Cadle Company v. Terrell ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10169
Summary Calendar
In The Matter Of: LONDREW GLENN TERRELL
Debtor
The Cadle Company,
Appellee,
VERSUS
Londrew Glenn Terrell,
Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:01-CV-399-E)
July 30, 2002
Before DeMOSS, PARKER, AND DENNIS, Circuit Judges.
PER CURIAM:*
The Cadle Company (“Cadle”) is a creditor of debtor Londrew
Glenn Terrell (“Terrell”) by way of Cadle’s purchase of an unpaid
*
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opinion should not be published and is not precedent except under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.
judgment entered against Terrell on February 12, 1990 by the United
States District Court for the Southern District of Texas. On
February 22, 2000, Terrell filed for bankruptcy protection pursuant
to Chapter 7 of the Bankruptcy Code. Cadle filed an adversary
proceeding objecting to Terrell’s discharge pursuant to 11 U.S.C.
§ 727(a)(3), on grounds that Terrell failed to retain records from
which his financial condition could be ascertained. Both parties
filed cross motions for summary judgment. The bankruptcy court
granted summary judgment in favor of Terrell finding that the 1990
judgment was no longer valid. Cadle then appealed to the district
court. The district court reversed the granting of summary
judgment if favor of Terrell, and granted summary judgment in favor
of Cadle. The district court found that the 1990 judgment was
still valid and that Terrell’s discharge should be denied pursuant
to § 727 (a)(3).
Section 727 “makes complete financial disclosure a ‘condition
precedent’ to the privilege of discharge.” United States v. Ellis,
50 F.3d 419, 424 (7th Cir. 1995). See also Meridian Bank v. Alten,
958 F.2d 1226, 1230 (3rd Cir. 1992)(debtor's disclosure of
financial condition is a prerequisite to obtaining a discharge);
In re Sigust, 255 B.R. 822, 827 (Bankr. W.D. La. 2000),(purpose of
§ 727(a)(3) is to test the completeness of the disclosure
requirements to a discharge.) (quotations omitted), aff’d sub nom.
Sigust v. McDonough, 281 F.3d 1280 (5th Cir. 2001) (Table, No. 01-
30583); Matter of Hughes, 184 B.R. 902, 908 (Bankr. E.D. La. 1995)
(“disclosure of the debtor's financial condition is a prerequisite
to obtaining a discharge”). The law does not require an impeccable
system of bookkeeping. Median Bank, 958 F.2d at 1230. However, at
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the very least a debtor has a duty to disclose all of the records
available to him.
In this case, Cadle has established that Terrell did not meet
his duty of complete disclosure. Cadle satisfied its burden by
showing that Terrell failed to keep and provide credit card records
and bank statements from his wife’s checking account. Terrell
notes in his bankruptcy schedule that he had at least $59,000 in
credit card debit, but he failed to provide any documentation to
substantiate this debt. The record indicates that credit card
records were kept on microfilm by the credit card companies.
Terrell could have obtained these records from the credit card
companies. Additionally, he could have obtained past bank
statements from his wife’s bank account. It is true, that Terrell
did provide copies of tax returns, bankruptcy schedules, copies of
automobile insurance records, and his Last Will and Testament;
however, his withholding of some of the available records
demonstrates that he failed to meet his duty of complete disclosure
as required to gain a discharge.
Nonetheless, the debtor is still entitled to a discharge if
his failure to keep records can be justified. In re Grisham, 245
B.R. 65, 75 (Bankr. N.D. Tex. 2000). The burden is on the debtor
to justify his failure to keep records. If the debtor fails to
sustain his burden, and does not provide a sufficient explanation,
the debtor does not receive the discharge. In re Sigust, 255 B.R.
at 827. Here, Terrell fails to provide any justification for his
failure to completely disclose and keep financial records. Terrell
only argues that what he disclosed was sufficient. Terrell also
argues that Cadle never asked for any additional records. Neither
of these arguments address the issue of providing a justification
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why Terrell failed to meet his original duty. Therefore, for the
above reasons, and those set forth by the district court, we find
that Terrell is not entitled to a discharge.
After careful review of the Appellant’s claims, the briefs,
and the record, the well reasoned opinion of the district court is
affirmed on all issues presented on appeal.
JUDGMENT AFFIRMED.
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