Tracy Davis v. Kenneth MacWay

MEMORANDUM ***

Kenneth Howard Macway appeals the district court’s affirmance of the bankruptcy court’s judgment. The bankruptcy court denied Macway discharge under Chapter 7 of the Bankruptcy Code after finding that Macway did not keep adequate records of alleged gambling losses.

We review the bankruptcy court’s decision without deference to the district court and apply the same standard of review applied by the district court. See Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). We review the bankruptcy court’s choice of legal rules and application of the facts to those rules de novo. Id. We review the bankruptcy court’s factual determinations for clear error. Id. “A court’s factual determination is clearly erroneous if it is illogical, implausible, or without support in the record.” Id.

1. The bankruptcy court did not err in concluding that Macway’s discharge should be denied. Under 11 U.S.C. § 727 (a)(3), a debtor is not eligible for discharge if he “has ... failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business *659 transactions might be ascertained,…

concurring,

I concur, because the memorandum disposition accurately applies our case law with respect to the retrospective obligation imposed by 11 U.S.C. § 727 (a)(3) to “keep and preserve” records before filing for bankruptcy. See In re Caneva, 550 F.3d 755, 762 (9th Cir. 2008). I note, however, that that reading of the statute seems to me insupportable.

Nothing in that section imposes a retroactive obligation to have created or maintained adequate financial records before the filing of the bankruptcy. Instead, that provision prohibits discharge if a debtor has “concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers....’’ 11 U.S.C. § 727 (a)(3) (emphasis added). The term “any recorded information” is both in the past tense and agnostic, by using the term “any,” as to whether any such writings actually exist. So the statute quite plainly, in my view, refers to “any” already *660 recorded information, not to creating adequate records in the first place.

“Keep or preserve” similarly indicates retention in a usable form, not creation; “preserve” in this context need not be seen as not…

FILED

NOT FOR PUBLICATION

JUL 28 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: KENNETH HOWARD MACWAY; No. 14-16680

JOYCE LAMBERT MACWAY,

D.C. No. Debtors, 3:12-cv-00519-MMD-WGC

TRACY HOPE DAVIS, United States MEMORANDUM* Trustee,

Plaintiff - Appellee,

v.

KENNETH HOWARD MACWAY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted July 26, 2016** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: BERZON and N.R. SMITH, Circuit Judges, and ZOUHARY,*** District Judge.

Kenneth Howard Macway appeals the district court’s affirmance of the

bankruptcy court’s judgment. The bankruptcy court denied Macway discharge

under Chapter 7 of the Bankruptcy Code after finding that Macway did not keep

adequate records of…