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FILED

APR 27 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-16-1281-KuFL

)

RONALD DAVID TRUPPA, JR., ) Bk. No. 1:15-bk-11029-MT

)

Debtor. ) Adv. No. 1:15-ap-01103-MT

______________________________)

)

TIFANIE JOUDEH, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

RONALD DAVID TRUPPA, JR., )

)

Appellee. )

______________________________)

Argued and Submitted on March 23, 2017

at Pasadena, California

Filed – April 27, 2017

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Maureen A. Tighe, Bankruptcy Judge, Presiding

 

Appearances: Michael Ross Lewis of Lewis & Ham, LLP argued for

appellant; John W. Sullivan argued for appellee.

 

Before: KURTZ, FARIS and LAFFERTY, Bankruptcy Judges.

*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.
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INTRODUCTION

Tifanie Joudeh appeals from a summary judgment in favor of

chapter 71 Debtor Ronald David Truppa, Jr. disposing of her 

nondischargeability and objection to discharge claims.

Joudeh’s two-page declaration filed with her summary

judgment opposition was the only “evidence” she submitted in

support of her claims under §§ 523(a)(2)(A) and 523(a)(6), and

the story she told in her declaration was entirely discredited by

her own emails, which she did nothing to challenge when Truppa

submitted them in support of his summary judgment motion.

As for her objection to discharge claim under

§ 727(a)(4)(A), unlike the bankruptcy court, we are persuaded

that the facts in the summary judgment record, when viewed in the

light most favorable to Joudeh, were sufficient to permit a

reasonable trier of fact to find in her favor on all of the

elements necessary for a § 727(a)(4)(A) claim. This does not

mean that Joudeh is likely to win at trial on this claim. It

only means that, given the facts in the summary judgment record,

Joudeh’s § 727(a)(4)(A) claim should have survived Truppa’s

summary judgment motion.

Accordingly, we AFFIRM the portion of the bankruptcy court’s

summary judgment disposing of Joudeh’s §§ 523(a)(2)(A) and

523(a)(6) claims, and we REVERSE and REMAND for further

proceedings on Joudeh’s § 727(a)(4)(A) claim. 

1Unless 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.

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FACTS

We rely on the uncontroverted facts in the record. Truppa

is one of the founders, officers and directors of the Santa

Catalina Film Festival, a non-profit public benefit corporation

formed in 2011. The Festival holds an annual film festival on

Catalina Island, off the coast of Southern California. The

Festival’s activities have always included, among other things,

seminars regarding film production and marketing, and pitch

sessions during which attendees could submit creative ideas and

receive immediate feedback from film industry representatives. 

The seminar and pitch session aspects of the Festival changed

names from time to time. For the 2013 Festival, they were known

as the Catalina Film & TV Market and for the 2014 Festival they

were known as the Catalina Film & TV Summit.

For the 2011 Festival, Joudeh and her law firm provided pro

bono legal services to the Festival and also co-sponsored a

gathering known as the Mimosa Mixer. In return for those

contributions, Joudeh’s law firm received advertising and

acknowledgments in Festival publications.

Joudeh’s role in the Festival was much the same in 2012, but

in 2013 her role began to change. At a meeting in June 2013,

Joudeh and Truppa met with Gena Vazquez – a volunteer who served

as director of the Festival’s seminars in 2012 and every year

thereafter. At the June 2013 meeting, the parties apparently

discussed Joudeh helping Vazquez recruit panelists for the

September 2013 Festival’s Catalina Film & TV Market.

According to Truppa, at the June 2013 meeting and in follow

up email correspondence, Joudeh never proposed any sort of

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personal compensation or any sort of personal benefits in

exchange for her help in recruiting industry executives to

participate in the Festival’s September 2013 seminars and pitch

sessions. Instead, she asked the Festival to cover the cost of

her firm’s co-sponsored party and to make sure there were plenty

of perquisites for the participating industry executives she

recruited. The emails corroborate Truppa’s account: 

[Joudeh:] So, I’m jumping on this ASAP. The only thing

I ask for is that if I spend this much time putting

this together, that I (or Steff) don't have to come out

of pocket for the Soiree. I will still pay for the

invite to be designed and printed and will try to get

the same champagne sponsor again though.

[Truppa:] We will cover the Soiree - Just to clarify

(Rental property/space, decorations/bar setups, alcohol

sponsors)? Anything else I'm missing?

[Joudeh:] **MUSIC!! Also, I told X that food is a

necessity (light apps like cheese/crackers, chips/dips

(NICE dips), fruit, cold meats ... especially if we are

going to take the late eve slot.

[Joudeh:] The main item, which I know you know, is that

we cover everything for the execs while they are on the

island. Dinners/Lunches/Transportation/Liaison

contacts, etc. 

[Truppa:] So are you including this in Soiree Cost? We

would do this with/for any of our panel guests as well,

which now their presence will be part of a festival

component (Market), not just the Soiree. Is that what

you’re saying/asking?

[Joudeh:]**No, I was asking you to verify that once my

guys hit the port in LA, everything is going to be

taken care of for them. Food, transportation on the

island, housing, liaison services, “fun time”

(discussed below) etc.

Truppa Decl. (June 28, 2016) at Ex. 2 (emphasis added).

Joudeh has told a much different story. According to her,

in August 2013, she and Truppa entered into an oral agreement

pursuant to which they would be partners in a new business known

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as the Catalina Film & TV Summit. Joudeh claimed that, in

accordance with this agreement, the first Summit was held on

September 18 and 19, 2013, and she used her contacts and

proprietary email database of 16,000 people to promote the Summit

and recruit industry executives to serve as Summit panelists. 

She also claimed that she coordinated schedules and

transportation for the participating industry executives,

prepared panel schedules, topics and panelists, and herself

participated in Summit panels, pitches and other events. She

further claimed that she introduced Truppa to her industry

contacts.

In exchange for these services, Joudeh maintains, Truppa

promised her 15% of Summit net profits, co-management of the

Summit, the title and position of Summit Director, a percentage

commission of any Summit sponsorship funds, a salary to replace

the percentage commission as soon as the Summit had sufficient

funds to pay her a salary, and 20% ownership of the company

owning Summit.

Joudeh’s story of an August 2013 agreement is contradicted

by emails the parties exchanged after the September 2013 summit,

in early November 2013. In them, Joudeh refers to her “deal with

the fest” and makes it clear – in her own words – that this deal

was just being proposed by her and had not been agreed to or

promised by Truppa. Also, there is no mention of any prior

proposals, negotiations, agreements or promises concerning

Joudeh’s proposed deal.

Another series of emails – from the spring of 2014 – 

clearly reflect that the parties still had not struck a deal and

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that they still were discussing proposed deal terms. Indeed,

Joudeh’s emails express frustration over the lack of progress on

specific terms: the fact that she initially thought the parties

had reached an “understanding on” some of the individual deal

terms only to find out later that Truppa had taken those terms

“off the table.” This is the language of negotiation and not the

language of a promise or an agreement.

Shortly thereafter, in or around April 2014, Truppa rejected

Joudeh’s “final and best offer” and the parties terminated their

negotiations. In August 2014, Joudeh filed a lawsuit in the Los

Angeles County Superior Court against the Festival and Truppa,

and in March 2015, Truppa commenced his chapter 7 bankruptcy

case.2 In Truppa’s bankruptcy case, Joudeh initiated an

adversary proceeding seeking to except from discharge her

disputed claim against him and objecting to his receipt of a

discharge from any of his debts.

The operative version of Joudeh’s complaint – her second

amended complaint – states claims for relief under

§§ 523(a)(2)(A), 523(a)(6) and 727(a)(4)(A). Joudeh’s

§§ 523(a)(2)(A) and 523(a)(6) claims were based on her

allegations that Truppa, during the summer of 2013, fraudulently

entered into a binding agreement with her without any intention

2The parties’ excerpts of record only include a fraction of

the materials in the bankruptcy court’s summary judgment record. 

Notwithstanding their omissions, we have exercised our discretion

to review the full record, which is available to us via the

bankruptcy court’s electronic docket and the document images

attached thereto. See Franklin High Yield Tax–Free Income Fund

v. City of Stockton, Cal. (In re City of Stockton, Cal.),

542 B.R. 261, 265 n.2 (9th Cir. BAP 2015).

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to ever perform his part of the agreement. Joudeh’s

§ 727(a)(4)(A) claim was based on her allegations that Truppa

fraudulently omitted certain assets, liabilities and income from

his bankruptcy schedules.

Truppa filed a summary judgment motion, which the bankruptcy

court granted. The bankruptcy court pointed out that the only

evidence Joudeh submitted in support of her § 523 claims was her

own two-page declaration, which the court described as

conclusory. The bankruptcy court further explained that Joudeh

had done nothing to counter Truppa’s email evidence that the

parties were discussing terms for a proposed agreement in

November of 2013 – months after Joudeh alleged the agreement had

been entered into. The bankruptcy court additionally observed

that the spring 2014 emails (again, which Joudeh did nothing to

counter) further contradicted Joudeh’s claim that the parties had

reached a final, binding agreement in the summer of 2013. 

Indeed, the court noted, Joudeh’s own statements in the emails

acknowledge that no deal had been reached between the parties.

In ruling on Joudeh’s § 727(a)(4)(A) claim, the bankruptcy

court determined that there was no proof that Truppa actually

owned the assets he allegedly omitted. Nor was there any proof

that he received any undisclosed income. As for omitted

liabilities, the only omitted liability Joudeh complained of was

Joudeh’s own disputed claim. The bankruptcy court noted that,

while Joudeh’s claim was not listed on Truppa’s initial Schedule

F, Joudeh’s lawsuit was listed in Truppa’s initial statement of

financial affairs. The court further noted that Joudeh’s claim

was added to Truppa’s amended Schedule F within two days of his

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§ 341(a) meeting of creditors.

In addition to the general lack of evidence of omitted

assets and liabilities, the bankruptcy court alternately held

that any such omitted assets and liabilities were immaterial and

were not knowingly or fraudulently concealed.

The bankruptcy court entered summary judgment in favor of

Truppa on August 23, 2016, and Joudeh timely appealed.

JURISDICTION

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

§§ 1334 and 157(b)(2)(I) and (J), and we have jurisdiction under

28 U.S.C. § 158.

ISSUE

Did the bankruptcy court commit reversible error when it

granted summary judgment in favor of Truppa?

STANDARD OF REVIEW

We review de novo the bankruptcy court’s summary judgment

ruling. Salven v. Galli (In re Pass), 553 B.R. 749, 756 (9th

Cir. BAP 2016).

When we review a matter de novo, we give no deference to the

bankruptcy court’s ruling. Ulrich v. Schian Walker, P.L.C.

(In re Boates), 551 B.R. 428, 433 (9th Cir. BAP 2016); Barnes v.

Belice (In re Belice), 461 B.R. 564, 572 (9th Cir. BAP 2011).

DISCUSSION

1. Summary Judgment Standards

Summary judgment should be granted when there are no genuine

issues of material fact and when the movant is entitled to

prevail as a matter of law. Civil Rule 56 (made applicable in

adversary proceedings by Rule 7056); Celotex Corp. v. Catrett,

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477 U.S. 317, 322–23 (1986). Material facts are those that may

affect the outcome of the case under applicable substantive law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And

issues are genuine only if the trier of fact reasonably could

find in favor of the nonmoving party on the evidence presented.

Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 1997).

In fact, Civil Rule 56 “mandates” entry of summary judgment

when, after adequate time for discovery, the nonmoving party

fails to present evidence in response to the summary judgment

motion sufficient to establish an essential element of that

party’s case, on which that party will bear the burden of proof

at trial. Celotex, 477 U.S. at 322-23. As the Supreme Court in

Celotex explained, “In such a situation, there can be ‘no genuine

issue as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Id.

Thus, while the movant has the initial burden of identifying

the portions of the record demonstrating the absence of a genuine

issue of material fact, id. at 323, once the movant has come

forward with uncontroverted facts entitling it to relief, the

burden then shifts to the nonmovant to demonstrate that there are

specific and genuine issues of material fact necessitating a

trial. Id. at 324. The nonmovant must go beyond the pleadings

and introduce or point to specific evidence in the record

supporting its position. Id.

When considering summary judgment, we must view all facts

genuinely in dispute “in the light most favorable to the

non-moving party.” Scott v. Harris, 550 U.S. 372, 380 (2007).

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And we must draw all reasonable inferences in the nonmoving

party’s favor. Id. at 378. Nonetheless, “[e]ven in cases where

elusive concepts such as motive or intent are at issue, summary

judgment may be appropriate if the nonmoving party rests merely

upon conclusory allegations, improbable inferences, and

unsupported speculation.” Gertsch v. Johnson & Johnson Fin.

Corp. (In re Gertsch), 237 B.R. 160, 165 (9th Cir. BAP 1999)

(quoting Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990)).

2. The Bankruptcy Court’s § 523(a)(2)(A) Ruling

Section 523(a)(2)(A) excepts from discharge debts “for

money, property, services . . . to the extent obtained by . . .

false pretenses, a false representation, or actual fraud . . . .”

As set forth in her second amended complaint, Joudeh based her

§ 523(a)(2)(A) claim on a theory of promissory fraud, which

generally requires:

(1) a promise made regarding a material fact without

any intention of performing it; (2) the existence of

the intent not to perform at the time the promise was

made; (3) intent to deceive or induce the promisee to

enter into a transaction; (4) reasonable reliance by

the promisee; (5) nonperformance by the party making

the promise; and (6) resulting damage to the promisee.

Behnke v. State Farm Gen. Ins. Co., 127 Cal. Rptr. 3d 372, 380

(Cal. App. 2011).3

3On the one hand, California law generally controls whether

Truppa has any liability to Joudeh. See Hassanally v. Republic

Bank (In re Hassanally), 208 B.R. 46, 49 (9th Cir. BAP 1997)

(citing Butner v. United States, 440 U.S. 48, 54–55 (1979)). On

the other hand, the Restatement (Second) of Torts typically

informs us as to what constitutes nondischargeable fraud. See

Field v. Mans, 516 U.S. 59, 68–70 (1995); Apte v. Romesh Japra,

(continued...)

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It is axiomatic that there can be no claim for promissory

fraud without evidence of a promise made. See generally

Restatement (Second) of Torts § 530(1), cmt. c (1976) (“Since a

promise necessarily carries with it the implied assertion of an

intention to perform it follows that a promise made without such

an intention is fraudulent and actionable in deceit.”); Lazar v.

Superior Court, 49 Cal. Rptr. 2d 377, 381 (Cal. 1996) (“A promise

to do something necessarily implies the intention to perform;

hence, where a promise is made without such intention, there is

an implied misrepresentation of fact that may be actionable

fraud.”).

The bankruptcy court, here, correctly noted that Joudeh’s

statements in her own emails flatly contradicted her assertions

that Truppa promised her certain entitlements in exchange for her

services. In this respect, this appeal reminds us of Scott v.

Harris, supra. The Scott court held:

When opposing parties tell two different stories, one

of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.

Scott, 550 U.S. at 380. In Scott, the Supreme Court was

presented with a video depicting a car chase that was

fundamentally at odds with the plaintiff’s version of events. 

Id. at 379. The plaintiff in Scott contended that Officer

Scott’s actions in intentionally bumping his car near the end of

3(...continued)

M.D., F.A.C.C., Inc. (In re Apte), 96 F.3d 1319, 1324 (9th Cir.

1996). Thus, we look to both California law and the Restatement

for guidance in resolving the parties’ dispute regarding Truppa’s

alleged debt to Joudeh and its potential nondischargeability.

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the car chase forced him from the road, caused him grievous

bodily injury and constituted an excessive use of force. Id. at

375. On review to the Eleventh Circuit Court of Appeals, the

Eleventh Circuit affirmed the district court’s denial of Officer

Scott’s motion for summary judgment, opining that, on summary

judgment, the court was obliged to accept the plaintiff’s

conflicting account of the car chase, notwithstanding what the

car chase video showed. Id. at 375, 378-79, 380-81. 

The Supreme Court reversed, explaining that the video “quite

clearly” contradicted plaintiff’s version of the car chase and

that the plaintiff had not challenged the video as being altered

in any way. Nor did plaintiff argue “that what it depicts

differs from what actually happened.” Id. at 378. The Supreme

Court, more than once, acknowledged the court’s duty to view the

facts and make reasonable inferences in the light most favorable

to the nonmoving party, id. at 377, 78, but still held that

Officer Scott was entitled to summary judgment because the

plaintiff’s “version of events is so utterly discredited by the

record that no reasonable jury could have believed him. The

Court of Appeals should not have relied on such visible fiction;

it should have viewed the facts in the light depicted by the

videotape.” Id. at 380-81.

Here, the role of Scott’s videotape is played by Joudeh’s

own emails. Joudeh made no attempt in the bankruptcy court to

challenge the authenticity of the emails or to argue that they do

not accurately depict the true nature and status of the parties’

discussions regarding Joudeh’s role in the Festival and 

its seminars and pitch sessions. Nor has she done so on appeal.

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She simply has told a different story that is at odds with her

own emails – a story which she told in a conclusory, two-page

declaration.

Thus, in keeping with Scott, we hold that Joudeh’s assertion

that Truppa promised her certain entitlements in exchange for her

services was so utterly discredited by her own emails that no

reasonable jury could have believed her. As a result, Joudeh

failed her summary judgment burden of pointing to evidence in the

record demonstrating an essential element of her promissory fraud

claim: the existence of a promise Truppa made with no intent to

perform. 

Perhaps realizing that her promissory fraud claim suffered

from a fatal deficiency, Joudeh’s summary judgment opposition,

and her appeal brief, also alluded to a different subspecies of

fraud – namely fraudulent concealment. However, Joudeh did not

allege fraudulent concealment in her second amended complaint. 

Moreover, her two-page declaration in opposition to Truppa’s

summary judgment motion only made a passing reference to Truppa’s

alleged nondisclosure. According to Joudeh, Truppa never told

her that the seminar and pitch session aspects of the Festival

were part of a nonprofit organization and that there could be no

profits or ownership for her to share in as she had proposed. 

Joudeh further complains that “[Truppa] continued discussions

with me as if there was to be a for-profit business.”

Assuming without deciding that Joudeh somehow preserved for

appeal her fraudulent concealment claim (even though she never

alleged fraudulent concealment in her complaint), this claim

suffers from a defect similar to her promissory fraud claim. 

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More specifically, Joudeh did not meet her summary judgment

burden of pointing to facts in the record from which a reasonable

trier of fact could find all of the elements of a fraudulent

concealment claim.

Among other things, a fraudulent concealment claim requires

proof that the defendant had a duty to disclose the information

allegedly concealed. Restatement (Second) of Torts § 551 (1977);

LiMandri v. Judkins, 60 Cal. Rptr. 2d 539, 543-44 (Cal. 1997); 

Hoffman v. 162 North Wolfe LLC, 175 Cal. Rptr. 3d 820, 826-27

(Cal. App. 2014). In the absence of a fiduciary relationship, a

duty to disclose typically does not arise unless there exists

between the parties a relationship from some sort of business

transaction – like that “between seller and buyer, employer and

prospective employee, doctor and patient, or parties entering

into any kind of contractual agreement.” Hoffman, 175 Cal. Rptr.

3d at 827 (citing LiMandri, 60 Cal. Rptr. 2d at 543).

The problem with Joudeh’s fraudulent concealment claim is

that the so-called business transaction between Joudeh and Truppa

did not advance to a point where Truppa became subject to any

duty to disclose. As pointed out above, Joudeh’s own emails

establish that the parties never reached agreement on Joudeh’s

future involvement in the Festival. Furthermore, Joudeh has not

cited any authority establishing that parties involved in

contract negotiations that do not result in the parties entering

into a contract owe any disclosure duty to one another. Nor are

we aware of any such authority. Furthermore, Joudeh did not

demonstrate (or even allege) any other basis under which a duty

to disclose might have arisen.

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In short, summary judgment was correctly granted against

Joudeh’s § 523(a)(2)(A) claim because there was no evidence in

the record to support essential elements of her two fraud

theories.4

3. The Bankruptcy Court’s § 727(a)(4)(A) Ruling

Under § 727(a)(4)(A), the court may deny a debtor a

discharge if the debtor “knowingly and fraudulently, in or in

connection with the case . . . made a false oath or account 

. . . .” The creditor must prove that: “(1) the debtor made a

false oath in connection with the case; (2) the oath related to a

material fact; (3) the oath was made knowingly; and (4) the oath

was made fraudulently.” Retz v. Samson (In re Retz), 606 F.3d

1189, 1197 (9th Cir. 2010). The principal purpose of

§ 727(a)(4)(A) is to insure that the trustee and creditors have

accurate and complete information to work with without having to

conduct costly and time-consuming investigations. Fogal Legware

of Switz., Inc. v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir.

BAP 1999) (citing Aubrey v. Thomas (In re Aubrey), 111 B.R. 268,

274 (9th Cir. BAP 1990)). Thus, omissions in the debtor’s

schedules can constitute false oaths for purposes of

§ 727(a)(4)(A). Searles v. Riley (In re Searles ), 317 B.R. 368,

377 (9th Cir. BAP 2004); In re Wills, 243 B.R. at 62.

a. Omissions

Joudeh initially complained of three different types of

4Because Joudeh’s opening appeal brief contains no argument

pertaining to her § 523(a)(6) claim, we decline to address it. 

See Christian Legal Soc'y v. Wu, 626 F.3d 483, 485 (9th Cir.

2010); Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th

Cir. 2010).

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alleged omissions: (1) Truppa did not list her as a creditor in

his initial Schedule F; (2) Truppa did not list as income expense

reimbursements he received from the Festival; and (3) Truppa did

not list as assets certain films he allegedly owned. On appeal,

Joudeh has focused exclusively on the allegedly omitted films,

and she confirmed at oral argument before this Panel that her

appeal of the bankruptcy court’s § 727(a)(4)(A) ruling was

limited to the issue of the omitted films. Accordingly, we will

limit our review of the § 727(a)(4)(A) ruling to this issue.

To support her allegation that Truppa or his unincorporated

sole proprietorship – Truppa Entertainment – owned certain films,

Joudeh relied on Truppa’s discovery responses. In those

responses, Truppa made the following rather ambiguous statement

in response to Joudeh’s request for admission that he did not

list in his bankruptcy schedules any “interest” he had in any

films: “Admit with explanation. I do not have any interest in

films with any value.” In responding to a similar question

regarding Truppa not listing any interest Truppa Entertainment

might have in any films, Truppa similarly stated: “Admit with

explanation. Truppa Entertainment does not have any interest in

films with any value.” Of course, the phrasing of these two

responses suggests, by negative implication, that Truppa and/or

his sole proprietorship Truppa Entertainment might have had an

ownership interest in some films Truppa considers valueless.

In his declaration accompanying his reply brief, Truppa

attempted to “clarify” his statement regarding his interest in

films: “With respect to what I did and did not list as assets as

far as films go, I do not own any interest in any films, and my

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services and [those of] my company Truppa Entertainment have

always been work-for-hire or work-for credit.”

The bankruptcy court determined on the summary judgment

record that there was no evidence from which a reasonable trier

of fact could conclude that either Truppa or his sole

proprietorship Truppa Entertainment owned any films. While

Truppa’s reply declaration statement is unequivocal and

straightforward by itself, Truppa’s prior discovery responses

clouded the issue. We recognize that Truppa cannot (and did not

need to) prove the negative – his nonownership of any films – and

that his ambiguous discovery responses were slim evidence of

actionable omissions. Even so, we are persuaded that a

reasonable trier of fact could disbelieve Truppa’s attempts to

clarify his prior discovery responses and could infer from those

discovery responses some sort of undisclosed film ownership

interests. Even a single omission from the debtor’s schedules

may be sufficient to state a claim under the plain language of

§ 727(a)(4)(A). See U.S. Tr. v. Stokes (In re Stokes), 451 B.R.

44, 85–86 (Bankr. D. Mont. 2011).

b. Materiality

Additionally, the bankruptcy court concluded that all of the

alleged omissions were immaterial. In reaching this conclusion,

the bankruptcy court seemingly looked at all of the surrounding

circumstances and apparently determined that the alleged

omissions were insignificant when viewed in the context of the

case. We disagree with the bankruptcy court’s methodology. The 

§ 727(a)(4)(A) materiality standard is very broad and includes

just about any information that has any bearing on the debtor’s

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finances. As stated by the Ninth Circuit, “A fact is material if

it bears a relationship to the debtor's business transactions or

estate, or concerns the discovery of assets, business dealings,

or the existence and disposition of the debtor's property.” 

In re Retz, 606 F.3d at 1196 (internal quotation marks omitted)

(quoting Khalil v. Developers Sur. & Indem. Co. (In re Khalil),

379 B.R. 163, 173 (9th Cir. BAP 2007), aff’d & adopted, 578 F.3d

1167, 1168 (9th Cir. 2009)); see also Garcia v. Coombs

(In re Coombs), 193 B.R. 557, 566 (Bankr. S.D. Cal. 1996)

(considering materiality at length and concluding that “there is

little that will prove to be immaterial for purposes of required

disclosure if it aids in understanding the debtor's financial

affairs and transactions”). Under the prevailing legal standard,

we simply cannot say that the allegedly omitted films were

immaterial under § 727(a)(4)(A).

c. Knowingly and Fraudulently

In the § 727(a)(4)(A) context, the debtor’s conduct was

knowing if he or she acted deliberately or consciously and the

debtor’s conduct was fraudulent if (1) the debtor made the false

statements or omissions in his or her bankruptcy schedules,

(2) knowing that the misstatements or omissions were inaccurate

at the time he or she made them, and (3) with the intention and

purpose of deceiving his or her creditors. See In re Khalil,

379 B.R. at 173 (citing Roberts v. Erhard (In re Roberts), 331

B.R. 876, 884 (9th Cir. BAP 2005), aff’d, 241 F. App’x 420 (9th

Cir. 2007)).

The debtor's fraudulent intent may be demonstrated by

circumstantial evidence and inference, and the court may infer

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fraudulent intent based on a “pattern of falsity.” In re Wills,

243 B.R. at 62. “Reckless indifference or disregard for the

truth . . . is not sufficient, alone, to constitute fraudulent

intent.” In re Retz, 606 F.3d at 1199 (citing In re Khalil,

379 B.R. at 173-75).

Nothing in the record or in Truppa’s alleged nondisclosures

comes anywhere close to rising to the level of a pattern of

falsity or a reckless indifference or disregard for the truth. 

Thus, the viability of Joudeh’s § 727(a)(4)(A) claim hinges on

whether no reasonable trier of fact could have inferred Truppa’s

culpable state of mind from his failure to disclose the allegedly

omitted films.

This is a difficult standard for the summary judgment movant

to meet. Indeed, “[s]ummary judgment is ordinarily not

appropriate in a § 727 action where there is an issue of intent.”

In re Wills, 243 B.R. at 65; see also In re Gertsch, 237 B.R. at

165 (“Where intent is at issue, summary judgment is seldom

granted.”). On the other hand, “Even in cases where elusive

concepts such as motive or intent are at issue, summary judgment

may be appropriate if the non-moving party rests merely upon

conclusory allegations, improbable inferences, and unsupported

speculation.” In re Gertsch, 237 B.R. at 165 (quoting

Medina–Munoz, 896 F.2d at 8).

Notwithstanding the inherent difficulty of granting summary

judgment where intent is at issue, some bankruptcy courts in our

circuit have granted summary judgment on § 727(a)(4)(A) claims,

and we have reviewed and upheld some of those judgments. See,

e.g., Sfadia v. Dongkuk Int’l, Inc. (In re Sfadia), 2007 WL

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7540987, at *13 (Mem. Dec.) (9th Cir. BAP Sept. 5, 2007); 

In re Aubrey, 111 B.R. at 274; U.S. Tr. v. Totten (In re Totten),

2014 WL 690616, at *5-6 (Mem. Dec.) (Bankr. D. Haw. Feb. 20,

2014); see also Wicklund v. Robert D. Johnson Trust

(In re Wicklund), 2016 WL 5339412, at *10 (W.D. Wash. Mar. 28,

2016);

The bankruptcy court made no specific intent assessment with

respect to Truppa’s nondisclosure of the allegedly omitted films. 

Nor can we independently conceive how the bankruptcy court could

have conclusively determined on summary judgment that Truppa did

not harbor a fraudulent intent in not disclosing the films. At

bottom, in the summary judgment context, we are obliged to make

our own independent determination as to whether no reasonable

trier of fact could have found for Joudeh on the intent and

knowledge issues. On this record, we are persuaded that a trier

of fact reasonably could have inferred from the presented facts –

when taken in the light most favorable to Joudeh – that Truppa

knowingly and fraudulently omitted from his schedules his

interest in certain undisclosed films.

In sum, the bankruptcy court erred when it granted summary

judgment in favor of Truppa on Joudeh’s § 727(a)(4)(A) claim.

CONCLUSION

For the reasons set forth above, the bankruptcy court’s

summary judgment is AFFIRMED IN PART and REVERSED IN PART, and

this matter is REMANDED for further proceedings consistent with

this decision.

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