The opinion
UNITED STATES BANKRUPTCY COURT
DISTRICT OF ALASKA
In re: Bankruptcy Case No. 18-00357-GS
Chapter 7
GARTH and KIMBERLY MILLIRON,
Debtors.
JAY SCHINDLER and JEANNE Adversary Proceeding No. 19-90001-GS
SCHINDLER,
Plaintiffs,
vs.
GARTH MILLIRON and KIMBERLY
MILLIRON,
Defendants.
In re: Bankruptcy Case No. 18-00358-GS
Chapter 7
JARRED and JENNIFER MILLIRON,
Debtors.
JAY SCHINDLER and JEANNE Adversary Proceeding No. 19-90002-GS
SCHINDLER,
Plaintiffs,
vs.
JARRED MILLIRON and JENNIFER
MILLIRON,
Defendants.
MEMORANDUM DECISION RE: JUDGMENT AFTER TRIAL ON § 727 ACTION
Plaintiffs Jay and Jeanne Schindler filed separate adversary proceedings against debtors
Garth Milliron and Jarred Milliron, together with their spouses Kimberly and Jennifer,
respectively, to deny their discharges under 11 U.S.C. § 727(a)(4), and to except various debts
1
owed by them under § 523(a)(2). Because the actions of Garth Milliron and Jarred Milliron are
largely intertwined, the court conducted a combined trial in the two adversary proceedings and
took the matter under submission. In keeping with the combined nature of the trial, this
memorandum addresses the § 727(a)(4)(A) claims and shall be entered in both adversary
proceedings. The court shall also issue a separate memorandum in both adversary proceedings
discussing the Schindlers’ claims under § 523(a)(2). This memorandum, therefore, is intended
to be interlocutory pending full adjudication of all claims submitted at trial.
A. BACKGROUND
1. Prepetition
Garth and Kimberly Milliron reside in the Living Word Ministries (Living Word)
community outside Delta Junction, Alaska (Alaska Highway Property).1 Garth is a pastor in
the Living Word church, and is a member of the church’s board.2 Their son, Jarred, and his
wife Jennifer also live in the Living Word community.3 Jarred serves on the board of Dry
Creek Community Corporation,4 an entity which manages the community’s infrastructure.5
The church owns all of the real property in the community, which consists of 20-30 houses that
church members are allowed to reside in so long as they remain members of the church.6
1 Plaintiffs’ Trial Exhibit 34, Transcript p. 18:6-25.
2 Id. at Transcript pp. 67:14-68:5.
3 Defendants’ Post-Trial Brief, Adv. Proc. No. 19-90001-GS, Adv. ECF No. 68-1, Transcript p. 9:8-9.
4 Plaintiffs’ Trial Exhibit 34, Transcript p. 70:10-12.
5 Plaintiffs’ Trial Exhibit 41, Transcript pp. 15:17-16:8.
6 Plaintiffs’ Trial Exhibit 42, Transcript pp. 39:22-40:18.
2
It is in this community that the Millirons started their construction business, Dry Creek
Construction, LLC (DCC). Garth and Kimberly own 50% of the business.7 Jarred and Jennifer
own the other 50%.8 Because banks were initially reluctant to lend directly to the business,
Garth testified that he and Jarred frequently titled the personal property acquired for the
business in their own names as they believed it was needed.9 Multiple vehicles, trailers, and
tools were purchased for, and used by, the business.
In the mid-2000s, DCC acquired two parcels of real property in Delta Junction: 1770
and 1746 Miltan Road (the Miltan Properties).10 Shortly thereafter, Garth purchased a building
from the local school district and moved it to 1770 Miltan.11 Over the course of several years,
Jarred and Garth devoted their personal time to renovating the building, which was completed
in 2017.12 On September 11, 2018, Garth, Kimberly, Jarred, and Jennifer executed a quitclaim
deed on behalf of DCC, transferring the Miltan Properties to Garth.13 The quitclaim deed was
recorded that same day.14
7 Plaintiffs’ Trial Exhibit 30, p. 16.
8 Plaintiffs’ Trial Exhibit 32, p. 16.
9 Plaintiffs’ Trial Exhibit 34, Transcript p. 8:1-19.
10 Id. at Transcript p. 28:10-25. also known as lots 80 and 81 of Good-Niss Acres. See Plaintiffs’ Trial Exhibit 53.
11 Id. at Transcript p. 29:7-20.
12 Id. at Transcript pp. 29:20-30:8.
13 Plaintiffs’ Trial Exhibit 53.
14 Id.
3
On or about October 18, 2018, Garth obtained a $110,000.00 line of credit on the
Miltan Properties from Mt. McKinley Bank (McKinley).15 McKinley recorded a deed of trust
against the Miltan Properties on October 19, 2018.16 The Millirons never drew on the line of
credit.17
In 2012, DCC was hired to do a large construction project for the Schindlers, who
purchased a parcel of raw land in Delta Junction in January 2012.18 From 2012 to 2017, DCC
worked to construct a farmstead and a home on the Schindlers’ property. The Schindlers,
dissatisfied with the work performed by the Millirons, brought suit against them in Alaska
Superior Court in 2017. Trial was set to commence on October 22, 2018.
2. The Millirons and DCC File Bankruptcy
On October 22, 2018, the day their state court trial with the Schindlers was set to begin,
DCC, Garth and Kimberly Milliron, and Jarred and Jennifer Milliron filed voluntary chapter 7
bankruptcy petitions.19 Attorney Jason Gazewood represents all of the debtors in their
respective bankruptcies.20 Nacole Jipping was appointed the chapter 7 trustee of DCC’s
bankruptcy estate. Kenneth Battley was appointed the chapter 7 trustee in each of the
Millirons’ bankruptcy cases.
15 Plaintiffs’ Trial Exhibit 34, Transcript pp. 32:18-33:5.
16 Id. at Transcript p. 32:15-17.
17 Id. at Transcript p. 33:12-16. See also Case No. 18-00360-GS, ECF No. 40, p. 39. The court may take judicial
notice of items on its own case dockets. See Dunlap v. Neven, 2014 WL 3000133, at *5 (D. Nev. June 30, 2014)
(citing Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006)) (“Courts routinely take
judicial notice of their own court records.”).
18 Trial Audio Recording, Jeanne Schindler Testimony, Case No. 18-00357-GS, ECF No. 54 at 21:05-21:25.
19 See Plaintiffs’ Trial Exhibits 28; 30; and 32.
20 Id.
4
The Schindlers’ § 727 nondischargeability claims chiefly arise from what the Millirons
listed, and omitted, on their bankruptcy schedules and statements. The Millirons filed their
original statements and schedules, and two amendments. Their statements and schedules
presented conflicting and confusing claims of ownership as to the Miltan Properties and various
construction equipment that was consistently listed on DCC’s schedules and ultimately sold
within DCC’s bankruptcy. This confusion was only compounded by their testimony at the
various meetings of creditors conducted in their individual cases, especially when compared to
their testimony in DCC’s meeting of creditors. The Schindlers contend that the Millirons made
false oaths in their schedules and statements, while Garth and Jarred also gave false testimony
at their creditors’ meetings. The court addresses each in turn.
a. DCC Bankruptcy
i. Initial Schedules and Statements
Each of the debtors filed their original schedules together with their petitions on
October 22, 2018. In Schedule A/B, DCC listed no real property.21 This is wholly consistent
with the September 11, 2018 quitclaim deed from DCC to Garth Milliron. Yet, DCC attested
in response to item 13 of the Statement of Financial Affairs that it had made no “transfers of
money or property by sale, trade, or any other means by the debtor…within 2 years before the
filing of this case to another person, other than property transferred in the ordinary course of
business or financial affairs.”22 In response to item 4 of its Statement of Financial Affairs,
21 Plaintiffs’ Trial Exhibit 28, p. 9.
22 Id. at p. 23.
5
DCC disclosed no “[p]ayments or other transfers of property made within 1 year before filing
this case that benefitted any insider.”23
DCC did, however, list numerous vehicles and values in response to item 47:
2017 Dodge Ram $42,000.00
2015 Chevy Silverado $25,000.00
2015 Polaris Ranger $6,200.00
2012 Snowmachine $2,500.0024
Under item 48 of Schedule A/B, DCC listed and valued the following equipment as
additional personal property:
1991 Dutchman Camper Trailer $800.00
2004 Wells Cargo Trailer $18,000.00
2004 Haulmark Tool Trailer $1,000.00
2002 Gortzen Materials Trailer $800.00
2007 Snake River Eq. Trailer $1,000.00
Trencher $2,146.00
CAT Skidsteer $10,000.00
Excavator $30,000.00
Excavator Attachments $3,500.00
Misc. Tools and Equipment $4,450.0025
DCC’s Schedule H listed Garth and Jarred Milliron as codebtors only on a $25,000.00
debt owed to Western Surety, which was related to the entity’s unsecured claim. The basis for
the claim and codebtor listing was stated as “[i]ndemnifier for litigation.”26 DCC’s chapter 7
bankruptcy petition was signed by Garth Milliron.27
23 Id. at p. 22.
24 Id. at p. 8. For each of these items, the value listed represents the “[c]urrent value of debtor’s interest” in
Schedule A/B.
25 Id. During his § 341(a) examination, Garth Milliron explained that the property listed as “excavator
attachments” were actually Skidsteer attachments. See Plaintiff’s Trial Exhibit 36, Transcript pp. 9:21-11:24.
26 Id. at pp. 18, 20.
27 Id. at p. 5.
6
ii. The § 341(a) Meeting of Creditors
Nacole Jipping, the chapter 7 trustee for DCC’s bankruptcy estate, conducted DCC’s
initial § 341(a) meeting of creditors on November 29, 2018.28 All four Millirons appeared to
provide testimony for the debtor.29 DCC’s initial meeting of creditors took place before the
meetings of creditors for either Garth and Kimberly, or Jarred and Jennifer, which were both
held on December 27, 2018.
Both Garth and Jarred stated that they carefully read over DCC’s schedules and
statements, and believed the information contained therein to be true and correct to the best of
their knowledge.30 When asked by Ms. Jipping whether anything had changed after the
schedules were filed that she should know about, Garth replied that just a few creditor additions
had been submitted to DCC’s counsel, Mr. Gazewood.31
Next, Ms. Jipping admitted to some confusion regarding ownership of the personal
property assets, because “[DCC] had listed…some of the same things in [the Millirons’]
personal bankruptcies that [DCC] did in the business.”32 Garth explained that, with the
28 Plaintiffs’ Trial Exhibit 34, p. 1.
29 Id. at Transcript pp. 2:23-3:1.
30 Id. at Transcript pp. 3:20-4:6.
31 Id. at Transcript p. 4:12-17.
32 Id. at Transcript p. 7:20-24.
7
exception of the Skidsteer,33 the vehicles were titled to him or Jarred because initially DCC had
no credit, but those vehicles were used by DCC in the course of its business.34 Jarred stated
that “a lot of the equipment is titled in [DCC].”35
Jarred added a caveat that because he and Garth personally guaranteed everything they
bought, “[e]verything Dry Creek Construction owns, we own; and everything we own, Dry
Creek Construction owns.”36 Garth later clarified that he also owned some tools that were left
to him after his father’s death, as well as some tools that were purchased for a prior
construction business he owned.37 Mr. Gazewood concluded the discussion with the statement,
“Jarred’s testified that the machinery, equipment, tools are all bought by Dry Creek, owned by
Dry Creek.”38
Ms. Jipping’s counsel, Cabot Christianson, then inquired about the Miltan Properties.39
He noted the quitclaim deed recorded on September 11, 2018,40 and asked about the deed of
trust recorded in favor of McKinley on October 19, 2018.41 When asked why that deed of trust
was not disclosed in the schedules, Garth replied that the deed of trust in favor of McKinley
33 Although Jarred asserted that the Dodge Ram was also titled to DCC, see id. at Transcript pp. 8:24-9:5, Garth
later stated that the Dodge Ram is titled to Jarred. See id. at Transcript p. 25:13-16.
34 Id. at Transcript pp. 8:1-9:12.
35 Id. at Transcript p. 9:2-3.
36 Id. at Transcript pp. 13:21-14:1.
37 Id. at Transcript pp. 60:25-61:24.
38 Id. at Transcript p. 44:17-19.
39 Id. at Transcript p. 28:5-25.
40 Id.
41 Id. at Transcript p. 32:15-17.
8
was recorded after DCC’s schedules were filled out.42 Garth further elaborated on the
reasoning behind obtaining the line of credit:
[T]he purpose of it was so that we would have some money
available if a settlement [with the Schindlers] was agreed upon that
we could get that money quickly and pay it. If not, then maybe we
could use it for trial. If not, maybe we could use it to pay other
attorney fees or catch up on the credit lines.43
The record does not reflect that the Millirons presented Ms. Jipping with either the quitclaim
deed or the McKinley deed of trust at the meeting.
Finally, Garth and Jarred testified that at the time of the meeting, they were employed
doing construction work for Delta Accommodations in Delta Junction.44 At the meeting, Ms.
Jipping and counsel for the Schindlers, Erik LeRoy, informed the Millirons that they could not
use equipment owned by DCC postpetition.45 The Millirons both confirmed that they had been
told by Mr. Gazewood that the tools, equipment and machinery owned by DCC were now
owned and administered by Ms. Jipping as trustee for the DCC bankruptcy estate postpetition.46
Although initially Garth and Jarred expressed confusion regarding the consequences of the
42 Id. at Transcript p. 34:4-8. The statement made by Garth Milliron at DCC’s 11/29/2018 § 341(a) meeting
regarding the recording of a document after DCC’s schedules were completed has been interpreted both as
referring to the quitclaim deed transferring the Miltan Properties, and the deed of trust in favor of McKinley.
Based on the transcript from that meeting, the court understands that Garth was referring to the deed of trust in
favor of McKinley, and not the quitclaim deed transferring the Miltan Properties.
43 Id. at Transcript p. 33:2-7.
44 Id. at Transcript pp. 43:9-44:2.
45 Id. at Transcript pp. 44:20-46:9.
46 Id. at Transcript p. 44:20-24.
9
trustee’s postpetition control over DCC’s personal property,47 Mr. LeRoy clarified the
situation:
MR. LEROY: You can work. You’re an individual. You can
work. You just can’t use an asset --
MR. GARTH MILLIRON: I just can’t use my tools is what you’re
saying.
MR. LEROY: -- belonging to Dry Creek.
MR. GARTH MILLIRON: Okay. Yeah.48
A further detailed discussion was had between the Millirons, Ms. Jipping and Mr.
LeRoy on this point when Jarred sought further clarification during the meeting of creditors
regarding the prohibition on his use of DCC equipment: “So what exactly can I not use? I can’t
legally use any of my building tools and things?”49 Mr. LeRoy explained that any equipment
depreciated on DCC’s tax return is considered the property of DCC and cannot be used by the
Millirons.50 Garth replied, “I understand what you’re saying.”51 He then proffered various
examples of tools that might not fall under the prohibition, including gifts, inheritances, and
equipment from a prior business.52 Mr. LeRoy further illustrated the extent of the prohibition
by specifically referencing the work the Millirons were doing for Delta Accommodations:
47 Id. at Transcript pp. 45:3-46:3.
48 Id. at Transcript p. 46:4-9.
49 Id. at Transcript p. 58:11-13.
50 Id. at Transcript pp. 59:5-60:12.
51 Id. at Transcript pp. 60:9-10.
52 Id. at Transcript pp. 60:13-62:4.
10
MR. LEROY: I think your problems are probably the bigger items
like you’re not – the excavator is clearly going to be Dry Creek,
the Skidsteer is, the trailers are going to be Dry Creek. And that’s
the problem you’re going to have right now going back to Delta
Junction tomorrow and starting to work on the cabins that you’re
building… So the problem you have is that you’re driving a truck
that’s owned by Dry Creek….
MR. GARTH MILLIRON: Well, the trucks are in our name, but
they were depreciated through Dry Creek. I understand what
you’re saying now.53
The November 29 meeting of creditors ended with Garth asking Ms. Jipping whether
she wanted DCC’s equipment “where it’s at or do you want us to put it in one location?”54 Ms.
Jipping replied, “Just if it’s in a safe area and no one is going to bother it, then you can leave it
where it’s at.”55 Garth acknowledged this instruction: “Okay.”56
iv. Amended Schedules and Statements
On December 11, 2018, DCC filed an amended Statement of Financial Affairs which
once again omitted any reference of the transfer of the Miltan Properties from DCC to Garth.57
That amended Statement of Financial Affairs was signed by Garth.58 Jarred’s signature does
not appear on any of DCC’s schedules and statements.
53 Id. at Transcript pp. 62:13-63:1.
54 Id. at Transcript p. 75:17-19.
55 Id. at Transcript p. 75:20-22.
56 Id. at Transcript p. 75:23.
57 Plaintiffs’ Trial Exhibit 29.
58 Id.
11
It was not until January 23, 2019, that DCC filed a second amended Statement of
Financial Affairs disclosing the transfer in response to item number 4.59 The second amended
schedules and statements did not list McKinley as a creditor. That same set of amended
schedules and statements was, however, the first time DCC’s Schedule A/B reflected a detailed
break down of the various tools belonging to DCC.60 The equipment at issue in this case
remained on DCC’s schedules, including the Skidsteer. But, the court notes that the 2005
Polaris Ranger no longer appeared among the property listed in Schedule A/B, though the debt
secured by that property was still listed in Schedule D.61 The 2017 Dodge Ram was also no
longer listed among DCC’s assets.62 The debt owed to Wells Fargo Dealer Services on that
automobile, which was disclosed in DCC’s initial Schedule D,63 was removed in the
amendments filed on January 23, 2019.64
b. Garth and Kimberly Milliron
i. Initial Schedules and Statements
In response to item 5 of their voluntary petition, entitled “Where you live,” Garth and
Kimberly Milliron listed the Alaska Highway Property.65 That same property was listed in
response to item 1 of Schedule A/B, which asks “Do you own or have any legal or equitable
59 Plaintiffs’ Trial Exhibit 38, p. 15.
60 Id. at pp. 3-8.
61 Id. at pp. 4-5; 9.
62 Id. at pp. 4-5.
63 Plaintiff’s Trial Exhibit 28, pp. 14-15.
64 Plaintiffs’ Trial Exhibit 38, pp. 9-10.
65 Plaintiffs’ Trial Exhibit 30, p. 2.
12
interest in any residence, building, land, or similar property?”66 Garth and Kimberly listed the
Alaska Highway Property with a value of $217,000.00, and stated that both of them held an
interest in that property.67 Strikingly absent were the Miltan Properties that DCC had recently
transferred to Garth, and which he later encumbered.
Schedule A/B listed numerous vehicles in response to item 3. Two were listed as being
owned solely by Garth Milliron: a 2015 Chevy Silverado valued at $25,000.00 and a 2009
GMC Acadia valued at $4,500.00.68 The ownership of these items has never been at issue. But
the following items were listed with ownership described as at least one of the debtors holding
an interest in the vehicle with another:
2015 Chevy Silverado $17,409.00
2008 CAT Skidsteer $10,000.00
2017 Dodge Ram $0.00
1991 Dutchman Camper Trailer $800.00
2004 Wells Cargo Trailer $18,000.00
Trencher $2,146.00
Excavator $30,000.0069
Under item 4 of Schedule A/B, Garth and Kimberly listed additional property also with
ownership described as at least one of the debtors holding an interest in the vehicle with
another:
2004 Haulmark Tool Trailer $1,000.00
2002 Gortzen Materials Trailer $800.00
2015 Polaris Ranger $6,200.00
2012 Snowmachine $2,500.00
66 Id. at p. 10.
67 Id.
68 Id. at p. 11.
69 Id. at pp. 11-12.
13
2007 Snake River Eq. Trailer $1,000.00
Excavator Attachments $3,500.0070
In response to item 19 of Schedule A/B, Garth and Kimberly listed a 50% interest in
DCC.71 Finally, in response to item 40 of Schedule A/B, Garth and Kimberly listed an interest
in “misc [sic] tools and equipment” in the amount of $4,450.00.72 In their Schedule C, Garth
and Kimberly asserted exemptions in the Alaska Highway Property and the 2009 GMC Acadia,
as well as the miscellaneous tools and equipment.73 Although the Skidsteer, excavator, Wells
cargo trailer, and excavator attachments were listed on Schedule C, no exemptions in those
items were taken.74
Garth and Kimberly listed McKinley as a secured creditor in their Schedule D, with a
$150,000.00 claim secured by the Alaska Highway Property.75 The date the debt was incurred
was left blank.76
The original schedules omitted McKinley’s deed of trust against the Miltan Properties.
In response to item 18 of their Statement of Financial Affairs, Garth and Kimberly stated that
they did not, within 2 years before they filed for bankruptcy, “sell, trade, or otherwise transfer
any property to anyone, other than property transferred in the ordinary course of [their]
70 Id. at pp. 12-13.
71 Id. at p. 16.
72 Id. at p. 18.
73 Id. at pp. 20, 24.
74 Id. at pp. 20-21.
75 Id. at pp. 26-27.
76 Id.
14
business or financial affairs.”77 This question specifies that it includes “transfers made as
security (such as the granting of a security interest or mortgage on your property).”78
ii. Amended Schedules and Statements
The day before DCC’s scheduled § 341(a) meeting, on November 28, 2018, Garth and
Kimberly filed amended schedules and statements. They decreased the value of their interest in
the Alaska Highway Property to $0.00, and added the Miltan Properties to their Schedule A/B,
each valued at $75,000.00.79 The Miltan Properties were described as being owned solely by
Garth.80 All of the equipment and trailers used in DCC’s business pursuits remained listed in
the amended Schedule A/B.81 Schedule C was also modified to add a $24,173.01 exemption in
the 1770 Miltan Road property.82 McKinley’s secured claim in Schedule D was amended to
reflect its security interest in the Miltan Properties, with $75,000.00 of the credit line amount
secured by 1770 Miltan, and the remaining $35,000.00 secured by 1746 Miltan.83 The date the
debt was incurred was again left blank.84 The Statement of Financial Affairs was not among
the November 28, 2018 amendments.
Garth and Kimberly filed a second set of amended schedules and statements on January
23, 2019, before a final round of continued meetings of creditors in each of the bankruptcy
77 Id. at p. 51.
78 Id.
79 Plaintiffs’ Trial Exhibit 31, pp. 3-4.
80 Id. at p. 4.
81 Id. at pp. 5-7.
82 Id. at p. 14.
83 Id. at pp. 15-16.
15
cases.85 In Schedule A/B, they added a Toyota Rav-4 that was not previously mentioned.86
Although the second-amended Schedule A/B continued to list “misc tools and equipment” in
response to item 40,87 DCC’s trailers and large equipment (Skidsteer, excavator) were no
longer listed as the property of Garth and Kimberly.88 Finally, the line of credit obtained from
McKinley was removed from Schedule D,89 but was added in response to item 18 of the
amended Statement of Financial Affairs.90 Once again, the date of the transfer of the interest in
the Miltan Properties to McKinley was left blank.91
iii. The § 341(a) Meetings
Garth and Kimberly’s initial § 341(a) meeting of creditors was held on December 27,
2018.92 Echoing some of his statements made in DCC’s original § 341(a) meeting of creditors,
Garth attempted to clarify the ownership status of multiple items of personal property, though it
contradicted the first round of amended schedules previously filed:
84 Id. at p. 16.
85 See Plaintiffs’ Trial Exhibit 39.
86 Id. at p. 12.
87 Id. at p. 17.
88 Id. at p. 12.
89 Id. at pp. 23-24.
90 Id. at p. 41.
91 Id.
92 See Plaintiffs’ Trial Exhibit 36.
16
Property Ownership According to Garth93
2015 Chevy Silverado Erroneously listed-only one Chevy Silverado
2008 CAT Skidsteer In Garth’s name, purchased for DCC
2017 Dodge Ram Jarred Milliron
1991 Dutchman Camper Trailer DCC, title misplaced
2004 Wells Cargo Trailer DCC
Trencher DCC
Excavator DCC
2004 Haulmark Tool Trailer DCC, title misplaced
2002 Gortzen Materials Trailer DCC
2015 Polaris Ranger DCC
2012 Snowmachine DCC
2007 Snake River Eq. Trailer DCC
Excavator Attachments DCC
Garth also clarified that the Alaska Highway Property is where he resides, but the
property itself is owned by Living Word Ministries.94 Further, he noted that his and
Kimberly’s 50% interest in DCC is split between them: Garth holds 40% while Kimberly holds
10%.95
93 Id. at Transcript pp. 6:22-13:21.
94 Id. at Transcript pp. 3:24-4:4; 19:13-21:2; 23:9-25:5.
95 Id. at Transcript pp. 13:25-14:3
17
Also at the meeting, Garth confirmed that he had used equipment owned by DCC after
DCC’s November 29, 2018 § 341(a) meeting, when he was instructed that such use was not
permitted.96 When asked why he used the equipment notwithstanding the express instruction to
the contrary, he asserted that Mr. Christianson had informed him that Ms. Jipping “had some
latitude” to tell him which equipment he could and could not use.97 This assertion
notwithstanding, he confirmed that he understood what he was told by Ms. Jipping and Mr.
LeRoy at the DCC § 341(a) meeting: “[W]hat you said is we couldn’t use anything that was in
Dry Creek Construction.”98 Garth explained that he had been waiting for clarification from
Ms. Jipping regarding what equipment was exempt, and thus could not be used. Until she
provided that clarity, he believed there had been confusion regarding the ownership of the
equipment and had used it.99
c. Jarred and Jennifer Milliron
i. Initial Schedules and Statements
In response to item 5 of their voluntary petition, entitled “Where you live,” Jarred and
Jennifer Milliron listed only the mailing address for the Alaska Highway Property: HC 62 Box
5220, Delta Junction, AK 99737.100 Like Garth and Kimberly, Jarred and Jennifer listed the
96 Id. at Transcript p. 25:6-20.
97 Id. at Transcript pp. 27:24-28:6.
98 Id. at Transcript p. 27:21-22.
99 Id. at Transcript pp. 26:24-27:3.
100 Plaintiffs’ Trial Exhibit 32, p. 2.
18
Alaska Highway Property in response to item 1 of Schedule A/B with a value of $217,000.00,
stating each of them held an interest in that property.101
As to personal property, in response to item nos. 3 and 4 of Schedule A/B, Jarred and
Jennifer listed the same vehicles, trailers and equipment and as those listed in DCC’s and
Garth’s and Kimberly’s Schedules A/B, including all the same vehicles.102 Jarred and Jennifer
stated the property was owned by at least one debtor and another. In addition to these, Jarred
and Jennifer disclosed three other vehicles they owned: a 2010 Dodge Ram; a 1998 Mazda 626;
and a 2005 Chevrolet 2500.103 As to the 2017 Dodge Ram, they described it as owned by at
least one of the debtors holding an interest in the vehicle with another.104 In response to item
19 of Schedule A/B, Jarred and Jennifer also listed a 50% interest in DCC.105 Finally, in
response to item 40 of Schedule A/B, Jarred and Jennifer also listed an interest in “misc [sic]
tools and equipment” in the amount of $4,450.00.106
In their Schedule C, Jarred and Jennifer asserted exemptions in the Alaska Highway
Property, the Mazda and the Chevrolet 2500, as well as the miscellaneous tools and
equipment.107 Jarred and Jennifer’s Schedule D included McKinley as the secured creditor on a
101 Id. at p. 10.
102 Id. at pp. 11-13.
103 Id. at p. 11.
104 Id.
105 Id. at p. 16.
106 Id. at p. 18.
107 Id. at pp. 20-21, 24.
19
line of credit. Although the property securing McKinley’s claim was not listed, the date the
debt was incurred was listed as “10-18.”108
Garth is listed as a codebtor on numerous debts under Schedule H, including the debt
owed on the 2017 Dodge Ram.109
ii. Amended Schedules and Statements
Like Jarred’s parents, Jarred and Jennifer filed amended schedules and statements on
November 28, 2018, the day before DCC’s § 341(a) meeting.110 Their modifications were
identical to Garth’s and Kimberly’s, including adding the Miltan Properties to their Schedules
A/B and C.111 All of the equipment and trailers used in DCC’s business pursuits remained
listed in Schedule A/B.112 McKinley’s secured line of credit claim in Schedule D remained, but
two additional claims for that bank were added to reflect its security interest in the Miltan
Properties.113
Jarred and Jennifer filed a second set of amended schedules and statements on January
23, 2019.114 In Schedule A/B, they removed all scheduled real property. They also removed
most of DCC’s trailers and large equipment (Skidsteer, excavator) from the schedule. The
2017 Dodge Ram remained scheduled as property of the estate, but was listed as belonging to
108 Id. at pp. 26-27.
109 Id. at p. 42.
110 See Plaintiffs’ Trial Exhibit 33.
111 Id. at pp. 4, 14.
112 Id. at pp. 5-7.
113 Id. at p. 21.
114 Plaintiffs’ Trial Exhibit 40.
20
at least one of them and another.115 Additionally, the second amended Schedule A/B retained
the 2015 Polaris Ranger, but was modified to reflect that Jarred and Jennifer were its sole
owners.116 Jarred and Jennifer added a 2004 Ski-Doo that was not previously mentioned.117
Although the second amended Schedule A/B continued to list “misc tools and equipment” in
response to item 40, the value of that item was reduced from $4,450.00 to $2,000.00.118
Schedule C was amended to include an exemption in the 2010 Dodge Ram and the Ski-
Doo, though no exemptions were taken in the 2017 Dodge Ram or the Ranger.119 The secured
claims of McKinley were removed from Schedule D, but the line of credit incurred in “10-18”
was relisted as a general unsecured debt in Schedule E/F.120 Finally, the debts secured by the
Ranger and the 2017 Dodge Ram were added to Schedule D.121 Although the Schedule A/B
listing for the 2017 Dodge Ram described it as being co-owned by a non-debtor, the debt owed
to Wells Fargo Dealer Services is described as being owed by Jarred alone.122
iii. The § 341(a) Meeting
Jarred and Jennifer’s initial § 341(a) meeting of creditors was held on December 27,
2018.123 The chapter 7 trustee, Ken Battley, tried to ascertain which property listed in Jarred
115 Id.
116 Id.
117 Id. at pp. 3-4.
118 Id. at p. 17.
119 Id. at pp. 11-14.
120 Id. at pp. 15, 22.
121 Id. at p. 15.
122 Id.
21
and Jennifer’s schedules actually belonged to them alone. Jarred testified that the 2015 Polaris
Ranger belonged to DCC.124 Jarred and Jennifer testified that their 50% ownership in DCC
was divided as Garth and Kimberly’s was: Jarred held 40%, Jennifer 10%.125
Finally, Mr. LeRoy asked Jarred about his use of DCC’s equipment after DCC’s
meeting of creditors. Jarred asserted that because he believed that the ownership of certain
items of equipment was undetermined, he decided he could use those items notwithstanding the
instruction of Ms. Jipping at DCC’s § 341(a) meeting.126 Namely, he said he telephoned CAT
financing after DCC’s § 341(a) meeting and was informed that the Skidsteer was in Garth’s
name, not DCC’s.127 He also admitted to using the Snake and Gortzen trailers, asserting that he
concluded he could use them because the ownership of those items was, in his mind, unclear.128
At Jarred and Jennifer’s continued and final meeting of creditors held on February 7,
2020, Jarred testified that title on the 2017 Dodge Ram was held jointly with DCC.129 He
asserted that DCC had made the down payment and all prepetition payments on that vehicle.130
123 See Plaintiffs’ Trial Exhibit 37.
124 Id. at Transcript pp. 10:3-11:5.
125 Id. at Transcript p.19:2-11.
126 Id. at Transcript pp. 22:17-25:2.
127 Id. at Transcript p. 23:21-25.
128 Id. at Transcript p. 24:14-22.
129 Plaintiffs’ Trial Exhibit 43, Transcript p. 15:3-8.
130 Id. at Transcript p. 15:11-19.
22
Jarred further testified that he had not used any of DCC’s equipment “since we were told
specifically we could not use it by the trustee.”131
d. The Adversary Proceedings
On January 23, 2019, the Schindlers commenced the above-captioned adversary
proceedings against the Millirons in each of their respective bankruptcies. Among other causes
of action, in their complaint the Schindlers sought to bar the Millirons’ discharges under §
727(a)(4)(A). After the parties’ cross motions for summary judgment were denied,132 trial was
held on March 9-12, 2020.133
Jarred provided his trial testimony on March 11, 2020.134 During that testimony, Mr.
LeRoy introduced DMV reports as exhibits 49-52, demonstrating that the Snake, Gortzen and
Wells Cargo trailers were all titled to DCC. Jarred testified that in 2018, he thought he owned
the Wells Cargo, Haulmark and Snake trailers.135 At the same time, however, he testified that
he was “hoping and trying to get ownership” in property owned by DCC.136 He further
admitted that he “wanted to own everything, and of course I wanted to hear what I wanted to
131 Id. at Transcript p. 10:9-25.
132 See, e.g., Adv. Proc. No. 19-90001-GS, ECF Nos. 35-36.
133 Adv. Proc. No. 19-90001-GS, ECF No. 40.
134 See Adv. Proc. No. 19-90001-GS, ECF No. 68-1.
135 Id. at Transcript pp. 26:2-28:3.
136 Id. at Transcript p. 47:6-8.
23
hear.”137 He also testified that in 2018 he believed he held an ownership interest in the Miltan
Properties.138
As for his unauthorized postpetition use of DCC’s property, Jarred’s testimony can be
summarized as follows: because Jarred owned DCC and guaranteed its debts, Jarred concluded
he held an ownership interest in whatever DCC owned.139 He also appeared to assert his belief
that when a piece of equipment such as the Skidsteer was used for non-business purposes such
as plowing snow for the Living Word community, that piece of equipment was not wholly
owned by the business.140 Thus, Ms. Jipping’s statement at DCC’s meeting of creditors that he
could not use equipment owned by DCC did not, in his mind, mean that he could not use that
equipment.
Garth provided his trial testimony on March 12, 2020.141 During Mr. LeRoy’s
examination, Garth testified that at the time he completed his original and first amended
personal schedules and statements, he did not believe that the DCC equipment should have
been listed on his own personal schedules.142 He stated that he listed that equipment because
Mr. Gazewood advised him to do so.143 Garth further explained his response to Mr.
Christianson’s questions at DCC’s § 341(a) meeting regarding the omission of the Miltan
137 Id. at Transcript p. 45:8-10.
138 Id. at Transcript p. 24:2:5.
139 See id. at Transcript pp. 41:10-14; 42:24-44:1.
140 Id. at Transcript p. 45:16-23.
141 Adv. Proc. No. 19-90001-GS, ECF No. 68-2.
142 Id. at Transcript pp. 23:24-24:15; 25:18-26:4.
143 Id. at Transcript p. 24:3-10.
24
Properties transfer from DCC’s Statement of Financial Affairs, saying that he misunderstood
which paperwork Mr. Christianson was talking about at the time.144
During Mr. Gazewood’s cross examination, Garth again described his confusion
regarding the inclusion of DCC’s equipment in his personal schedules.145 He explained that he
knew where the various items were titled, but that there was “part of” he and Jarred “that
realized it was ours – we paid for it, we were the ones that worked for it and made the
payments on it.”146 Garth revealed that his state court litigation counsel, William Satterberg,
had advised him before the bankruptcy cases were commenced that their equipment would not
be lost.147 He described himself as “scrambling” when he realized that was not the case,
“trying to…figure out how to make it work for us so we could keep working.”148 He confirmed
he had no intent to conceal any of his property from Ms. Jipping.149
Regarding the prepetition transfer of the Miltan Properties from DCC to Garth, Garth
testified that the property was transferred to him because McKinley would extend a
144 Id. at Transcript p. 33:5-12.
145 Trial Audio Recording, Garth Milliron Testimony, Adv. Proc. No. 19-90001-GS, ECF No. 61 at 2:01:32-
2:02:00.
146 Id. at 2:02:25-2:02:31.
147 Id. at 2:02:49-2:02:52.
148 Id. at 2:02:53-2:03:13.
149 Id. at 2:03:20-24.
25
$110,000.00 credit line to him but not to DCC.150 He also repeated that “at the last minute,”
the credit line with McKinley was actually issued directly to DCC, not to Garth.151
As for his own use of the DCC equipment postpetition, during Mr. LeRoy’s direct
examination Garth testified that after DCC’s November 29, 2018 meeting of creditors, he
understood Ms. Jipping “had leeway” to determine what equipment Garth and Jarred could or
could not continue to use.152 He asserted that he was waiting for definitive direction from Ms.
Jipping, specifically with regard to the Skidsteer.153 Garth added that his confusion regarding
the Skidsteer centered on its ownership, because he and Jarred purchased it prior to the
formation of DCC and he alleged it was never transferred to DCC.154
The trial concluded on March 12, 2020.155 The parties filed their post-trial briefs on
March 30, 2020.156 The court heard closing arguments on May 12, 2020.157 At the conclusion
of closing arguments, the court took this matter under submission.158
150 Id. at 1:58:59-2:00:33.
151 Id. at 1:58:23-1:58:48. Although the court has not been presented with the McKinley line of credit (LOC)
documents, this statement by Garth at trial is inconsistent with the amended schedules and statements filed by
DCC and the Millirons on January 23, 2019. The McKinley LOC is not mentioned in DCC’s amended schedules
and is mentioned only in the amended Statement of Financial Affairs in relation to the transfer of the Miltan
Properties to Garth. See Plaintiffs’ Trial Exhibit 38. Instead, the LOC is listed in response to item 18 of Garth and
Kimberly’s January 23, 2019 amended Statement of Financial Affairs. See Plaintiffs’ Trial Exhibit 39, p. 41.
152 Adv. Proc. No. 19-90001-GS, ECF No. 68-2, at Transcript pp. 41:22-42:7.
153 Id. at Transcript p. 42:15-20.
154 Id. at Transcript p. 43:1-11.
155 Adv. Proc. No. 19-90001-GS, ECF No. 65.
156 Id. at ECF Nos. 66-68.
157 Id. at ECF No. 71.
158 Id.
26
B. ANALYSIS
The Schindlers argue that the Millirons’ chapter 7 discharges should be barred under 11
U.S.C. § 727(a)(4)(A) for their failure to schedule the Miltan Properties, as well as the failure
to disclose the prepetition transfer of the Miltan Properties from DCC to Garth or the
prepetition deed of trust granted to McKinley. The Schindlers also argue that Garth and Jarred
gave false oaths as to their ownership of the equipment which they used postpetition in
contravention of the instructions of DCC’s trustee.
1. Jurisdiction
As an initial matter, there is a concern that hangs over the Schindlers’ claims against
Jennifer and Kimberly Milliron. The overwhelming amount of attention, evidence, and
argument in these proceedings are directed towards the actions and statements made by their
husbands, Jarred and Garth, respectively. Counsel for the Schindlers candidly acknowledged
this at closing argument when discussing the Schindlers’ underlying claims against the wives
within the context of the § 523 nondischargeability claims: “For 523, I do not believe that we
have proven that Jennifer or … Kimberly Milliron were involved in any of these
representations. So I think the 523 claims now stand only against Garth and Jarred.”159 This
subject was raised in light of the Schindlers’ closing brief which directed all the analysis and
arguments concerning their damage claims and nondischargeability under § 523(a)(2)(A)
toward Jarred and Garth.
The court takes counsel’s verbal concession as a withdrawal of the § 523(a)(2)(A)
claims against Jennifer and Kimberly Milliron. Though raised within the context of
159 Closing Argument Audio Recording, Adv. Proc. No. 19-90001-GS, ECF No. 70 at 40:52-41:22.
27
nondischargeability, the concession also establishes the lack of any claim for damages against
them.
As this issue was raised in closing argument, the absence of claims against Jennifer and
Kimberly was not fully addressed at trial. Specifically, § 727(c) limits standing to pursue
denial of discharge to creditors, the chapter 7 trustee, and the United States Trustee. Having
agreed that the Schindlers have no claims against Jennifer and Kimberly, it follows that they
lack standing to pursue denial of their discharge. In short, the discharge of Jennifer’s and
Kimberly’s debts does not affect the Schindlers, because they are not creditors of those debtors.
Issues of constitutional standing are jurisdictional and must be addressed whenever
raised.160 As such, courts are obligated to consider their own jurisdiction sua sponte.161
Because they have conceded that they are not creditors of either Jennifer Milliron or Kimberly
Milliron, the Schindlers lack standing to proceed with their § 727(a) claims against those
debtors.162 The court shall deny the Schindlers’ claims against Jennifer and Kimberly Milliron
under § 523(a) based on their concession at closing argument, and shall deny the § 727(a)
claims for lack of jurisdiction.163
160 Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000), as
amended (Aug. 11, 2000) (“Constitutional standing concerns whether the plaintiff’s personal stake in the lawsuit is
sufficient to make out a concrete ‘case’ or ‘controversy’ to which the federal judicial power may extend under
Article III, § 2.”).
161 Id.; see also Gilbert v. Sinclair, 2020 WL 2405434, at *2 (W.D. Wash. May 12, 2020).
162 Id.
163 The court is aware of Fed. R. Bankr. P. 7041 which provides that a complaint objecting to a debtor’s discharge
shall not be dismissed at the plaintiff’s instance absent notice to others including the chapter 7 trustee and U.S.
Trustee. Here, the court is denying the Schindlers’ discharge claims against Jennifer and Kimberly Milliron, the
claims are not being dismissed at the Schindlers’ request.
28
2. Section 727(a)(4)(A)
Section 727(a)(4)(A) provides: “The court shall grant the debtor a discharge, unless–
the debtor knowingly and fraudulently, in or in connection with the case– made a false oath or
account.” “‘The fundamental purpose of § 727(a)(4)(A) is to insure that the trustee and
creditors have accurate information without having to conduct costly investigations.’”164 This
purpose notwithstanding, “[c]areless or sloppy preparation of schedules, although an
impediment to proper and efficient administration of the Chapter 7 estate, do not support denial
of a discharge under § 727(a)(4)(A) absent a supportable inference of fraudulent intent.”165
“Because of the gravity and practical effect of denying a debtor his or her discharge, the
burden of proving the requisite fraudulent intent is a heavy one.”166 A plaintiff in an action
brought under § 727(a)(4)(A) “must show by a preponderance of the evidence that: (1) [the
d]ebtor made…a false statement or omission, (2) regarding a material fact, and (3) did so
knowingly and fraudulently.”167
a. False Statement or Omission
Under the first factor, “‘[a] false oath is complete when made.”168 “A false statement or
an omission in the debtor’s bankruptcy schedules or statement of financial affairs can constitute
164 Khalil v. Developers Surety and Indemnity Co. (In re Khalil), 379 B.R. 163, 172 (B.A.P. 9th Cir. 2007), aff’d,
578 F.3d 1167 (9th Cir. 2009) (quoting Fogal Legware of Switz., Inc. v. Wills (In re Wills), 243 B.R. 58, 63
(B.A.P. 9th Cir. 1999)).
165 Garcia v. Coombs (In re Coombs), 193 B.R. 557, 567 (Bankr. S.D. Cal. 1996).
166 Sethi v. Wells Fargo Bank. N.A. (In re Sethi), 2014 WL 2938276, at *10 (B.A.P. 9th Cir. June 30, 2014).
167 Khalil, 379 B.R. at 172 (citing Searles v. Riley (In re Searles), 317 B.R. 368, 377 (B.A.P. 9th Cir. 2004), aff’d,
212 Fed.Appx. 589 (9th Cir. 2006); Roberts v. Erhard (In re Roberts), 331 B.R. 876, 882 (B.A.P. 9th Cir. 2005),
aff’d, 241 Fed.Appx. 420 (9th Cir. 2007)).
168 Cummings v. U.S. Trustee (In re Cummings), 2012 WL 4747218, at *8 (B.A.P. 9th Cir. Oct. 3, 2012) (quoting
Searles, 317 B.R. at 377).
29
a false oath.”169 Testimony given at a § 341(a) meeting also qualifies as occurring under oath
for purposes of § 727(a)(4)(A).170 A plaintiff must, however, allege a “particular false
statement” to succeed on a cause of action under § 727(a)(4)(A).171 The dispute before this
court involves both false statements and omissions.
i. Ownership of the Miltan Properties
Each of the defendants signed a deed quitclaiming the Miltan Properties from DCC to
Garth on September 11, 2018. Yet, Garth and Kimberly Milliron omitted the Miltan Properties
from their opening schedules and statements filed on October 22, 2018. They also failed to
include the deed of trust granted in favor of McKinley three days prior to the filing of their
case, in either their Schedule D or their Statement of Financial Affairs. The omission of
Garth’s interest in the Miltan Properties and the deed of trust in their original statements
constitutes a false statement made under oath.
In their amended schedules and statements filed on November 28, 2018, Jarred and
Jennifer Milliron asserted that they held an ownership interest in the Miltan Properties. Jarred
and Jennifer even claimed an exemption in 1770 Miltan. There is no evidence that Jarred and
Jennifer held any ownership interest in the Miltan Properties at any time. Rather, the Miltan
169 Khalil, 379 B.R. at 172; see also Searles, 317 B.R. at 377; Roberts, 331 B.R. at 882.
170 See, e.g., U.S. Trustee v. Howell (In re Howell), 2011 WL 1584604, at *11 (Bankr. D. Or. Apr. 26, 2011) (“The
false oath element also may be established based on statements made by the debtor during examination at the §
341(a) meeting of creditors.”); Dana Federal Credit Union v. Holt, 190 B.R. 935, 939 (Bankr. N.D. Ala. 1996);
784 Café Inc. v. Lang Chin (In re Lang Chin), 617 B.R. 761, 768 (Bankr. E.D.N.Y. 2020) (“Statements under oath
include … oral statements made by a debtor during examinations under oath, such as testimony during the meeting
of creditors held pursuant to § 341(a).”).
171 See, e.g., Miles v. Makishima (In re Makishima), 2008 WL 4890152, at *7 (Bankr. E.D. Cal. Nov. 10, 2008)
(finding a § 727(a)(4)(A) complaint failed to allege a viable claim for relief where the plaintiff did not identify a
“particular false statement.”).
30
Properties were owned originally by DCC and transferred to Garth shortly before the
bankruptcy filings. Though Jarred and Jennifer find themselves in exactly the opposite
situation as Garth’s and Kimberly’s omission of ownership, their declaration of an ownership
interest where none existed also constitutes a false statement made under oath.
ii. Ownership of Personal Property and Use of DCC Equipment
In both Milliron bankruptcy cases, the debtors scheduled personal property that was
actually owned by DCC. While the Millirons have testified that they hoped or believed that the
personal property was, or should have been, their personal property at various points in their
bankruptcy cases, there is no actual dispute that DCC actually owned the personal property at
issue in this case. The Skidsteer, the Gortzen materials trailer, the Snake River equipment
trailer, the Haulmark Trailer, and the Wells Cargo trailer were owned by DCC.172 The
Millirons claimed ownership or co-ownership and listed the other vehicles and equipment in
their statements that were owned by DCC alone. Thus, the court finds that the Schindlers have
established the first factor under § 727(a)(4)(A) as to the Millirons’ making a false oath by
including the Skidsteer, the Gortzen materials trailer, the Snake River equipment trailer, the
Haulmark Trailer, and the Wells Cargo trailer in their original and first amended schedules and
statements.
iii. Statements at the Meetings of Creditors
The Schindlers further contend that Jarred and Garth made false statements at the
meetings of creditors held in their individual cases on December 27, 2018, after they had each
amended their schedules and continued to use DCC’s equipment. Per their post-trial brief, the
172 Plaintiffs’ Trial Exhibit 39, at p. 6.
31
Schindlers contend that Jarred and Garth falsely testified as to their ownership of the vehicles
and equipment. Really, the Schindlers argue that Jarred and Garth gave false testimony
concerning why they used the Skidsteer and other equipment after the DCC trustee instructed
them not to use that equipment.
Jarred testified under oath that through an error by CAT, when the Skidsteer was
purchased in 2009 it was designated by CAT as having been purchased by an unaffiliated entity
called Dry Creek Enterprises, not DCC.173 Per Jarred, “it never got ever fixed,”174 and “it just
stayed that way, because…they already had a credit backing through Dry Creek Enterprises and
all that.”175 So, according to Jarred’s testimony, the error by CAT was never corrected because
it “actually worked out better for us at the time and it didn’t need to get changed on their part”
because Dry Creek Enterprises was already a defunct entity.176
Dry Creek Enterprises’ putative ownership was directly inconsistent with Jarred’s later
testimony during his own meeting of creditors when he testified that “if you call [CAT]
finance, they say, [the Skidsteer is] listed in your father’s name.”177 Jarred revealed this
contradictory information in defense to questioning by Mr. LeRoy about Jarred’s postpetition
use of DCC property. That testimony concerning what CAT financing would say is
questionable hearsay, but more importantly it contradicts Jarred’s prior testimony that the
Skidsteer was held in the name of Dry Creek Enterprises. In fact, the Skidsteer has always
173 Plaintiffs’ Trial Exhibit 34, Transcript p. 10:10-18.
174 Id. at Transcript p. 10:17-18.
175 Id. at Transcript p. 11:11-13.
176 Id. at Transcript p. 11:13-24.
177 Plaintiffs’ Trial Exhibit 37, Transcript p. 23:14-15.
32
been owned by DCC, as Jarred and Garth ultimately recognized after they stopped using the
Skidsteer (and other equipment) and amended their schedules for the final time.
When asked at his December 27, 2018 meeting of creditors why he had used the
equipment after the original meetings of creditors, Garth replied that he understood that he had
to turnover everything but exempt property.178 He further explained that he was waiting for
clarity as to what was exempt.179 Garth testified that he expected some further direction from
Ms. Jipping as he understood that she “had some latitude” regarding what DCC property was
exempt and what was not.180 Garth maintained that there was confusion as to whether he and
Jarred could use the equipment postpetition after the trustee had instructed them not to use
property of the DCC estate. The Schindlers correctly note that Garth never actually exempted
any of the equipment at issue, including the Skidsteer. Rather, he made vague references to
exempt property and waited for the trustee to clarify what was exempt property.181 Taken
together, Garth’s references to “exempt” in the December 27, 2018 meeting of creditors
constitute a disingenuous attempt to justify using personal property of the DCC bankruptcy
estate when specifically instructed not to do so.
Garth later doubled down on this line of reasoning. In connection with the cross
motions for summary judgment, Garth provided an affidavit signed under penalty of perjury in
178 Plaintiffs’ Trial Exhibit 36, Transcript pp. 25:24-26:2.
179 Id. at Transcript p. 26:3-16.
180 Id. at Transcript p. 26:14. Garth’s statements on this issue are particularly troubling in light of the fact that
corporate debtors are not entitled to claim exemptions, so any suggestion that Ms. Jipping had discretion to
designate certain property exempt in DCC’s case is patently false. See 11 U.S.C. § 522(b)(1).
181 Id. at Transcript pp. 26:1-27:3.
33
which he testified that he used the equipment and tools postpetition because he had a
conversation with Mr. Christianson in which he “thought that I was informed that I could use
the equipment, so long as I did not harm the equipment.”182 This account of his purported
conversation with Mr. Christianson has nothing to do with the exempt status of the property
and calls into question the veracity of his statements at the § 341(a) meeting, notwithstanding
his assurance in the summary judgment affidavit that he “did not lie at the meeting of creditors
about why [he] used the equipment.”183 This statement in the affidavit only confirms the falsity
of the testimony presented in the meeting of creditors concerning the ownership dispute and
explanations regarding the use of the equipment but also weighs on the knowing and fraudulent
intent discussed below.
The Schindlers challenge the truthfulness of Garth’s and Jarred’s testimony at the
meetings of creditors concerning why they continued to use DCC’s equipment. They
persuasively argue that both manufactured explanations to justify their use of DCC’s equipment
when they understood that DCC’s trustee had specifically instructed them not to use that
equipment. But, by the time Garth and Jarred gave that testimony at their own meetings of
creditors, they had verbally relinquished their claims of ownership in DCC’s equipment.
Earlier in his meeting, Garth acknowledged DCC’s ownership of the equipment when Mr.
Battley asked him directly who owned each piece of equipment. Although Jarred did not
provide similar testimony as to all the equipment during his later meeting of creditors, when
asked at the beginning of his meeting if he disagreed with Garth’s testimony he replied that he
182 Adv. Proc. No. 19-90001-GS, ECF No. 24, p. 6, ¶ 9.
183 Id. at ¶ 11.
34
did not.184 Thus, Garth and Jarred did not make false statements regarding the ownership of the
equipment at their meetings of creditors.
Nonetheless, the Schindlers argue that Garth’s and Jarred’s explanations why they used
the equipment constitute false oaths. Strictly construed, this argument calls for the court to
construe the veracity of whether the Skidsteer was originally sold, or titled to, Dry Creek
Enterprises rather than DCC. Or, whether CAT financing ever told Jarred the Skidsteer was
owned by his father. The Schindlers similarly ask the court to declare as false Garth’s
statement that he was waiting for further explanation from Ms. Jipping regarding either the
exemption or use of the equipment before refraining from further use of that equipment.
Garth’s testimony about a conversation with trustee’s counsel is to the same effect. Taking into
consideration all of the evidence on this issue, including Jarred’s and Garth’s recognition of
DCC’s ultimate ownership, the court agrees with the Schindlers’ that the explanations for why
they believed they could continue to use DCC’s equipment were an artifice to justify their use
of DCC’s equipment. In that regard, they were false statements made under oath.
b. Materiality
Materiality under § 727(a)(4)(A) is “conceived of broadly.”185 “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.’”186 The
Ninth Circuit has held that “[a]n omission or misstatement that ‘detrimentally affects
184 See Plaintiffs’ Exhibit 37, Transcript p. 4:1-4.
185 Murtaza v. Sigmund (In re Murtaza), 2016 WL 1383890, at *4 (B.A.P. 9th Cir. Apr. 5, 2016).
186 Khalil, 379 B.R. at 173 (quoting Wills, 243 B.R. at 62 (citations omitted)).
35
administration of the estate’ is material.”187 Conversely, “a false statement or omission that has
no impact on a bankruptcy case is not material and does not provide grounds for denial of a
discharge under § 727(a)(4)(A).”188
During Jarred’s and Jennifer’s § 341(a) meeting, Mr. Battley plainly described the
detrimental effect of the Millirons’ misrepresentations in their schedules and statements on
administration of the estate:
[Y]ou guys and [Mr. Gazewood’s] office have to get all this stuff
cleaned up so that we’re not just bouncing around. We can take a
vehicle, we can say, okay, we had three sets of schedules and
statements, which set more closely should this vehicle be put in?
We don’t want it on three of them. We just want it on one.
And some of them are very easy to do, because you’ll get a title
and it will say Jarred on it. Well, that’s easy. That’s going to go
on yours. Or it will say Dry Creek on it, and that goes into Dry
Creek. But these things that have been filed are going to be a
nightmare to administer because our computer network, I will tell
you, goes through and scans every one of these documents and
pulls it up.
* * *
And not only is it going to be an accounting nightmare, but it’s
going to be a nightmare to grasp it mentally… Myself as trustee,
Nacole as trustee, Erik as a lawyer, Cabot as a lawyer have to be
able to sit down here and say, we need to understand this stuff.
And the way it’s presented, it’s very difficult to understand it.189
The court concurs with Mr. Battley’s statements. A debtor’s schedules and statements
are the cornerstone of his or her bankruptcy. They are made under penalty of perjury. A
chapter 7 trustee and the creditors of the estate are entitled to rely upon those statements and
187 Retz v. Samson (In re Retz), 606 F.3d 1189, 1198 (9th Cir. 2010) (quoting Wills, 243 B.R. at 63).
188 Khalil, 379 B.R. at 172.
36
schedules. The court finds that the Millirons’ misrepresentations in their schedules and
statements were material due to their detrimental effect on administration of the estate. The
misstatements, left uncorrected in their first amended schedules and statements, were contrary
to the Millirons’ testimony at DCC’s original meeting of creditors. This placed the equipment
in peril of unauthorized used and required continued § 341(a) meetings and multiple rounds of
amendments of schedules. Indeed, as discussed above, the court finds that Jarred and Garth
continued their claims of ownership as part of a disingenuous attempt to justify their use of
DCC’s equipment when specifically instructed to stop using DCC’s equipment.
The misstatements as to the Miltan Properties similarly created confusion concerning
ownership of a significant asset. These misrepresentations created and fostered a running
disagreement over different estates’ assets. This is the very essence of materiality under §
727(a)(4). For these reasons, the court finds Garth’s and Jarred’s misrepresentations as to the
equipment and the Miltan Properties to be material.
The testimony at their meetings of creditors again requires closer attention. As to the
ownership of the equipment, the court has found that Garth and Jarred recognized DCC’s
ownership during their examinations. Instead, it was their testimony regarding the
justifications for their postpetition unauthorized use of the equipment that was false. Whereas
the misstatements regarding the ownership of assets goes directly to defining property of each
bankruptcy estate, the materiality as to why Garth and Jarred used DCC’s equipment is less
clear. Neither Garth nor Jarred denied using the equipment. It is undisputed that the trustee did
not authorize their use of the equipment. The Schindlers do not explain how Garth’s and
Jarred’s explanations as to why they thought they could use the equipment are material within
189 Plaintiffs’ Trial Exhibit 37, Transcript pp. 14:19-15:2357.
the definition of materiality applicable to claims under § 727(a)(4). The court concludes that
the reasons Garth and Jarred thought they could use property of DCC’s estate are not material.
Such testimony does not relate to disposition of estate assets, nor does it detrimentally affect
the administration of the estate. Instead, the testimony goes to potential claims for
unauthorized use of equipment that the Millirons then conceded was owned by DCC. In short,
the fact that Garth and Jarred may have lied about why they thought they could use DCC’s
equipment did not materially affect the bankruptcy estate – the action had already been taken
and was not denied. It was that action that may have detrimentally affected the estate, not the
testimony concerning why they had taken it. Accordingly, the court must deny the Schindlers’
claims under § 727(a)(4) based on false statements made during the meetings of creditors.
c. Intent
Mistakes are made and corrected in numerous bankruptcy cases. But accounting for
those mistakes within a § 727(a)(4)(A) claim for false oath typically calls into question the
intent of the debtor when signing inaccurate schedules and statements. This is just such a case
where the ownership of real property and substantial equipment were at issue.
Under § 727(a)(4)(A), a debtor must have “knowingly and fraudulently” made a false
oath or account. The court separately addresses each component of intent.
i. Knowing
A “knowing” act is one made “‘deliberately and consciously.’”190 However, “[a] false
statement resulting from ignorance or carelessness does not rise to the level of ‘knowing and
190 Khalil, 379 B.R. at 173 (quoting Roberts, 331 B.R. at 883 (citation omitted)).
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fraudulent.’”191 Recklessness is also insufficient to support a finding that a debtor “knowingly”
made a false oath or account.192
I. Garth
Garth made material misrepresentations in both his schedules and statements and on the
record at his and DCC’s § 341(a) meetings. The question before the court is whether those
misrepresentations were simply careless as he asserts (“I probably just kind of forgot”), or
whether they were deliberate. After carefully evaluating the testimony at trial, the court is
convinced it is the latter. The sheer number and variety of misrepresentations made in the
original statements and schedules, which were then continued in the first amendment, make it
impossible for the court to conclude that Garth’s misrepresentations were inadvertent.
Similarly, the context of Garth’s actions makes it implausible to believe that the
multiple misrepresentations were merely accidents. This is amply confirmed by the
contradictory testimony concerning equipment ownership over the course of meetings of
creditors, including his postpetition use of DCC’s equipment. The transcripts reveal that those
statements were not made inadvertently or recklessly. Rather, the testimony was part of a
larger extended effort to justify the use of DCC’s equipment when instructed not to do so. For
these reasons the court concludes that Garth knowingly made the misrepresentations
concerning the DCC equipment.
The Schindlers also argue that Garth similarly made a knowing false oath by omitting
his ownership of the Miltan Properties. Given the timing of the transfer and encumbrance, as
well as the stated reasons for both, the court finds that Garth knowingly omitted the Miltan
191 Roberts, 331 B.R. at 884.
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Properties from his original schedules. The notion that a layperson, let alone an experienced
businessman, could “kind of forget” a $110,000.00 credit line obtained mere days in advance of
filing bankruptcy is simply incredulous.
II. Jarred
Jarred’s schedules and statements included the same equipment listed on DCC’s and
Garth’s schedules. Unlike Garth, however, Jarred was actually on title to the 2017 Dodge Ram
and the 2015 Polaris Ranger, though he made conflicting statements of ownership as to these
two items in his testimony at the meetings of creditors. Still, Jarred included the other DCC
equipment, including the Skidsteer, in his original and first amended schedules. As explained
above, this was not done by accident or oversight, but rather as part of an attempt to create, and
maximize, confusion surrounding ownership of DCC’s equipment so that he and Garth could
continue to use the equipment postpetition.
As with Garth, Jarred’s confusing and contradictory testimony during his meetings of
creditors regarding the ownership of the equipment confirms that the misstatements were not
accidental. Jarred and Garth engaged in a detailed explanation of the Skidsteer’s ownership at
the DCC § 341(a) meeting, describing the financing mishaps involving a defunct similarly-
named company and their decision not to correct the error with CAT’s financing department.
Then, Jarred represented at his § 341(a) meeting of creditors that the Skidsteer was owned by
his father. Thus, the court is asked to believe that when Jarred was told he could not continue
using the Skidsteer, only then did he discover a previously undisclosed telephone conversation
with an unidentified CAT representative revealing that his father owned the Skidsteer? All the
192 Id.
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while, the Skidsteer was scheduled as property of DCC’s bankruptcy estate, and that schedule
of property was never amended. Indeed, the Skidsteer was liquidated in DCC’s case.
The court cannot reconcile Jarred’s undocumented hearsay with DCC listing the
equipment in its schedules, and the reality of the Skidsteer’s ultimate liquidation in DCC’s
estate. The court concludes that Jarred knowingly made a false statement regarding the
ownership of the Skidsteer, and that the statement was not made carelessly or as a result of
ignorance. While this discussion focuses on the Skidsteer, the same analysis applies to the
other equipment listed in the original and first amended schedules with the exception of the
2017 Dodge Ram and the 2015 Polaris Ranger.
As for the Miltan Properties, Jarred did not list any interest in his initial schedules. But
Jarred and Jennifer included the Miltan Properties and asserted a related homestead exemption
in their first amended schedules filed the day before DCC’s meeting of creditors. Jarred
testified at trial that he believed in 2018 he did have an ownership interest in the Miltan
Properties. The court is not persuaded that someone who signed a quitclaim deed as part of
DCC to convey the Miltan Properties to his father shortly before filing for bankruptcy actually
believed that he owned that property when he completed his bankruptcy paperwork just weeks
later. The fact that Jarred did not originally list the Miltan Properties on the original schedules,
but chose to add it as part of his amended schedules, only further demonstrates a knowing
misstatement. No explanation has ever been provided as to why Jarred and Jennifer omitted the
Miltan Properties originally, only to add them as part of their amended schedules.
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ii. Fraudulent Intent
In the context of a claim under § 727(a)(4)(A), fraudulent intent has three components
the plaintiff must prove: “(1) the debtor made the false statements or omissions, (2) at the time
he knew they were false, and (3) the debtor made them with the intention and purpose of
deceiving his creditors.”193 The court has previously found that Garth and Jarred made false
statements concerning the Skidsteer and other equipment, and the ownership of the Miltan
Properties. Fraudulent intent need not be proven by direct admissions from the debtor, and
instead is typically demonstrated by “circumstantial evidence or by inferences drawn from the
debtor’s conduct.”194 Additionally, “‘[t]he fact of prompt correction of an inaccuracy or
omission may be evidence probative of lack of fraudulent intent.’”195 On the other hand, the
filing of amended schedules and statements that continue to contain omissions and inaccuracies
can be evidence of fraudulent intent.196 Finally, contrary to the requirements for satisfaction of
the “knowing” prong of a § 727(a)(4) claim, “a court ‘may find the requisite intent where there
has been a pattern of falsity or from a debtor’s reckless indifference to or disregard of the
truth.’”197
The essential point is that there must be something about the
adduced facts and circumstances which suggest that the debtor
intended to defraud creditors or the estate. For instance, multiple
omissions of material assets or information may well support an
193 Atkinson v. Page (In re Page), 568 B.R. 687, 700 (Bankr. D. Alaska 2017) (citing Retz, 606 F.3d at 1198-99).
194 Retz, 606 F.3d at 1199 (citing Devers v. Bank of Sheridan, Mont. (In re Devers), 759 F.2d 751, 753–54 (9th
Cir.1985)).
195 Cummings, 2012 WL 4747218, at *8 (quoting Searles, 317 B.R. at 377).
196 See In re Killian, 2008 WL 5834017, at *9 (Bankr. D. Or. Nov. 17, 2008).
197 Khalil, 379 B.R. at 174 (quoting Wills, 243 B.R. at 64) [emphasis omitted].
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inference of fraud if the nature of the assets or transactions
suggests that the debtor was aware of them at the time of preparing
the schedules and that there was something about the assets or
transactions which, because of their size or nature, a debtor might
want to conceal.198
The above analysis of the Schindlers’ § 727(a)(4) claims has been straightforward to
this point. Here, however, is the crux of the case: did Garth and Jarred fraudulently give a false
oath? As detailed above, they certainly made false statements under oath concerning their
assets. And the court has found that they did so knowingly, especially given that they amended
their schedules to continue to assert ownership in DCC’s equipment. These same amended
schedules further confused the ownership of the Miltan Properties. Garth’s and Jarred’s
reasons for filing false statements was further complicated by the testimony given at their
individual meetings of creditors. By that time, Garth and Jarred had used some of DCC’s
equipment in contravention of the DCC trustee’s instruction not to use that equipment.
Garth and Jarred testified at their meetings of creditors for their individual cases that
they continued to use DCC’s equipment because they were confused about the actual
ownership of that equipment. The court finds that testimony to be not credible. Rather, the
court finds that such testimony was offered as an excuse that is contradicted by Garth’s and
Jarred’s prior testimony at the DCC meeting of creditors. In fact, Garth admitted DCC’s
ownership of the equipment during his meeting of creditors for his individual case. Jarred, on
the other hand, continued to profess confusion concerning ownership of the equipment at the
meeting of creditors in his individual bankruptcy as well as at trial. This leaves the court to
decide whether Garth’s and Jarred’s false statements were fraudulently made.
198 Id. (quoting Coombs, 193 B.R. at 566).
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I. Equipment
As for the scheduling of the DCC equipment and tools in their personal bankruptcy
cases, Garth testified at trial that he did not think it appropriate for that property to be included
on his personal schedules. Nonetheless, he stated that Mr. Gazewood told him he needed to list
the personal property on his statements. The court notes that despite Garth’s alleged
reservations, the property appeared in both his opening and first amended schedules.
In the context of § 727(a)(4)(A), the Ninth Circuit has held that “[t]he advice of counsel
is not a defense when the erroneous information should have been evident to the debtor.”199
Stated plainly, “[a] debtor cannot, merely by playing ostrich and burying his head deeply
enough in the sand, disclaim all responsibility for statements which he has made under oath.”200
The court finds Garth’s advice of counsel defense to be suspect in this instance, largely because
Garth continued the misstatements in his amended personal schedules. But the court is struck
by Garth’s testimony at both DCC’s meeting of creditors – held the day after he filed his
amended schedules – and his own meeting of creditors. In both, Garth readily testified that the
equipment belonged to DCC. Garth offered some testimony regarding the confusion
surrounding ownership of some of the equipment at the DCC meeting of creditors held before
he and Jarred used the equipment in contravention to the DCC trustee’s instruction. While the
court discounts the explanation offered, it suggests some motivation other than fraud.
Garth’s explanations as to why he used DCC’s equipment made at his continued
meeting of creditors in his individual case are unconvincing and troubling. But even then Garth
199 Retz, 606 F.3d at 1199 (citing Boroff v. Tully (In re Tully), 818 F.2d 106, 111 (1st Cir.1987)).
200 Id.
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did not deny DCC owned the equipment. The court is unwilling to use Garth’s post hac
excuses for using DCC’s equipment to establish his prior fraudulent intent when filing his
amended schedules wrongfully listing his ownership in DCC’s equipment. In this instance, the
court sees a difference in the filing of the amended statements and Garth’s later testimony at his
meeting of creditors in his individual bankruptcy.
Jarred filed false schedules, originally and as amended, listing an ownership interest in
DCC’s equipment. On the whole, Jarred’s testimony at DCC’s meeting of creditors did not
dispute DCC’s ownership of the equipment. Jarred did offer additional explanations for the
confusion surrounding the ownership of the equipment, and specifically that the seller of the
Skidsteer had shown it as being owned by a different Dry Creek entity. Jarred also explained
that he believed he held an ownership interest in DCC’s tools and equipment because he was a
co-owner of DCC. This is simply wrong as a matter of law. Given that Jarred was represented
by counsel at the time, the court finds this to be problematic to the extent it is used to justify
Jarred’s statement of ownership in DCC’s equipment.
It is his testimony during the meeting of creditors in his individual bankruptcy,
however, where Jarred’s situation truly diverges from his father’s case. Jarred offered that
CAT Finance had listed Garth as the owner of the Skidsteer at the time of the sale, though it
had been claimed and depreciated by DCC in its tax filings. When questioned, Jarred
confirmed that ownership of the Skidsteer “wasn’t clear to me who owned it.”201 When asked
about the ownership of the other equipment he used after he had filed his amended schedules in
his individual bankruptcy and given testimony in DCC’s bankruptcy such as the Snake River
201 Plaintiffs’ Exhibit 37, Transcript p. 24:4-5.
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and Goertzen trailers, Jarred answered, “Yeah. All of it was in question of who the ownership
was going to be at, as far as I was concerned, yes.”202 Even at trial, Jarred restated that there
was confusion concerning who owned the equipment, even where certain pieces of equipment
were titled in DCC’s name.203 Again, Jarred explained that “I owned Dry Creek Construction,
so I own the trailer.” 204 He also confirmed that in 2018 he thought he owned property titled in
DCC’s name.205
Unlike Garth, Jarred continued to state his belief that he owned DCC’s equipment.
While this testimony goes to why Jarred believed he could use DCC’s equipment after the
trustee instructed him not to use the equipment, it is also relevant to why Jarred filed his
amended schedules which inaccurately claim an ownership interest in DCC’s equipment.
While Garth states that he believed the schedules to be wrong but signed them on advice of
counsel, Jarred makes no such claim. Rather, he still argues that he had an ownership interest
in the equipment because ownership was confused, and he had an ownership interest in DCC.
Jarred continues to make these arguments despite (1) his father’s testimony that the equipment
was owned by DCC, (2) title evidence on three pieces of equipment/vehicles in the name of
DCC, and (3) a fundamental misunderstanding about corporate ownership of property.
The court finds Jarred’s testimony on these points not to be credible. Rather, the
testimony demonstrates a fraudulent intent or, at a minimum, the reckless indifference to the
truth sufficient to sustain the Schindlers’ § 727(a)(4) claim. Jarred, much moreso than his
202 Id. at p. 24:14-21.
203 See Adv. Proc. No. 19-90001-GS, Adv. ECF No. 68-1, Transcript pp. 16:10-18:14.
204 Id. at p. 19:22-23. See also p. 20:2-9.
205 Id. at pp. 27:19-28:3.
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father, continued to raise and assert unwarranted claims of ownership to DCC’s equipment. In
Jarred’s case, the court does find his testimony at his meeting of creditors, DCC’s meeting of
creditors, and at trial, to be probative of the fraudulent intent or reckless indifference of his
false statements when filing his amended statements declaring his ownership interest in DCC’s
equipment. In this instance, the continuation of the claims of ownership within the first
amended schedules was made as part of Jarred’s attempt to justify his use of DCC’s equipment
when instructed not to use that equipment. Instead of conceding a mistake as Garth effectively
did, Jarred continued to press the false oath leaving the court to conclude it was made as part of
some effort, however haphazard, to defraud the estate and its creditors.
The court realizes that its decision draws a thin line between father and son. But their
different approaches and testimony regarding the ownership are significant and material. As a
result, the court reaches a different conclusion based upon the different facts relating to each.
II. The Miltan Properties
As detailed above, both Garth and Jarred knowingly made material misstatements in
their schedules and statements concerning the ownership of the Miltan Properties. The
Schindlers focus primarily on Garth’s failure to disclose his ownership of the Miltan Properties
and the associated line of credit with McKinley. While it is true that Garth made these
omissions in his initial schedules, he amended the schedules just over a month later to disclose
his ownership of the Miltan Properties and the McKinley line of credit. Garth filed the
amended schedules prior to his own meeting of creditors. This is probative of a lack of
fraudulent intent to conceal the Miltan Properties from his creditors. Based upon the amended
47
statements disclosing the ownership and debt, the court concludes that Garth did not have a
fraudulent intent to omit his interest in the Miltan Properties in the original statements.
On the other hand, although Jarred’s opening schedules and statements appropriately
omitted the Miltan Properties, his amended schedules asserted an ownership in those properties
that he and his wife did not hold. Both Jarred’s and Jennifer’s signatures appear on the deed
transferring the Miltan Properties from DCC to Garth dated September 11, 2018, just weeks
prior to their bankruptcy case being filed.206 Based on the evidence presented, this transfer
does not appear to have been a routine act that might have been easily forgotten by the debtors.
Given the timing, and the reasons for the deed of trust, the court expects that Jarred
should have been able to recall the transfer of the Miltan Properties from DCC to Garth before
he amended his schedules to claim ownership. Moreover, Jarred asserted ownership of the
Miltan Properties in his amended schedules, suggesting that there was some thought as to why
the original schedules were mistaken and an affirmative act to claim an ownership interest.
Yet, there is no explanation as to why Jarred believed that he and his wife held an ownership
interest in the Miltan Properties when title had previously been held in the name of DCC before
the quitclaim deed he, and others, signed to convey the properties to Garth.207 Indeed, there is
no evidence that Jarred as an individual ever held title in the Miltan Properties.
Based on the above, the court concludes that Jarred knew that he did not own the Miltan
Properties and had the fraudulent intent to deceive the trustee and creditors by claiming an
interest in the Miltan Properties and then attempting to exempt those properties.
206 See Case No. 18-00357-GS, ECF No. 28, p. 7.
207 The court’s conclusion is bolstered by the first amended Statement of Intention filed by Jarred and Jennifer,
which reflects the Millirons’ intent to retain the Miltan Properties. See Plaintiffs’ Trial Exhibit 33, p. 25.
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C. CONCLUSION
For the reasons explained above, the court concludes that: (1) the Schindlers’ claims
against Kimberly Milliron and Jennifer Milliron must be denied under 11 U.S.C. § 727(c); (2)
the Schindlers have failed to prove that Garth Milliron had sufficient fraudulent intent to deny
his discharge under 11 U.S.C. § 727(a)(4); and (3) judgment shall be entered against Jarred
Milliron denying his discharge under § 727(a)(4)(A)for knowingly and fraudulently making
material false oaths related to his bankruptcy case. The court will prepare a judgment
consistent with this ruling.
DATE: March 31, 2021
_/s/ Gary Spraker_______________
GARY SPRAKER
United States Bankruptcy Judge
Serve: J. Gazewood, Esq.
E. LeRoy, Esq.
ECF Participants via NEF
Case Manager
49