Kirtland Federal Credit Union v. Mesibov

UNTIED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
MARIA ELENA MESIBOV, 	No. 13-10864-j7
Debtor.
KIRTLAND FEDERAL CREDIT UNION,
Plaintiff,
v. 	Adv. No. 13-1069 T
MARIA ELENA MESIBOV,
Defendant.
MEMORANDUM OPINION
Kirtland Federal Credit Union (“Kirtland”) asks the Court to deny the debtor Maria
Mesibov’s Chapter 7 discharge pursuant to § 727(a)(4)(A),1 alleging that she materially
understated her income from employment, alimony, and child support. 	Kirtland moved for
summary judgment on all issues,2 the Debtor responded,3 and Kirtland replied in support of its
Motion.4 For the reasons set forth below, the Court concludes that the Motion is not well taken
and should be denied.
1 All statutory references are to 11 U.S.C.
2 Motion for Summary Judgment, filed December 30, 2013, doc. 8, and attachments (the “Motion”).
3 Response to Plaintiff’s Motion for Summary Judgment, filed January 19, 2014, doc. 10, and attachment
(the “Response”).
4 Reply to Defendant’s Response to Motion for Summary Judgment, filed January 31, 2014, doc. 11 (the
“Reply”).
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I. 	Facts
Based on the Court’s docket and the record submitted by Kirtland,5 the Court finds there
is no genuine dispute about the following facts:
1. 	The Debtor commenced this voluntary Chapter 7 case on March 15, 2013 (the
“Petition Date”).
2. 	When she filed for bankruptcy relief, the Debtor’s ex-husband was paying her
$4,700 per month in alimony, $1,000 of which was paid directly to her divorce lawyer on
account of his unpaid legal fees. The ex-husband was also paying the Debtor $334 per month in
child support.
3. 	On the Petition Date the Debtor filed her Schedules A-J (“Schedules”), Statement
of Financial Affairs (“SOFAs”), and Chapter 7 Statement of Current Monthly Income and
Means-Test Calculation (“Means Test”).
4. 	The Schedules, SOFAs, and Means Test were signed by the Debtor under oath.
5. 	There is no disclosure in the Schedules, SOFAs, or Means Test of the $1,000
monthly payment from the Debtor’s ex-husband to the Debtor’s divorce attorney.
6. 	Schedule B (17) does not disclose any right to receive alimony, maintenance or
child support.
7. 	Schedule I discloses a monthly payment of $3,700 for “alimony, maintenance or
support payments.”
5 Kirtland supported the Motion with a transcript of Debtor’s deposition, which included the following as exhibits: a
retail installment contract for the car Kirtland financed; the Credit Agreement (defined below); portions of the
Schedules and SOFAs (both defined below); and an unsigned copy of a Marital Settlement Agreement, to be signed
by the Debtor and her ex-husband. Kirtland also submitted certain requests for admission, to which no responses
were attached. The Court cannot tell if the Debtor responded to the requests for admission or not. In any event, any
deemed admissions would not be material.
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8. 	The Means Test discloses monthly alimony income of $3,366 and monthly child
support income of $334.
9. 	No right to receive child support, and no child support payments, are disclosed in
the Schedules or SOFAs.
10. 	Schedule I lists monthly wages of $1,149. 	The Means Test shows average
monthly wages of $1,005, and wages of $933 in November 2012.
11. 	In November 2012 the Debtor completed a DealerTrack credit application
(“Credit Application”), in which she represented that her monthly salary was $1,500 and her
monthly alimony income was $6,000.
12. 	Kirtland commenced this adversary proceeding August 2, 2013.
13. 	On August 13, 2013, the Debtor filed an amended Schedule I, adding monthly
child support of $334, and filed an amended Means Test, increasing the alimony payment from
$3,366 to $3,700.
14. 	The Debtor’s only evidence submitted in opposition to the Motion is the
following sworn statement:
I 	Maria 	Mesibov 	have 	never 	intentionally 	made 	a 	false 	statement 	to 	the
bankruptcy court. I contest the fact that I deliberately misrepresented anything to
the court. I contest the fact that I was making what they say I was making on my
car loan application at the time I filed for bankruptcy. 	I contest the fact that I
deliberately mislead the court by not listing my alimony and support on Schedule
B. 	I forgot to mention the child support payments to my bankruptcy attorneys,
which is why it was originally not listed on my bankruptcy petition, which was
amended to correct this discrepancy. I contest the fact that I deliberately mislead
the court by not listing my alimony and support on Schedule B.6
II. 	Summary Judgment Standards
Summary 	judgment 	is 	appropriate 	if 	the 	pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
6 Debtor’s affidavit attached to the Response.
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genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56, made applicable to bankruptcy proceedings by Fed.R.Bankr.P. 7056.
“[A] party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and … [must] demonstrate the absence of a genuine issue of
material fact.” 	Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 	In determining whether
summary judgment should be granted, the Court will view the record in the light most favorable
to the party opposing summary judgment. 	Harris v. Beneficial Oklahoma, Inc. (In re Harris),
209 B.R. 990, 995 (10th Cir. BAP 1997).
The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.” 	Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238,
1241 (10th Cir.1990). 	See also Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)
(“[T]he nonmoving party may not rest on its pleadings but must set forth specific facts showing
that there is a genuine issue for trial as to those dispositive matters for which it carries the burden
of proof.”); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (Once a properly
supported summary judgment motion is made, the opposing party must respond with specific
facts showing the existence of a genuine factual issue to be tried); Lazaron v. Lucas (In re
Lucas), 386 B.R. 332, 335 (Bankr. D.N.M. 2008) (same).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[T]here is no evidence for
trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
for that party. If the evidence is merely colorable . . . or is not significantly probative . . .
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summary judgment may be granted.” Anderson, 477 U.S. at 249. Where a rational trier of fact,
considering the record as a whole, could not find for the non-moving party, there is no genuine
issue for trial. 	See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III. 	Section 727(a)(4)(A)
Upon a timely objection filed by a creditor, the Court may decline to grant a discharge to
a Chapter 7 debtor who “knowingly and fraudulently, in or in connection with the case, made a
false oath or account.” §§ 727(a)(4)(A) and (c)(1).
“The purpose behind [§ 727(a)(4)(A)] is to enforce a debtor’s duty of disclosure and
ensure that the debtor provides reliable information to those who have an interest in the
administration of the estate.” 	Sierra Chemicals, LLC, v. Mosley (In re Mosley), 501 B.R. 736,
742 (Bankr. D.N.M. 2013), citing Manning v. Watkins (In re Watkins), 474 B.R. 625, 635
(Bankr. N.D. Ind. 2012), aff’d, 2013 WL 3989412 (N.D. Ind. 2013).
Section 727(a)(4)(A) has been distilled into four elements: 	(1) the debtor must make a
false statement under oath; (2) the debtor must know that the statement was false; (3) the debtor
must make the statement with fraudulent intent; and (4) the statement related materially to the
bankruptcy case. Mosley, 501 B.R. at 742, citing Rajala v. Majors (In re Majors), 330 B.R. 880,
at *3 (10 th Cir. BAP 2005). See also In re Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992) (using
five factors that result in an identical test); Bishop v. Mulholland (In re Mulholland), 2011 WL
4352293, at *4 (Bankr. D.N.M. 2011) (discussing elements). 	Omissions of assets from the
schedules are considered false oaths for purposes of § 727(a)(4)(A). 	Majors, 330 B.R. 880, at
*3, citing Job v. Calder (In re Calder), 907 F.2d 953, 954 (10th Cir. 1990) (per curiam).
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To prevail on a § 707(a)(4)(A) action, Kirtland must prove that the Debtor’s false oaths
were made “knowingly and fraudulently.” 	Gullickson v. Brown (In re Brown), 108 F.3d 1290,
1294 (10 th Cir. 1997) (citations omitted). Reckless indifference to the truth is sufficient to show
intent to defraud. 	Boroff v. Tully (In re Tully), 818 F.2d 106, 112 (1st Cir. 1987); NJL
Investments, LLC, v. Smart (In re Smart), 481 B.R. 79, 89 (Bankr. N.D. Okla. 2012). Fraudulent
intent may be established by circumstantial evidence, or by inferences drawn from a course of
conduct. Farmers Co-op Ass’n of Talmage, Kan., v. Strunk, 671 F.2d 391, 395 (10 th Cir. 1982).
See also Wachovia Bank, N.A. v. Spitko (In re Spitko), 357 B.R. 272, 314 (Bankr. E.D. Pa. 2006)
(fraudulent intent may be inferred from all the facts and circumstances of a case); U.S. Trustee v.
Richesin (In re Richesin), 2008 WL 413284, at *8 (Bankr. D.N.M. 2008) (citing Spitko and
Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 252 (4th Cir. 1987)). 	However, “[a]
debtor will not be denied [a] discharge if a false statement is due to mere mistake or
inadvertence. 	Moreover, an honest error or mere inaccuracy is not a proper basis for denial of
discharge.” Brown, 108 F.3d at 1294-95.
To deny a debtor’s discharge under § 727(a)(4)(A), the false oath must relate materially
to the bankruptcy case. Mosley, 501 B.R. at 742, citing Majors, 2005 WL 2077497, at *3 (10 th
Cir. BAP 2005).
[N]either value nor detriment to creditors is relevant to the determination of
whether the omission is “material” within the meaning of 11 U.S.C. § 727(a)(4).
See DeVoll, 266 B.R. at 98 (“‘[i]n determining whether an omission is material,
the issue is not merely the value of the omitted assets or whether the omission was
detrimental to creditors. 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.'”)(quoting Beaubouef, 966 F.2d at
177 (emphasis added)). See also Chalik v. Moorefield (In re Chalik), 748 F.2d
616, 618 (11th Cir.1984) (per curiam)(same)(citing In re Steiker, 380 F.2d 765,
768 (3rd Cir.1967).
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Richesin, 2008 WL 413284, at *8. 	In Calder, the Tenth Circuit held that a debtor may not
escape § 727(a)(4)(A) “by asserting that the admittedly omitted information concerned a
worthless business relationship or holding; such a defense is specious.” 907 F.2d at 955, citing
Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984). 	Similarly, in In re
Garland, 417 B.R. 805 (10th Cir. BAP 2009), the Tenth Circuit Bankruptcy Appellate Panel held:
“[M]ateriality is not defeated by the fact that the undisclosed property interests are determined to
be without value . . . [D]ebtors have an uncompromising duty to disclose whatever ownership
interest they hold in property ….” Id. at 815-16 (citations omitted). 	On the other hand, a court
has held that if the bankruptcy estate would have no interest in an omitted asset, the omission is
not material. Robertson v. Swanson (In re Swanson), 36 B.R. 99, 100 (9th Cir. BAP 1984). See
also In re Kuchecki, 2010 WL 6259966, at *5 (9th Cir. BAP 2010) (citing Robertson and stating
that an omission “is immaterial if it does not impact a bankruptcy case, such as might occur
where the omission or misstatement concerns assets having little or no value, or that would not
be property of the estate.). Similarly, omission of property that is not available to creditors has
been held to be immaterial. Lee Supply Corp. v. Agnew (In re Agnew), 818 F.2d 1284, 1290 (7 th
Cir. 1987).
In a § 727(a)(4)(A) action, the burden of proof is on the plaintiff, but the burden shifts to
the debtor if the plaintiff shows the existence of a false statement. “While the creditor bears the
ultimate burden of proof under 11 U.S.C.S. § 727(a)(4), once the creditor has demonstrated an
omission or false statement, the burden shifts to the debtor to show that the omission was the
result of an honest mistake or to otherwise provide a credible explanation for the false statement.
Richesin, 2008 WL 413284, at *8, citing In re Caldwell, 101 B.R. 728 (Bankr. D. Utah 1989).
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Amendments to schedules done after omissions are brought to the attention of the debtor
do not necessarily cure false oaths. See Stathopoulos v. Bostrom, 2003 WL 403138, at *3 (N.D.
Ill 2003) (“[S]ubsequent voluntary disclosure does not relieve a debtor from the consequences of
perjury . . . If debtors could omit assets at will with the only penalty that they had to file an
amended claim once caught, cheating would be altogether too attractive.” (citations omitted));
Heidkamp v. Whitehead (In re Whitehead), 278 B.R. 589, 595 (Bankr. M.D. Fla. 2002) (“A
subsequent disclosure would not absolve the debtor from the original false statements made
under penalty of perjury.)
The grant of a discharge is the strong policy preference. “Denial of discharge is a harsh
remedy to be reserved for a truly pernicious debtor. The provisions denying the discharge are
construed liberally in favor of the debtor and strictly against the creditor.” Mosley, 501 B.R. at
742, citing Soft Sheen Products, Inc. v. Johnson (In re Johnson), 98 B.R. 359 (Bankr. N.D. Ill.
1988), and In re Shebel, 54 B.R. 199, 204 (Bankr. D. Vt. 1985). See also Rosen v. Bezner, 996
F.2d 1527, 1531 (3d Cir. 1993) (denying debtor’s discharge is an extreme step and should not be
taken lightly); Commerce Bank & Trust Co. v. Burgess (In re Burgess), 955 F.2d 134 (1st Cir.
1992), abrogated on other grounds, Field v. Mans, 516 U.S. 59 (1995) (reasons for denial of a
discharge must be real and substantial rather than technical and conjectural); FFI Group, LLC v.
Olson (In re Olson), 2014 WL 380388, at *2 (Bankr. W. D. Pa. 2014) (citing Rosen’s “extreme
step” language); McVay v. DiGesualdo (In re DiGesualdo), 463 B.R. 503 (Bankr. D. Colo. 2011)
(denial of discharge should occur only in extreme circumstances); Melarango v. Ciotti (In re
Ciotti), 448 B.R. 694, 702 (Bankr. W.D. Pa. 2011) (same).
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IV. 	Discussion
The Court must weigh the Debtor’s statements and representations in her Schedules,
SOFAs, and Means Test7 to determine if there is a genuine issue of material fact that precludes
entry of summary judgment in Kirtland’s favor on its § 727(a)(4)(A) complaint.
A. 	Failure to List Alimony on Schedule B. 	The Debtor did not disclose on
Schedule B (17) her right to receive alimony payments. 	The official form of Schedule B –
Personal Property, requires disclosure of:
Type of Property-- 17. Alimony, maintenance, support, and property settlement
to which the debtor is or may be entitled. Give particulars.
The Debtor makes two arguments why her failure to list alimony rights on Schedule B
does not implicate § 727(a)(4)(A). 	First, the Debtor asserts that she disclosed her receipt of
alimony8 in Schedule I and in the Means Test, contradicting any inference that she intended to
conceal her alimony rights.9
Second, the Debtor argues that alimony is not property of the bankruptcy estate, and
therefore need not be listed on Schedule B. The Debtor cites a Tenth Circuit case, Peters v. Wise
(In re Wise), 346 F.3d 1239 (10th Cir. 2003), which held that under Colorado law the bankruptcy
estate does not have an interest in the alimony received in the 180 days after the bankruptcy
petition date. The holding in Wise was premised on the conclusion that the debtor did not have
an “interest in property” in the spousal maintenance payments because such payments were a
“personal right” as opposed to a property right. Id. at 1241-43. New Mexico law also holds that
alimony payments are personal rights and not property rights. 	See Burnside v. Burnside, 514
7 Kirtland argues that the Debtor misstated her income in the Credit Application. That is possible (although disputed
by the Debtor), but irrelevant except insofar as the information on the application shows that the Debtor’s statements
in her bankruptcy filings are false.
8 The disclosed monthly amount was incorrect, and was only partially corrected in August 2013.
9 The Debtor also disclosed alimony payments to Kirtland on the Credit Application.
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P.2d 36, 39 (N.M. 1973) (“The right to alimony is a continuation of the right to support. It is a
personal and not a property right.”); Brister v. Brister, 594 P.2d 1167, 1171 (N.M. 1979)
(“Alimony is a personal right as opposed to a property right”); Lovato v. Lovato, 644 P.2d 525,
527 (N.M. 1982) (“Alimony is not intended as a penalty against a husband but is a personal right
intended for the purpose of one spouse’s supporting another.”). 	If the right to alimony is not
property of the Debtor’s estate—perhaps not “property” at all—then it would be unavailable to
creditors and not have to be scheduled.
Despite the case law discussed above, the Court thinks the better practice is to disclose
alimony rights on Schedule B (17). 	Nevertheless, the Debtor’s argument has some merit. 	For
that reason, and because the Debtor did disclose her receipt of alimony payments elsewhere, her
failure to list alimony on Schedule B (17) cannot form the basis for granting the Motion: clearly
there are substantial fact issues about intent and materiality.
B. 	Failure to List Child Support on Schedule B and Schedule I. Next, Kirtland bases
its Motion on the Debtor’s failure to disclose the monthly child support payments she receives.
This argument suffers the same problem as the argument about alimony, since the $334 monthly
child support income was disclosed on the Means Test.
Furthermore, like alimony, child support may not be property of the Debtor’s estate.
Rather, the right to child support payment may belong to the child, even though the parent the
support payments may bring an action to require payment. See, e.g., King v. King (In re King),
233 B.R. 176, *2 (10th Cir. BAP 1999) (unpublished) (“[t]he emerging view . . . is that child
support is a property interest belonging to the child. 	The custodial parent merely has a right to
enforce the child’s property interest.”); Stringer v. Dudoich, 583 P.2d 462, 463-64 (N.M. 1978)
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(“In New Mexico . . . children are entitled to support from their mothers and fathers . . . A child
has the right of support from his parents whether or not he is in their custody.”).
While the Debtor and/or her counsel were sloppy about disclosing the Debtor’s right to
receive child support (as shown in part by the amendments filed on August 13, 2013), there are
fact issues about the Debtor’s intent for the omission, and how material the omission was.
C. 	Income From Wages. 	There is an inconsistency between the monthly wage
income the Debtor disclosed on the Credit Application in November 2012 ($1,500) and the
figure used for that month in the Means Test ($933). The Debtor did not adequately address the
discrepancy in her Response, although the implication from her legal argument is that the figure
in the Credit Application is wrong. 	In any event, there is a fact issue about how much she
actually earned in November 2012, how much she earned on the Petition Date, the reasons for
any discrepancies, and whether the discrepancies are material.
D. 	Failure to Disclose the $1,000 Monthly Alimony Payment to Divorce Attorney.
The most serious omission is Debtor’s failure to disclose the $1,000 monthly payment from her
ex-husband to her divorce attorney.10 From the current record, it seems clear that the payment
should have been disclosed on Schedule I; in response to Question 3 of the SOFAs; and on line
10 of the Means Test. Furthermore, the undisputed evidence is that the Debtor is now receiving
the $1,000 monthly payment post-petition, substantially supporting the conclusion that it was the
Debtor’s income on the Petition Date (similar to garnished wages).
The Debtor submitted little evidence on this crucial point, except for her affidavit
testimony that she “contests the fact” she intended to make a false statement or mislead the
Court. Her legal argument is similarly weak: she asserts that the “$1,000 dollars was ordered by
the court to go directly to the Defendant’s divorce attorney without her ever seeing any of it
10 Presumably Richard S. Lees, as identified in Debtor’s Schedule F.
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making the amount of alimony paid to the Defendant $3,700, the amount listed on The
Defendant’s petition.”11
Although, as discussed above, alimony may not be property of the estate under state law,
it must be disclosed to determine a debtor’s current monthly income (“CMI”) under § 101(10A).
See e.g. In re Lewis, 401 B.R. 431, 440 (Bankr. C.D. Cal. 2009) (CMI includes alimony), citing
In re Featherston, 2007 WL 2898705, at *11 (Bankr. D. Mont. 2007) (same); Eugene R. Wedoff,
Means Testing in the New 707(b), 79 Am. Bankr. L. J. 231, 244-45 (2005) (CMI includes
alimony); In re Hersh, 2012 WL 5387627 (Bankr. N.D. Ill. 2012) (the court included alimony in
its calculation of CMI). The Debtor apparently concedes the appropriateness of treating alimony
as income in the Means Test, since she has done so for the balance of the alimony paid by the ex-
husband.
Had the $1,000 monthly payment been included in the Means Test, the increase in
income may have generated a presumption of abuse under § 707(b)(2). 	In such an event, the
Debtor could have been required to convert the case to a Chapter 13 case, and perhaps pay
unsecured creditors a substantial dividend.
Based on the current record, the Court cannot tell if the addition of the $1,000 monthly
payment would create a presumption of abuse.12 The Court concludes there are fact issues about
the Debtor’s intent when she failed to disclose the $1,000 monthly payment, and about the
materiality of the omission. 	The Court therefore must take evidence on these issues at trial.
11 Response, p. 3.
12 For example, it is possible that the $1,000 payment to the Debtor’s divorce attorney should be listed in line 28 as a
court-ordered payment. 	It is also possible that line 45, dealing with Chapter 13 administrative expenses, would
increase in such an amount that (even if the $1,000 payment was not listed in line 28) the Debtor would be eligible
for Chapter 7 relief. it is possible that the $1,000 payment to the Debtor’s divorce attorney should be listed in line
28 as a court-ordered payment. It is also possible that line 45, dealing with Chapter 13 administrative expenses,
would increase in such an amount that (even if the $1,000 payment was not listed in line 28) the Debtor would be
eligible for Chapter 7 relief. The Court has not been presented with evidence that would allow it to determine if the
Debtor would be in Chapter 13 but for the omitted information.
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VI. 	Conclusion
There is no question the Debtor did not fully disclose the particulars of her alimony and
child support income, nor that the wage income she listed on the Petition Date differed from that
represented on the Credit Application. Among other potential problems caused by the disclosure
lapses, the failure to disclose the $1,000 monthly payment to Debtor’s divorce lawyer could have
affected the Means Test outcome. However, there are unresolved fact issues about the Debtor’s
knowledge of and intent with respect to the omissions, as well as their materiality. These matters
should be determined at a trial on the merits.
The Court will enter an order denying the Motion, consistent with this opinion.
__________________________________
Hon. David T. Thuma
United States Bankruptcy Judge
Entered on Docket: February 25, 2014.
Copies to:
Kevin D. Hammar
1212 Pennsylvania NE
Albuquerque, NM 87110
Matthew Gandert
1128 Pennsylvania St. NE
Suite 210
Albuquerque, NM 87110
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