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*

This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8013-1.

**At oral argument, appellant Miller orally requested a

continuance. She argued that, if she had known that Turoci was

going to appear and argue on behalf of appellee Gilliam, she

would have sought counsel to represent her at oral argument. 

This Panel denied Miller’s continuance request. Unlike hearings

that take place in the bankruptcy court, oral argument before

(continued...)

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1248-MkHKi

)

EDWARD GILLIAM, ) Bk. No. RS 08-26743-CB

)

Debtor. ) Adv. Nos. RS 09-01091-CB

______________________________) RS 09-01145-CB

)

MINON MILLER, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

EDWARD GILLIAM, )

)

Appellee. )

______________________________)

Argued and Submitted on February 24, 2012

at Pasadena, California

Filed - April 6, 2012

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Catherine E. Bauer, Bankruptcy Judge, Presiding 

Appearances: Appellant Minon Miller, in propria persona, argued

on her own behalf; Todd Turoci of The Turoci Firm

argued on behalf of Appellee Edward Gilliam.**

FILED

APR 06 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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**(...continued)

this Panel is not considered a formal hearing of record at which

evidence may be taken and arguments made for the first time. In

deciding appeals, this Panel generally relies on the parties’

papers rather than on oral argument. In light of the above, we

confirm that Miller’s lack of counsel at oral argument did not

affect her appeal in any material way.

In any event, on March 16, 2012, Turoci filed a motion to

withdraw as counsel. Miller has not objected, and thus we will 

grant that motion. As a consequence, Gilliam will hereafter be

noted on the BAP’s docket as representing himself, and his name,

address and telephone number as provided by his former counsel

will be listed on the BAP docket. Gilliam's name, address and

telephone number shall henceforth be used in this appeal for

service of notice and other papers on Gilliam.

1

Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. All “Civil Rule” references are to

the Federal Rules of Civil Procedure, and all “Evidence Rule”

references are to the Federal Rules of Evidence.

Before: MARKELL, HOLLOWELL and KIRSCHER, Bankruptcy Judges.

INTRODUCTION

Appellant Minon Miller (“Miller”) sued debtor Edward Gilliam

(“Gilliam”) to have his debt declared nondischargeable under

§ 523(a)(2)(B)1 and to revoke his discharge under § 727(d)(1) and

(2). The bankruptcy court granted summary judgment in favor of

Gilliam on the § 523(a)(2)(B) claim and on the § 727(d)(2) claim,

and granted judgment after trial in favor of Gilliam on the

§ 727(d)(1) claim. The bankruptcy court also granted Gilliam’s

request for fees pursuant to § 523(d). We AFFIRM.

FACTS

This matter is the latest installment of a long-running and

ugly dispute between the parties. Both sides apparently believe
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2

On November 29, 2011, the Panel issued an order requiring

that the excerpts of the record would be imaged by the BAP Clerk

and made available for public view on the electronic docket. A

review of these excerpts indicated that they contained sensitive 

personal information, including bank account numbers. See BAP

Docket at 22. The Panel has a duty to protect against

unauthorized use of this information. See Rule 9037. 

Accordingly, appellant's excerpts of the record at BAP docket

number 22 will be locked on the electronic docket and will not be

available for public view.

3

As might be expected, Gilliam moved to reconsider that

motion as well, and included arguments on the merits of his

appeal in that brief.

3

that good advocacy is measured by the amount of words used. 

Hundreds upon hundreds of mostly irrelevant pages of invective

and philippic have been filed, some of which were improper.2

While we have reviewed the entire record, we must note the

obvious: this form of advocacy is, at best, counterproductive. 

The parties’ internecine fighting has affected this appeal. 

To maintain order, this Panel entered an order before oral

argument barring the parties from filing unauthorized and

successive briefs, and from filing “new” evidence to support

their claims and contentions.3 We continue that order with the

entry of this memorandum; other than a motion for rehearing under

rule 8015, any opposition to that motion, and any notice of

appeal, the parties may not file anything further in this appeal. 

And any paper that is filed must not exceed 15 pages of argument,

and may not have more than 25 pages in the aggregate of exhibits

(not counting any necessary attachments to any notice of appeal). 

Any papers not complying with these restrictions will be returned

to that party unfiled. 

As to the merits, the facts are relatively simple. The
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4

Miller met with Gilliam at the Carson Property before she

entered into the Agreement, but she claimed that she did not

notice the problems until she moved in.

4

dispute between Miller and Gilliam arises from a “Lease with

Purchase Option” agreement (“Agreement”) they entered into in

March 2007. Under the Agreement, Miller was to rent from

Gilliam, for a period of one year, a single-family residence

located in Carson, California (“Carson Property”). The agreed

monthly rent was $3,300. The Agreement also gave Miller the

option to purchase the Carson Property for $825,000 or “market

price,” whichever was lower.

Miller had learned of the Carson Property from a newspaper

advertisement (“Advertisement”), which identified the Carson

Property as follows:

GORGEOUS 5-BEDROOM 3 BATH CARSON Home. Lease Option. 

Fireplace. Portion Rental Payment goes toward Down

Payment.

Declaration of Minon Miller (“Miller Decl.”) (Sep. 28, 2010) at

Ex. 1 (emphasis in original).

But all was not well at the Carson Property. According to

Miller, within a few weeks after she signed the Agreement, she

discovered that the property was in “bad condition.” Among other

things, she complained that there was no heat, no thermostat,

inadequate hot water, missing door knobs, a broken toilet and a

broken front door lock.4

More serious problems existed. For instance, one of the

five bedrooms was an unpermitted addition that, according to

Miller, was poorly constructed, ill-maintained and 

uninhabitable.
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5

Notwithstanding all the problems, Miller still sought to

exercise her option to purchase the Carson Property. In November

2007, she sent a letter attempting to exercise the option for a

strike price of $578,000, claiming that $578,000 was the market

value of the property. She also, however, added conditions to

her attempted exercise of the option. Among other things, the

conditions included: (1) Gilliam fixing the preexisting problems,

(2) Miller obtaining financing, and (3) satisfactory reports on

the property’s condition from a home inspector and the City of

Carson. In December 2007, Gilliam sent a letter to Miller

rejecting her November 2007 purchase offer, claiming that her

purchase offer did not comply with the option in the Agreement.

According to Miller, Gilliam never intended to sell the

Carson Property to her, that the Agreement with the purchase

option was just a scam to induce her to rent a substandard

property at an inflated price. Miller further contended that, at

the time Gilliam was supposedly bound by the option, he

nonetheless continued to market and list the Carson Property for

sale. 

The dispute over the Carson Property spawned a number of

state court lawsuits. Miller filed two small claims lawsuits

against Gilliam (Case Nos. COM 08S01715 and COM 08S01716) (“Small

Claims Cases”). She also filed a complaint in Los Angeles

Superior Court for, among other things, breach of contract,

fraud, and intentional and negligent infliction of emotion

distress, all allegedly arising from the parties’ dealings in

relation to the Carson Property (LASC Case No. BC382802). 

Meanwhile, Gilliam filed his own Los Angeles Superior Court
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5

It is not clear from the record whether the parties fully

advised the bankruptcy court of the status or outcome (if any) of

these state court actions at or before the time the court entered

the orders on appeal. Although the parties' papers characterized

the status and supposed outcomes of some of these actions, the

characterizations often conflicted. Despite these conflicts,

neither party appears to have given the bankruptcy court

authoritative documentation corroborating their respective

characterizations. In any event, the status/outcomes of the

state court actions are not essential to our analysis and

resolution of this appeal.

6

action against Miller for breach of contract, intentional

interference with prospective economic advantage, and intentional

interference with contractual relationship (LASC Case No.

BC398630). Gilliam also filed two unlawful detainer actions

against Miller (Case Nos. 08Q01024 and 08Q02108) (“Unlawful

Detainer Cases”).5

Gilliam filed his current chapter 7 bankruptcy case (Case

No. 08-26743) in November 2008, and Christopher Barclay was

appointed to serve as trustee (“Trustee”). Gilliam filed his

initial bankruptcy schedules and statement of financial affairs

in December 2008 (“December Schedules”), and filed amendments to

some of his schedules in January 2009 (“January Schedules”). On

January 26, 2009, the Trustee concluded Gilliam’s § 341(a)

meeting of creditors, and on February 3, 2009, the Trustee filed

a no-asset report in which he certified that he had performed his

duties as trustee and had concluded there were no estate assets

for him to administer for the benefit of creditors. The

bankruptcy court entered Gilliam’s discharge pursuant to § 727(b)
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6Notwithstanding the voluminous record provided by the

parties, we obtained some of the basic information regarding

Gilliam’s bankruptcy case by accessing the bankruptcy court’s

electronic docket and reviewing the imaged documents attached

thereto. We can take judicial notice of the filing and contents

of these items. See Barnes v. Belice (In re Belice), 461 B.R.

564, 569 n.2 (9th Cir. BAP 2011).

7The Trustee evidently was aware of the existence of all of

these properties. However, nothing in the record indicates what

the Trustee knew about Gilliam’s efforts to rent some of these

properties. Presumably, the Trustee would have inquired about

them at the § 341(a) meeting of creditors, and possibly contacted

Gilliam outside the meeting of creditors about them, but

conspicuously absent from the record is any indication about the

Trustee’s discussions regarding these properties, their potential

rental value, and their worth (if any) to the estate. We do know

that the Trustee in his no asset report concluded that there were

no assets of value for him to administer for the benefit of

creditors. We also know from Gilliam’s Statement of Intention

Regarding Debts Secured by Property of the Estate that he

intended to retain each of the properties and to make the

mortgage payments owed on each of them. Various filings in the

bankruptcy case suggest that most of the properties were subject

to foreclosure proceedings at or around the time of Gilliam’s

bankruptcy filing.

7

on March 9, 2009.6

In his December Schedules, Gilliam disclosed that he owned

four parcels of real property, as follows:

Property Located at: 716 West 123rd Street, Los Angeles, CA

Current Value: $434,000; Encumbrances: $711,892

Property Located at: (Duplex) 1146 & 1148 East 21st, Long

Beach, CA

Current Value: $411,000; Encumbrances: $517,000

Primary Residence located at: 19426 Via Del Caballo, Yorba

Linda, CA

Current Value: $2,273,500; Encumbrances: $2,723,057

Property Located at: 19002 Kemp Avenue, Carson, CA [the

Carson Property]

Current Value $480,500; Encumbrances: $659,472 

Schedule A listing of real property (Dec. 10, 2008) at p. 1.7
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8

Also in his December Schedules, Gilliam represented he was

the sole shareholder of two corporations, Gold Diamond

Enterprises, Inc. and ERG Community Care, Inc. Gilliam further

represented that Gold Diamond owned two automobiles, each with

roughly 50,000 miles on it. Otherwise, Gilliam indicated that

these corporations held no assets of significant value. In his

January Schedules, in addition to Gold Diamond and ERG Community

Care, Gilliam listed fourteen additional corporations he owned

(collectively, “Business Affiliates”). According to Gilliam,

none of the fourteen additional Business Affiliates had any

assets or value, nor had they done any business.

On February 27, 2009, Miller filed a complaint seeking a

determination of nondischargeability of debt

(“Nondischargeability Complaint”), and on March 30, 2009, a

complaint to revoke Gilliam’s discharge (“Complaint to Revoke”). 

The bankruptcy court consolidated these two adversary proceedings

by order entered October 27, 2009. The Nondischargeability

Complaint was based on the dispute over the Carson Property and

contained a single claim for relief under § 523(a)(2)(B). 

Meanwhile, in the Complaint to Revoke, Miller alleged that

Gilliam misrepresented and omitted certain assets and income in

his schedules and statement of financial affairs. More

specifically, Miller alleged that, under § 727(d)(1) and (2),

Gilliam’s discharge should be revoked, based in part on the

following alleged facts:

1. Debtor declared under false oaths, that he had “No

Assets” including income or cash to pay any Creditor

yet he purchased a Builders Permit to remove an

unpermitted upstairs bedroom and build a gable roof for

[the Carson] property . . . before discharge was
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9

issued.

2. Debtor declared “No Assets” including income or

cash to pay Creditors yet debtor restored property of

the estate [the Carson Property], solicited new tenant,

collected deposit and rent from new tenants [later

identified as Frieda and William Jordon].

3. Statements submitted by Debtor as well as

testimony, states all property is in foreclosure with

no payment given to any lender yet Debtor has collected

deposits and rents without permission of the Court or

the Trustee.

4. Debtor intentionally concealed income from Sports

Entertainment Business, under Gold Diamond Enterprises,

LLC.

5. Debtor intentionally concealed income as a Sports

Agent under Gold Diamond Enterprises, LLC.

6. Debtor intentionally misstated income ($23,000.00)

a month generated from Gold Diamond Enterprise Inc.

derive from “Property Management that consist of

collecting rent from one property located at 716 E

123rd St., Los Angeles, CA 90746, which is a single

family home.

7. Debtor intentionally submitted false Statement of

Financial Affairs.

8. Debtor submitted false testimony and submitted

false schedules that income source is from Gold Diamond

Enterprises Inc. (Property Mgmt) and Non Profit Shelter

(ERG Community Care, Inc.).

9. On February 12, 2009 while awaiting discharge of

“No Asset” Chapter 7, debtor paid for and obtained a

Builder's Permit Extension from the City of Carson to

remove unpermitted bedroom and build gable roof [for

the Carson Property].

10. While in bankruptcy awaiting discharge, and

declaring “No Assets”, Debtor repaired vacant property

and prepared to enter into new lease agreement. Vacant

property required major repairs that are deemed

inhabitable due to unpermitted unsafe bedroom, visible

cracks in the walls and ceiling, leaks, inadequate

plumbing, and slow drains [again, apparently talking

about the Carson Property].

11. While in bankruptcy debtor negotiated new tenants,

collected deposit and rent from the new tenants (the

Jordons) before obtaining discharge.
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8

Miller filed both of the complaints in pro se, but she

retained counsel by no later than April 2009, and she was

represented by counsel throughout the remainder of the bankruptcy

court litigation, including all discovery disputes, during the

summary judgment proceedings, and at all hearings.

9

Miller argues on appeal that her ability to prosecute her

case and collect evidence was hampered by Gilliam’s obstructive

discovery tactics. In addition, Miller contends that the court

did not adequately take into account Gilliam’s obstructive

discovery tactics in assessing the reasonableness of his request

for fees under § 523(d). But the outcome of the discovery

motions tells a slightly different story. Looking at all of them

as a whole, Miller lost more than she won, which suggests, at a

minimum, that both parties at times were less than reasonable in

their discovery practices.

10

12. On March 20, 2009 debtor arrived at newly repaired

[Carson] property driving a Black Mercedes that was not

included in Bankruptcy schedules to give his tenants

(the Jordons) the key to the [Carson] property . . .

and sign lease agreement which was later signed March

23, 2009.

Complaint (Mar. 30, 2009) at pp. 2-4.8

The discovery process was highly contentious. The parties

filed numerous discovery motions, and the discovery deadline was

continued several times. Some (but certainly not all) of the

papers relating to the parties’ discovery motions are included in

the excerpts of record. We have reviewed those papers, as well

as others, by accessing the bankruptcy court’s electronic docket. 

In addition, transcripts from a few of the discovery hearings are

available. Neither party has challenged on appeal the court’s

rulings on their respective discovery motions, so the specifics

of each discovery motion are not material to our resolution of

this appeal.9

In September 2009, Gilliam filed a separate summary judgment
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10In her excerpts of record, Miller did not provide us with

the 800-page request for judicial notice she filed in the

bankruptcy court in support of her summary judgment opposition. 

By order entered October 7, 2010, the bankruptcy court restricted

public access to the judicial notice request presumably because

of concerns raised at the October 6, 2010 hearing, and in a

motion to strike filed by Gilliam, that the judicial notice

request might contain unredacted information to which Gilliam

might be entitled to some measure of privacy.

(continued...)

11

motion in each adversary proceeding. Both were continued from

time to time and eventually taken off calendar pending the

completion of discovery. In June 2010, after the court’s

consolidation of the two adversary proceedings, Gilliam filed a

new summary judgment motion, covering the claims alleged in both

adversary proceedings. 

By June 2010, discovery was substantially completed. 

Gilliam’s deposition was completed that same month, and the only

discovery outstanding after that were subpoenas for various

records that Miller served on Gilliam’s banks and his Business

Affiliates. Gilliam brought several motions to quash these

subpoenas, and the court granted all but one: Miller’s subpoena

to Bank of America seeking Gilliam’s bank records was not

quashed. According to Miller, she did not receive Gilliam’s bank

records from Bank of America (“Bank Records”) until September 21,

2010, the day before her opposition to Gilliam’s summary judgment

motion was due, and fifteen days before the hearing on the

summary judgment motion. The court denied Miller’s motion to

further continue the summary judgment hearing.

Miller belatedly filed her opposition to the summary

judgment motion on September 28, 2010,10 and the court held its
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10(...continued)

Miller apparently misinterpreted the court’s order

restricting public access as somehow restricting her from

providing us with a copy. Further, we have not been able to

obtain a copy of the judicial notice request by simply accessing

the bankruptcy court’s electronic adversary proceeding docket

(presumably because of the bankruptcy court’s order restricting

access to this document).

Nonetheless, we have reviewed Miller’s comments regarding

the contents of the judicial notice request included in her

appeal brief and in her September 28, 2010 Declaration in support

of her summary judgment opposition. These comments indicate that

many (if not most) of the documents attached to the judicial

notice request were documents that the bankruptcy court could not

properly take judicial notice of under Evidence Rule 201. Among

other things, the judicial notice request contained the 363 pages

of Bank Records produced by Bank of America. Miller has made all

of the Bank Records available to us elsewhere in the Excerpts of

Record, as they also were part of her submissions at the time of

trial. The judicial notice request also apparently contained:

(1) a declaration filed by Gilliam in a state court lawsuit;

(2) excerpts from Gilliam’s deposition testimony; (3) A notice of

default on the Carson Property; (4) a history of Gilliam’s

mortgage payments on the Carson Property; and (5) various other

documents from the state court litigation between Miller and

Gilliam.

Based on our review of the Bank Records and on Miller’s

description of the other documents, we conclude that none of them

would alter our analysis and disposition of the court’s summary

judgment rulings.

12

initial hearing on the summary judgment motion on October 6,

2010. At the hearing, the court ruled against Miller on her

§ 523(a)(2)(B) claim, primarily because neither of the two

documents on which Miller based her § 523(a)(2)(B) claim – the

Advertisement and the Agreement – constituted a statement

respecting the debtor’s financial condition within the meaning of

§ 523(a)(2)(B). The court indicated that it was inclined to

grant the remainder of the summary judgment motion, but that it

would give Miller ten more days to file a supplemental brief of
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11The court further suggested at the October 6, 2010 hearing

that “res judicata” might be an alternate basis for its ruling on

the § 523(a)(2)(B) claim. In light of our analysis and

disposition of this appeal, we do not reach that issue.

13

no more that 25 pages (including exhibits) pinpointing the

disputed facts and Miller’s evidence demonstrating that there

were genuine issues concerning her § 727(d) claims. On

October 22, 2010, the court entered an order consistent with its

October 6, 2010 oral rulings.11

After the parties filed their supplemental briefs, the court

entered an order on November 3, 2010, granting summary judgment

against Miller on her § 727(d)(2) claim. As the court put it,

“Gilliam met his burden of proving no genuine issue of material

fact that Gilliam acquired and failed to disclose property to the

Trustee, and Miller has failed to provide any evidence showing a

genuine issue of material fact.” Order Granting Summary Judgment

In Part (Nov. 3, 2010) at 2:28-3:2. 

Indeed, Miller’s only fact related to the alleged

postpetition acquisition of estate assets was Gilliam’s apparent

receipt of $3,000 in rent from Frieda and William Jordon – the

subsequent renters of the Carson Property. Significantly, Miller

did not refer to any issue of fact regarding whether Gilliam

attempted to conceal the $3,000 in rent from the Trustee, nor did

Miller present any evidence pertaining to this issue. 

The court held an additional hearing on the summary judgment

motion on November 29, 2010, specifically concerning Miller’s

sole remaining claim, the § 727(d)(1) claim. At the hearing, the

court heard testimony regarding whether Gilliam had a fraudulent
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intent when he omitted or misrepresented certain information in

his bankruptcy schedules. The court also heard at this same

hearing Gilliam’s § 523(d) request for fees. 

Ultimately, the court denied Gilliam’s motion for summary

judgment with respect to Miller’s § 727(d)(1) claim, concluding

that there were disputed issues of fact that needed to be tried. 

However, the court granted Gilliam’s § 523(d) fee request for the

full amount requested – $27,788.24. The court based its fee

award on its finding that Miller’s § 523(a)(2)(B) claim was not

well founded and its finding that the amount of fees requested

were reasonable.

On December 20, 2010, the court entered an order setting

March 22, 2011 as the trial date and setting forth certain trial

procedures. In pertinent part, the order required the parties to

submit all direct testimony by declaration, and to have all

witnesses giving testimony by declaration available at trial for

cross-examination.

The court ruled against Miller on her § 727(d)(1) claim

after a trial held on March 22, 2011. The primary basis for the

court’s ruling was its finding that Miller did not prove by a

preponderance of the evidence that Gilliam had any fraudulent

intent with respect to any errors or omissions in his bankruptcy

schedules or in his statement of financial affairs. But the

court also found it significant that there was no testimony or

other evidence from the Trustee or anyone else demonstrating that

any of the so-called errors or omissions would have impacted the

administration of the estate or caused the Trustee to seek denial

of Gilliam’s discharge.
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12A motions panel of this Panel previously issued an order

concluding that, by operation of Civil Rule 58(c)(2)(B) (made

applicable in adversary proceedings by Rule 7058), Miller timely

filed her notice of appeal.

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Finally, the court stated: 

Just a little bit of a follow up, there was no

foundation laid for Exhibit 1 [the Bank Records] to the

extent that they are bank records. There was no

connection made between any of these numbers in

anything that I could pinpoint to indicate what it

meant. I mean there was no connection made between

certain numbers in this Exhibit 1 and anything that

would lead me to believe there was fraud.

Hr’g Tr. (Mar. 22, 2011) at 62:7-14.

The court entered its final judgment on April 19, 2011, and

Miller timely appealed on May 18, 2011.12

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§ 157(b)(2)(I) and (J), and we have jurisdiction under 28 U.S.C.

§ 158.

ISSUES

1. Did the bankruptcy court commit reversible error in its

summary judgment rulings?

2. Did the bankruptcy court commit reversible error in its

rulings at and after trial?

3. Did the bankruptcy court commit reversible error when it

awarded Gilliam attorneys fees under § 523(d)? 

STANDARDS OF REVIEW

We review the bankruptcy court’s decision to grant summary

judgment de novo. Fichman v. Media Ctr., 512 F.3d 1157, 1159

(9th Cir. 2008).
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Factual findings made by the bankruptcy court after trial on

a discharge revocation claim are reviewed under the clearly

erroneous standard of review. See Rule 8013; Bowman v. Belt

Valley Bank (In re Bowman), 173 B.R. 922, 924 (9th Cir. BAP

1994). A factual finding is clearly erroneous if the appellate

court determines that it is “illogical, implausible, or without

support in the record.” Retz v. Samson (In re Retz), 606 F.3d

1189, 1196 (9th Cir. 2010) (citing United States v. Hinkson,

585 F.3d 1247, 1261-62 & n. 21 (9th Cir. 2009) (en banc)). If

two views of the evidence are possible, the trial judge's choice

between them cannot be clearly erroneous. Anderson v. Bessemer

City, N.C., 470 U.S. 564, 574 (1985). 

We review the bankruptcy court’s evidentiary rulings and its

imposition of discovery sanctions for abuse of discretion. See

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,

1105-06 (9th Cir. 2001). “We afford broad discretion to a

district court's evidentiary rulings. To reverse such a ruling,

we must find that the district court abused its discretion and

that the error was prejudicial. A reviewing court should find

prejudice only if it concludes that, more probably than not, the

lower court's error tainted the verdict.” Harper v. City of Los

Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008)(citations and

internal quotation marks omitted).

Section 523(d) awards also are reviewed for abuse of

discretion. First Card v. Hunt (In re Hunt), 238 F.3d 1098, 1101

(9th Cir. 2001) (citing First Card v. Carolan (In re Carolan),

204 B.R. 980, 984 (9th Cir. BAP 1996)). 

Under the abuse of discretion standard of review, we first
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“determine de novo whether the [bankruptcy] court identified the

correct legal rule to apply to the relief requested.” Hinkson,

585 F.3d at 1262. And if the bankruptcy court identified the

correct legal rule, we then determine under the clearly erroneous

standard whether its factual findings and its application of the

facts to the relevant law were: “(1) illogical, (2) implausible,

or (3) without support in inferences that may be drawn from the

facts in the record.” Id. (internal quotation marks omitted).

DISCUSSION

I. The Bankruptcy Court Did Not Commit Reversible Error in its

Summary Judgment Rulings.

A. General Summary Judgment Standards

“Summary judgment is proper if the pleadings, depositions,

answer to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (internal quotation marks omitted); see also

Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010). 

Under this standard, the moving party is entitled to summary

judgment if the nonmoving party “after adequate time for

discovery . . . fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and

on which that party will bear the burden of proof at trial.” 

Celotex Corp., 477 U.S. at 322; see also Ilko v. Cal. St. Bd. Of

Equalization (In re Ilko), 651 F.3d 1049, 1052 (9th Cir. 2011)

(applying Celotex summary judgment standard to bankruptcy court

adversary proceeding). As explained in Celotex, all other facts
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are immaterial when the nonmoving party fails to submit

sufficient proof of an essential element of its case. Id. at

323.

A mere “scintilla of evidence” is not sufficient; “there

must be evidence on which the jury could reasonably find for the

[non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). Thus, the moving party does not need to negate

or disprove matters on which the nonmoving party will have the

burden of proof at trial. Celotex Corp., 477 U.S. at 325. 

Rather, the moving party need only point out that there is an

absence of evidence to support an element of the nonmoving

party's case. Id.

In deciding a motion for summary judgment, the evidence is

viewed in the light most favorable to the nonmoving party, “and

all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255 (emphasis added). “Credibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not

those of a judge [when] he is ruling on a motion for summary

judgment . . . .” Id. (emphasis added); see also Sluimer,

606 F.3d at 586-87. In sum, evidence of an essential element is

sufficient to defeat summary judgment only if a jury reasonably

could infer from that evidence the existence of that element.

B. Ruling on Section 523(a)(2)(B) Claim

Miller asserts that the bankruptcy court erred when it

granted summary judgment against her on the § 523(a)(2)(B)

nondischargeability claim. Under that section, when the debtor

uses a materially false written statement “respecting the
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debtor’s . . . financial condition” with the intent to deceive,

and thereby incurs a debt, that debt is nondischargeable. 

§ 523(a)(2)(B); see also Field v. Mans, 516 U.S. 59, 64 (1995). 

To lead to nondischargeability under § 523(a)(2)(B), the creditor

must reasonably rely on the false written financial statement,

and the statement must induce the creditor to give the debtor

money, property or services, or to extend credit. Id. at 64-66. 

Here, in granting summary judgment, the bankruptcy court

concluded as a matter of law that neither of the two documents on

which Miller founded the § 523(a)(2)(B) claim – the Advertisement

and the Lease – constituted a statement “respecting the debtor’s

. . . financial condition” within the meaning of § 523(a)(2)(B). 

According to Miller, the bankruptcy court erred in so concluding. 

But we agree with the bankruptcy court. As we recently held in

In re Belice, 461 B.R. at 577-79, the phrase “statement

respecting financial condition” as used in § 523(a)(2)(B) should

be narrowly construed to apply only to statements reflecting

debtors’ net worth, overall cash flow, or overall financial

condition. Simply put, given the content of the Advertisement

and the Lease, we cannot conceive of either document as a

“statement respecting the debtor’s . . . financial condition”

within the meaning of that phrase as we determined in Belice.

Consequently, the bankruptcy court did not err when it

granted summary judgment against Miller on the § 523(a)(2)(B)

claim.

C. Ruling on § 727(d)(2) Claim 

Miller also asserts that the bankruptcy court erred when it

granted summary judgment against her on the § 727(d)(2)
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13A similar absence of evidence in Bowman led us to reverse

a bankruptcy court judgment after trial revoking the debtor’s

discharge under § 727(d)(2). Id. at 926. As we explained

there, without some evidence that Bowman attempted to conceal the

subject insurance proceeds from the trustee, there simply was no

basis to revoke Bowman’s discharge under § 727(d)(2). Id.

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revocation of discharge claim. A debtor’s discharge will be

revoked under that section when the debtor (1) acquired or became

entitled to acquire estate property, and (2) knowingly and

fraudulently failed to report or turnover that property to the

trustee. § 727(d)(2); In re Bowman, 173 B.R. at 925 (citing In

re Yonikus, 974 F.2d 901, 905 (7th Cir. 1992)). Miller bore the

burden of proof to establish by a preponderance of evidence the

elements supporting the § 727(d)(2) claim. Id. at 925-26. 

Here, the only evidence Miller presented of Gilliam

acquiring postpetition an asset of the estate was $3,000 in rent

from the Carson Property. More importantly, however, Miller

presented no evidence at all that the Trustee was unaware of the

$3,000 in rent. Given the complete absence of evidence to

demonstrate that Gilliam attempted to conceal the rent,13 and the

complete absence of evidence to demonstrate that Gilliam acquired

or became entitled to acquire any other estate assets

postpetition, the bankruptcy court properly granted summary

judgment against Miller on the § 727(d)(2) claim.

D. Other Summary Judgment-Related Issues

Miller’s other arguments attacking the court’s summary

judgment rulings lack merit. Miller argues that she was not

given enough time to oppose Gilliam’s summary judgment motion. 

In particular, she points out that she only received the Bank
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Records from Bank of America the day before her summary judgment

opposition was due. However, Gilliam’s summary judgment motions

already had been continued numerous times. Moreover, no amount

of additional time would have improved Miller’s legal argument

that the Lease and the Advertisement were financial statements

within the meaning of § 523(a)(2)(B). As for her § 727(d)(2)

claim, Miller learned no later than June 2010, when she completed

Gilliam’s deposition, that Gilliam received $3,000 in rent from

the Jordons when he rented the Carson Property to them

postpetition. Miller has not explained why, when over three

months elapsed between the completion of the Gilliam deposition

and her filing of her opposition to the summary judgment motion,

she did not have sufficient time to seek from the Trustee some

sort of statement regarding whether he was aware of the $3,000 in

rent from the Carson Property. To the contrary, our review of

the record indicates that Miller had more than ample time to

gather the evidence she needed to support her § 727(d)(2) claim,

but she simply failed to do so.

Miller also argues that the bankruptcy court unduly

restricted her when it limited her to a 25-page supplemental

brief to shore up her opposition to Gilliam’s summary judgment

motion. We disagree. The court already had ruled against Miller

on her § 523(a)(2)(B) claim, and the court made clear that the

purpose of the supplemental brief was to afford Miller with an

additional opportunity to simply point to what evidence supported

her claims under § 727(d)(1) and (2). Moreover, this

supplemental brief was in addition to the voluminous materials

that Miller submitted in her original opposition papers. In any
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14Together with her Reply Brief on appeal, Miller attempts

to offer new evidence, which she claims demonstrates additional

instances when Gilliam postpetition may have acquired or become

entitled to acquire additional assets of the estate. See Miller

Reply (Dec. 22, 2011) at pp. 12-13; Miller Supplemental Excerpts

of Record in Support of Reply (Dec. 22, 2011) at Tabs 65A, 67A,

etc. However, it is clear on the face of the documents Miller

attempts to offer as new evidence that she acquired these

documents well after the bankruptcy court entered its final

judgment against Miller. We cannot and will not consider

Miller’s new evidence because it was not presented to the

bankruptcy court at or before the time the bankruptcy court

entered its judgment. See Oyama v. Sheehan (In re Sheehan),

253 F.3d 507, 512 n.5 (9th Cir. 2001) (“[E]vidence that was not

before the lower court will not generally be considered on

appeal.”); Kirschner v. Uniden Corp. of Am., 842 F.2d 1074,

1077–78 (9th Cir. 1988) (papers not filed or admitted into

evidence by the trial court prior to judgment on appeal were not

part of the record on appeal and thus stricken).

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event, Miller has offered no credible explanation why she was not

afforded a sufficient opportunity to present all evidence that

would have supported her § 727(d)(2) claim. The record reflects

that the bankruptcy court provided Miller with an adequate

opportunity to present the evidence in support of her § 727(d)(2)

claim, but that Miller simply did not have any evidence to submit

in support of one of the essential elements of that claim –

evidence that the Trustee was unaware of $3,000 in rent that

Gilliam apparently received.14

Miller makes reference to several other arguments

challenging the court’s summary judgment rulings. She complains:

(1) that the court expressly refused to read the entirety of the

voluminous papers she submitted in opposition to the summary

judgment motion; (2) that the court denied her due process;

(3) that the court improperly excluded some of the Bank Records

she sought to submit in opposition to the summary judgment
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motion; (4) that the court improperly restricted public access to

her request for judicial notice submitted in opposition to the

summary judgment motion; (5) that the court improperly allowed

Gilliam’s counsel to argue on Gilliam’s behalf at various

hearings even after he purported to withdraw as Gilliam’s

counsel; and (6) that the court improperly allowed Gilliam’s

counsel to draft proposed orders, findings of fact and

conclusions of law. But most of these complaints are derivative

of Miller’s other arguments, discussed and rejected above. More

importantly, none of these complaints, even if they were valid,

would alter or ameliorate the infirmities and gaps in Miller’s

case that properly caused the court to grant summary judgment

against her § 523(a)(2)(B) and § 727(d)(2) claims. In other

words, any actual error of the court relating to Miller’s abovereferenced complaints was harmless, and we must ignore harmless

error. See Litton Loan Serv'g, LP v. Garvida (In re Garvida),

347 B.R. 697, 704 (9th Cir. BAP 2006) (citing 28 U.S.C. § 2111,

Rule 9005, Civil Rule 61, and Donald v. Curry (In re Donald),

328 B.R. 192, 203-04 (9th Cir. BAP 2005)).

II. The Bankruptcy Court Did Not Commit Reversible Error in its

Rulings at and After Trial.

A. Ruling on § 727(d)(1) Claim

Even though a discharge in bankruptcy is reserved for the

“honest but unfortunate debtor,” Grogan v. Garner, 498 U.S. 279,

286-87 (1991), revocation of discharge nonetheless is considered

an extraordinary remedy that runs counter to the Bankruptcy

Code's cornerstone policy of giving debtors a “fresh start.” In

re Bowman, 173 B.R. at 924; see also Tighe v. Valencia (In re
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Guadarrama), 284 B.R. 463, 469 (C.D. Cal. 2002); In re Poole,

177 B.R. 235, 239 (Bankr. E.D. Pa. 1995). Accordingly, the power

to revoke the discharge is construed narrowly “in favor of the

debtor and strictly against those objecting to discharge.” 

Bowman, 173 B.R. at 925 (citing First Beverly Bank v. Adeeb

(In re Adeeb), 787 F.2d 1339, 1342 (9th Cir. 1986)).

Under § 727(d)(1), the trustee or a creditor may seek

revocation of the debtor’s discharge if: (1) the debtor obtained

the discharge through fraud, and (2) the creditor or trustee

seeking to revoke the discharge did not learn of the fraud until

after the discharge was granted. To revoke the debtor’s

discharge pursuant to this statute, the plaintiff must prove by a

preponderance of the evidence that the debtor procured the

discharge through actual fraud, as opposed to constructive fraud,

and that debtor’s discharge would not have been granted but for

the fraud. See Hopkins v. Hugues (In re Hugues), 349 B.R. 72, 78

(Bankr. D. Idaho 2006) (citing White v. Nielsen (In re Nielsen),

383 F.3d 922, 925 (9th Cir. 2004), Bowman 173 B.R. at 925, and

Devers v. Bank of Sheridan, Mont. (In re Devers), 759 F.2d 751,

753–54 (9th Cir. 1985)); In re Guadarrama, 284 B.R. at 469. 

Thus, a finding of fraud in the procurement requires evidence of

some conduct that under § 727(a) would have been sufficient

grounds for denying a discharge in the first instance, such as

debtor knowingly and fraudulently making a false oath in

connection with his bankruptcy case. See 727(a)(4)(A); In re

Hugues, 349 B.R. at 78. 

In this case, Miller offered little evidence from which the

bankruptcy court could infer that Gilliam harbored a fraudulent
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15By not calling Gilliam as a witness as part of her case in

chief, Miller effectively limited the scope of her examination of

Gilliam to the scope allowed for cross-examination. See Evidence

Rule 611(b).

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intent in the process of obtaining his discharge. Instead of

calling Gilliam as a hostile witness as part of her case in

chief, Miller only elicited testimony from Gilliam on crossexamination, after Gilliam offered his direct testimony by

declaration as part of his defense.15

In his trial declaration, Gilliam discussed: (1) his receipt

shortly before his bankruptcy filing of some payments from the

Compton Unified School District (“School District Payments”);

(2) his ownership of several bank accounts not disclosed in his

bankruptcy schedules; and (3) his ownership of several of the

Business Affiliates – The Watershed, Inc., Pro Sports Now, Gold

Diamond Enterprises, and Eirne Consolidated. Gilliam’s

statements in his trial declaration regarding these Business

Affiliates are consistent with his January Schedules. As for the

bank accounts, Gilliam represented that he did not disclose them

because each held only a few dollars, or no money at all, at the

time of his bankruptcy filing. Finally, with respect to the

School District Payments, Gilliam explained that they were either

disability payments or reimbursement for medication he purchased. 

According to Gilliam, he disclosed them in his bankruptcy

petition but did not list them as income, because in his view

they were not income.

Miller’s cross-examination of Gilliam focused heavily on the

Bank Records, but Miller failed to tie any of the Bank Records to
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any specific conduct by Gilliam from which the bankruptcy court

could infer fraud in the procurement of Gilliam’s discharge. In

other words, Miller’s questions and assertions regarding the Bank

Records ultimately did not adduce any evidence tending to prove

any particular misconduct on the part of Gilliam in connection

with his bankruptcy case.

Miller also cross-examined Gilliam regarding the unreported

bank accounts, the School District Payments, and Gilliam’s claim

that the above-referenced Business Affiliates were inactive and

had no assets at the time of his bankruptcy filing. While it was

not discussed in Gilliam’s declaration, Miller also crossexamined Gilliam regarding his state court lawsuit against a man

by the name of Wendell White seeking roughly $24,000 (“White

Lawsuit”).

In sum, the alleged instances of fraudulent

misrepresentation or omission covered during Miller’s crossexamination of Gilliam at trial related to: (1) the School

District Payments, (2) the unreported bank accounts, (3) some of

Gilliam’s Business Affiliates, and (4) the White Lawsuit.

Based on the evidence presented at trial, the bankruptcy

court found in relevant part that any errors or omissions that

Gilliam made in his bankruptcy schedules, in his statement of

financial affairs or in his other bankruptcy disclosures, were

made without the requisite fraudulent intent. As mentioned

above, Miller heavily relied on the Bank Records in support of

her position at trial, but the best evidence in this record

regarding Gilliam’s intent was his trial testimony. Intent is a

question of state of mind, which often is determined based on the
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trier of fact’s assessment of the litigant’s credibility, which

in turn largely depends on the in-court statements of the person

whose state of mind is at issue. See, e.g., Hernandez v. New

York, 500 U.S. 352, 364-65 (1991); Batson v. Kentucky, 476 U.S.

79, 98 & n.21 (1986). 

Gilliam’s testimony enabled the bankruptcy court to make an

informed assessment of his credibility. While the bankruptcy

court did not expressly state that Gilliam’s testimony was

credible, that finding was subsumed within the court’s finding

that Gilliam did not have a fraudulent intent to the extent his

bankruptcy disclosures contained any errors or omissions. We

must give particular deference to the bankruptcy court’s findings

that turn on witness credibility. See Anderson, 470 U.S. at 574-

75; Rule 8013.

Furthermore, as we stated at the outset, we will not reverse

the bankruptcy court’s factual findings unless those findings

were illogical, implausible or without support in the record. 

In re Retz, 606 F.3d at 1196; see also Anderson, 470 U.S. at 574

(stating that trial judge's choice between two permissible views

of the evidence cannot be clearly erroneous). Miller has not

demonstrated on appeal that the bankruptcy court’s finding

concerning Gilliam’s intent met any of the criteria identified in

Retz. To the contrary, based on our review of the record, we

affirmatively and expressly conclude that the bankruptcy court’s

intent finding was logical, plausible and adequately supported by

the record.

In light of our determination upholding the bankruptcy

court’s finding that Gilliam did not have a fraudulent intent,
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and given that fraudulent intent was an element essential to

Miller’s § 727(d)(1) claim, we decline to discuss any of the

court’s other findings of fact concerning the § 727(d)(1) claim. 

The court’s finding of lack of fraudulent intent was sufficient

by itself to support the court’s judgment against Miller on the

§ 727(d)(1) claim.

B. Ruling Excluding Miller’s Expert Witness

Miller also challenges the bankruptcy court’s decision to

exclude the direct testimony of her expert witness Shari Yaros, a

forensic accountant. The bankruptcy court excluded Yaros’

testimony essentially because Miller did not comply with Civil

Rule 26(a)(2), which required advance disclosure of Yaros as an

expert and advance production of Yaros’ expert report. In her

declaration, Yaros reviewed the Bank Records, outlined their

contents, and rendered an extremely limited expert opinion

regarding what the Bank Records showed in terms of Gilliam’s

financial activities and his relationship to some of the Business

Affiliates. In essence, Yaros summarized the flow of funds into

and out of Bank of America Account Number 1801, and identified

some of the sources and recipients of funds from Account Number

1801 as some of Gilliam’s Business Affiliates. But,

significantly, Yaros did not render any opinion that the funds

flowing into or out of Account No. 1801 somehow demonstrated any

type of bankruptcy-related misconduct on the part of Gilliam.

We cannot conclude that the bankruptcy court abused its

discretion in excluding Yaros’ expert testimony. Civil

Rule 26(a)(2) required Miller to disclose Yaros as her expert and

provide a report disclosing Yaros’ expert opinion no later than
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16Presumably, Miller is relying on her unilateral proposed

pretrial order, filed on March 8, 2011, which identified Yaros as

her expert witness and referred the reader to Yaros’ declaration

(signed on March 7, 2011) for the subject matter of Yaros’

testimony. It is not entirely clear precisely when Yaros’

declaration was first made available to the court or to Gilliam,

as it was not attached to the proposed pretrial order, but

certainly it was made available no earlier than March 8, 2011.

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90 days before the date set for trial. At trial, Miller admitted

that she did not comply with Civil Rule 26(a)(2). At one point,

Miller admitted that Yaros’ testimony was not disclosed until the

parties’ exchanged exhibits and witness declarations on or about

March 14, 2011, eight days before trial. At another point,

Miller insisted that Yaros was identified as her expert witness

on March 8, 2011, fourteen days before trial.16

Civil Rule 37(c)(1) makes clear that the court should

exclude such expert testimony when the proponent does not comply

with the requirements of Civil Rule 26(a) or (e), unless the

proponent establishes that the failure to comply was justified or

was harmless. See Daniel v. Coleman Co., Inc., 599 F.3d 1045,

1049 (9th Cir. 2010); Torres v. City of Los Angeles, 548 F.3d

1197, 1212–13 (9th Cir. 2008). The purpose of this exclusionary

rule is to give teeth to the disclosure requirements of Civil

Rule 26(a) “by forbidding the use at trial of any information

required to be disclosed . . . that is not properly disclosed.” 

Yeti by Molly, Ltd., 259 F.3d at 1106.

Here, when the bankruptcy court confronted Miller about her

noncompliance with the disclosure requirements regarding her

expert witness, Miller’s only defense was that the disclosure

requirements under Civil Rule 26(a)(2) should not apply at all,
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because the court issued its trial setting order on December 20,

2010, which was roughly ninety days before the March 22, 2011

hearing date. While the length of time between the trial setting

order and the date of trial likely justified some leeway on the

deadline for complying with Civil Rule 26(a)(2) disclosures, we

agree with the bankruptcy court that this length of time did not

justify Miller’s complete disregard of Civil Rule 26(a)(2). Nor

did Miller attempt to make any showing at all that her failure to

comply was harmless.

As a separate and independent ground for affirmance, Miller

has not established that she was prejudiced by the exclusion of

Yaros’ testimony. Yaros’ testimony contained no opinions that

reasonably could have affected the court’s finding on the

dispositive issue regarding Gilliam’s alleged intent to defraud. 

To the contrary, her testimony for the most part merely

summarized the contents of the Bank Records and drew a handful of

insignificant inferences regarding the flow of funds into and out

of Account Number 1801. The types of inferences that Yaros drew

from the records likely did not even necessitate expert

testimony. The bankruptcy court was capable of drawing most of

these inferences itself, to the extent they were even relevant to

the issues presented at trial. Because the exclusion of Yaros’

testimony was unlikely to have caused any harm to Miller’s

litigation position, the exclusion does not constitute reversible

error under any circumstances. See Daniel, 599 F.3d at 1048-49

(citing Harper, 533 F.3d at 1030).

C. Ruling Excluding Custodian of Records Testimony

In an attempt to authenticate the Bank Records, Miller
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offered at trial the declaration of Jennifer Long, who stated

that she was the custodian of records for Bank of America and who

further stated, in a pro forma manner, that the subject records

were bank records produced in response to a subpoena served on

the Bank.

The court excluded the Long Declaration for two reasons. 

First, it did not state the perjury law (California’s, the United

States’ or some other jurisdiction) under which the declarant was

asserting that her statements were true. Second and more

importantly, the court had ordered each party to ensure that each

witness whose direct testimony they offered by declaration was

present in person at the time of trial so that they would be

available for cross-examination. According to Miller, she had

issued a trial subpoena for Bank of America’s custodian of

records, who she thought would be Jennifer Long. But Bank of

America sent someone other than Jennifer Long to the hearing, a

different custodian of records by the name of Jeffrey Jackson. 

Because Jeffrey Jackson’s direct testimony had not been submitted

in advance of the hearing by declaration, as required by the

court, the court refused to let Jeffrey Jackson testify. 

Miller asserts that the bankruptcy court erred by refusing

to let Jeffrey Jackson testify to authenticate the Bank Records. 

To some extent, we agree with Miller on this point. The record

suggests that Miller might not have had any means to control who

Bank of America sent to act as custodian of records at the

hearing. We understand the bankruptcy court’s desire to have all

direct testimony submitted in the form of declaration, but that

might not always be a realistic demand to place on the parties
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when a party subpoenas for testimony at trial a third party

custodian of records who is an employee of an institution over

whom that party has little or no control.

However, even if we were to assume that the court erred in

not letting Jeffrey Jackson testify in person to authenticate the

Bank Records or, alternately, erred by not admitting the

custodian of records declaration of Jennifer Long, once again,

there is no indication that these evidentiary rulings prejudiced

Miller’s case against Gilliam. To the contrary, the bankruptcy

court admitted the Bank Records into evidence at the time of

trial. Moreover, the Bank Records were, at best, tangentially

related to the dispositive issue of Gilliam’s intent. As

explained above, the best indication of Gilliam’s intent was his

own trial testimony and the bankruptcy court’s contemporaneous

assessment of his credibility. Nothing in the Bank Records under

any circumstances was likely to have altered the court’s finding

regarding Gilliam’s intent, regardless of whether someone from

Bank of America had formally authenticated the Bank Records,

either in person or by declaration. Simply put, any error

respecting the exclusion of the custodian of records testimony

did not prejudice Miller and thus does not constitute reversible

error. See Daniel, 599 F.3d at 1049; Harper, 533 F.3d at 1030.

III. The Bankruptcy Court Did Not Commit Reversible Error When

it Awarded Gilliam Attorneys Fees Under § 523(d).

Section 523(d) provides:

If a creditor requests a determination of

dischargeability of a consumer debt under subsection

(a)(2) of this section, and such debt is discharged,

the court shall grant judgment in favor of the debtor

for the costs of, and a reasonable attorney's fee for,
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17To the extent that Miller could have raised other

arguments challenging the fee award, she has waived them because

she did not raise them either in the bankruptcy court or on

appeal. See In re Belice, 461 B.R. at 569 n.4.

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the proceeding if the court finds that the position of

the creditor was not substantially justified, except

that the court shall not award such costs and fees if

special circumstances would make the award unjust.

To support a request for attorneys fees under § 523(d), a

debtor needs to prove: (1) that the creditor sought to except a

debt from discharge under § 523(a)(2), (2) that the subject debt

was a consumer debt, and (3) that the subject debt ultimately was

discharged. Stine v. Flynn (In re Stine), 254 B.R. 244, 249 (9th

Cir. BAP 2000). “Once the debtor establishes these elements, the

burden shifts to the creditor to prove that its actions were

substantially justified.” Id.

The bankruptcy court granted Gilliam’s request for

$27,788.24 in fees after simply finding that Miller’s

§ 523(a)(2)(B) claim “was not well founded.” Hr’g Tr. (11/29/10)

at 93:14.

In her opposition to Gilliam’s § 523(d) fee request, Miller

had argued that Gilliam’s fee request should be denied because

her § 523(a)(2)(B) claim was substantially justified. Miller

also argued that the fees requested were unreasonably excessive. 

In her appeal brief, Miller appears to raise essentially the same

arguments challenging the bankruptcy court’s fee award that her

counsel argued in the bankruptcy court. We will consider each of

these arguments in turn.17
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A. Substantial Justification

A creditor is “substantially justified” in bringing a

§ 523(a)(2) claim if the claim has a “reasonable basis both in

law and in fact.” In re Hunt, 238 F.3d at 1103. In challenging

the court’s determination of no substantial justification, Miller

relies on the same grounds she relied on to challenge the

bankruptcy court’s summary judgment ruling against her

§ 523(a)(2)(B) claim. 

As we previously explained, Miller argued that the

Advertisement and the Lease constituted statements respecting

Gilliam’s financial condition for purposes of § 523(a)(2)(B), but

under the narrow interpretation of the phrase “statement

respecting the debtor’s financial condition” we adopted in

Belice, both of those documents clearly are not statements

respecting financial condition.

Although Belice only recently construed the meaning of the

phrase “statement respecting financial condition,” there can be

no doubt that the Lease and the Advertisement were not statements

respecting the debtor’s financial condition under any reasonable

interpretation of that term. See generally In re Belice,

461 B.R. at 574 (describing scope of broad interpretation). 

Simply put, neither the Lease nor the Advertisement purported to

describe any aspect of Gilliam’s finances. As such, neither

document could qualify under any recognized standard as a

statement respecting the debtor’s financial condition for

purposes of § 523(a)(2)(B).

Consequently, we perceive no error in the bankruptcy court’s

determination that Miller was not substantially justified in
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bringing her claim under § 523(a)(2)(B).

B. Reasonableness of Fees Requested

We begin our review of the bankruptcy court’s finding on the

reasonableness of Gilliam’s fees by noting that, under the abuse

of discretion standard, we may not “substitute our judgment for

that of the [bankruptcy] court.” Hinkson, 585 F.3d at 1251; see

also Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S.

639, 642 (1976) (per curiam) (holding that, under abuse of

discretion standard, question is not what the appellate court

would have decided in the first instance but rather whether the

trial court abused its discretion in what it decided). 

Furthermore, we reiterate that we may not reverse the bankruptcy

court’s finding that Gilliam’s fees were reasonable unless that

determination was “illogical, implausible, or without support in

the record.” In re Retz, 606 F.3d at 1196.

According to Miller, Gilliam’s fees were excessive because

Gilliam’s counsel charged too much for his services in connection

with Gilliam’s summary judgment motion, and because roughly

$17,000 of the fees requested (by Miller’s reckoning) were

attributable to discovery disputes caused by Gilliam’s failure to

cooperate with the discovery process. However, in ruling on the

fee request, the court had before it only one declaration: the

declaration of Gilliam’s counsel Todd Turoci, and attached to his

declaration was his itemized statement of the services provided

and time expended in defending against both the § 523(a)(2)(B)

claim and the § 727 claims, in the total amount of $55,576.47. 

Of this amount, Turoci estimated that at least half of the fees

were attributable to his defense against the § 523(a)(2)(B)
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claim, and so he requested a fee award of $27,788.24. In his

declaration, Turoci admitted that the cost of defending against

all of the claims went well beyond what it should have cost in an

ordinary case, but unlike Miller, he attributed the additional

cost to Miller’s discovery practices and the manner in which she

prosecuted her claims. The bankruptcy court had first-hand

knowledge of the conduct of both parties in litigating the

underlying adversary proceeding. We thus give significant

deference to the bankruptcy court’s assessment of the

reasonableness of the fees requested because the bankruptcy court

was in the best position, in light of its first-hand knowledge of

the litigation, to make that assessment. See Gill v. Wittenburg

(In re Fin. Corp. of America), 114 B.R. 221, 224 (9th Cir. BAP

1990).

Moreover, Miller’s appeal brief has not pointed us to

anything demonstrating that the court’s assessment of the

reasonableness of the fees was clearly erroneous. Nor can we

conclude, after conducting our own review of the record, that the

bankruptcy court’s reasonableness finding was illogical,

implausible or not supported by the record. Accordingly, we

uphold the bankruptcy court’s award of fees under § 523(d), in

the amount of $27,788.24.

CONCLUSION

For all of the reasons set forth above, we AFFIRM the

bankruptcy court’s summary judgment rulings, its judgment after

trial, and its award of fees under § 523(d).