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FILED

FEB 29 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NV-15-1254-JuKiD

)

STAN BRYAN VAUGHAN and ) Bk. No. 13-14399-GS

TATIANA VAUGHAN, )

) Adv. No. 14-01128-GS

Debtors. )

______________________________)

)

STAN BRYAN VAUGHAN; TATIANA )

VAUGHAN, )

)

Appellants, )

)

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

)

YVETTE WEINSTEIN, Chapter 7 )

Trustee, )

)

 Appellee. )

______________________________)

Submitted Without Oral Argument

on February 19, 2016**

Filed - February 29, 2016

Appeal from the United States Bankruptcy Court

for the District of Nevada

Honorable Gary A. Spraker, Bankruptcy Judge, Presiding

_________________________

Appearances: Stan Bryan Vaughan and Tatiana Vaughan pro se on

brief; Christine A. Roberts of The Furnier Muzzo

Group LLC and James Bennett Clark and Cullen Kuhn

of Bryan Cave LLP on brief for appellee, Yvette

* 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 8024-1.

** By order entered on August 15, 2014, a motions panel

determined that this appeal was suitable for submission on the

briefs and record without oral argument.

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Weinstein, Chapter 7 Trustee.

_________________________

Before: JURY, KIRSCHER, and DUNN, Bankruptcy Judges.

After debtors Stan Bryan Vaughan and Tatiana Vaughan

(Debtors) obtained their discharge, the chapter 71 trustee,

Yvette Weinstein (Trustee), discovered that they had failed to

disclose potential assets. Trustee sought and obtained, over

Debtors’ opposition, an order authorizing her to schedule

Rule 2004 examinations for both debtors (Rule 2004 Order). 

Trustee filed and served a notice scheduling the examinations

for both debtors setting the date, time, and location (Notice). 

Debtors filed numerous motions in an attempt to prevent or stay

the examinations which the bankruptcy court denied.

Trustee also filed an adversary complaint against Debtors

seeking to revoke their discharge under § 727(d)(1)(discharge

obtained by fraud) and (d)(3)(refusal to obey a lawful order of

the court). Debtors failed to appear for the scheduled

Rule 2004 examinations. Relying on Rule 2005(a), Trustee filed

a motion to compel Debtors’ attendance for examination which the

bankruptcy court granted, finding that they evaded the Rule 2004

Order and ordering them to appear for examination under the

threat of sanctions. 

Thereafter, Trustee moved for partial summary judgment in

the adversary proceeding, seeking to have Debtors’ discharge

1 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure and “Civil Rule” references are to the Federal Rules of

Civil Procedure.

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revoked under § 727(d)(3) and (a)(6)(A) for their refusal to

obey the Rule 2004 Order. The bankruptcy court granted her

motion, finding that there were no genuine issues of disputed

fact regarding Debtors’ awareness of the Rule 2004 Order and

their willful and intentional refusal to obey it. In the

exercise of its discretion, the bankruptcy court found that

Debtors’ conduct warranted the revocation of their discharge

despite their eventual compliance with the Rule 2004 Order and

entered judgment in favor of Trustee. This appeal followed. 

For the reasons stated below, we AFFIRM. 

I. FACTS2

Debtors filed their chapter 7 petition on May 20, 2013. 

In their schedules, Debtors did not disclose any interest in the

trademark “World Chess Federation Hall of Fame.” Their

statement of financial affairs (SOFA), however, did list several

lawsuits involving Mr. Vaughan, World Chess Museum, and World

Chess Federation, Inc. (WCF), including a pending action in the

United States District Court for the District of Nevada,

captioned World Chess Museum, Inc. d/b/a World Chess Hall of

Fame v. World Chess Federation, Inc., and Stan Vaughan,

individually (Nevada Suit). The Nevada Suit was filed by

plaintiff World Chess Museum, Inc., d/b/a World Chess Hall of

Fame (WCHOF) to recover monetary damages, obtain injunctive

relief and other remedies against WCF and Stan Vaughan, and for

2 We borrow heavily from the facts set forth in the

bankruptcy court’s Memorandum Decision entered July 13, 2015, in

the adversary proceeding pertaining to the chapter 7 trustee’s

motion for partial summary judgment.

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infringement of its trademark, “World Chess Hall of Fame®.” 

Vaughan and WCF filed counterclaims against WCHOF for WCHOF’s

alleged infringement of the claimed trademarks “World Chess

Federation®” and/or “World Chess Federation Hall of Fame.” 

Although Debtors listed the Nevada Suit, they did not

schedule WCHOF as a creditor. Nor did they list any interests

in WCF, the trademark, or the counterclaims against WCHOF in

their initial Schedule B. This was because Mr. Vaughan had

personally transferred the trademark to WCF four days prior to

the bankruptcy filing on May 16, 2013. Debtors did not disclose

the transfer in response to Question No. 10 of the SOFA, which

requires debtors to list all transfers of property outside of

the ordinary course of business made within two years before the

petition date. 

Debtors received their discharge on August 20, 2013. 

Trustee later learned that Debtors failed to disclose the

above-described potential assets. She obtained an order

authorizing her to employ Christine A. Roberts of Sullivan Hill

Lewin Rez & Engel (Sullivan Hill) as general counsel to aid her

in investigating the nondisclosure and filing a potential

complaint for nondischargeability. Ms. Roberts subsequently

left Sullivan Hill and went to Furnier Muzzo Group LLC (Furnier

Muzzo). Trustee sought another order authorizing employment of

Ms. Roberts’ new firm. Debtors filed four opposition briefs to

this employment application. Following a hearing, the

bankruptcy court approved Trustee’s retention of Furnier Muzzo

over Debtors’ objections by order dated September 3, 2014. 

On December 9, 2013, Trustee filed an application to employ

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Bryan Cave LLP (Bryan Cave) as special counsel to investigate

potential claims relating to recovery of the estate’s assets. 

On February 3, 2014, the bankruptcy court granted Trustee’s

application over Debtors’ objections which were based on Bryan

Cave’s alleged adverse interest since the firm represented WCHOF

in the Nevada Suit.3 

On March 6, 2014, Trustee moved for an order directing

examinations under Rule 2004 as to Debtors and three non-debtor

affiliated entities (Rule 2004 Motion). One of the non-debtor

affiliates to be examined was WCF, the entity to whom

Mr. Vaughan had transferred the trademark. Trustee asserted

that Debtors were officers and/or directors of WCF, and that

Mr. Vaughan had transferred the trademark to WCF four days

before filing his bankruptcy petition. Trustee sought to

examine Debtors about their relationship with WCF and the

transfers between them. The motion requested an order directing

Debtors and the person most knowledgeable with respect to

certain non-debtor affiliates (WCF, American Chess Association,

Inc., and Nevada State Chess Association, Inc.) to appear for

examination at Sullivan Hill on a date to be determined by the

court. Debtors opposed the Rule 2004 Motion on various grounds

and continued to object to Trustee’s employment of Bryan Cave.

On May 27, 2014, following a hearing, and over Debtors’

objection, the bankruptcy court entered an order granting the

Rule 2004 Motion and directing Debtors to submit to examination

3 Bryan Cave served at no charge to the estate subject to

WCHOF’s right to seek allowance of an administrative claim based

upon making a “substantial contribution” to the estate.

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(Rule 2004 Order). The order provided:

IT IS THEREFORE ORDERED that the trustee’s Motion for

Order Directing Examinations Under Rule 2004 As to

Debtors Stan Bryan Vaughan, Tatiana Vaughan and

Certain Non-Debtor Affiliates As Identified Herein,

ECF No. 79, be and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that the Chapter 7 trustee may

schedule the examinations, production of documents,

and inspection of premises, to take place no earlier

than fourteen calendar days from the date of entry of

this Order. 

The Rule 2004 Order did not state the location of the

examinations (as had the Rule 2004 Motion), but instead said

that Trustee may schedule them. A copy of the Rule 2004 Order

was served on each of the debtors, by first class mail, on

May 29, 2014.

On June 3, 2014, Debtors moved for reconsideration arguing, 

among other things, that there was no justification for their

examinations because “no valid proofs of claim have been filed.” 

They also asserted that the Rule 2004 Order should be vacated

or, alternatively, that any Rule 2004 examination should be

suspended until valid claims had been filed. The motion was

scheduled for hearing on July 9, 2014.

On June 24, 2014, pursuant to the Rule 2004 Order, Trustee

filed and served her notice scheduling Debtors’ Rule 2004

examinations to commence on July 16, 2014 and July 17, 2014,

respectively, at the law office of Campbell & Williams in Las

Vegas, Nevada (Notice). 

In their July 1, 2014, reply to Trustee’s opposition to

their motion for reconsideration, Debtors argued that the Notice

was in contempt of court because it directed them to appear for

examination at Campbell & Williams rather than Sullivan Hill, as

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originally requested in Trustee’s Rule 2004 Motion. 

Debtors challenged the Notice in four motions also filed on

July 1, 2014. In a motion for a protective order, they sought

an order governing the designation and handling of certain

confidential information being illegally sought through Trustee

by the initiative of Bryan Cave. In a motion for an order to

suspend, terminate, or in the alternative limit the 2004

examinations due to bad faith, Debtors challenged the Rule 2004

Motion as having been filed in bad faith for an improper

purpose. They also filed a motion for sanctions and a motion to

show cause for contempt of order that mostly repeated the

arguments made in the previous described motions. In addition,

each of the four motions contained arguments that the Notice

violated the Rule 2004 Order because it scheduled their

examinations at a different location than was proposed in the

Rule 2004 Motion. The group of motions was scheduled for

hearing on August 27, 2014, after their 2004 examinations set

for July 16 and 17, 2014.

The bankruptcy court heard Debtors’ motion for

reconsideration on July 9, 2014, and denied that request by

order entered on July 11, 2014 (Reconsideration Order). 

Debtors appealed the Reconsideration Order on July 14, 2014, by

filing a notice of appeal, an emergency motion for leave to

appeal, and an emergency motion for stay pending appeal. This

Panel denied leave to appeal the Reconsideration Order and

denied stay pending appeal, which was followed by an order

dismissing the appeal for lack of jurisdiction. 

Trustee’s counsel appeared at Campbell & Williams on

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July 16 and 17, 2014, at the times scheduled for Debtors’

Rule 2004 examinations. Debtors did not appear for examination

at that location. 

On July 31, 2014, Trustee filed a motion to compel

attendance under Rule 2005(a)(3).4 Her motion and supporting

exhibits showed that her attorneys tried to contact Debtors by

email and telephone to confirm their attendance at the Rule 2004

examinations, but Debtors did not respond to these

communications, nor did they appear for examination at the

scheduled times. Trustee argued that Debtors had willfully

disobeyed the court’s earlier orders - the Rule 2004 Order and

the Reconsideration Order - directing them to submit to

examination. 

In response, Debtors reiterated their opposition to

Trustee’s employment of Bryan Cave. They also argued that

Trustee’s efforts were a “manifest injustice,” given that their

discharge had already been entered, and that she was using

discovery for an improper purpose. In their opposition and

4 Rule 2005(a) provides that “[o]n motion of any party in

interest supported by an affidavit alleging . . . 

(3) that the debtor has willfully disobeyed a subpoena

or order to attend for examination, duly served, the

court may issue to the marshal, or some other officer

authorized by law, an order directing the officer to

bring the debtor before the court without unnecessary

delay. If, after a hearing, the court finds the

allegations to be true, the court shall thereupon cause

the debtor to be examined forthwith. If necessary, the

court shall fix conditions for further examination and

for the debtor’s obedience to all orders made in

reference thereto.

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subsequent sur-reply, they again alleged confusion as to the

location of their examinations because Trustee’s Notice set the

examinations at the office of Campbell & Williams, rather than

the firm of Sullivan Hill, as stated in the initial Rule 2004

Motion. They accused Trustee of bad faith and denied receipt of

any emails or telephone calls from Trustee’s counsel about

confirming their attendance at the examinations. 

In her supporting declaration, Ms. Vaughan declared that

Debtors had appeared for the scheduled examination at Sullivan

Hill and that she had business cards from its address as well as

a parking receipt for that date from the parking lot attendant

located next to Sullivan Hill. She claimed no one representing

Trustee appeared. Ms. Vaughan also declared that she and

Mr. Vaughan along with other witnesses were at their residence

on the designated date for the inspection of documents, but no

one heard the doorbell and no one knocked on the door.5 

On August 19, 2014, Trustee commenced the adversary

proceeding seeking to revoke Debtors’ discharge because (1) the

discharge had been obtained through fraud, including failure to

disclose assets and information to the bankruptcy court as

required, and (2) Debtors had refused to obey lawful orders of

the bankruptcy court, including the Rule 2004 Order, in

violation of § 727(a)(6)(A).6 When the adversary proceeding was

5 Debtors lived in a gated community which had a call box at

the gate. Trustee’s attorney had used the call box several times

on the designated date and no one answered the call.

6 After Trustee filed the adversary proceeding, Debtors

continued to object to the employment of Bryan Cave in that

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filed, Debtors continued to refuse to provide Trustee’s courtordered discovery that had been requested since March 6, 2014. 

The bankruptcy court heard Trustee’s motion to compel on

August 27, 2014.7 Debtors’ motions for a protective order, to

suspend or terminate the Rule 2004 examinations, for sanctions

against Trustee’s counsel, and to show cause for contempt

regarding the Rule 2004 examinations were also heard on that

date. On October 7, 2014, the bankruptcy court granted

Trustee’s motion to compel and denied Debtors’ four motions.

In its order compelling attendance, the bankruptcy court

rejected Debtors’ argument that Trustee was proceeding in bad

faith, noting that she was instead seeking to satisfy statutory

duties imposed by the Bankruptcy Code. The court observed that

relief under Rule 2005(a)(2) was proper upon a showing “that the

debtor has evaded service of a subpoena or of an order to attend

for examination.” Based on the evidence before it, the court

found that both Debtors failed to appear at the Rule 2004

examinations, and that “they have thus evaded” the Rule 2004

Order. The court ordered Debtors to appear in the bankruptcy

court on October 20 and 21, 2014, so these examinations could

occur. The order further advised that, “Failure of either of

the Debtors to appear will subject them to sanctions.”

As required by the order on motion to compel, Debtors

appeared in court for examination on October 20 and 21, 2014. 

6(...continued)

proceeding.

7 This motion was heard by Judge Mike K. Nakagawa.

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However, they filed an emergency motion for a protective order

and an ex parte application for order shortening time to hear

the emergency motion for protective order on the same day that

Mr. Vaughan was to be examined. Because the motions were

inappropriately filed in the adversary action, rather than the

main bankruptcy case, they were not considered by the bankruptcy

court.

Meanwhile, in the adversary proceeding, Trustee moved for

partial summary judgment on her request to revoke Debtors’

discharge under § 727(d)(3) and (a)(6)(A).8 Trustee argued that

there were no disputed material facts relevant to the elements

for revocation of discharge under § 727(a)(6)(A): awareness of

the order and refusal to obey it. Trustee asserted that Debtors

were aware of the Rule 2004 Order as demonstrated by their

numerous filings opposing the examinations. 

She also argued that Debtors’ failure to appear for their

examinations was willful and intentional and thus they “refused”

to obey the court’s order within the meaning of § 727(a)(6)(A). 

Trustee maintained that the issue of their willful or

intentional refusal to obey the order was previously decided by

the bankruptcy court when it found Debtors had “evaded” its

Rule 2004 Order in the order granting her motion to compel. As

this finding was law of the case, Trustee argued that summary

judgment in her favor was warranted on this issue. 

8 Debtors filed a counter motion for summary judgment. 

Because the counter motion largely mirrored their opposition to

Trustee’s motion, the bankruptcy court treated it as a

supplemental opposition rather than an independent motion for

summary judgment.

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The bankruptcy court granted Trustee’s motion, finding that

as a matter of law, Debtors were aware of the Rule 2004 Order

and willfully and intentionally refused to obey it. In

exercising its discretion to revoke Debtors’ discharge, the

bankruptcy court considered that Debtors had eventually complied

with the order. The court observed that Debtors’ refusal to

obey the order was willful and intentional and that they

complied with the order only after being ordered to comply under

the threat of further sanctions. The bankruptcy court decided

that revocation was appropriate under these circumstances. The

court entered the judgment9 revoking their discharge and Debtors

timely appealed. 

 II. JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(A), (J) and (O). We have jurisdiction

under 28 U.S.C. § 158.

III. ISSUES

Whether the bankruptcy court erred in granting Trustee’s

motion for partial summary judgment; and

Whether the bankruptcy court abused its discretion in

revoking Debtors’ discharge.

IV. STANDARDS OF REVIEW

We review summary judgments de novo; facts determined for

summary judgment proceedings are not entitled to the clearly

erroneous standard of appellate review. Audre, Inc. v. Casey

9 The judgment also dismissed Count I of the adversary

complaint which pertained to § 727(d)(1)(discharge obtained by

fraud). Accordingly, the judgment was final.

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(In re Audre, Inc.), 216 B.R. 19, 25 (9th Cir. BAP 1997). If

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with any affidavits, show that

there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law, summary

judgment will be upheld. Civil Rule 56(c), incorporated by

Rule 7056; see Aubrey v. Thomas (In re Aubrey), 111 B.R. 268,

272 (9th Cir. BAP 1990).

What constitutes law of the case presents a legal issue

that this Panel reviews under a de novo standard. Liberty Mut.

Ins. Co. v. Equal Emp’t Opportunity Comm’n, 691 F.2d 438 (9th

Cir. 1982); AT & T Universal Card Servs. v. Black (In re Black),

222 B.R. 896, 899 (9th Cir. BAP 1998).

We review the bankruptcy court’s decision to revoke a

discharge for an abuse of discretion. Cox v. Lansdowne

(In re Cox), 904 F.2d 1399, 1401 (9th Cir. 1990) (stating the

standard of review as a “gross abuse of discretion,” but

applying traditional abuse of discretion standard); Devers v.

Bank of Sheridan (In re Devers), 759 F.2d 751 (9th Cir. 1985). 

Review for abuse of discretion has two parts. First, “we

determine de novo whether the bankruptcy court identified the

correct legal rule to apply to the relief requested.” U.S. v.

Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). If

so, we then determine under the clearly erroneous standard

whether the bankruptcy court’s 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.

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at 1262. 

V. DISCUSSION

A. Scope of the Appeal

Debtors list four issues in their opening brief. In three

of the issues Debtors challenge (1) the standing of Trustee to

file the adversary proceeding; (2) the employment of her general

counsel; and (3) the employment of Bryan Cave as special

counsel. 

While the bankruptcy court did not mention Trustee’s

standing in its decision granting her partial motion for summary

judgment, Debtors raised similar issues regarding Trustee’s use

of her maiden/professional name rather than her married name in

several motions filed in this proceeding. Each time the

bankruptcy court rejected their arguments. We reviewed the

issue and find no merit to Debtors’ arguments on appeal. 

Therefore, the bankruptcy court’s rulings on the issue are

summarily affirmed. 

Debtors’ arguments regarding the employment orders of

general counsel and Bryan Cave are mostly incomprehensible. The

payment arrangement Debtors object to in Bryan Cave’s employment

order will not become reviewable on appeal unless and until a

request for reimbursement from the estate is actually made and

granted. Until then, the matter is not ripe.10 Accordingly,

10 Debtors also filed an objection to the appearance of

Bryan Cave in this appeal on October 29, 2015. In their opening

brief, Debtors’ only argument regarding the employment was a bare

assertion that the employment violated § 327(e). The employment

was approved under § 327(c), not subsection (e). Debtors’

(continued...)

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those matters are beyond the scope of this appeal and not

properly before us. 

B. Summary Judgment 

1. Standards

In reviewing the bankruptcy court’s decision on a motion for

summary judgment, we apply the same standards as the bankruptcy

court. Summary judgment is properly granted when no genuine and

disputed issues of material fact remain, and, when viewing the

evidence most favorably to the non-moving party, the movant is

entitled to prevail as a matter of law. Civil Rule 56,

incorporated by Rule 7056; Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). Material facts which would preclude entry of

summary judgment are those which, under applicable substantive

law, could affect the outcome of the case. The substantive law

will identify which facts are material. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of showing that

there is no material factual dispute. If the moving party meets

its initial burden of showing the absence of a material and

triable issue of fact, the burden then moves to the opposing

party, who must present significant probative evidence tending to

support its claim or defense. Intel Corp. v. Hartford Accident &

Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). In other words,

10(...continued)

failure to “specifically and distinctly” identify and argue any

relevant law on the employment issue results in the waiver of

that issue. See Indep. Towers of Wash. v. Washington, 350 F.3d

925, 929 (9th Cir. 2033). Therefore, we do not consider the

issue further and the objection is overruled.

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the non-moving party must show more than the mere existence of a

scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). In fact, the non-moving party must come forth

with evidence from which a factfinder could reasonably decide in

the non-moving party’s favor. Id. 

2. Trustee’s Prima Facie Case Under § 727(a)(6)(A) 

Section 727(d)(3) provides that the court shall revoke a

debtor’s discharge upon the trustee’s request if the debtor

committed an act enumerated in § 727(a)(6). Section 727(a)(6)(A)

provides that a debtor is not entitled to a discharge if he “has

refused . . . to obey any lawful order of the court, other than

an order to respond to a material question or to testify.”11

11 The Fifth Amendment provides, in its relevant part: “No

person . . . shall be compelled in any criminal case to be a

witness against himself.” U.S. Const. amend. V. This privilege

against self-incrimination applies to bankruptcy proceedings.

McCarthy v. Arndstein, 266 U.S. 34, 41 (1924). The “other than

an order to respond to a material question or to testify” clause

contained in § 727(a)(6)(A) recognizes that a debtor may appear

at a Rule 2004 examination and “refuse” to answer material

questions or testify based on the assertion of the Fifth

Amendment privilege. Under these circumstances, the debtor

cannot be denied a discharge for legitimately exercising his or

her right against self-incrimination. Subsections 727(a)(6)(B)

and (C) allow the bankruptcy court to deny the debtor a discharge

if he or she refuses to respond to a material question approved

by the court or to testify after a grant of immunity under § 344,

or improperly asserts the Fifth Amendment. 

Here, the Rule 2004 Order required Debtors to appear for

examination and it was their refusal to appear which triggered

the revocation of their discharge rather than the exception. 

Courts have found that a debtor’s knowing and intentional failure

to appear for an examination ordered under Rule 2004 is an

example of refusal to obey a lawful order within the meaning of

§ 727(a)(6)(A) even though the examination requires the debtor to

testify. See U.S. Tr. v. Lebbos (In re Lebbos), 439 B.R. 154,

(continued...)

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Because the bankruptcy court had jurisdiction over the

subject matter and Debtors, there is no dispute as to the

Rule 2004 Order’s lawfulness. See Rainsdon v. Anderson

(In re Anderson), 526 B.R. 821, 825-26 (Bankr. D. Id. 2015)

(citing Rainsdon v. Leiser (In re Leiser), 2014 WL 3548929, at

*3–4 (Bankr. D. Idaho July 17, 2014) (addressing revocation of

discharge under § 727(d)(3) based on an alleged violation of

§ 727(a)(6)(A) and citing Maness v. Meyers, 419 U.S. 449, 459

(1975) (stating “an order issued by a court with jurisdiction

over the subject matter and the person must be obeyed by the

parties until it is reversed by orderly and proper

proceedings.”)).

To prove Debtors “refused” to obey the Rule 2004 Order

within the meaning of § 727(a)(6)(A), Trustee must show that

Debtors (1) were aware of the order and (2) willfully or

intentionally refused to obey the order (i.e., something more

than a mere failure to obey the order through inadvertence,

mistake or inability to comply). Schwarzkopf v. Goodrich

(In re Michaels), 2009 WL 7809926, at *5 (9th Cir. BAP Feb. 27,

2009) (citing Smith v. Jordan (In re Jordan), 521 F.3d 430, 434

(4th Cir. 2008)); see also Hicks v. Decker (In re Hicks), 2006 WL

11(...continued)

164-65 (E.D. Cal. 2010)(debtor’s failure to appear for Rule 2004

examinations warranted denial of discharge under § 727(a)(6)(A));

Guar. Bank & Trust Co. v. Sanford (In re Sanford), 362 B.R. 743

(Bankr. M.D. La. 2007) (revocation of discharge for failure to

appear for Rule 2004 examination); Sicherman v. Rivera

(In re Rivera), 338 B.R. 318, 329-30 (Bankr. N.D. Ohio 2006)

(“Despite the fact that 2004 exam includes an order to testify,

such complete failure may be grounds for revoking and denying

discharge.”).

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6810987, at *8 (9th Cir. BAP February 1, 2006) (stating that the

common definition of “refuse” requires a willful expression of

noncompliance). Trustee has the burden of proving these elements

by a preponderance of the evidence. In re Hicks, 2006 WL

68110987, at *8 (citing Searles v. Riley (In re Searles),

317 B.R. 368, 377 (9th Cir. BAP 2004)). 

On appeal, Debtors do not assign error to the bankruptcy

court’s decision regarding their awareness of the Rule 2004 Order

nor do they even discuss the issue. Nonetheless, upon our

de novo review, we conclude no rational factfinder could infer

that Debtors were not aware of the Rule 2004 Order based on the

record before us. The undisputed facts show that Debtors were

served with the Notice which gave the date, time and location of

their examinations at the law office of Campbell & Williams. 

Further, the record shows that Debtors repeatedly attacked the

Rule 2004 Order through numerous motions, which included, among

other things, their objection to the location of the examinations

at Campbell & Williams. The only rational inference to be drawn

from these motions is that Debtors were aware of the Rule 2004

Order and where their examinations were to take place. Finally,

the bankruptcy court denied their motion for reconsideration of

the Rule 2004 Order and related motions, thereby reaffirming

Debtors’ obligation to comply with the Rule 2004 Order. Debtors

then unsuccessfully appealed the bankruptcy court’s denial of

their motion for reconsideration. Again, this conduct shows

their awareness. Because there are no disputed facts which would

preclude summary judgment on this issue, Debtors’ awareness of

the order was established as a matter of law.

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“Refusal” to obey within the meaning of § 727(a)(6)(A)

requires Trustee to show that the debtor “willfully or

intentionally refused to obey the order.” In re Michaels,

2009 WL 7809926, at *5. A debtor’s willful or intentional

refusal to obey requires conduct which amounts to something more

than a “mere failure to obey the order through inadvertency,

mistake or inability to comply.” Id. 

The record shows that there are no disputed facts for a

factfinder to resolve on the issue of whether Debtors’ refusal

was willful or intentional. Many of the same facts relating to

Debtors’ awareness of the Rule 2004 Order are also relevant to

this issue. Debtors were served with the Notice and, therefore,

had actual knowledge of the date, time and location of the

examinations they had been ordered to attend. Yet, they

disregarded it. On numerous occasions, Debtors alleged

appearance at Sullivan Hill, despite the Notice which showed the

examinations were scheduled at a different location. 

The record before us does not support an inference that

Debtors actually appeared at Sullivan Hill or that Debtors were

confused about where to go. They challenged the location of

their examinations at Campbell & Williams and argued confusion

many times prior to their scheduled examinations, including in

their reply filed in support of the motion for reconsideration. 

The bankruptcy court denied their motion, reconfirming that they

were required to comply with Rule 2004 Order and Notice, which

stated the location of the examinations was at the law firm of

Campbell & Williams. There are thus no disputed facts based on

this argument. 

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Moreover, in granting Trustee’s motion to compel, the

bankruptcy court found that Debtors “evaded” the Rule 2004 Order. 

This finding applies broadly enough so that the bankruptcy court

did not need to reconsider the issue of Debtors’ willful or

intentional refusal to obey the Rule 2004 Order by application of

the law of the case doctrine. United States v. Alexander,

106 F.3d 874, 876 (9th Cir. 1997) (Under the law of the case

doctrine, “‘a court is generally precluded from reconsidering an

issue that has already been decided by the same court . . . .’”). 

As explained by the bankruptcy court, to find that Debtors had

“evaded” the Rule 2004 Order, Debtors had to have had knowledge

of the order and taken affirmative action to avoid complying with

it. Therefore, by necessary implication, Debtors’ “evasion” of

the Rule 2004 Order establishes that their non-compliance with it

was willful and intentional rather than inadvertent, by mistake,

or inability to comply. Evasion, like refusal, requires

something more than a mere failure to obey the order through

inadvertency, mistake or inability to comply. Debtors presented

no grounds for departing from the application of the law of the

case in the bankruptcy court or in this appeal. 

Even if the law of the case doctrine did not apply, Debtors

do not point to any significant probative evidence that creates a

genuine factual dispute on the issue whether their refusal to

obey the Rule 2004 Order was willful or intentional. Construing

the evidence in the light most favorable to Debtors, there is no

reasonable basis from which the finder of fact could conclude

that Debtors’ failure to comply with the Rule 2004 Order was

inadvertent, by mistake, or that they had an inability to comply. 

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The facts do not support such an inference. 

In sum, upon our de novo review, we conclude that the

bankruptcy court properly granted Trustee’s motion for partial

summary judgment with respect to the elements for revocation of

discharge under § 727(d)(3) and (a)(6)(A). 

C. The bankruptcy court did not abuse its discretion by 

revoking Debtors’ discharge. 

Nonetheless, the bankruptcy court still has discretion to

decide whether the Debtors’ refusal to obey the Rule 2004 Order

was sufficiently serious to warrant revocation of their

discharge. Debtors argue that the bankruptcy court’s revocation

of discharge was manifestly “unfair” in light of the facts they 

appeared at Sullivan Hill, but also eventually appeared for their

examinations. The bankruptcy court rejected their first argument

and considered their eventual compliance when evaluating whether

their refusal to obey the Rule 2004 Order was sufficiently

serious to revoke their discharge under § 727(a)(6). In

concluding that Debtors’ refusal to obey was sufficiently

serious, the bankruptcy court found that they knowingly elected

to evade their examinations which were lawfully ordered by the

court and properly scheduled by Trustee. The court also observed

that their belated compliance was far from voluntary, but rather

mandated by the order granting Trustee’s motion to compel, which

directed Debtors to appear under threat of further sanctions. 

Based on these facts, the bankruptcy court concluded that their

eventual appearance did not preclude the granting of partial

summary judgment in Trustee’s favor and the revocation of their

discharge.

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We do not discern any abuse of discretion under these

circumstances. The bankruptcy court correctly applied the law

regarding revocation under § 727(a)(6)(A). Furthermore, based on

the undisputed facts in the context of summary judgment, the

bankruptcy court acted well within its discretion when deciding

that revocation of Debtors’ discharge was warranted.

VI. CONCLUSION

For the reasons stated, we AFFIRM.

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