · 2022 · confidence medium
The Court agrees that “the existence of more than one falsehood, together with [Defendant’s] failure to take advantage of the opportunity to clear up all inconsistencies and omissions when he filed his amended schedules, constituted reckless indifference to the truth and, therefore, the requisite intent to deceive.” Beaubouef v. Beaubouef (Matter of Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992); see also Lewis v. Summers (In re Summers), 320 B.R. 630, 643 (Bankr.
discussed Cited as authority (rule) Patton v. Benevides
Bankr. M.D. Fla. · 2022 · confidence medium
Mo. 1999) (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)) (“A series or pattern of errors or omissions may have a cumulative effect giving rise to an inference of an intent to deceive.”).
examined Cited as authority (rule) Neary v. Lindeman (3×) also: Cited "see, e.g."
Bankr. N.D. Tex. · 2022 · confidence medium
Tex. 2010). 127 Cadle Co. v. Pratt (In re Pratt), 411 F.3d 561, 565 (5th Cir. 2005); Crumley, 428 B.R. at 356 . 128 11 U.S.C. § 727 (a)(2)(A). 129 Packer, 816 F.3d at 94 ; Cadle Co. v. Duncan (In re Duncan), 562 F.3d 688, 695 (5th Cir. 2009); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992). facie case under section 727(a)(4)(A), the burden shifts to the debtor to present evidence that the debtor is innocent of the charged offense.130 The Plaintiffs point to two categories of false oaths that the Debtors allegedly knowingly and fraudulently made in connection with t…
discussed Cited as authority (rule) Playa Shirley, LLC v. Badeaux
Bankr. E.D. La. · 2022 · confidence medium
Case no. 21-11077, P-20. 49 U.S. v. Coney, 689 F.3d 365, 373 (5th Cir.2012), and Matter of Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992) (citing Grogan v. Garner, 498 U.S. 279, 286 , 111 S.Ct. 654 (1991)). 50 Collins v. Zolnier (Matter of Zolnier), 2021 WL 5778461 (5th Cir. 2021).
cited Cited as authority (rule) Silagy v. Rittenhouse, Jr.
Bankr. N.D. Ohio · 2022 · confidence medium
Gandy v. Schuchardt (In re Gandy), 645 Fed.Appx. 348, 352 (6th Cir. 2016) (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 177 (5th Cir.1992)). # # # Service List: John J.
discussed Cited as authority (rule) A/C Supply, Inc. v. Botsay
Bankr. S.D. Miss. · 2022 · confidence medium
To prevail under § 727(a)(4)(A), the plaintiff must prove that the debtor, with fraudulent intent, made a knowingly false statement under oath that “related materially to the bankruptcy case.” Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992).
discussed Cited as authority (rule) United States Trustee v. Adamcik (2×)
Bankr. N.D. Tex. · 2021 · confidence medium
“False oaths sufficient to justify the denial of discharge include (1) a false statement or omission in the debtor’s schedules or (2) a false statement by the debtor at the examination during the course of the proceedings.” Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992) (quotations and citations omitted). 10.
discussed Cited as authority (rule) Mandel v. White Nile Software (2×) also: Cited "see, e.g."
5th Cir. · 2021 · confidence medium
Matter of Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992). “[T]he purpose of § 727(a)(4)(A) is to enforce a debtor’s duty of disclosure and to ensure that the debtor provides reliable information to those who have an interest in the administration of the estate.” In re Lindemann, 375 B.R. 450, 469 (Bankr.
discussed Cited as authority (rule) In Re: Money Centers of America, Inc.
D. Del. · 2020 · confidence medium
Credit, Inc. v. Adams (In re Adams), 31 F.3d 389, 394 (6th Cir. 1994); Farouki, 14 F.3d at 249 n.17; Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (Sth Cir. 1992); First Nat’l Bank of Gordon v. Serafini (In re Serafini), 938 F.2d 1156, 1157 (10th Cir. 1991). 14 19-24).
discussed Cited as authority (rule) Vara v. Spanabel (2×) also: Cited "see"
Bankr. E.D. Mich. · 2020 · confidence medium
The subject of a false oath is material if it “‘bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.’” Beaubouef, 966 F.2d at 178 (citation omitted).
discussed Cited as authority (rule) Barbacci, Trustee - Canton v. Miller
Bankr. N.D. Ohio · 2020 · confidence medium
To deny Defendant’s discharge under this section, Plaintiff must prove that: “1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement related materially to the bankruptcy case.” Keeney, 227 F.3d at 685 (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Barbacci v. Stimer
Bankr. N.D. Ohio · 2020 · confidence medium
To deny Defendant’s discharge under this section, Plaintiff must prove, by a preponderance of the evidence, that: “1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement related materially to the bankruptcy case.” Keeney v. Smith (In re Keeney), 227 F.3d 679, 685 (6th Cir. 2000) (citing Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992)).
discussed Cited as authority (rule) Jenzack Partners, LLC v. Gillis
Bankr. D. Mass. · 2019 · confidence medium
Conn. 1993)). “[N]ot caring whether some representation is true or false—the state of mind known as ‘reckless disregard’—is, at least for purposes of the provisions of the Bankruptcy Code governing discharge, the equivalent of knowing that the representation is false and material.” In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998) (citing In re Yonikus, 974 F.2d 901, 905 (7th Cir.1992); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir.1992); In re Tully, 818 F.2d at 111 ).
cited Cited as authority (rule) Simmons v. Bohanna, Jr.
Bankr. E.D. Tex. · 2019 · confidence medium
Cadle Co. v. Duncan (In re Duncan), 562 F.3d 688, 695 (5th Cir. 2009); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992). 11.
Retrieving the full opinion text from the archive…
In the Matter of Ronald B. Beaubouef and Dinah C. Beaubouef, Debtors. Ronald B. Beaubouef and Dinah C. Beaubouef
v.
Alvin R. Beaubouef, Sr. And Carol Beaubouef
92-3114.
Court of Appeals for the Fifth Circuit.
Jul 16, 1992.
966 F.2d 174

966 F.2d 174

23 Fed.R.Serv.3d 242, Bankr. L. Rep. P 74,758

In the Matter of Ronald B. BEAUBOUEF and Dinah C. Beaubouef,
Debtors.
Ronald B. BEAUBOUEF and Dinah C. Beaubouef, Appellants,
v.
Alvin R. BEAUBOUEF, Sr. and Carol Beaubouef, Appellees.

No. 92-3114

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

July 16, 1992.

Ronald J. Hof, Landwehr & Hof, New Orleans, La., for appellants.

Robin Bryan Cheatham, Patricia B. McMurray, Adams & Reese, New Orleans, La., for appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

[*~174]1

Ronald Beaubouef appeals from the district court's judgment affirming the bankruptcy court's denial of his discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A), (4)(A), and (5). We AFFIRM.

2

* Ronald and Alvin Beaubouef are brothers who have had a "strained" relationship since 1984 because of a dispute over money allegedly owed as the result of a business transaction. In 1989, Ronald and his wife, Dinah, filed a petition under Chapter 7 of the Bankruptcy Code. In their schedules, they listed Alvin and his wife, Carol, as creditors with a debt in excess of $350,000. Alvin and Carol ("the plaintiffs") filed a complaint objecting to the discharge of Ronald and Dinah.

II

3

After a two-day trial, the bankruptcy court entered a judgment granting Dinah's discharge, but denying Ronald's discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A), (4)(A), and (5). It did so based, in substantial part, on evidence relating to Ronald's undisclosed involvement and ownership of American Container & Chassis Repair, Inc. ("American Container"). The district court affirmed the judgment of the bankruptcy court, and Ronald appealed.

III

4

* Ronald contends that the bankruptcy court erred in admitting and considering evidence concerning his ownership in American Container, because such evidence went beyond the allegations of the complaint, as amended, and was not disclosed in the plaintiffs' discovery responses.

5

At trial, over the objection of Ronald and Dinah, the plaintiffs were allowed to introduce this evidence. The Articles of Incorporation for American Container, filed on March 25, 1988, listed Ronald and Dinah as shareholders, each owning 350 shares of stock; Ronald was listed as president and secretary/treasurer, and Dinah was listed as vice-president. Ronald testified that his stock in American Container was not listed on his schedules, because he sold it for $70,000 on June 10, 1988, prior to the filing of the Chapter 7 petition.[1] However, the plaintiffs were permitted to introduce Ronald's December 19, 1988 deposition given in another proceeding, in which he testified that he owned one-third of the stock in American Container. The bankruptcy court also admitted into evidence a credit application signed by Ronald on November 28, 1988, listing him as an equal partner in American Container, as well as a November 1989 insurance application that listed him as an owner of fifty percent of American Container.

[*~175]6

Ronald contends that the admission of this evidence is reversible error, because he was "surprised" by it, and had no opportunity to respond. According to Ronald, if he had known prior to trial that the transfer of American Container would be at issue, it would have been "very easy" for him to present evidence regarding the transfer. Ronald bases his claim of surprise on the fact that the complaint and amended complaint included no allegations regarding concealment of an interest in American Container. He further alleges that the plaintiffs, in response to interrogatories, did not include the disputed exhibits in the list of exhibits they intended to introduce at trial, and did not include American Container in the list of property they contended that the debtors had failed to disclose. Neither the interrogatories nor the relevant answers thereto are included in the record. A pre-trial order was not entered.

7

In their complaint and amended complaint, the plaintiffs alleged that Ronald and Dinah should be denied a discharge pursuant to 11 U.S.C. §§ 523 and 727(a)(2), (3), (4), and (5), because they failed to include in their schedules any reference to an interest in BBBF-Express Intermodal, and failed to list certain household effects and personal items. The plaintiffs further alleged that Ronald and Dinah had denied the existence of an interest in BBBF at the § 341 meeting of creditors and at the Rule 2004 examination of Ronald. The complaint does not include any references to American Container.

8

Rule 15(b) of the Federal Rules of Civil Procedure, applicable to this adversary proceeding pursuant to Bankruptcy Rule 7015, states:

[*~176]9

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

10

Fed.R.Civ.P. 15(b) (emphasis added). "[A]n implied amendment of the pleadings will not be permitted where it results in substantial prejudice to a party, 'i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory.' " International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 890 (5th Cir.1977) (quoting Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir.1969)). See also Matter of Prescott, 805 F.2d 719, 725 (7th Cir.1986) ("The test for such consent is whether the opposing party had a fair opportunity to defend and whether he could have presented additional evidence had he known sooner the substance of the amendment."). Nevertheless, as is made clear by Rule 15(b), "[e]ven where there is no consent, and objection is made at trial that evidence is outside the scope of the pretrial order, amendment may still be allowed unless the objecting party satisfies the court that he would be prejudiced by the amendment." Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir.1982). "In the absence of a showing of prejudice, the objecting party's only remedy is a continuance to enable him to meet the new evidence." Id.

[*~177]11

Ronald maintains that there was no implied consent, and thus no implied amendment of the pleadings, because he had no opportunity to present additional evidence to rebut the plaintiffs' evidence regarding his interest in American Container. Ronald seems to think that, once he objected, he could simply remain silent and wait for reversal on appeal. His argument reflects a fundamental misunderstanding of Rule 15(b) and his obligation to demonstrate prejudice, or request a continuance. The trial was conducted on two days; over Ronald's objection, testimony regarding American Container was admitted on the first day of the trial, April 30, 1991. Following the presentation of evidence on that day, the trial was recessed until May 22. Ronald's counsel did not ask the bankruptcy court for a continuance for any additional length of time in order to conduct discovery or call additional witnesses regarding American Container, and Ronald has failed to explain why he could not have presented such evidence when the trial was completed on May 22, more than three weeks after the subject of American Container was introduced.

12

The bankruptcy court did not abuse its discretion in admitting the evidence regarding Ronald's interest in American Container. Ronald's remedy for his alleged surprise as the result of the introduction of that evidence was to seek a continuance, which he did not do. Moreover, despite having over three weeks in which to prepare and submit rebuttal evidence on the second day of trial, Ronald chose to do nothing. That choice does not entitle him to a second trial.

B

13

Ronald further contends that the district court erred in denying his discharge. The bankruptcy court denied the discharge on three grounds: (1) continuing concealment of an asset with the intent to hinder, delay, or defraud creditors, 11 U.S.C. § 727(a)(2)(A); (2) making a false oath, 11 U.S.C. § 727(a)(4)(A); and (3) failure to satisfactorily explain the loss of assets, 11 U.S.C. § 727(a)(5). If any one of these grounds justifies the denial of discharge, we need not decide the propriety of the others. See Matter of Perez, 954 F.2d 1026, 1027 (5th Cir.1992). " 'This court reviews the bankruptcy court's findings of fact under the clearly erroneous standard, but the bankruptcy court's conclusions of law are subject to de novo review.' " Id. (quoting Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1252 (5th Cir.1986)).

[*~178]14

We find ample support for the denial of discharge pursuant to § 727(a)(4)(A), which provides that a debtor will not be granted a discharge if "the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account." 11 U.S.C. § 727(a)(4)(a). The plaintiffs had the burden of proving that: (1) Ronald made a statement under oath; (2) the statement was false; (3) Ronald knew the statement was false; (4) Ronald made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case. See, e.g., In re Sapru, 127 B.R. 306, 314 (Bankr.E.D.N.Y.1991). The elements of an objection to discharge under § 727(a)(4)(A) must be proven by a preponderance of the evidence. See Grogan v. Garner, --- U.S. ----, 111 S.Ct. 654, 660, 112 L.Ed.2d 755 (1991). False oaths sufficient to justify the denial of discharge include "(1) a false statement or omission in the debtor's schedules or (2) a false statement by the debtor at the examination during the course of the proceedings." 4 Collier on Bankruptcy p 727.04, at 727-59 (15th ed. 1992).[2]

15

The bankruptcy court found that the schedules filed by Ronald failed to indicate his interest in American Container even though a life insurance application dated just weeks before the petition was filed indicated that he knew that he had an ownership interest in the company. The bankruptcy court further found that the schedules failed to identify Ronald's status as an officer of American Container,[3] and failed to indicate that he had an ownership interest in the company six years prior to filing the Chapter 7 petition. In addition, Ronald did not amend his schedules to indicate his ownership interest in BBBF-Express Intermodal until six months after being questioned about it during his Rule 2004 examination. The bankruptcy court correctly noted that a discharge cannot be denied when items are omitted from the schedules by honest mistake. See 4 Collier on Bankruptcy, p 727.04[1A]. However, the bankruptcy court found that the existence of more than one falsehood, together with Ronald's failure to take advantage of the opportunity to clear up all inconsistencies and omissions when he filed his amended schedules, constituted reckless indifference to the truth and, therefore, the requisite intent to deceive. See In re Sanders, 128 B.R. 963, 972 (Bankr.W.D.La.1991). These findings are supported by the record and are not clearly erroneous.[4]

[*~178]16

Ronald contends that, even if his failure to initially list his ownership in BBBF-Express Intermodal constitutes a false oath, it is not material, because his interest in the company is worthless. We disagree. "In determining whether or not an omission is material, the issue is not merely the value of the omitted assets or whether the omission was detrimental to creditors." 4 Collier on Bankruptcy, p 727.04, at 727-59. "The subject matter of a false oath is 'material,' and thus sufficient to bar discharge, if it bears a relationship to the bankrupt's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property." In re Chalik, 748 F.2d 616, 617 (11th Cir.1984).

[*~178]17

The recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that the admittedly omitted or falsely stated information concerned a worthless business relationship or holding; such a defense is specious. It makes no difference that he does not intend to injure his creditors when he makes a false statement. Creditors are entitled to judge for themselves what will benefit, and what will prejudice, them. The veracity of the bankrupt's statements is essential to the successful administration of the Bankruptcy Act.

18

Id. (citations omitted).

19

Ronald contends that he was not required to disclose his ownership interest in American Container because that company did no business, had no customers, and his only relationship with the company was as an employee. His contention is meritless. The question in the schedules asks: "Have you been in a partnership with anyone or engaged in any business during the six years immediately preceding the filing of the original petition herein?" Such a straightforward question obviously calls for a direct answer, and cannot reasonably be interpreted as excluding entities with which the debtor may also have a relationship as an employee. Moreover, the fact of Ronald's employment with American Container is a strong indication that the company conducted at least some business--otherwise, it would need no employees. Full disclosure of assets and liabilities in the schedules required to be filed by one seeking relief under Chapter 7 is essential, because the schedules "serve the important purpose of insuring that adequate information is available for the Trustee and creditors without need for investigation to determine whether the information provided is true." In re Urban, 130 B.R. 340, 344 (Bankr.M.D.Fla.1991). Ronald's failure to disclose his ownership interest in American Container constituted an omission of information regarding his business dealings which could have led to the discovery of assets and/or the existence and disposition of his property. Accordingly, the bankruptcy court did not err in concluding that the omission was material.

20

Because the denial of discharge was justified under § 727(a)(4)(A), we need not consider the bankruptcy court's other bases for denial.

IV

21

The judgment of the district court affirming the judgment of the bankruptcy court is

22

AFFIRMED.

1

When questioned about what happened to the $70,000, Ronald was evasive. He stated that he did not get the money, and did not know whether the corporation received it

2

It is undisputed that the schedules filed by Ronald constitute statements under oath within the meaning of § 727(a)(4)(A). Bankruptcy Rule 1008 requires that "[a]ll petitions, lists, schedules, statements of financial affairs, [etc.] shall be verified or contain an unsworn declaration as provided in 28 U.S.C. § 1746."

3

The Statement of Financial Affairs indicated that Ronald was employed as a "supervisor" at American Container, but did not disclose his status as a corporate officer

4

Although the schedules were not made part of the record on appeal, Ronald does not challenge the bankruptcy court's findings of fact regarding omissions from the schedules. Moreover, the testimony at trial concerning the omissions supports the bankruptcy court's findings