Erhard v. Roberts
Docket: Nos. 05-36073, 05-36122
Court: Court of Appeals for the Ninth Circuit; July 19, 2007; Federal Appellate Court
James Erhard appeals a decision by the Bankruptcy Appellate Panel (BAP) that reversed the bankruptcy court's denial of Kenneth Roberts's discharge under 11 U.S.C. § 727(a)(4)(A). Roberts cross-appeals, arguing he did not waive his objection to Erhard’s late service of the summons and complaint. The BAP's decision is affirmed in all respects. Roberts contends that the court lacks jurisdiction because Erhard filed a notice of appeal (NOA) one day late. However, Erhard's timely filed Designation of Record and Statement of Issues sufficiently notified Roberts of his intent to appeal, and it is treated as a timely NOA. Additionally, Roberts claims Erhard lacks standing to appeal due to a property settlement agreement with Erhard’s daughter not mentioning repayment obligations. However, since Roberts previously listed the obligation to Erhard in his bankruptcy schedules, he is judicially estopped from asserting that Erhard lacks standing. Erhard qualifies as a creditor under the Bankruptcy Code with a disputed claim of $20,000 against Roberts. The BAP's reversal of the bankruptcy court's denial of discharge is affirmed. To deny discharge under § 727(a)(4)(A), Erhard needed to demonstrate that Roberts knowingly made a material false statement or omission with fraudulent intent. Although reckless disregard might imply fraudulent intent, the facts do not meet this standard. Testimony indicated that the omissions were normal and did not conceal assets beneficial to the estate; thus, neither negligence nor lack of effort implies fraud. Roberts also waived his objection to the timeliness of Erhard's service of the adversary complaint, as he did not raise the issue in a motion or responsive pleading, per Federal Rules of Civil Procedure. The BAP's decision is affirmed, and the case is remanded to the bankruptcy court for further proceedings. This disposition is unpublished and does not serve as precedent except as provided by 9th Cir. R. 36-3.