Swift v. Bank of San Antonio, 3 F.3d 929 (5th Cir. 1993). · Go Syfert
Swift v. Bank of San Antonio, 3 F.3d 929 (5th Cir. 1993). Cases Citing This Book View Copy Cite
34 citation events (22 in the last 25 years) across 11 distinct courts.
Strongest positive: Triumphant Gold v. Matloff (ca5, 2025-10-08)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
examined Cited as authority (rule) Triumphant Gold v. Matloff (3×)
5th Cir. · 2025 · confidence medium
Although exceptions exist for jurisdictional issues and questions of law that, if not addressed, would result in a miscarriage of justice, neither exception applies here. 14 _____________________ 14 While not deciding the merits of this issue, we note that most of our § 727(a)(2)(A) cases consider whether the evidence submitted supports a finding of “ac- tual intent to defraud.” See, e.g., In re Reed, 700 F.2d at 991 ; In re Dennis, 330 F.3d at 701– 03; Swift v. Bank of San Antonio (In re Swift), 3 F.3d 929, 931 (5th Cir. 1993); In re Chastant, 873 F.2d at 90–91; In re Moreno, 892 F.2…
cited Cited as authority (rule) Stucki v. Commissioner of Social Security
W.D. Wash. · 2024 · confidence medium
Towers of Wash., 350 3 F.3d at 929. 4 3.
cited Cited as authority (rule) Carroll v. Pollard
S.D. Cal. · 2020 · confidence medium
Nettles 3 F.3d at 929; see also Preiser, 411 US. at 499. 4 Accordingly, the Petition is DISMISSED without prejudice for failure to state < 5 ||cognizable claim on habeas corpus.
discussed Cited as authority (rule) In re Bird
Bankr. S.D. Tex. · 2017 · confidence medium
Indeed, they reflect a level of greed aptly characterized by the Fifth Circuit as “a principle of too much ... when a pig becomes a hog it is slaughtered.” Matter of Swift, 3 F.3d 929, 931 (5th Cir. 1993) (internal citation and quotation omitted) The Court issues this Memorandum Opinion to underscore the sanctity of settlement agreements and the need to enforce all of their terms, as well as to emphasize that it will not reward gluttonous debtors.
discussed Cited as authority (rule) Wiggains v. Reed (In re Wiggains)
5th Cir. · 2017 · confidence medium
We have previously recognized “the line between legitimate pre-bankruptcy planning and [impermissible intent] ... is not clear.” Swift v. Bank of San Antonio (In re Swift), 3 F.3d 929, 931 (5th Cir. 1993).
discussed Cited as authority (rule) Wolkowitz v. Beverly (In Re Beverly)
9th Cir. BAP · 2007 · confidence medium
Second, there is a principle of “too much.” In classical terms, it is the Sword of Damocles. 21 In the agrarian terms used by the Fifth Circuit affirming the denial of a discharge, “when a pig becomes a hog it is slaughtered.” Swift v. Bank of San Antonio (In re Swift), 3 F.3d 929, 931 (5th Cir.1993) (§ 727 in context of exemption planning), quoting Dolese v. United States, 605 F.2d 1146, 1154 (10th Cir.1979) (tax case), and Albuquerque Nat’l Bank v. Zouhar (In re Zouhar), 10 B.R. 154, 157 (Bankr.D.N.M.1981) (§ 727-exemption planning case).
discussed Cited as authority (rule) Martin Marietta Materials Southwest, Inc. v. Lee (In Re Lee)
Bankr. W.D. Tex. · 2004 · confidence medium
Still, the court concluded that, “[ujnfortunately, the line between legitimate pre-bankruptcy planning and intent to defraud creditors contrary to section 727(a)(2) is not clear.” Swift, 3 F.3d at 931.
discussed Cited "see" Stover v. White
W.D. Wash. · 2024 · signal: see · confidence high
See Stewart v. Cate, 757 3 F.3d 929 , 942 (9th Cir. 2014) (affirming district court’s denial of evidentiary hearing where new 4 evidence did not adequately support actual innocence claim); see also Roberts v. Marshall, 627 5 F.3d 768 , 772–73 (9th Cir. 2010) (no obligation to hold evidentiary hearing when no extraordinary 6 circumstance caused untimely filing of habeas petition). 7 D.
cited Cited "see" In Re Energy Partners, Ltd.
Bankr. S.D. Tex. · 2009 · signal: see · confidence high
See Swift, 3 F.3d at 930. 19 .
cited Cited "see" Franklin Bank, S.S.B. v. Barnes (In Re Barnes)
Bankr. W.D. Tex. · 2007 · signal: see · confidence high
See, for example, Matter of Swift, 3 F.3d 929 (5th Cir.1993); Matter of Bowyer, 916 F.2d 1056 (5th Cir.1990); Matter of Reed, 700 F.2d 986, 990-91 (5th Cir.1983).
discussed Cited "see, e.g." In Re: Orso (2×)
5th Cir. · 2000 · signal: see also · confidence low
See Matter of Reed, 700 F.2d 986, 990 (5th Cir. 1983); See also Matter of Swift, 3 F.3d 929 , 930 (5th Cir. 1993); Matter of Perez, 954 F.2d 1026, 1029 (5th Cir. 1992); Matter of Bowyer, 932 F.2d 1100, 1102 (5th Cir. 1991); Matter of Moreno, 892 F.2d 417, 419 (5th Cir. 1990); Matter of Chastant, 873 F.2d 89, 90-91 (5th Cir. 1989); Matter of Smiley, 864 F.2d 562, 566 (7th Cir. 1989); Norwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 874 (8th Cir. 1988); Ford v. Poston, 773 F.2d 52, 54-55 (4th Cir. 1985); In re Coates, 242 B.R. 901, 905 (Bankr.
discussed Cited "see, e.g." Canfield v. Orso (2×)
5th Cir. · 2000 · signal: see also · confidence medium
See Matter of Reed, 700 F.2d 986, 990 (5th Cir.1983); See also Matter of Swift, 3 F.3d 929, 930 (5th Cir.1993); Matter of Perez, 954 F.2d 1026, 1029 (5th Cir.1992); Matter of Bowyer, 932 F.2d 1100, 1102 (5th Cir.1991); Matter of Moreno, 892 F.2d 417, 419 (5th Cir.1990); Matter of Chastant, 873 F.2d 89, 90-91 (5th Cir.1989); Matter of Smiley, 864 F.2d 562, 566 (7th Cir.1989); Norwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 874 (8th Cir.1988); Ford v. Poston, 773 F.2d 52, 54-55 (4th Cir.1985); In re Coates, 242 B.R. 901, 905 (Bankr.N.D.Tex.2000); In re Rothrock, 96 B.R. 666, 669 (Bankr.N.D.…
Retrieving the full opinion text from the archive…
Bankr. L. Rep. P 75,466 in the Matter of David Marvin Swift, D/B/A State Farm Insurance, Debtor. David Marvin Swift, D/B/A State Farm Insurance
v.
The Bank of San Antonio
92-5698.
Court of Appeals for the Fifth Circuit.
Nov 3, 1993.
3 F.3d 929
Cited by 7 opinions  |  Published

3 F.3d 929

Bankr. L. Rep. P 75,466
In the Matter of David Marvin SWIFT, d/b/a State Farm
Insurance, Debtor.
David Marvin SWIFT, d/b/a State Farm Insurance, Appellant,
v.
The BANK OF SAN ANTONIO, Appellee.

No. 92-5698.

United States Court of Appeals,
Fifth Circuit.

Oct. 8, 1993.
Rehearing Denied Nov. 3, 1993.

R. Mark Dietz, Dietz & Associates, Round Rock, TX, for appellant.

Michael G. Colvard, Martin, Shannon & Drought, San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JONES and DeMOSS, Circuit Judges and BARBOUR[*], District Judge.

EDITH H. JONES, Circuit Judge:

[*~929]1

Appellant Swift is an insurance agent in San Antonio, Texas, who filed Chapter 7 bankruptcy on March 1, 1990. He has appealed the bankruptcy court's determination, affirmed by the district court, 126 B.R. 725 (Bankr.W.D.Tex.1991), that his discharge should be barred because he transferred, concealed or disposed of property within one year before filing with the intent to hinder, delay or defraud creditors. 11 U.S.C. Sec. 727(a)(2). Finding no clear error in the court's findings of fact,[1] we affirm.

2

As a caution to those who might hope to take unfair advantage of the liberality of bankruptcy discharge provisions, the transactions in which Swift engaged just before bankruptcy should be summarized. Reviewing the evidence, the bankruptcy court concluded that Swift gambled and lost on the discharge of $2,000,000 in debt by engaging in "cute" transactions that involved approximately $20,000 of his estate. The net effect of these transactions, however, was to dispose of or encumber his only non-exempt assets. The court also concluded that Swift would not be shielded by the fact that he consulted with numerous attorneys before engaging in these transactions. As the court found, the transactions were not simply innocent pre-bankruptcy planning. Matter of Reed, 700 F.2d 986 (5th Cir.1983). The transactions, all accomplished within a couple of months before bankruptcy, were as follows:

3

1. Swift prepaid $5,000 in alimony or property settlement to his ex-wife. The payments would not have been due until after bankruptcy, and they would have been nondischargeable, personal obligations of Swift. He used estate money to make the payments.

4

2. Swift used estate funds to prepay the remaining liability on his Chevrolet Suburban truck. Contrary to his representations, this was not a payment in the ordinary course of business.

5

3. Despite having in hand a legal opinion that certain insurance renewal commissions were property of the estate, Swift under-reported those commissions on his schedules. The court found $18,000 due in renewal commissions; Swift reported only $6,000.

6

4. Swift transferred insurance policies to his 20-year old son, who, after borrowing against them, transferred the funds to Swift's ex-wife. The ex-wife then loaned the funds back to Swift, who gave her a promissory note the day before bankruptcy. As the bankruptcy court put it, "it's kind of like what happens to a lemon; [Swift] just squeezed the juice out of it and then gave the rind back to the estate."

7

5. Swift's daughter loaned money to her father in exchange for a promissory note, secured by Swift's interest in his furniture and fixtures, renewal commissions, boat, motor and trailer.

8

In evaluating Swift's intention, the court observed his evasiveness and deception, not only at trial but also in the filing of his schedules and in his testimony at the section 341 creditors' meeting. The court did not believe Swift's rationale, among others, that he borrowed from relatives because he needed cash to fund the bankruptcy proceeding; Swift's monthly cash flow from his insurance business continued to be substantial.

9

Based on these transactions and his credibility decision, the bankruptcy court did not clearly err in concluding that Swift completed them with intent to hinder, defraud, delay or conceal estate assets from his creditors. As the court pointed out, nearly every asset in his estate had been tampered with before bankruptcy. Unfortunately, the line between legitimate pre-bankruptcy planning and intent to defraud creditors contrary to section 727(a)(2) is not clear. Northwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 879 (8th Cir.1988) (Arnold, J., dissenting). One court simply stated, "there is a principle of too much; phrased colloquially, when a pig becomes a hog it is slaughtered." In re Zouhar, 10 B.R. 154, 157 (Bankr.D.N.M.1981). As the finder of fact, the bankruptcy court has the primary duty to distinguish hogs from pigs. Compare Matter of Bowyer, 916 F.2d 1056 (5th Cir.1990) (reversing bankruptcy court), op. on reh., 932 F.2d 1100 (5th Cir.1991) (affirming bankruptcy court and finding intent to hinder, delay or defraud creditors on facts before it).

[*~930]10

The judgments of the bankruptcy and district courts are AFFIRMED.

*

Chief Judge of the Southern District of Mississippi, sitting by designation

1

This court has recently held that the burden of proof on objections to discharge is by the preponderance of the evidence. In re Beaubouef, 966 F.2d 174 (5th Cir.1992). The bankruptcy court applied this standard. The court also denied discharge based on 11 U.S.C. Sec. 727(a)(4), but we do not reach that aspect of his decision