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 This disposition is not appropriate for publication. 1

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.

 Pursuant to Fed. R. Bankr. P. 8012, the Panel has 2

unanimously determined that oral argument is not necessary in

this appeal, in that the facts and legal argument are adequately

presented in the briefs and record and the decisional process

would not be significantly aided by oral argument.

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. WW-11-1089-PaJuWa

)

ERIC W. KAMIEN and TERRY A. ) Bk. No. 09-19034-SJS

KAMIEN, )

) Adv. No. 09-01575-SJS

Debtors. )

 )

)

CAROL ANN PORTER, )

)

Appellant, )

v. ) M E M O R A N D U M1

)

ERIC W. KAMIEN; TERRY A. )

KAMIEN, )

Appellees. )

______________________________)

Submitted without oral argument on February 9, 20122

Filed - February 9, 2012

Appeal from the United States Bankruptcy Court

for the Western District of Washington

Honorable Samuel J. Steiner, Bankruptcy Judge, Presiding

___________________________

Appearances: Carol Ann Porter, appellant pro se, on brief

Richard J. Wotipka of Broadway Law Group on brief

for appellees Eric W. Kamien and Terry A. Kamien

____________________________

FILED

FEB 09 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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 Hon. Mark. S. Wallace, Bankruptcy Judge for the Central 3

District of California, sitting by designation.

 Unless otherwise indicated, all chapter, section and 4

rule references are to the Bankruptcy Code, 11 U.S.C.

§§ 101-1532, and to the Federal Rules of Bankruptcy Procedure,

Rules 1001-9037. The Federal Rules of Civil Procedure are

referred to as “Civil Rules.”

 As discussed below, Porter provided few documents in her 5

excerpts, and no citations to the record in her statement of the

case and argument. We have exercised our discretion to review

the electronic docket from the underlying bankruptcy case, and

the imaged documents attached thereto. See O’Rourke v. Seaboard

Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th

Cir. 1989); Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

-2-

Before: PAPPAS, JURY and WALLACE, Bankruptcy Judges. 3

Appellant Carol Ann Porter (“Porter”) appeals the

bankruptcy court’s judgment dismissing her complaint to

determine the dischargeability of a debt owed to her by chapter

7 debtors Eric and Terry Kamien (the “Kamiens”) under 4

§ 523(a)(4). We AFFIRM.

FACTS5

Porter and the Kamiens became acquainted in 1998 when

Porter and Eric Kamien both worked for Eagle Hardware Stores. 

Lowe’s Companies, Inc., purchased Eagle Hardware and the

employment of Porter and Eric was terminated. Porter then began

her own business, Kitchen Arts, LLC. Although Porter argues in

her opening brief that she and Eric were partners in Kitchen

Arts, the bankruptcy court would later find that Eric was a

commissioned employee of Porter. Hr’g Tr. 3:22-23, October 29,
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 Despite this allegation of an earlier partnership, in 6

her Complaint, Porter does not refer to a partnership between

her and Eric at Kitchen Arts. Instead, the Complaint states,

“In or around May 2000, Eric Kamien and Terry Kamien and

Plaintff became social friends during the time that Mr. Kamien

was a salesperson, working with Ms. Porter at Kitchen Arts,

LLC[.]” Compl. at ¶ 5.1.

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2010.6

The parties agree that in March 2002, they discussed a

potential real estate project to develop a parcel of property in

Sammamish, Washington (the “Property”). Porter and the Kamiens,

however, strenuously disagree about the nature of their

discussions. Porter alleges that the Kamiens proposed formation

of a partnership between the Kamiens and Porter, whereby they

would purchase the Property, remodel the home, sell it, and

split the net profit. The Kamiens deny there was ever any

partnership, asserting that they purchased the Property in April

2002 for $279,000, and that title was placed in the Kamiens’

names as they were the purchasers of the Property.

There is also considerable disagreement about who provided

funds for the project and in what amounts. Porter alleges that

she provided $350,000 for the project, but the Kamiens dispute

that amount. Porter alleges that Eric Kamien signed a

promissory note in her favor for a loan for the initial funds to

use to remodel the Property on July 1, 2002. The note is for

$70,000 and bears interest at 6 percent interest for one year. 

The Kamiens deny that Eric signed that promissory note, have

alleged that the note was forged, and have forwarded the alleged

note to the F.B.I. for investigation.

The parties agree that the Kamiens moved into the remodeled
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Property in October 2002. Then, on June 1, 2004, the Kamiens

took out a home equity loan against the Property in the amount

of $90,000. The deed of trust executed to secure the loan

indicates that the Kamiens encumbered the Property in their own

names. There is no mention of a partnership. 

On April 21, 2005, Porter recorded a claim of lien against

the Property (the “Lien”). The Lien recites,

[I]n accordance with a contract with Eric W. Kamien

and Terry A. Kamien, [Porter] furnished purchase

money, labor and materials consisting of building

materials for the rebuilding on the [Property] owned

by Eric W. Kamien and Terry A. Kamien of a total value

of Three Hundred Nineteen Thousand Five Hundred Twenty

Three hundred [sic] dollars, $319,523.00, of which

there remains Two Hundred Eighty Seven Thousand [F]ive

Hundred Twenty Three hundred [sic] dollars,

$287,523.00, plus accrued interest . . . and that the

lienor served his [sic] notice to owner on April 19,

2005[.]

Compl., Exh. C. (emphasis added). As can be seen, the Lien

makes no reference to a partnership, refers to the relationship

of Porter and the Kamiens as a “contract” and twice refers to

the Kamiens as the “owners” of the Property.

Porter sued the Kamiens in state court on March 26, 2008. 

Porter v. Kamien, case no. 08-2-10187-8SEA (King County Superior

Court). This action was stayed by the bankruptcy filing. In

her state court action, Porter only alleged a breach of

contract, made no claims that the parties were engaged in a

partnership with fiduciary duties, and made no claim for fraud. 

Porter filed a First Amended Complaint in the state action on

April 10, 2008. Like the original complaint, it alleged a

breach of contract action, and made no reference to a

partnership or fiduciary duties. On January 6, 2009, Porter
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filed a Second Amended Complaint, for the first time alleging

the existence of a partnership relationship among the Kamiens

and Porter and that the Kamiens had breached “Partnership

Fiduciary Duties.”

The Kamiens filed the chapter 7 petition on September 2,

2009. On schedule A, they claimed fee simple ownership of the

Property, which they valued at $535,000.00. On schedule F, they

listed a disputed claim by Porter for $350,000 arising out of

the state court lawsuit. 

On December 7, 2009, acting pro se, Porter commenced the

adversary proceeding giving rise to this appeal. Although not

clearly pled, in the complaint Porter appeared to seek a

judgment declaring that the $350,000 debt allegedly owed to her

by the Kamiens was excepted from discharge; she also sought

denial of discharge.

The Kamiens filed a motion to dismiss the adversary

proceeding under Rule 7012, which incorporates Civil Rule

12(b)(6), on January 8, 2010. They argued that Porter had

failed to allege any facts to support a claim to except the debt

from discharge under § 523, but rather the facts and law pled

showed that she held, at best, a dischargeable breach of

contract claim against the Kamiens.

Counsel appeared for Porter, and on February 19, 2010,

responded to the dismissal motion. Porter clarified her

pleadings, arguing that she had adequately pled a

nondischargeability claim under § 523(a)(4) for fraud or

defalcation while acting in a fiduciary capacity. Porter argued

that she and the Kamiens were partners in the project to develop
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the Property, and that Washington law imposes on partners a

fiduciary relationship. Porter also argued that she had

adequately pled sufficient facts to support a denial of

discharge under § 727(a)(2),(3),(4)(A) and (D), because the

Kamiens had knowingly and fraudulently concealed assets,

partnership agreements, business ownerships and made false oaths

and statements, orally and in writing, in connection with their

bankruptcy case. 

The Kamiens responded on February 22, 2010, generally

asserting that Porter had never argued in her complaint for

denial of discharge under § 727, but had only objected to

discharge of her debt. Additionally, the Kamiens noted that

they had already been granted a discharge and thus could not be

subjected to a denial of discharge under § 727(a). 

The bankruptcy court held a hearing on the Kamien’s

dismissal motion on February 26, 2010. An order entered on

March 4, 2010, indicates that the court had announced its

findings and conclusions on the record. No transcript of the

motion hearing was provided in the excerpts of record, nor does

one appear in the bankruptcy court’s docket. According to the

order of March 4, the court dismissed any § 727(a) claims for

denial of discharge, but denied the motion to dismiss as to any

claims for an exception from discharge under § 523(a)(4). 

Porter did not appeal the order granting dismissal of the § 727

claims.

The Kamiens filed a counterclaim against Porter on March

12, 2010, in which they sought a declaratory judgment that the

Lien was invalid, and quieting title to the Property in the
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Kamiens. Porter responded that she would voluntarily release

the Lien. However, she asked the bankruptcy court to enter

various orders encumbering the Property. The Kamiens opposed

Porter’s request. 

Kamiens filed a motion for summary judgment on the

counterclaim. A hearing was held on April 23, 2010. There is

no transcript in the record, but a short minute entry on the

docket indicates that Porter had not yet released the Lien. On

April 29, 2010, the bankruptcy court entered an order granting

summary judgment in favor of the Kamiens, quieting title to the

Property in the Kamiens, and allowing one week for Porter to

release the Lien or the bankruptcy court would void the Lien. 

Porter did not appeal the order granting summary judgment.

Trial was held on August 16 and 17, 2010, on Porter’s

remaining claim for nondischargeability under § 523(a)(4). 

Porter and the Kamiens were represented by counsel, and the

bankruptcy court heard testimony from nine witnesses: Porter,

the Kamiens, Bill Rice (a contractor who worked with the parties

on the Property), Rosemary Wardell and Tori Johnson (realtors),

Brian Ahrens (certified appraiser), Rob Floberg and Hanna

McFarlane (expert witnesses on handwriting and forgery).

The bankruptcy court orally announced its decision on

October 29, 2010. According to the transcript in the record,

after discussing the facts of the case, the court made the

following determinations:

The sole issue before the court is whether there

existed a partnership relationship among the Kamiens

and Porter. Hr’g Tr. 5:17—6:1, October 29, 2010.

In their testimony, neither the Kamiens nor Porter
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“appeared to me to be credible witnesses. Because of

that, I was forced to follow and rely primarily on the

paper trail.” Hr’g Tr. 6:2-6.

“[I]f this was a joint venture, I do not understand

why title was taken only in the name of the Kamiens.” 

Hr’g Tr. 6:7-9.

Exhibit 13, a letter of April 18, 2005, from Porter to

the Kamiens “demands repayment of the loans made for

the purchase and remodel of the house. The letter

makes no reference to a partnership.” Hr’g Tr. 6:10-

14.

Exhibit 14, the Lien, “makes no reference to a

partnership.” Hr’g Tr. 6:15-16.

Exhibit 34, a memo to a Mr. Treppani at World Savings,

where Ms. Porter “thanks him for helping her friends

with the financing of their home.” There is no

mention of a joint venture or partnership or that she

had an interest in the Property. Hr’g Tr. 6:17-21.

The bankruptcy court twice refers to the alleged

promissory note attached to the Complaint as a

forgery. Hr’g Tr. 6:22, 7:1. Regardless of the

circumstances surrounding the creation of the

promissory note, the court observed that it makes no

mention of a partnership or joint venture. Hr’g Tr.

7:1-2.

The original and First Amended Complaint in the state

court action are captioned “Complaint for Breach of

Contract,” and alleges nonrepayment of loans and makes

no reference to a partnership or joint venture. Hr’g

Tr. 7:3-12. It is only with the Second Amended

Complaint that for the first time Porter alleges the

existence of a partnership relationship. The court

observed that “[t]his [was] done some five or six

years after the facts.” Hr’g Tr. 7:13-16.

The bankruptcy court then concluded:

In summary and in conclusion, based on the paper

trail, I conclude there was no partnership. The

exhibits I referred to create, in my opinion, a

mountain of admissions by Ms. Porter which make it

impossible for her to sustain the requisite burden of

proof.

It follows from my conclusion that there was no

breach of any partnership-related fiduciary duties

and, therefore, the judgment must be for the

[Kamiens]. Hr’g Tr. 7:17-8:1.
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 The bankruptcy court’s judgment also awarded the Kamiens 7

$2,500 for reasonable attorney’s fees incurred in their

successful prosecution of the counterclaim against Porter. 

Porter makes no mention of this award in this appeal.

-9-

On February 11, 2011, the bankruptcy court entered a

judgment dismissing the adversary proceeding with prejudice.7

Porter filed a timely appeal on February 25, 2011.

JURISDICTION

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

§§ 1334 and 157(b)(2)(I) and (J). We have jurisdiction under 28

U.S.C. § 158.

ISSUE

Whether the bankruptcy court clearly erred in ruling that

Porter failed to prove the existence of a partnership

relationship between Porter and the Kamiens.

STANDARD OF REVIEW

The existence of a partnership is a question of fact. 

Malnar v. Carlson, 910 P.2d 455, 461 (Wash. 1996); Douglas v.

Jepson, 945 P.2d 244, 247 (Wash. Ct. App. 1997) (“Whether a

partnership exist[s] is a question of fact.”); see also

Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 287 B.R.

515, 521 (9th Cir. BAP 2002) (“Whether or not parties have

entered into a partnership relationship rather than some other

form of relationship is a question of fact[.]”).

The bankruptcy court’s rulings on questions of fact are

reviewed for clear error. Murray v. Bammer (In re Bammer), 131

F.3d 788, 792 (9th Cir. 1997) (en banc); Oney v. Weinberg (In re

Weinberg), 410 B.R. 19, 27-28 (9th Cir. BAP 2009). “The clear
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error standard is significantly deferential and is not met

unless the reviewing court is left with a ‘definite and firm

conviction that a mistake has been committed.’” Fisher v.

Tucson Unified Sch. Dist., 652 F.3d 1131, 1135 (9th Cir. 2011).

DISCUSSION

Section 523(a)(4) excepts from discharge debts “for fraud

or defalcation while acting in a fiduciary capacity,

embezzlement or larceny.” In an action under § 523(a)(4), a

creditor must establish: (1) that an express trust existed

between the debtor and creditor; (2) that the debt was caused by

the debtor’s fraud or defalcation; and (3) that the debtor was a

fiduciary to the creditor at the time the debt was created. 

Otto v. Niles (In re Niles), 106 F.3d 1456, 1459 (9th Cir.

1997); Nahman v. Jacks (In re Jacks), 266 B.R. 728, 735 (9th

Cir. BAP 2001). The creditor bears the burden or proving the

facts necessary to establish an exception to discharge under

§ 523(a) by a preponderance of the evidence. Grogan v. Garner,

498 U.S. 279, 291 (1991); Jett v. Sicroff (In re Sicroff), 401

F.3d 1101, 1106 (9th Cir. 2005).

The meaning of fiduciary for purposes of § 523(a)(4) is a

question of federal law. Ragsdale v. Haller, 780 F.2d 794, 796

(9th Cir. 1986). Under federal law, a trust giving rise to the

fiduciary relationship must be imposed prior to any wrongdoing,

and the debtor must have been a trustee prior to and independent

of the wrongdoing itself. Id. While the meaning of fiduciary

is narrowly defined under federal law, “state law is to be

consulted to determine when a trust in this strict sense

exists.” Id.
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 The Ninth Circuit in Short based its decision on a 8

later-repealed statute, Wash. Rev. Code § 25.04.210(1) (1969)

(repealed 1998):

Every partner must account to the partnership for any

benefit, and hold as trustee for it any profits

derived by him without the consent of the other

partners from any transaction connected with the

formation, conduct, or liquidation of the partnership

or from any use by him of its property.

(Emphasis added.) The revised statute adopted that year and

still in effect incorporates the older provisions without

substantial change:

General standards of partner’s conduct . . . . (2) A

partner’s duty of loyalty to the partnership and the

other partners is limited to the following:

a) To account to the partnership and hold as trustee

for it any property, profit, or benefit derived by the

partner in the conduct and winding up of the

partnership business or derived from a use by the

partner of partnership property, including the

appropriation of a partnership opportunity[.]

Rev. Code Wash. § 25.05.165(2)(a) (emphasis added)

(2011).

The District Court for the Western District of Washington

recently reviewed the case law and concluded that, based on In

re Short and Wash. Rev. Code § 25.05.165(2), a partner’s “status

as a fiduciary within the meaning of § 523(a)(4) is definitively

established by statute and precedent[.]” Errez v. Auburn Ace

Holdings, LLC (In re Errez), 2010 WL 5185399, at *2 (W.D. Wash.

Dec. 16, 2010).

-11-

The Ninth Circuit has previously reviewed Washington law of

partnerships and determined that a partner is a “trustee over

partnership assets for all purposes” and a “fiduciary within the

narrow meaning of § 523(a)(4).” Lewis v. Short (In re Short),

818 F.2d 693, 695-96 (9th Cir. 1987); Wash. Rev. Code

§ 25.05.165(2) .

8

Porter argues that the Kamiens breached their fiduciary
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 There were six other witnesses, but in her brief Porter 9

makes no reference to their testimony, and does not explain how

their testimony supports any of her positions.

-12-

duties as partners in the partnership the parties allegedly

created to acquire and develop the Property. Of course, as the

bankruptcy court would hold, if no partnership existed, the

Kamiens were not fiduciaries as to Porter.

Whether parties intend to form a partnership under

Washington law is determined by four factors: (1) an express or

implied contract, (2) a common purpose, (3) a community of

interest, and (4) an equal right to a voice, accompanied by an

equal right to control. Paulson v. County of Pierce, 664 P.2d

1202, 1211 (Wash. Ct. App. 1983). Only the first element — that

there was an express or implied contract to form a partnership —

is essential. Id. (citing Carbaneu v. Peterson, 95 P.2d 1043,

1050 (Wash. 1939)).

After a two-day trial, where the three principal parties —

the Kamiens and Porter — testified, and over fifty documentary 9

exhibits were admitted, the bankruptcy court found that there

was no agreement, express or implied, to form a partnership. 

The court considered and rejected the testimony of both Porter

and the Kamiens as not credible. We give considerable deference

to a court’s findings based on credibility of witnesses. Rule

8013; Anderson v. City of Bessemer City, 470 U.S. 564, 574-75

(1985) (“When findings are based on determinations regarding the

credibility of witnesses, [Fed. R. Civ. P.] 52(a) [from which

Rule 8013 derives] demands even greater deference to the trial

court’s findings; for only the trial judge can be aware of the
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variations in demeanor and tone of voice that bear so heavily on

the listener’s understanding of and belief in what is said.”). 

Anderson is also instructive in this context for its explanation

when an appellate court may disregard a court’s credibility

finding.

Documents or objective evidence may contradict the

witness’ story; or the story itself may be so

internally inconsistent or implausible on its face

that a reasonable factfinder would not credit it. 

Where such factors are present, the court of appeals

may well find clear error even in a finding

purportedly based on a credibility determination.

Anderson, 470 U.S. at 575. After making its credibility

determination, the bankruptcy court pointed to seven documentary

exhibits that the court found inconsistent with Porter’s

testimony. In the court’s words, the exhibits created “a

mountain of admissions” by Porter that her relationship to the

Kamiens was that of a creditor to a debtor, not partner. Thus,

the credibility determinations of the bankruptcy court, to which

we must give great deference, were not contradicted by the

documentary evidence. Indeed, the documentary evidence supports

the existence of a creditor-debtor relationship, not a

partnership relationship as alleged by Porter. Based on the

bankruptcy court’s credibility determinations as to the oral

testimony given by Porter, together with the documentary proof

showing that a lender-borrower relationship was established by

the parties, as discussed in detail by the bankruptcy court, we

conclude that the bankruptcy court did not clearly err in ruling

that there was no partnership relationship among the Kamiens and

Porter. Consequently, because there was no partnership, Kamiens

breached no fiduciary duties to justify an exception to
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discharge of the Kamiens’ debt to Porter under § 523(a)(4).

In this appeal, Porter has not shown that the bankruptcy

court clearly erred. Indeed, Porter’s pro se presentation is

ineffective. Her sole argument is that the trial transcripts

support her position that a partnership existed. The problems

with Porter’s position are many.

First, the informal brief presented by Porter offers only

conclusory suggestions that the actions of the Kamiens and

Porter demonstrated their intent to form a partnership. There

were no references, specifically or even in general, to contract

formation, whether the parties had a common purpose, a community

of interest, or an equal right to a voice in partnership,

accompanied by an equal right to control. The brief presents no

citations to authority to support any of its conclusory

statements. In effect, Porter asks us to trawl through hundreds

of pages of unofficial transcripts to establish her arguments

for her. Neither the Panel nor appellees are obliged to search

an entire record unaided for error. Dela Rosa v. Scottsdale

Mem. Health Sys, Inc., 136 F.3d 1241 (9th Cir. 1998); Syncom

Cap. Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991).

Second, Porter was ordered by the Panel on three occasions

to produce both the transcripts for the record, and the exhibits

relied on by the bankruptcy court. She ultimately provided

unofficial copies of the transcripts, which she had privately

prepared, rather than securing preparation of an official

transcript, as ordinarily required by Fed. R. App. P. 10(b). 

Moreover, Porter did not provide any of the documentary exhibits

relied on by the bankruptcy court at trial in reaching its
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 The unofficial transcripts do not provide the date when 10

this testimony occurred. From internal references, we infer

that the transcripts from pages 74 and 81 were on August 16,

2010.

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decision.

Although the Kamiens have objected to our review of the

unofficial transcripts, they are not prejudiced because we

conclude that the transcripts do not support Porter’s position. 

It is true that Porter’s testimony at trial provides facts and

dates which might indicate an intent to form a partnership. 

However, that testimony is contradicted by that of the Kamiens. 

The bankruptcy court ultimately ruled that neither the Kamiens

nor Porter were credible witnesses. But, since the documentary

evidence supported the court’s decision that no partnership

existed, we need not consider accepting Porter’s testimony

supporting her position that a partnership existed.

Although the bankruptcy court discounted her credibility as

a witness at trial, we are able to glean from the transcripts

two unquestioned facts that are not affected by that credibility

determination. At one point in her testimony, Porter admits

that there is no documentary evidence to show the existence of a

partnership. Trial Tr. 74:3386-3389. Second, Porter’s 10

attorney did not object to the admission of the seven documents

relied on by the court. Trial Tr. 81:3711.

At the heart of this appeal are the trial exhibits

discussed and relied upon by the bankruptcy court for its

finding that there was no adequate proof of a partnership:

(1) Exhibit 13, where Porter “demands repayment of the loans
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made for the purchase and remodel of the home.” Hr’g Tr.

6:10-14; (2) Exhibit 14, the Lien, twice describes the Kamiens

as owner of the Property, characterizes the relationship between

Porter and the Kamiens as a contract and “makes no reference to

a partnership.” Hr’g Tr. 6:16; (3) Exhibit 34, a memo to a Mr.

Treppani at World Savings, where Ms. Porter “thanks him for

helping her friends with the financing of their home.” Hr’g Tr.

6:17-21; (4) The promissory note, which is in the form of a debt

instrument, Hr’g Tr. 6:22, 7:1; and (5-7) The State Court

Complaint, Amended Complaint, and Second Amended Complaint. The

first two complaints allege a breach of contract, and make no

reference to any partnership. The Second Amended Complaint, for

the first time, alleges the existence of a partnership, but this

allegation, in the bankruptcy court’s words, was made “five or

six years after the facts.” Hr’g Tr. 7:13-16. Except for the

Second Amended Complaint, none of the documents refers to a

partnership and all but the Second Amended Complaint support an

interpretation of a debtor-creditor relationship.

From the early stages of this appeal, the Panel has

instructed Porter to submit these seven documents. In the

Panel’s order of July 27, 2011, denying the Kamiens’ motion to

dismiss the appeal, the Panel strongly cautioned Porter of the

consequences of failing to file the exhibits:

In order to review a factual finding for clear error,

the record should usually include the entire

transcript and all other relevant evidence considered

by the bankruptcy court. See In Re Friedman, 126 B.R.

63, 68 (9th Cir. BAP 1991) (failure to provide an

adequate record may be grounds for affirmance); In re

Burkhart, 84 B.R. 658 (9th Cir. BAP 1988). (Emphasis

added). . . . No [] exhibits were provided. Based on

appellant’s arguments in her informal brief, it
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include copies of the depositions of Eric and Terry Kamien,

without explaining their purpose. The bankruptcy court did not

refer to these depositions in its decision, but specifically

referenced and discussed the seven documents.

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appears such [] exhibits are necessary in order for

appellant to have any chance of prevailing on appeal. 

If appellant does not provide the [] exhibits, the

Panel is entitled to assume that she does not believe

there is anything in those documents that will help

her position on appeal. In re Gionis, 170 B.R. 675,

680-81 (9th Cir. BAP 1994). Failure to provide the []

exhibits will likely result in summary affirmance of

the bankruptcy court’s decision. See explanatory note

to 9th Cir. BAP R. 8006-1; Ehrenberg v. Cal. State

Univ., Fullerton Found. (In re Beachport Entm’t), 396

F.3d 1083, 1087 (9th Cir. 2005); Morrissey v.

Stuteville (In re Morrissey), 349 F.3d 1187 (9th Cir.

2003).

Panel’s Order of July 27, 2011, at 3-4.

Porter was again ordered to produce the trial exhibits in a

Clerk’s Order of August 25, 2011. And finally, the Panel

directed Porter to submit the exhibits in its Order of September

20, 2011, granting a final extension of time to file the

transcripts and exhibits. Porter never produced the exhibits.

As noted above, Porter did file unofficial trial

transcripts. But these transcripts do not support her position

because the bankruptcy court did not rely on the parties’

testimony in making its decision. Because Porter has ignored

multiple orders of this Panel directing her to provide the trial

exhibits relied on by the bankruptcy court in resolving the

contested issues of fact, we are entitled to assume that the 11

exhibits do not support her position and, indeed, instead

buttress the bankruptcy court’s reasons for determining that as

a question of fact there was no partnership relationship among
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the Kamiens and Porter. In re Gionis, 170 B.R. at 680-81. 

Further, the bankruptcy court’s determination based on

credibility and documentary findings are entitled to deference

by this Panel. Rule 8013. On this record, we do not hold a

definite and firm conviction that a mistake was been committed

by the bankruptcy court. Fisher, 652 F.3d at 1135. Therefore,

the court was correct in denying Porter’s request for an

exception to discharge under § 523(a)(4).

CONCLUSION

We AFFIRM the judgment of the bankruptcy court.