United States Court of Appeals For the First Circuit

No. 16-1285

IN RE: RICHARD D. CRAWFORD

Debtor,

PREMIER CAPITAL, LLC,

Plaintiff, Appellee,

v.

RICHARD D. CRAWFORD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]

Before

Thompson and Barron, Circuit Judges, and McConnell, District Judge.

Mark S. Furman, Emily C. Shanahan, and John D. Finnegan on brief for appellant. Thomas H. Curran, Peter Antonelli, and Douglass C. Lawrence on brief for appellee.

October 24, 2016

 Of the District of Rhode Island, sitting by designation. MCCONNELL, District Judge. A bankruptcy court denied

Richard D. Crawford's petition for bankruptcy, in part, because

Crawford omitted the existence of his Cash Balance Plan ("CBP"),

a retirement account, from his Schedule B filing. While Crawford

omitted the existence of the account, he disclosed the account's

value through inclusion with a second retirement account, a 401(k).

On appeal, this Court considers whether omitting an asset's name

but including the asset's value on a Schedule B form clears the

materiality threshold for a false oath claim under

(a)(4)(A). For the reasons set out below, we affirm.

I. Background

The genesis of this bankruptcy case dates back to a loan

that Crawford personally guaranteed. Crawford, a financially

sophisticated individual, works in the banking industry as a

mortgage originator at Wells Fargo. In 1987, Oak Street Realty

Trust ("Oak Street"), a company in which Crawford has an 80%

interest, received a $250,000 loan from Amoskeag Bank ("Amoskeag")

secured by Oak Street property. In 1989, through a Change in Terms

Agreement, Crawford guaranteed the loan in his individual

capacity. After the loan matured, neither Oak Street nor Crawford

paid the balance. The FDIC, acting as liquidating agent for

Amoskeag, assigned Amoskeag's interest to Tenth RMA Partners, L.P.

("RMA"). RMA obtained a judgment against Crawford in the amount

- 2 - of $388,753.01 and then assigned its interest to Premier who sought

and received a $456,774.041 execution on the judgment from the

Middlesex Superior Court. Save for the $7,030.68 that Premier

obtained from wage garnishments, the execution remains in full

force.

Reaching a financial impasse with liabilities far

exceeding assets, Crawford petitioned for bankruptcy. He

subsequently filed his Schedules and Statement of Financial

Affairs ("SOFA"). Two weeks later, Crawford filed an amended SOFA.

With Crawford's fresh start in sight, Premier thwarted Crawford's

dischargement of debt through the filing of the instant action.

Two claims formed the basis for the bankruptcy court's disposition:

(1) the making of a false oath in violation of

(a)(4)(A) and (2) the intentional concealment of property in

violation of

(a)(2)(A). Because we affirm on the

false oath count, we do not reach the merits of the unlawful

concealment claim.

At the time Crawford petitioned for bankruptcy, he had

two accounts with Wells Fargo, a 401(k) account and a CBP. Wells

Fargo provides quarterly statements to Crawford with the heading

"401(k) Plan and Cash Balance Plan." On this statement, the two

1 Premier alleges that at the time Crawford filed for bankruptcy, Crawford owed an amount in excess of $725,000.

- 3 - accounts are listed separately and with separate balances, but the

statement also contains a cumulative amount reported under the

label "Total Retirement Accounts."

Schedule B, item 12, requires an individual filing for

bankruptcy to disclose "[i]nterests in IRA, ERISA, Keough, or other

pension or profit sharing plans" and to "[g]ive particulars." In

addition, this form contains a column for the description and

location of property as well as the current value of the property.

After consulting with counsel, Crawford filed his Schedule B, item

12, which listed "401(k) with Wells Fargo" under the description

and "$148,000" under the value. Crawford's form made no mention

of his CBP.

Premier's complaint made a general allegation of a false

oath in Crawford's Schedules and Statement of Financial Affairs.

The CBP, though not mentioned in the complaint as the basis for a

false oath claim, became a topic of the trial on the second day of

the three day trial. At trial, Premier introduced Exhibit 847-1,

which contained Crawford's quarterly statements with Wells Fargo.

Crawford objected to the introduction of the exhibit under Rule

403, arguing that the statements were cumulative. The bankruptcy

court overruled Crawford's sole objection on the matter. On direct

examination, Premier questioned Crawford on whether he had a CBP

- 4 - that he failed to list on his Schedule B.2 Evasive at first,

Crawford retorted, "I gave all this information to [my former

attorney]." Eventually, Crawford admitted that his CBP is a

retirement account and he failed to include it in his Schedule B.

Pressing further, Premier directly asked why Crawford failed to

list the CBP. To this, Crawford equivocated, "I don't have a good

answer for you sir." On cross-examination, Crawford's counsel

presented Crawford with Exhibit 847-1 and asked whether he

disclosed the amount listed on the quarterly statement. Crawford

affirmed that he had. On redirect, Premier once again questioned

Crawford on his failure to list his CBP. Specifically, Premier

asked, "Is it not separated out as a separate plan on your

statement, the CBP? Is it not?" "I think it's a different heading.

I agree; yes, sir," Crawford answered.

In Premier's post trial brief, Premier argued that by

failing to disclose his interest in the CBP, Crawford committed a

false oath in violation of

(a)(4)(A). In Crawford's

Proposed Findings of Fact and Conclusion of Law, again contesting

the disclosure, Crawford reasoned that he did disclose his CBP, or

if he did fail to disclose, that failure was not the product of

2 Crawford objected once arguing that "this assumes facts not in evidence." Upon elaboration, he contended that the Schedules were prepared prior to receiving the new quarterly statement.

- 5 - fraudulent intent. At closing arguments, both parties engaged the

merits of the false oath claim at issue. Crawford averred, "So

while the CBP wasn't separately listed on his schedules, the amount

in it was included in the 401K amount that was reflected on Mr.

Crawford's schedule . . . ."

The bankruptcy court found Crawford "less than credible"

based on numerous misrepresentations conflated with evasive

answers. The court ruled that while the claim of a false oath by

omission of the CBP was not raised in Premier's complaint, Crawford

impliedly consented to the trial of the charge. Additionally, the

court concluded that Crawford's failure to include his CBP in his

Schedule B, item 12, amounted to a false oath. Finding Crawford's

veracity suspect, the court reasoned that the CBP and 401(k) are

separate accounts and that Crawford believed the accounts were

separate when he filed his Schedule B. Premier Capital, LLC v.

Crawford (In re Crawford),

(Bankr. D. Mass. 2015).

On appeal, the District of Massachusetts affirmed the false oath

claim. Premier Capital, LLC v. Crawford (In re Crawford), No. 15-

12726 (D. Mass. Feb. 26, 2016). Now, Crawford raises several

errors with the district court's decision: the finding of implied

consent, improper burden shifting, and the determination that the

omission of the CBP was a false oath and material.

- 6 - II. Standard of Review

We review the bankruptcy court's findings of fact for

clear error. Davis v. Cox,

(1st Cir. 2004). We

will not set aside the trier's findings absent a "strong,

unyielding belief that a mistake was made." Carp v. Carp (In re

Carp),

, 22 (1st Cir. 2003). In contrast, we review

the bankruptcy court's conclusions of law de novo, Davis,

, and review issues of implied consent for abuse of

discretion. Antilles Cement Corp. v. Fortuno,

(1st Cir. 2012). "Notwithstanding the fact that we are the second-

in-time reviewers, we cede no special deference to the district

court's determinations." Carp, 340 F.3d at 21.

III. Analysis

Before this Court may reach the merits of the false oath

claim, we must first consider two threshold issues—implied consent

and improper burden shifting.

A. Implied Consent

Premier's complaint and pre-trial filings never

identified the omission of the CBP as forming the basis of a false

oath claim. However, "Federal Rule of Civil Procedure 15(b) allows

an unpleaded claim to be considered when the parties' conduct

demonstrates their express or implied consent to litigate the

claim." Antilles Cement Corp.,

. "When an issue

- 7 - not raised by the pleadings is tried by the parties' express or

implied consent, it must be treated in all respects as if raised

in the pleadings." FED. R. CIV. P. 15(b)(2).

A party can give implied consent to the litigation of an unpleaded claim in two ways: by treating a claim introduced outside the complaint 'as having been pleaded, either through [the party's] effective engagement of the claim or through his silent acquiescence'; or by acquiescing during trial 'in the introduction of evidence which is relevant only to that issue.' Antilles Cement Corp.,

(alteration in original)

(quoting Rodriguez v. Doral Mortgage Corp.,

(1st Cir. 1995)).

At trial, Premier introduced Crawford's quarterly

statements with Wells Fargo and examined Crawford regarding the

omission of the CBP from his Schedule B. While Crawford objected

to the admission of the statements under Rule 403, he clarified

that the duplicative nature of the documents formed the basis for

his objection. See Conjugal P'ship v. Conjugal P'ship,

, 400–01 (1st Cir. 1994) ("One sign of implied consent is that

issues not raised by the pleadings are presented and argued without

proper objection by opposing counsel.") (quoting In re Prescott,

(7th Cir. 1986)) (internal quotation marks

omitted). On multiple occasions, Premier pointedly asked Crawford

why he failed to include his CBP on his Schedule B. Crawford

responded without objection. In fact, on cross-examination, - 8 - Crawford's counsel attempted to rebut Premier's questions by

pointing out that Crawford disclosed the value of the asset. Both

Crawford and Premier continued to contest the issue in post-trial

memoranda and closing arguments. Because Crawford failed to object

to the trial of an unpleaded claim and engaged the merits of the

claim, this Court cannot say that the bankruptcy court abused its

discretion by finding Crawford impliedly consented.

B. Burden Shifting

Crawford next asserts that both the bankruptcy court and

district court prematurely applied the burden-shifting framework.

Under § 727(a)(4)(A), the plaintiff bears the burden to establish

each element of a prima facie case by a preponderance of the

evidence. In re Mascolo,

(1st Cir. 1974). Once

that party puts forth a prima facie case, the burden shifts to the

debtor who must then come forth with evidence rebutting the

offense.

The bankruptcy court recited the correct burden-shifting

framework. Specifically, the court stated:

The burden of proof is on the party objecting to discharge. . . . Tully indicates, however, that 'once it reasonably appears that the oath is false, the burden falls upon the [debtor] to come forward with evidence that he has not committed the offense charged.' This language does not shift the burden of proof or nullify the need to prove knowledge of falsity and fraudulent intent. Rather, it establishes that a false oath may

- 9 - itself be sufficient to establish knowledge of falsity and fraudulent intent.

Premier Capital, LLC v. Crawford (In re Crawford),

(Bankr. D. Mass. 2015) (alteration in original) (citations

omitted). Nothing in the bankruptcy court's memorandum of decision

leads us to believe that the court improperly placed the onus on

Crawford prior to the establishment of a prima facie case. The

one sentence that Crawford points to in the bankruptcy court's

memorandum of decision—"[Crawford] does not deny, and I find, that

[the omission of the CBP] was material"—proves unavailing because

that sentence merely explains that Crawford did not attempt to

rebut the materiality of the omission.

. Moreover,

Crawford's position is inapposite given the bankruptcy court's

statement that "[t]he party objecting to the discharge must show

that (i) the debtor made an oath (ii) that was false and (iii)

related to a material fact in the case (iv) knowingly and (v)

fraudulently."

.

In addition, Crawford reasons that improper burden

shifting occurred because, in Crawford's words, Premiere failed to

present any evidence of materiality. Despite Crawford's assertion

to the contrary, Premiere put forth evidence proving the

materiality of the CBP omission. Namely, Premier introduced

Crawford's quarterly 401(k) and CBP statements into evidence and

examined Crawford regarding the omission of the CBP. Crawford - 10 - fails to point to language in the bankruptcy court's disposition

that indicates improper application of the burden-shifting

framework, and Premier presented evidence sufficient to make out

a prima facie case; therefore, we do not find that the bankruptcy

court improperly shifted the burden to Crawford.

C. False Oath

The Bankruptcy Code "limits the opportunity for a

completely unencumbered new beginning to the 'honest but

unfortunate debtor.'" Grogan v. Garner,

, 286–87

(1991) (quoting Local Loan Co. v. Hunt,

(1934)).

In considering a denial of discharge for a false oath, two

competing considerations are at play. On the one hand,

§ 727(a)(4)(A) purports to prevent debtors who "play fast and loose

with their assets or with the reality of their affairs" from

seeking refuge under the Bankruptcy Code. Boroff v. Tully (In re

Tully),

(1st Cir. 1987). On the other hand,

"bankruptcy is an essentially equitable remedy," so "the statutory

right to a discharge should ordinarily be construed liberally in

favor of the debtor."

Where, as here, the claim falls squarely

within one of the Bankruptcy Code's exceptions, the liberal

construction of the right to discharge does not apply. Martin v.

Bajgar (In re Bajgar),

, 498 n.1 (1st Cir. 1997).

- 11 - "The court shall grant the debtor a discharge, unless .

. . the debtor knowingly and fraudulently, in or in connection

with the case . . . made a false oath or account . . . ."

(a)(4)(A). In order for § 727(a)(4)(A) to form the basis for

denying discharge, the Court must find that the debtor "(i)

knowingly and fraudulently made a false oath, (ii) relating to a

material fact." Boroff,

. On appeal, Crawford

advances arguments encompassing the false oath and material fact

elements.3

When a debtor files her Schedules, she does so under the

equivalent of an oath. FED. R. BANKR. P. 1008; Perry v. Warner (In

re Warner),

(B.A.P. 1st Cir. 2000). A debtor has

a duty to prepare schedules accurately and with "reasonable

particularization under the circumstances." Donarumo v. Furlong

(In re Furlong),

(1st Cir. 2011) (quoting In re

Mohring,

, 394–95 (Bankr. E.D. Cal. 1992), aff'd,

(B.A.P. 9th Cir. 1993), aff'd,

(9th Cir.

1994)) (internal quotation marks omitted). "[A] debtor is required

only to 'do enough itemizing to enable the trustee to determine

whether to investigate further.'" Id. at 87 (quoting Payne v.

Wood,

(7th Cir. 1985)).

3Crawford does not raise error with the intent component, knowingly and fraudulently.

- 12 - By omitting an account from his Schedule B, Crawford

committed a false oath. See Harrington v. Donahue (In re Donahue),

BAP No. NH 11-026,

, at *11 (B.A.P. 1st Cir. Dec.

20, 2011) ("[W]hen a debtor omits a transaction from his Statement

of Financial of Affairs, he has made a false oath."). Schedule B,

item 12, instructed Crawford to disclose his "[i]nterests in IRA,

ERISA, Keough, or other pension or profit sharing plans" and to

"[g]ive particulars." While Crawford listed his 401(k) account

with Wells Fargo and included the combined value of his 401(k) and

CBP, Crawford failed to list the existence of his CBP on the form,

as required by Schedule B, item 12.

A false oath is material if its subject matter "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." Boroff,

(quoting Chalik v. Moorefield (In re Chalik),

(11th Cir. 1984)) (internal quotation marks omitted). "[T]he

threshold to materiality is fairly low." Lussier v. Sullivan (In

re Sullivan),

(B.A.P. 1st Cir. 2011) (quoting

Cepelak v. Sears (In re Sears),

(B.A.P. 8th Cir.

2000)) (internal quotation marks omitted). Like many of our sister

- 13 - courts,4 we have rejected the notion that valuation determines

materiality. Boroff,

n.4. Therefore, the

disclosure of an asset's value does not dispense of the materiality

question.

Our Court has never read an impact requirement into

materiality. Regardless of whether a creditor may reach an asset,

the debtor still must disclose that asset's existence. Daniels v.

Agin,

(1st Cir. 2013). After all, the creditor,

not the debtor, is in the best position to determine what may or

may not affect that creditor. As articulated in In re Mascola,

"[T]he materiality of the false oath will not depend upon whether

in fact the falsehood has been detrimental to the creditors."

(1st Cir. 1974) (quoting In re Slocum,

(2d Cir. 1927)) (internal quotation marks omitted). Thus, we

4 E.g., Palatine Nat'l Bank v. Olson (In re Olson),

, 484 (8th Cir. 1990) ("While we are not prepared to say that value is irrelevant to materiality, we are certain that it is not determinative."); Chalik,

(citations omitted) ("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."); see also U.S. Trustee v. Garland (In re Garland),

(B.A.P. 10th Cir. 2009) ("[M]ateriality is not defeated by the fact that the undisclosed property interests are determined to be without value."); cf. Fogal Legware of Switz., Inc. v. Willis (In re Wills),

(B.A.P. 9th Cir. 1999) ("A false statement or omission may be material even if it does not cause direct financial prejudice to creditors.").

- 14 - need not analyze the character of the asset or whether it

prejudiced Premier.

Having dispensed with what is not material, we turn our

attention to what is material. We distinguish an asset from an

asset's value. Knowledge of an asset's value alone does little to

forewarn creditors and the court of unscrupulous dealings. For

this reason, the discovery of an asset's existence, as in the case

of the CBP, clears the threshold for materiality. Listing one

retirement account held with a financial institution does not

signal the existence of a second account held with that same

institution. To hold otherwise would offend the sensibilities of

a rule rooted in honest disclosures. Our decision today, follows

our ruling in Daniels v. Agin, which addressed a similar scenario.

(1st Cir. 2013). Much like the matter before this

Court, in Daniels, the debtor failed to list two IRA accounts in

his Schedule B and instead included the value with that of the

reported profit-sharing plan.

. Despite disclosing the

value, we regarded the excluded IRA information as material.

.

Bankruptcy disclosures are not meant to create a trap

for the unweary,5 and we see no perverse result in affirming the

5 One false step does not lead to draconian results. See, e.g., Dotson v. Cogswell (In re Cogswell),

(Bankr. D. Mass. 2012) (misstating the year of a boat and misstating an - 15 - denial of Crawford's bankruptcy. By omitting the existence of the

CBP, a creditor would not otherwise know of the plan's existence.

Creditors have a right to investigate the history of a debtor's

asset,6 and if a debtor fails to disclose the existence of an

asset, then a creditor may not be able to engage in due diligence.

IV. Conclusion

We affirm the district court's ruling on the §

727(a)(4)(A) claim; therefore, we do not reach the merits of the

§ 727(a)(2)(A) claim.

Affirmed.

inconsequential sum on a credit card statement are "harmless errors"); see also Steele v. Boutiette (In re Boutiette),

(Bankr. D. Mass. 1994) ("[A] debtor [should] not be put at risk that discharge will be denied by a mischaracterization which is esoteric."). 6 "[C]reditors are entitled to judge for themselves what will benefit, and what will prejudice, them." Harrington v. Mazzone (In re Mazzone),

(Bankr. D. Mass. 2014) (quoting JP Morgan Chase Bank, N.A. v. Koss (In re Koss),

(Bankr. D. Mass. 2009)) (internal quotation marks omitted); Chalik v. Moorefield (In re Chalik),

(11th Cir. 1984).

- 16 -