United States Court of Appeals

For the First Circuit

No. 22-1287

IN RE: DONALD C. KUPPERSTEIN,

Debtor.

DONALD C. KUPPERSTEIN,

Appellant,

v.

IRENE SCHALL, Personal Representative of the Estate of 

Fred W. Kuhn; EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,

and McElroy,

 District Judge.

David G. Baker on brief for appellant.

Nicola Yousif and the Law Office of Nick Yousif on brief for

appellee Irene Schall.

Brian G. Lee on brief for appellee the Executive Office of 

Health and Human Services.

 Of the District of Rhode Island, sitting by designation.
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February 22, 2023
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MCELROY, District Judge. The bankruptcy court 

determined, upon cross-motions for summary judgment, that Donald 

C. Kupperstein knowingly and fraudulently omitted and 

misrepresented material facts in his Chapter 7 bankruptcy petition 

and related schedules, warranting the denial of his discharge under 

11 U.S.C. § 727(a)(4)(A). Kupperstein appeals and we consider now 

whether summary judgment was properly granted. For the reasons 

below, we affirm. 

I. Background

This is the third appearance in this court of a longrunning dispute, which we previously detailed in In re Kupperstein

(Kupperstein II), 994 F.3d 673 (1st Cir. 2021), and In re 

Kupperstein (Kupperstein I), 943 F.3d 12 (1st Cir. 2019). We 

report here what is necessary to understand the instant appeal. 

On January 11, 2018, in the wake of Kupperstein's

multiple violations of judgments and orders of Massachusetts state 

courts, he filed in bankruptcy court a voluntary petition for 

relief under Chapter 7 of the United States Bankruptcy Code. 

Appellees -- the Executive Office of Health and Human Services of 

the Commonwealth of Massachusetts and Irene B. Schall, as the 

personal representative of the estate of Fred W. Kuhn -- commenced 

adversary proceedings on July 16, 2018, seeking the denial of 

Kupperstein's bankruptcy discharge under 11 U.S.C. §§ 523,
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727(a)(4)(A).1 As for the § 727(a)(4)(A) claim, Appellees posited 

that Kupperstein's bankruptcy filings included material omissions 

and falsehoods and that Kupperstein's Statement of Financial 

Affairs (SOFA) and his Schedule A/B (required filings with his 

petition) did not include income from a law practice he failed to 

disclose, a title insurance settlement, and an interest in real 

estate. 

After discovery on the consolidated adversary 

proceedings, Kupperstein moved for summary judgment and Appellees 

responded with a joint cross-motion. Appellees filed a statement 

of undisputed facts in support of their motion and filed a response 

to Kupperstein's statement of undisputed facts. Kupperstein, 

however, did not timely file a response to Appellees' statement of 

facts. At the hearing on the motion, on June 16, 2020, he offered 

to file his response within a day. Three days later, on June 19, 

2020, Kupperstein filed his response and a motion for leave, which 

the bankruptcy court denied because it had already taken the 

summary judgment motions under advisement. 

In a careful and detailed opinion, the bankruptcy court 

1 The bankruptcy court dismissed some of the Executive Office 

of Health and Human Services' (EOHHS) 11 U.S.C. § 523 claims upon 

consideration of Kupperstein's motion to dismiss. EOHHS 

voluntarily dismissed the rest after the district court upheld the

granting of summary judgment in the Appellees' favor on the 

§ 727(a)(4)(A) claim. Irene Schall voluntarily dismissed her

§ 523 claims.
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held that on the undisputed evidence of record, the statutory 

requirements required that Kupperstein be denied a discharge; 

indeed the court held that Kupperstein had engaged in clear and 

blatant misconduct. Specifically, the bankruptcy court determined 

that Kupperstein made false oaths in both his SOFA and Schedule 

A/B. That is, Kupperstein failed to include on the SOFA the source 

or amount of income from his law practice or a $17,500 settlement 

from a title insurer and, on the Schedule A/B, assets related to 

real estate in Boston. The court further held that Kupperstein 

knowingly failed to make these disclosures, or in the case of the 

Schedule A/B, acted with "reckless disregard for the truth," given 

that Kupperstein, an attorney, did report these items in other 

places when required: namely, on his federal income tax returns 

and in a financial statement supplied to a state court. All these 

omissions were material, given that they related to his "financial 

transactions" and concerned the "discovery of his business 

dealings."

The bankruptcy court thus denied Kupperstein's motion 

for summary judgment and granted Appellees' motion on their 

§ 727(a)(4)(a) counts. Kupperstein's discharge was thus denied. 

He appealed to the district court, which adopted the bankruptcy 

court's analysis in total, affirming summary judgment and denying 

the appeal. Kupperstein timely appealed to this court.
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II. Standard of Review

We serve here as a "second tier of appellate review." 

Kupperstein II, 994 F.3d at 678 (quoting In re Montreal, Me. & 

Atl. Ry., Ltd., 956 F.3d 1, 5-6 (1st Cir. 2020)). In that capacity 

"we accord no particular deference to determinations made by the 

first-tier appellate tribunal but, rather, focus exclusively on 

the bankruptcy court's determinations." In re Montreal, Me. &

Atl. Ry., Ltd., 956 F.3d at 6. 

III. Analysis

A.

As an initial matter, Kupperstein argues that the 

bankruptcy court erred in denying his motion for leave to file a 

belated response to Appellees' joint statement of facts in support 

of their motion for summary judgment. We bypass Appellees'

contention that this argument has been waived and find no merit to 

the argument. 

Local Rule 7056-1 of the United States Bankruptcy Court, which 

expressly adopts Local Rule 56.1 of the United States District 

Court for the District of Massachusetts, requires: (1) motions for 

summary judgment include a statement of undisputed material facts 

supported by "page references to affidavits, depositions and other 

documentation;" (2) oppositions to motions for summary judgment, 

to be filed 21 days after service of the motion, must include a 

statement of disputed facts again with references to supporting 
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evidence, and (3) that "[m]aterial facts of record set forth in 

the statement . . . be served by the moving party will be deemed 

for purposes of the motion to be admitted by opposing parties 

unless controverted by the statement required to be served by 

opposing parties." D. Mass. L.R. 56.1; D. Mass. L.B.R. 7056-1.

"Such rules are designed to function as a means of 

'focusing a district court's attention on what is—and what is not—

genuinely controverted." Cabán Hernández v. Philip Morris USA, 

Inc., 486 F.3d 1, 7 (1st Cir. 2007) (quoting Calvi v. Knox County, 

470 F.3d 422, 427 (1st Cir. 2006)). Parties ignore such rules "at 

their peril." Id. 

We review a lower court's application of local rules for 

abuse of discretion. CMI Cap. Mkt. Inv., LLC v. González-Toro, 

520 F.3d 58, 63 (1st Cir. 2008); NEPSK, Inc. v. Town of Houlton, 

283 F.3d 1, 5 (1st Cir. 2002). The bankruptcy court held 

Kupperstein to the deadline explicit in the local rule. We are 

hard pressed to find that to be an abuse of discretion. See

Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir. 2004) ("While 

a district court may forgive a party's violation of a local rule, 

. . . we review deferentially its refusal to do so."). 

Kupperstein's argument that the refusal to grant his 

motion for leave prejudiced him because Appellees' asserted facts 

would be admitted with or without evidence in support rings hollow. 

Nowhere were Appellees excused from their own obligation under 
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Local Rule 56.1 — the requirement to cite specific evidence in 

support of each asserted fact. Moreover, a court must consider 

all motions for summary judgment -- whether properly opposed, 

improperly opposed, or unopposed -- on the merits and can grant 

them only if the evidence properly presented entitles the moving 

party to judgment as a matter of law. Fed. R. Civ. P. 56(e); 

Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 9 (1st Cir. 2003). The 

bankruptcy court carried out this obligation on the record properly 

submitted. 

B.

We now consider the bankruptcy court's granting of 

Appellees' joint motion for summary judgment. "The legal 

standards traditionally applicable to motions for summary judgment 

. . . apply without change in bankruptcy proceedings." In re

Moultonborough Hotel Grp., LLC, 726 F.3d 1, 4 (1st Cir. 2013). We 

review a grant of summary judgment de novo, examining the record 

in the light most favorable to the non-moving party, drawing all 

reasonable inferences in that party's favor. Hardy v. Loon 

Mountain Recreation Corp., 276 F.3d 18, 20 (1st Cir. 2002). 

"Summary judgment is warranted only if, after reviewing the record 

in the manner just described, we determine that there is no genuine 

issue as to any material fact and that the moving party is entitled 

to judgment as a matter of law." Baez v. Town of Brookline, 44 

F.4th 79, 82 (1st Cir. 2022) (quotation omitted).
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The Bankruptcy Code "limits the opportunity for a 

completely unencumbered new beginning to the honest but 

unfortunate debtor." Premier Cap., LLC v. Crawford (In re

Crawford), 841 F.3d 1, 7 (1st Cir. 2016) (internal quotation marks 

omitted) (quoting Grogan v. Garner, 498 U.S. 279, 286-87 (1991)). 

"[T]o make certain that those who seek the shelter of the 

bankruptcy code do not play fast and loose with their assets or 

with the reality of their affairs," 11 U.S.C. § 727 provides 

several exceptions to a debtor's discharge from Chapter 7 

bankruptcy. Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st 

Cir. 1987). Although "the statutory right to a discharge should 

ordinarily be construed liberally in favor of a debtor," this is 

not so when a claim "falls squarely" into one of the § 727(a) 

enumerated exceptions. In re Crawford, 841 F.3d at 7-8 (quoting 

In re Tully, 818 F.2d at 110). This case involves, "squarely,"

§ 727(a)(4)(A), which authorizes the denial of a discharge when 

the debtor "knowingly and fraudulently, in or in connection with 

the case . . . made a false oath or account" related to a "material 

fact." See id. (alteration in original) (quoting 11 U.S.C. 

§ 727(a)(4)(A)).

1. The False Oaths

The false oaths that Appellees brought to the attention 

of the bankruptcy court resided in Kupperstein's SOFA and Schedule 

A/B of his Chapter 7 petition. A debtor files all petitions, 
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schedules, statements, and amendments in bankruptcy court under 

oath. Fed. R. Bankr. P. 1008. Kupperstein, an attorney, never 

claimed to have misunderstood the significance of signing 

bankruptcy forms. 

The SOFA required Kupperstein to disclose all gross 

income that he received in the year of his bankruptcy filing and 

in the prior two calendar years. Specific questions on the form 

organized these disclosures. The questions relevant here sought:

(1) the total income from employment or operating a business, to 

which Kupperstein answered "no"; (2) other income, including 

"gross income" regardless of whether it was taxable, to which 

Kupperstein listed only income from social security, retirement, 

and IRA distributions; (3) connections to any business, including 

sole proprietor or self-employment, to which Kupperstein responded 

"No. None of the above applies"; and (4) any financial statements 

provided to "creditors, or other parties," to which Kupperstein 

replied "no."

But Kupperstein's individual federal income tax returns 

for 2016 and 2017 (which he prepared) told a different story. 

They revealed a law practice of which he was the proprietor with 

a reported gross income. He also submitted a financial statement

to a state court about three weeks before he filed his bankruptcy 

petition where he listed a weekly gross salary for his occupation 
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of "[a]ttorney (semi-retired)."2 In addition, while Kupperstein 

did not disclose $17,500 of "other income" from a title insurance 

settlement on his SOFA, he did include it on his 2016 individual 

federal income tax return.

Kupperstein attempts to explain away these omissions by 

parsing language. He claims to have no income from "employment,"

as Massachusetts law would define that term, or from "operating a 

business" because he is an "independent contractor" who takes on 

occasional clients. However he defines himself under state law, 

he failed to disclose income, a term defined broadly in the 

Bankruptcy Code. See, e.g., 11 U.S.C. § 101(10A) (defining 

"current monthly income" as the "average monthly income from all 

sources that the debtor receives . . . without regard to whether 

such income is taxable income"); see also Fed. R. Bankr. P. 9009(c) 

(requiring construction of bankruptcy forms in a manner consistent 

with the Federal Rules of Bankruptcy Procedure and the Bankruptcy 

Code). And regarding the settlement funds from a title insurer, 

Kupperstein argues that he did not disclose this income on his 

SOFA because it was reimbursement for money lost and that the 

2 Kupperstein argues that the financial statement (which he 

acknowledged filing) is inadmissible and should not have been 

considered on the motions for summary judgment. We find that he 

has not adequately preserved this issue for appeal. First, the 

bankruptcy court found that he had waived objection to Appellees'

use of the statement as a trial exhibit and, at the summary 

judgment hearing, he offered to research and provide support for

his objection but never did so.
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settlement was not taxable. Neither argument excuses the failure 

to disclose this significant payment. Question 5 of the SOFA 

requires disclosure of "money collected from lawsuits" and "income 

regardless of whether that income is taxable." In short, 

Kupperstein omitted required information on his SOFA, leading to 

the indisputable conclusion that Kupperstein made false oaths on 

that filing. 

And he also did so on the Schedule A/B. That form 

required him to disclose certain types of assets, including real 

property. What he did not report was that in 2016, Kupperstein 

was granted a $250,000 mortgage on a property in Boston. In 

addition, Kupperstein received an assignment of the property's 

leases and rents. All this information was publicly available as 

the mortgage and the assignment were recorded in the registry of 

deeds on October 3, 2016.

The bankruptcy court properly examined this evidence and 

determined that this omission was a false oath. Contrary to 

Kupperstein's assertions, the Schedule A/B omissions are not an 

issue of "credibility" that cannot be determined on summary 

judgment, but an examination of indisputable documentary evidence. 

And his argument that he was not the mortgagee or mortgagor of the 

property is contradicted by the mortgage deed, which expressly 

granted "mortgage covenants, to secure the payment of $250,000" to 

Kupperstein.
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2. "Knowingly and Fraudulently"

False oaths alone, however, are not enough to deny a 

discharge under 11 U.S.C. § 727(a)(4)(A). The falsehoods must be 

made "knowingly and fraudulently." In re Crawford, 841 F.3d at 8 

(quoting 11 U.S.C. § 727(a)(4)(A)). A debtor "knowingly and 

fraudulently" makes a false oath if, despite knowing the truth, 

the debtor "nonetheless willfully and intentionally swears to what 

is false." Hannon v. ABCD Holdings, LLC (In re Hannon), 839 F.3d 

63, 72 (1st Cir. 2016) (quoting Lussier v. Sullivan (In re 

Sullivan), 455 B.R. 829, 837 (1st Cir. BAP 2011)). This standard 

also can be met with a showing that the debtor acted with a 

"reckless indifference to the truth." In re Tully, 818 F.2d at 

112 (quoting Diorio v. Kreisler-Borg Constr. Co. (In re Diorio), 

407 F.2d 1330, 1331 (2d Cir. 1969)). 

Summary judgment is appropriate when the evidence is 

conclusive enough to yield "no plausible conclusion but that the 

debtor's intent was fraudulent" or if "the non-movant relies on 

conclusory allegations or insupportable inferences" or "fails to 

create any reasonable basis for avoiding the conclusion that he 

acted, at best, with reckless disregard for the truth of the 

material information he supplied during his bankruptcy 

proceedings." Id. at 83, 85; In re Marrama, 445 F.3d 518, 522 

(1st Cir. 2006); see also Santiago v. Canon U.S.A., Inc., 138 F.3d 

1, 5 (1st Cir. 1998). 
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As for the omissions on his SOFA, Kupperstein argues 

that these were not made "knowingly and fraudulently" based upon

his legal argument that he was not required to disclose the income 

at issue. Having disposed of that argument above, we consider 

whether the facts indicate that the false statements were made 

"knowingly and fraudulently."

Kupperstein personally prepared his 2016 and 2017 tax 

returns, claiming, in direct contrast to his SOFA, a gross income 

from a law practice. Moreover, about three weeks before he filed 

his bankruptcy petition, he provided a financial statement to a 

state court noting a $250 per week salary, which would equal the

roughly $13,000 income he reported on his 2017 tax return. And 

the same goes for the "other income" -- the $17,500 settlement 

from the title insurer -- which Kupperstein also included on his 

self-completed tax return. Yet he omitted all this information 

in response to the SOFA's broad and direct questions seeking

disclosure of income and its sources. Moreover, he signed the 

SOFA under a paragraph attesting, under penalty of perjury, that 

he had "read the answers" provided and that his answers were "true 

and correct." The only reasonable conclusion from the evidence, 

as the bankruptcy court determined, is that Kupperstein knowingly 

supplied a false oath regarding his SOFA. 

As to his Schedule A/B, Kupperstein did not dispute that 

he knowingly omitted the mortgage and assignment of rents but 
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offered a convoluted, implausible explanation that the mortgage 

was valueless despite there being no evidence it was ever 

discharged. We agree with the bankruptcy court that Kupperstein's 

"belated and illogical justifications only served to enhance the 

appearance of fraud."

3. Materiality

Finally, to justify denial of a discharge under 11 U.S.C. 

§ 727(a)(4)(A), a false oath made "knowingly and fraudulently"

must also relate to a "material fact." In re Crawford, 841 F.3d 

at 8. A false oath is material if it "bears a relationship to the 

debtor's business transactions or estate, or concerns the 

discovery of assets, business dealings, or the existence and 

disposition of property." In re Hannon, 839 F.3d at 75 (quoting

Lussier v. Sullivan (In re Sullivan), 455 B.R. 829, 829 (1st Cir. 

BAP 2011)); Daniels, 736 F.3d at 82 ("Information omitted from a 

bankruptcy petition or schedule is material if it is 'pertinent to 

the discovery of assets, including the history of a bankrupt's 

financial transactions.'") (quoting In re Mascolo, 505 F.2d 274, 

277 (1st Cir. 1974)). "[T]he threshold to materiality is fairly 

low." In re Crawford, 841 F.3d at 8 (quoting In re Sullivan, 455 

B.R. at 839).

Kupperstein offers only the conclusory argument that any 

false oaths were "certainly not material." Such a conclusory 

argument of course is not enough to defeat summary judgment. 
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Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 313 (1st Cir. 

2016). In all events, the subject matter of each false oath, as 

the bankruptcy court properly held, was material. Kupperstein's 

omitted law practice income related to his business transactions 

and the discovery of his business dealings; the title insurance

payment related to his history of financial transactions, 

particularly during the look-back periods that apply to fraudulent 

transfers; and his omission of the mortgage and the rents 

assignment would have provided Appellees insight into 

Kupperstein's financial transactions and opportunity to 

investigate the same. Kupperstein's false oaths therefore were 

material and warranted the denial of his discharge.

IV. Conclusion

The bankruptcy court properly granted Appellees' joint 

motion for summary judgment and denied appellant's motion. We 

therefore affirm the district court's order and award costs to 

Appellees.