* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 18, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 05-20335

Summary Calendar

__________________________

In the matter: MICHAEL M. PFEIFLE,; MARLENE T. PFEIFLE;

Debtors.

CHEMOIL, INC. ,

Appellant,

versus

MICHAEL M PREIFLE; MARLENE T PFEIFLE,

Appellees.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(No. 4:05-CV-301)

___________________________________________________

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM: *

Chemoil, Inc. (“Chemoil”) appeals a district court judgment affirming a bankruptcy

court ruling in favor of Michael Pfeifle and Marlene Pfeifle (“the Pfeifles”). We observe

no clear error in the bankrupcty court’s finding that the Pfeifles kept adequate records of2

their financial condition. Chemoil’s assertion that the Pfeifles’ debt should not be

discharged under 11 U.S.C. § 727(a)(3) fails. Accordingly, we affirm.

I. FACTS AND PROCEEDINGS

Chemoil and Mr. Pfeifle were in a business re lationship involving commodity

trading. The relationship terminated in November 2000 when Chemoil accused Mr. Pfeifle

of unauthorized trading. In January 2003, following arbitration proceedings related to the

charge, Chemoil obtained a judgment against Mr. Pfeifle for approximately $846,000. In

April 2003, the Pfeifl e s filed a voluntary bankruptcy petition under Chapter 7, and

Chemoil was listed as a creditor on the Pfeifles’ schedules. Subsequently, Chemoil sued

to bar the Pfeifles’ discharge of debt under 11 U.S.C. § 727.

In the bankruptcy court proceedings, Chemoil alleged, inter alia, that the Pfeifles

failed to maintain adequate records of their financial condition and that their debt should

not be discharged pursuant to 11 U.S.C. § 727(a)(3). Specifically, Chemoil argued that the

failure to keep records of untraceable cash, alleg edly equal to twenty percent of the

debtors’ income, made it impossible to determine the debtors’ financial condition. The

bankruptcy court, however, accepted the sufficiency of the Pfeifles’ recordkeeping. The

Pfeifles moved for judgment pursuant to Federal Rule of Civ il Procedure 54(b), also

Bankruptcy Rule 7054(a); the court granted the Pfeifles motion.

Chemoil appealed to the district court on the issue of adequacy of recordkeeping.

The district court affirmed the ruling of the bankruptcy court, and appeal to this Court was

timely taken. This Court has jurisdiction to hear an appeal from a final order of a district3

court under 28 U.S.C. § 158(d).

II. STANDARD OF REVIEW

This Court reviews bankruptcy court decisions under the same standards the

district court employed in hearing the appeal from bankruptcy court; findings of fact are

reviewed for clear error, and legal conclusions are reviewed de novo

. Williams v. Int’l

Brotherhood of Electrical Workers Local 520 (In re Williams)

, 337 F.3d 504, 508 (5th Cir.

2003); In re Nat’l Gypsum Co. , 208 F.3d 498, 504 (5th Cir. 2000). A finding of fact is

“clearly erroneous only if ‘on the entire evidence, the cour t is left with the definite and

firm conviction that a mistake has been committed.’” Robertson v. Dennis (In re Dennis)

,

330 F.3d 696, 701 (5th Cir. 2003) (quoting Hibernia Nat’l Bank v. Perez

, 954 F.2d 1026, 1027

(5th Cir. 1992)). Further, this Court must give “due regard” to the judgment of the

bankruptcy court in assessing the credibility of the witnesses. Id

.

Chemoil tries to characterize the bankruptcy court’s factual finding concerning the

Pfeifle’s recordkeeping as a legal conclusion, such that this Court would review the court’s

judg ment under the d e novo standard. However, this characterization is without merit.

The law is settled that a finding regarding the debtor’s financial recordkeeping is a factual

one. Id . at 703; Goff v. Russell Co. (In re Goff) , 495 F.2d 199, 200 (5th Cir. 1974).

III. DISCUSSION

The sole issue on appeal is whether the Pfeifles complied with their duty to keep

adequate records in accordance with 11 U.S.C. § 727(a)(3).

A. 11 U.S.C. § 727(a)(3)4

The court shall grant discharge to a debtor, unless the debtor has “failed to keep or

preserve any recorded inf ormation, including books, documents, records, and papers,

from which the debtor’s financial condition or business transactions might be ascertained,

unless such act or failure to act was justified under all of the circumstances of the case.”

11 U.S.C. § 727(a)(3). The plaintiff bears the initial burden of proving that the debtor’s

financial records are inadequate and that this failure prevented the plaintiff from

ascertaining the debtor’s financial condition. I n re Dennis

, 330 F.3d at 703. If this burden

is met, the burden shifts to the debtors to show the inadequacy is justified under all of the

circumstances. Id

.

B. Findings of the bankruptcy court

The bankruptcy court concluded that Chemoil did not meet its burden. Rather, the

court noted that the re were thousands of pages of financial records and substantial

documents produced. The Pfeifles admitted into evidence four years of tax returns,

together with various supplemental documentation in support of the return s

. Also

admitt ed were bank statements, quarterly reports of retirement accounts, insurance

information, and credit card statements.

Mr. Pfeifle testified that he kept records of deduct ible business expenses and

records generally necessary for filing tax returns. He stated that he maintained other types

of records as well, such as property tax bills and pay stubs. Chemoil does not dispute that

the records referenced by Mr. Pfeifle were included in the record before the bankruptcy

court. Mr. Pfeifle asserted that his records were adequate for his circumstances. The1 We address the two most pertinent claims. In its brief, Chemoil does make other

arguments as well, but they are unsuccessful. For example, Chemoil states that the Pfeifles

are justifie d in not keeping records of their cash expenditures only if a normal and

reasonable person would do so under similar circumstances. However, the justification

inquiry only follows after the plaintiff has made a prima facie case t hat the debtor kept

inadequate records

. I n re Dennis

, 330 F.3d at 703. Because the bankruptcy court found

that Chemoil did not make out a prima facie case and we find no error in this assessment,

we need not address the justification inquiry. Also, Chemoil correctly points out that no

showing of fraudulent intent need be made under 11 U.S.C. § 727(a)(3). The bankruptcy

court did address intent under its analysis of section 727(a)(4) but did not factor this into

its analysis under section 727(a)(3). Consequently we do not find this to be an issue.

5 forensic accountant hired by Chemoil to review the Pfeifles’ financial records did not

testify.

Mr. Pfeifle testified that neither he nor his wife kept records of how they spent cash

but that they used it for living expenses and entertainment items as well as for mortgage

payments. The proportion of expenses paid in cash, Mr. Pfeifle said, was between fifteen

and twenty percent.

The bankruptcy court found that the number of records was substantial and that

the records kept were both reasonable given the needs of the debtor and appropriate given

his situation. The c

ourt also specifically gave credit to the testimony of Mr. Pfeifle and

found that Mr. Pfeifle’s financial condition had been clearly described in the course of the

proceedings.

C. Chemoil’s argument

Chemoil contests the bankruptcy court finding and chiefly makes two arguments

on appeal. 1 First, Chemoil contends that because no records exist to account for the use of6

credit card cash advances or cash withdrawals made when depositing checks, an accurate

picture of the Pfeifles’ financial condition cannot be ascer tained. This Circuit has not

delineated a precise threshold beyond which a debtor bec omes accountable for further

recordkeeping. However, we have required only “written evidence” of the debtor’s

financial condition, not “full detail” of all of the debtor’s financial records. I n re Dennis

,

330 F.3d at 703 (citing I n re Goff

, 495 F.2d at 201). The bankruptcy court found that the

absence of records as to these cash expenditures did not impede Chemoil from ascertaining

the Pfeifles’ financial condition. Using the above standard as a guide, we cannot say that

the bankruptcy court clearly erred in this regard.

Second, Chemoil insists that, as sophisticated wage earners, the Pfeifles should be

he ld to a higher standard regarding the amount and type of financial documentation

retained. The appellant cites to W omble v. Pher Partners which suggests that the level of

a debtor’s sophistication as well as the extent of his business activities should bear on the

adequacy of his record keeping. W omble v. Pher Partners (In re Womble)

, 108 Fed. Appx.

993, 996 (5th Cir. 2004). While we agree that this is true, this Court has also stated both

that debtors must only keep and preserve records which are appropriate to their situation

and that income tax returns are the “quintessential documents” in a personal bankruptcy.

In re Dennis

, 330 F.3d at 70 3. The Pfeifles’ case is a personal bankruptcy. The record

shows that they have produced four y ears of income tax returns as well as other

documentation. The bankruptcy court found this to be reasonable. Again, we cannot say

that the bankruptcy court made a clear error.7

In light of the above considerations, and based on Mr. Pfeifle’s testimony and the

evidence admitted into the record, we cannot say that the bankruptcy court clearly erred

in finding the Pfeifle’s records suf ficient to ascertain their financial condition. A

bankruptcy court has “wide discretion” in making this finding. I n re Dennis

, 330 F.3d at

703. Additionally, the bankruptcy court found Mr. Pfeifle to be a credible witness. We

give deference to the court in this regard. Id

. at 701. This Circuit has stated that discharge

should be denied only for very specific an d serious infractions. I n re Ichinose

, 946 F.2d

1169, 1172 (5th Cir. 1991). The discharge of the Pfeifles’ debt should not be denied under

11 U.S.C. § 727(a)(3).

IV. CONCLUSION

The order of the district court is AFFIRMED.