PER CURIAM
This Court has before it for review the summary judgment order of the United States Bankruptcy Court for the District of Utah, Northern Division, denying Wayne R. Ogden ("Debtor") a discharge of his debts, pursuant to 11 U.S.C. § 727(a).
NATURE OF CASE
The Debtor appeals the bankruptcy court order in an adversary proceeding commenced by the Chapter 7 trustee, Steven R. Bailey ("Trustee"). The Trustee sought to deny the Debtor a discharge under various subsections of 11 U.S.C. § 727(a), and filed a motion for summary judgment on all counts of his complaint. The parties filed briefs, affidavits and other pleadings related to the motion. At the conclusion of a hearing on the motion, the bankruptcy court granted partial summary judgment in favor of the Trustee, denying the Debtor a discharge under § 727(a)(3) for failure to maintain adequate records and § 727(a)(4)(A) for a false oath. The Debtor timely appealed. For the reasons discussed below, the bankruptcy court's grant of summary judgment is reversed and the case is remanded for further proceedings.
APPELLATE JURISDICTION
A bankruptcy appellate panel, with the consent of the parties, has jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges within this circuit. 28 U.S.C. § 158(a), (b)(1). As neither party has opted to have the appeal heard by the District Court for the District of Utah, they are deemed to have consented to our jurisdiction. 10th Cir. BAP L.R. 8001-1(d).
Nevertheless, we are bound to consider the question of our jurisdiction to hear an appeal even if the parties have not raised it. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976). The finality of the bankruptcy court's order might be doubted since it resolved the Trustee's claims under § 727(a)(3) and § 727(a)(4)(A), but did not resolve his claim that the Debtor had violated § 727(a)(2)(B) when he transferred property of the estate postpetition. "Generally, an order is final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Adelman v. Fourth Nat'l Bank and Trust Co. (In re Durability, Inc.), 893 F.2d 264, 265 (10th Cir. 1990). Since the Trustee sought the same relief on all three of his counts — the denial of the Debtor's discharge — the bankruptcy court's order already entitles him to all the relief he requested. A ruling on the third count cannot increase the relief awarded to the Trustee or decrease the liability imposed on the Debtor. We have found cases deciding that an order was final and appealable because it necessarily foreclosed relief on claims it did not expressly rule on, see American Nat'l Bank and Trust Co. v. Secretary of HUD, 946 F.2d 1286, 1290 (7th Cir. 1991); United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1361 (9th Cir. 1986), but none deciding that an order was final even though it expressly declared that one claim could not yet be resolved. Under the circumstances, however, neither party has any incentive to proceed to trial on the Trustee's third count because neither can obtain meaningful relief by doing so. Indeed, the bankruptcy court itself might decline to proceed on that count on the ground a trial is unnecessary so long as the summary judgment ruling stands. Consequently, we conclude the ruling must be regarded as a final, appealable order.
A bankruptcy appellate panel may affirm, modify, or reverse a bankruptcy court's judgment, order or decree, or remand with instructions for further proceedings. "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). See Fed.R.Civ.P. 56(c). A court can make no findings of fact when ruling on a motion for summary judgment. If findings are necessary for the ruling to be made, there is a genuine dispute over a material fact, and summary judgment may not be granted.
BACKGROUND FACTS
When reviewing a grant of summary judgment, we must view the record in the light most favorable to the party that opposed the summary judgment motion. Connolly v. Baum (In re Baum), 22 F.3d 1014, 1016 (10th Cir. 1994). Consequently, we state here the facts most favorable to the Debtor that could be found based on the materials presented to the bankruptcy court.
On May 28, 1997, the Debtor left his home town of Ogden, Utah, and went to Las Vegas because he had received death threats. Before that time, he had maintained records of his business transactions that were sufficient for him to know what was happening and what had happened in his business. Apparently he left his business records in Ogden when he left, and although he could not have personal knowledge of this fact, he believes the local county attorney there seized those records in connection with a criminal investigation of his financial transactions. The county attorney denies that his office seized the records. This assertion does not dispute the Debtor's claim that he had records or that those records have disappeared, only his explanation of how they disappeared. The Debtor has turned over to the Trustee the portion of his business records that he has been able to locate since the time that many of his records disappeared. The Trustee's accountant believes the records the Debtor has produced are insufficient to enable the Trustee or the Debtor's creditors to ascertain his financial condition or business transactions.
An involuntary bankruptcy petition was filed against the Debtor on June 16, 1997. The Debtor stipulated to an order for relief against him two to three weeks later. The Trustee was appointed as permanent trustee at the subsequent meeting of creditors.
Bankruptcy Schedules and a Statement of Financial Affairs were filed for the Debtor on September 3. On the Statement of Financial Affairs, the answer to question one indicated that the Debtor had significant income from Coldwell Banker in 1995, 1996, and 1997. The answer to question two indicated he had no income from a source other than employment or operation of a business during the two years immediately preceding the commencement of his bankruptcy case. Questions three through nine were left blank.
We note additional problems with the copy of the Statement that appears in the record on appeal. Official Bankruptcy Form 7, the Statement of Financial Affairs, is a multi-page form. A new page begins with question ten and the form continues through question twenty-one. Apparently, the form filed for the Debtor completely omitted questions ten through twenty-one. Furthermore, the signature page attached to the copy of the Statement is the signature page for the Schedules, not for the Statement. The parties have not mentioned these discrepancies. Thus, we are uncertain whether the Debtor ever signed the declaration under penalty of perjury for Form 7 indicating that he had read the answers contained in the Statement and that they were true and correct. If the copy in our record accurately reflects the actual Statement filed, we believe the Debtor's attorney, not the Debtor, must be blamed for using an incomplete form and failing to have the Debtor sign the declaration that the answers on the Statement were true and correct. Debtors must be able to rely on attorneys to use proper and complete forms.
On September 12, an attorney for the Trustee questioned the Debtor in an examination authorized by F.R.Bankr.P. 2004. During that exam, the Debtor answered some questions but made clear in response to numerous others that he intended to claim the Fifth Amendment privilege against self-incrimination. For example, the following relevant colloquy took place:
[Trustee's attorney]: And you won't be answering those questions. I have some questions regarding the statements [sic].
We've sort of covered the schedules, but the statements [sic], sir, you list certain income from Caldwell [sic] Banker, but you did not answer some of the others.
Did you have any income during the year 1996, or `97 from any source other than Caldwell [sic] Banker? Did you have any income from the sale of land or from the sale of stock or from any other source other than your commissions?
[Debtor]: Again, I'll have to exercise my Fifth on that right now.
. . . .
[Trustee's attorney]: Let's go back on the record. I'm going to make a suggestion, Mr. Ogden. I'm going to point out what I think are deficiencies in the statements, and I'm going to ask you to go through those with your attorney sometime in the next 10 days and either amend them to reflect the information that is needed, or what it is. If you need to take the Fifth as to those specific questions, take it as to those specific questions.
[Debtor]: Do you want me to answer that now? Anything else that's on there that was not previously answered I'll take the Fifth on at this time. That would take care of that.
[Trustee's attorney]: Would you do this. You have answered the question two, income other than from employment or operation of business, "None." And if what you intended by that "none" was to take the Fifth, please amend it within the next 10 days.
[Debtor]: Okay.
[Trustee's attorney]: It is a matter of confusion, and if what you're saying is that you intend to take the Fifth Amendment to the questions regarding payments to creditors, the questions regarding suits or executions, the questions regarding repossessions, foreclosures and returns, the question regarding assignments and receivables, receiverships, the questions regarding gifts, and losses and payments to debt counseling, I think that's fine. You probably want to answer the payments to debt counseling because I think your attorney has already provided a statement on that to the Court.
[Debtor's attorney]: Duane, I think that's an oversight. We'll go over those.
[Trustee's attorney]: Would you?
[Debtor's attorney]: That's no problem.
[Trustee's attorney]: And I think there may be an appropriate exercise of — well, I guess it's not for me to decide whether it's appropriate or not. I understand that you've taken the Fifth on some of those questions.
It is clear that the document the Trustee's attorney was referring to was the Statement of Financial Affairs and the unanswered questions were questions three through nine on the Statement.
After he was appointed trustee for the Debtor's bankruptcy estate, the Trustee discovered that the Debtor made a number of transfers of money or property that should have been reported in response to questions three and seven of the Statement of Financial Affairs, and omitted a number of possible assets from his Schedules. These included: (1) a $150,000 payment to a company called Nelson Capital Investment, L.L.C.; (2) $70,000 he invested in a company called Utah Jerky Company and salary payments he made to his brother for running the company; (3) the transfer of his interest in Utah Jerky Company to a Dar Nelson in exchange for a $50,000 credit on money he owed Nelson; (4) over $20,000 in loans or investments he gave his brother in connection with the development of a patented product; (5) an interest in a money market account in Zurich, Switzerland, the transfer to his wife of most of the money in that account, a payment to State Farm from the account, and the withdrawal of the balance then left in the account; (6) an interest in certain real property located in North Ogden, Utah; (7) the transfer to his wife of an interest in a storage unit; (8) the gift of a $20,000 ring to his wife; and (9) transfers within 90 days of the filing of the bankruptcy petition of more than $600 each to at least 94 creditors. The Trustee also complains that the Debtor incorrectly reported the cash value of a life insurance policy as $0.
In the adversary proceeding commenced by his complaint based on § 727(a), the Trustee moved for summary judgment denying the Debtor a discharge based on these undisclosed transfers and assets, and the incorrect statement of value. In opposition, the Debtor submitted a declaration in which he denied having any intent to conceal any assets or transfers, or to hinder, delay, or defraud any creditor, the Trustee, or anyone else. He also stated that he had hired an attorney to represent him when the involuntary petition was filed, and relied on the attorney to complete the necessary bankruptcy documents properly. He then offered lengthy explanations about the transfers and assets, essentially conceding all the transfers had occurred but explaining why the unreported assets had been omitted and stating why he did not think he had interests in some of them. He claimed he did not know the insurance policy had any cash value when he reported it had none.
The parties argued the summary judgment motion, and then the bankruptcy court ruled. We quote the full ruling:
The matter was well presented by both sides, that's why I had a difficult time making my decision, but here it is.
As to the allegations under Section 727(a)(2)(b), the declaration of Mr. Ogden creates a questions [sic] of fact concerning the intent, so I cannot grant summary judgment on that section.
As to Section 727(a)(3), dealing with records, there is adequate information evidenced in the file that's undisputed to show the records, books, documents, and papers that Mr. Ogden should have kept that he didn't. That doesn't require intent.
As to Section 727(a)(4)(a), there is adequate evidence undisputed in the record to show that Mr. Ogden filed false information in his schedules and statement of affairs. He can't hide behind his attorney, and the circumstances of the case are such that I can infer knowing and fraudulent,
so that he knowingly and fraudulently made a false oath, so, the summary judgment is granted denying a discharge under Section 727(a)(3), and 727(a)(4)(a).
The Debtor timely appeals.
We will mention additional factual allegations in our discussion of the issues raised before us.
DISCUSSION
Summary judgment is governed by Fed.R.Civ.P. 56, which is incorporated into bankruptcy practice by F.R.Bankr.P. 7056. Pursuant to Rule 56, in reviewing a grant of summary judgment, legal issues in the case are reviewed de novo, applying the same legal standards used by the bankruptcy court. Hollytex Carpet Mills, Inc. v. Oklahoma Employment Sec. Comm'n (In re Hollytex Carpet Mills, Inc.), 73 F.3d 1516, 1518 (10th Cir. 1996). De novo review requires an independent determination of the issues, giving no special weight to the bankruptcy court's decision. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991). The record must be viewed in a light most favorable to the party opposing the summary judgment motion. Connolly v. Baum (In re Baum), 22 F.3d 1014, 1016 (10th Cir. 1994). Questions about a person's intent or other state of mind require consideration of intangible factors such as witness credibility and can rarely be resolved by summary judgment. Prochaska v. Marcoux, 632 F.2d 848, 851 (10th Cir. 1980), cert. denied, 451 U.S. 984 (1981); see also 10B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2730 (3d ed. 1998) (indicating actions involving state of mind can rarely be determined by summary judgment, except when the opposing party does not present sufficient circumstantial evidence to support a potential finding contrary to the person's professed state of mind). Because the bankruptcy court did not explain its reasons for granting the Trustee's motion, we can only assume the court accepted some or all of the Trustee's arguments and are forced to review them to see whether they support the decision.
Failure To Maintain Records
The bankruptcy court ruled that the debtor had failed to maintain adequate records under § 727(a)(3). Section 727 states:
(a) The court shall grant the debtor a discharge, unless —
. . .
(3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case. . . .
11 U.S.C. § 727(a)(3). The scope of the debtor's duty to maintain records depends on the nature of the debtor's business and the facts and circumstances of each case. One authority explains as follows:
The debtor's obligation to present records of financial information is intended to protect the trustee and creditors by enabling them to determine or confirm the debtor's financial condition and the cause of the debtor's financial difficulty. . . .
. . . .
There are cases in which no duty to keep books arises; in general, consumer debtors have no obligation to keep books. On the other hand, a debtor who is a sophisticated business person will be held to a higher level of accountability in record keeping. If the nature and extent of the debtor's transactions were such that others in like circumstances would ordinarily keep financial records, the debtor must show that because of unusual circumstances there was no duty to keep them.
6 Collier on Bankruptcy ¶ 727.03[3][a], [b] (Lawrence P. King ed., 15th ed. rev. 1998) (footnotes omitted). The court in Keystone Automotive Warehouse, Inc. v. LaBonte (In re LaBonte), 13 B.R. 887, 892 (Bankr. D. Kan. 1981), quoted the rule long recognized in the Tenth Circuit that:
"Records need not be so complete that they state in detail all or substantially all of the transactions taking place in the course of the business. It is enough if they sufficiently identify the transactions that intelligent inquiry can be made respecting them."
Hedges v. Bushnell, 106 F.2d 979, 982 (10th Cir. 1939).
See Johnson v. Bockman (In re Bockman), 282 F.2d 544, 546 (10th Cir. 1960) (same).
The Trustee produced evidence that the records the Debtor eventually turned over to him were inadequate to enable the Trustee or the creditors to ascertain the Debtor's financial condition. In response, the Debtor asserted that he had kept records sufficient for him to know about his business, including bank statements, promissory notes, title company closing statements, correspondence, and other documents, but that after he left his home town in May 1997, most of his records were confiscated by the county attorney.
Attacking the first part of this response, the Trustee declares: "[The Debtor's] personal opinion that the records were adequate for him to know what was happening is insufficient. He must have more specifically identified the records he kept and he must have produced his own accounting expert's affidavit stating the opinion that [the] records meet the standards under section 727(a)(3)." Appellee's brief at 24-25. While the Debtor's assertions about his record-keeping were not extensive and would not likely be terribly convincing at trial without further elaboration or, even better, discovery and production of the missing records, we believe they are sufficient to raise a genuine issue of material fact about the adequacy of his records that precludes summary judgment, at least since the records purportedly cannot now be produced for review. The Debtor's assertion that his records enabled him to know what was happening with his business implies that others could glean the same knowledge from them. The Trustee cites no authority for the claim that the Debtor had to produce an expert witness to verify the adequacy of his records, and we are aware of none. Meeting such an obligation would certainly be difficult, if not impossible, for missing records. Because the alleged records are no longer available for review, the Debtor's opinion alone is sufficient to get him to trial on the question; whether he will be believed at trial is another matter, not properly considered at the summary judgment stage.
The Trustee attacks the second part of the Debtor's response by producing evidence that the county attorney did not seize the Debtor's records and pointing out that the Debtor could have no personal knowledge of their seizure since he was not in Ogden, Utah, when the alleged seizure would have to have occurred. However, the Debtor clearly claims that he had adequate records when he left Ogden and that those records are now gone. The fact he may be mistaken about the cause of their disappearance does not negate his claim that he had adequate records that are no longer available to him. This defense, if found by the factfinder at trial to be true, could qualify under § 727(a)(3) as justification for the Debtor's failure to produce the records after the order for relief was entered against him.
We are forced to conclude that the bankruptcy court erred in granting the Trustee summary judgment under § 727(a)(3).
False Oath
Section 727 of the Bankruptcy Code provides:
(a) The court shall grant the debtor a discharge, unless —
. . .
(4) the debtor knowingly and fraudulently, in or in connection with the case —
(A) made a false oath or account. . . .
11 U.S.C. § 727(a)(4)(A). This provision sanctions debtors who deliberately fail to make proper disclosures, and is intended to ensure that dependable information is supplied to interested parties so they can rely on it without having to uncover true facts through investigation. Job v. Calder (In re Calder), 93 B.R. 734, 737 (Bankr. D. Utah 1988), aff'd, 907 F.2d 953 (10th Cir. 1990).
To the extent the Trustee's summary judgment motion was based on the Debtor's failure to answer questions three through nine on the Statement of Financial Affairs, though, we believe this provision is inapplicable. The declaration under penalty of perjury for the Statement declares only that the answers given are true and correct, not that all the information sought in the Statement has been supplied. Consequently, a failure to answer some of the questions does not constitute a false oath or account. Instead, § 727(a)(6) applies to a refusal to respond to a question. It provides that a discharge should be denied if:
(6) the debtor has refused, in the case —
(A) to obey any lawful order of the court, other than an order to respond to a material question or to testify;
(B) on the ground of privilege against self-incrimination, to respond to a material question approved by the court or to testify, after the debtor has been granted immunity with respect to the matter concerning which such privilege was invoked; or
(C) on a ground other than the properly invoked privilege against self-incrimination, to respond to a material question approved by the court or to testify. . . .
This provision indicates that a debtor may refuse to answer questions based on the Fifth Amendment privilege without being denied a discharge on that basis unless certain conditions are met. Since the Debtor relied on that privilege in failing to answer questions three through nine on the Statement of Financial Affairs, we believe his non-answers cannot be violations of § 727(a)(4)(A). Nothing in the record indicates the Debtor was ever ordered to answer questions three through nine on the Statement, was granted immunity for responding to those questions, or refused to answer them on a ground other than the properly invoked privilege against self-incrimination. This reduces the Trustee's false oath claim to the Debtor's omission of assets from his schedules and listing the cash value of a life insurance policy as $0.
Some time after filing the Statement and testifying at the 2004 exam, the Debtor apparently stopped relying on the Fifth Amendment at least with respect to the transfers and assets the Trustee used as the bases for his summary judgment motion. In his declaration in response to the Trustee's motion, the Debtor conceded the specified transactions occurred, though he describes the circumstances of some of them differently than the Trustee alleged, and instead offered explanations for the omissions from his Schedules. The assets the Trustee alleged the Debtor failed to list on his schedules were the Zurich money market account, a possible interest in Nelson Capital arising from his $150,000 payment to the company, his interest in his brother's patent product if he invested in the product or an account receivable from his brother if he instead loaned the money, and his interest in the real property located in North Ogden, Utah. The Trustee also complains that the Debtor listed the value of an insurance policy with Lincoln Life Insurance Company ("Lincoln Life") as $0 and repeated that value during the 2004 exam, even though twelve days after the exam, he applied for the value of the policy and certified to the insurance company "that no proceedings or bankruptcy or insolvency have been filed or are now pending against" him. The Debtor concedes these facts, but offers an explanation about them as well.
On July 10th and 14th, 1997, the Debtor transferred to his wife and an insurance company all but $263.91 of the $6,994.84 that had previously been in the Zurich account. Since the value of a specific number of dollars can generally not be in doubt, this raises the question whether the Debtor's failure in September to list an asset then worth only $263.91 was a material omission for purposes of § 727(a)(4)(A). In his declaration, the Debtor claimed he made a notation about the account on the schedules, a claim the Trustee disputes, and pointed out that he provided the May 31, 1997, statement for the account to the Trustee. In Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1295 (10th Cir. 1997), the Tenth Circuit said that the fact a debtor comes forward with omitted material of his own accord is strong evidence he did not omit it with a fraudulent intent. The record on appeal does not make clear whether the Debtor's disclosure of the Zurich account was voluntary, but the Brown analysis could apply if it was.
The Debtor explained that his $150,000 payment to Nelson Capital was in part a payment on a debt he owed to Dar Nelson and another company and in
part to purchase an interest in a triplex, but that he was to obtain an interest in the triplex only when he finished paying off his debt to Nelson and the other company. By the time his schedules were filed, he added, he believed that his potential interest had been lost because he had failed to pay off the debt. If accepted as true at trial, this explanation would make his omission of this potential asset not knowing and fraudulent.
The Debtor explained that the money he gave to his brother to help him develop a patented product was essentially a loan to be repaid with interest, but that he and his brother had a vague understanding that he would share in the product's success if it ever had any. He stated that he did not list the patent because he did not believe he had an interest in it and also considered it to be of little or no value. Finally, he claimed the amount of the transaction was insignificant in comparison to his real estate transactions, apparently suggesting he might have forgotten to list it. Although these explanations are fairly weak, we believe they are sufficient to raise as a genuine issue for trial whether his failure to list the transaction was knowing and fraudulent. See Brown, 108 F.3d at 1294 ("A debtor will not be denied discharge if a false statement is due to mere mistake or inadvertence.").
The Debtor explained that he and a friend had agreed to purchase the North Ogden property, but that he never paid his share of the purchase price, so he assumed he never obtained an interest in it. He added, "If the house is titled in my name as a joint owner, that is probably in anticipation of my payment for half of the property which did not occur." We believe this assertion must be interpreted, for summary judgment purposes, to mean that the Debtor claims he did not know his name was on the title and thought his failure to pay his share had kept him from getting an interest. If he did not pay for any interest in the property, the apparent joint owner who had actually paid the full price could likely sue and have the Debtor's name removed from the title. If the Debtor's assertions are believed, this would constitute a legitimate defense to the Trustee's claim of a knowing and fraudulent false oath.
Finally, the Debtor explained that he did not believe the Lincoln Life insurance policy had any cash value when he signed his Schedules and testified at the 2004 exam, but only found out later that it had value. He claimed that the man who had sold him a life insurance policy with Northwestern Mutual Life ("Northwestern") became concerned that the Northwestern policy was going to be canceled because the Debtor could no longer pay the premiums on it. This man, according to the Debtor, investigated the Lincoln Life policy, found that it had cash value that could be used to pay the Northwestern premiums, and arranged for the Lincoln Life policy to be surrendered so the cash value could be used to keep the Northwestern policy in force. Because, the Debtor continued, he had received death threats he believed were serious and if they were carried out, his family would have been left without financial support, he cashed in the Lincoln Life policy solely to keep the Northwestern policy in force, not to deprive the Trustee or any creditors of assets of his bankruptcy estate. The bankruptcy court apparently concluded this explanation was sufficient to raise a question of fact about the Debtor's intent in making this postpetition transfer of property of the bankruptcy estate, but not to raise one about whether his incorrect assertions that the Lincoln Life policy had no value were knowing and fraudulent. If the Debtor's explanations about the policy are accepted at trial, though, they would mean he did not know the policy had any cash value when he indicated it did not and only learned of the value later. As a result, his misstatements about the value would not have been knowing and fraudulent. Although the Debtor offered no explanation for having certified to Lincoln Life that he was not the subject of a bankruptcy case, that false statement was not made "in or in connection with" his case, as required for it to be covered by § 727(a)(4)(A). This certification would certainly be some evidence that the Debtor is not trustworthy and acted with improper intent, so the veracity of his various explanations might more likely be rejected by the factfinder, but it does not establish that he knew his assertions the policy had no value were false when he made them.
In sum, we are forced to conclude that the Trustee failed to establish for summary judgment purposes that the Debtor "knowingly and fraudulently . . . made a false oath." The Debtor denied that he acted with the necessary intent, and that is sufficient to create an issue for trial. Indeed, we have difficulty understanding why the bankruptcy court believed the Debtor's declaration created an issue for trial under § 727(a)(2)(B) about whether he had the "intent to hinder, delay, or defraud a creditor or an officer of the estate" when he transferred property of the estate postpetition, but did not create an issue for trial under § 727(a)(4)(A) about whether the omissions from his schedules were made "knowingly and fraudulently."
The Trustee cites numerous cases that discuss how a debtor's bad intent may be inferred from various circumstances despite his or her claims of innocent intent. All but one of them, however, involved a decision reached following a trial, not on a summary judgment motion. See Job v. Calder (In re Calder), 93 B.R. 734, 737 (Bankr. D. Utah 1988), aff'd, 907 F.2d 953 (10th Cir. 1990); Congress Talcott Corp. v. Sicari, 187 B.R. 861 (Bankr. S.D.N.Y. 1994); Tastee Donuts, Inc., v. Bruno, 169 B.R. 588 (E.D. La. 1994); Aweida v. Cooper (In re Cooper), 150 B.R. 462 (D. Colo. 1993); Ingersoll v. Kriseman (In re Ingersoll), 124 B.R. 116 (M.D. Fla. 1991); In re Caldwell, 101 B.R. 728 (Bankr. D. Utah 1989); American State Bank v. Montgomery, 86 B.R. 948 (Bankr. N.D. Ind. 1988); National Bank v. Butler (In re Butler), 38 B.R. 884 (Bankr. D. Kan. 1984); Loeber v. Loeber (In re Loeber), 12 B.R. 669 (Bankr. D.N.J. 1981). These decisions all discuss what evidence is sufficient to support a finding at trial that is contrary to the debtor's assertion that he or she did not have the requisite bad intent; they should not be read to mean the debtor's testimony alone is insufficient to support a finding at trial that the debtor did not have the requisite intent. In the only summary judgment case the Trustee cites, there is no indication that the debtor denied he had the necessary bad intent. Nisselson v. Wolfson (In re Wolfson), 152 B.R. 830 (S.D.N.Y. 1993). The court indicated only that the debtor had made contradictory assertions at different times — for example, at one time he denied having any involvement in various corporations and at another admitted having ownership interests or being an officer in the same corporations. Id. at 833-34.
We recognize that the circumstances demonstrated by the Trustee present a strong case for refusing to believe the Debtor's assertions that he had no intent to lie or defraud anyone, and indicate the Trustee may be likely to succeed at trial. However, the Debtor's assertions do raise questions that are issues of fact generally resolved at trial, and the bankruptcy court did not explain how it reached the opposite conclusion. The Debtor's assertions are not contrary to incontrovertible facts of the sort that might be judicially noticed, but only contrary to inferences that can be — but do not have to be — drawn from circumstances he concedes will be established at trial. Consequently, the Debtor's credibility cannot be determined by summary judgment, but only at trial.
CONCLUSION
For these reasons, we conclude that the Debtor's declaration was sufficient to raise genuine issues for trial about the adequacy of his business records, whether his failure to produce those records was justified, and his intent in filing his Statement of Financial Affairs, omitting assets from his Schedules, and reporting the value of the Lincoln Life policy as $0. We emphasize that we do not mean to suggest that we think the Debtor should or is likely to succeed on these issues at trial, only that he has produced sufficient evidence to defeat the Trustee's motion for summary judgment.
The dissent accuses us of going beyond the requirement to review the summary judgment materials in the light most favorable to the non-moving party and instead ignoring undisputed facts that do not support the Debtor's view. We cannot agree. We have considered whether the Debtor's explanations and inferences that might reasonably be drawn from them could be believed and would constitute defenses to the Trustee's claims. So far as we have been able to ascertain, those explanations and inferences do not conflict with any conceded or incontestible facts, and that means they cannot be rejected at this stage of the proceeding. It seems to us that the dissent is saying that the Debtor cannot be believed. All we are saying is that the bankruptcy court must hold a trial before deciding whether or not to believe him and whether to draw inferences favorable to the Trustee from the circumstantial evidence he has accumulated.
The bankruptcy court's order granting summary judgment for the Trustee under 11 U.S.C. § 727(a)(3) and 727(a)(4)(A) is hereby reversed, and the matter is remanded for further proceedings.