In re: Jean D. Georges v. JEAN D. GEORGES BARRY SOLODKY, ESQ., Trustee ON APPEAL FROM THE UNITED STATES…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3423
IN RE: JEAN D. GEORGES,
Debtor
GEORGE A. GEORGES,
Appellant
v.
JEAN D. GEORGES
BARRY SOLODKY, ESQ.,
Trustee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 03-cv-06893)
District Court Judge: The Honorable Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a)
May 26, 2005
Before: SCIRICA, Chief Judge, and ALITO and GARTH, Circuit Judges
(Opinion Filed: July 8, 2005)

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OPINION OF THE COURT
PER CURIAM:
Relying on 11 U.S.C. § 727(a)(4)(A), George A. Georges (“Mr. Georges”) sought
the dismissal of the bankruptcy petition filed by his ex-wife, Jean D. Georges (“Ms.
Georges”). After a hearing, the Bankruptcy Court entered judgment for Ms. Georges,
finding that Mr. Georges had failed to show that Ms. Georges had committed an act of
fraud with the actual intent to hinder, delay, or defraud a creditor or officer of the estate
when she filed her petition, schedules, and related pleadings. The District Court affirmed.
Our review of the decision of the District Court is plenary. In re Trans World
Airlines, Inc., 145 F.3d 124, 130 (3d Cir. 1998). Like the District Court, we review the
Bankruptcy Court’s legal determinations de novo, its factual findings for clear error, and
its exercise of discretion for abuse. In re Engel, 124 F.3d 567, 571 (3d Cir. 1997).
In this appeal, Mr. Georges contends that, contrary to the finding of the
Bankruptcy Court, he satisfied his burden of proof. Alternatively, he argues that if he did
not adduce sufficient evidence, his failure was due to the Bankruptcy Court’s refusal to
allow him to cross-examine Ms. Georges’ counsel for the purpose of showing that
counsel’s advice to Ms. Georges was intended to defraud him. We disagree on both
points.
First, we agree with the Bankruptcy Court that Mr. Georges did not satisfy his

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burden of proof. Section 727(a)(4)(a) of the Bankruptcy Code provides, in pertinent part,
that the court shall grant a debtor a discharge unless the debtor “knowingly and
fraudulently, in or in connection with a case[,] made a false oath or account.” 11 U.S.C. §
727(a)(4)(a). The party objecting to discharge has the burden of proof by a
preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 289-90 (1991); Fed.
R. Bankr. P. 4005. The objecting party must prove an “actual intent on the part of the
bankrupt to hinder, delay, and defraud his creditors.” In re Topper, 229 F.2d 691, 692
(3d Cir. 1956) (citation and internal quotations omitted). “[T]he advice of counsel may
provide an excuse for an inaccurate or false oath.” Id. at 693.
Here, the evidence in the record is sufficient to support the Bankruptcy Court’s
finding that there was insufficient evidence to show that Ms. Georges had an actual intent
to hinder, delay and defraud her creditors. There was evidence that Ms. Georges omitted
marital property from her schedules in reliance on the advice of her bankruptcy attorney.
App. 42. The evidence in the record also showed that the Chapter 7 Trustee in her case
was made aware of the fact that she had failed to list the marital property but that the
Trustee told her that she had properly listed her property. As a result the Trustee did not
require Ms. Georges to amend her schedules. App. 33-35. Viewing all of the relevant
evidence, we see no basis for overturning the finding of the Bankruptcy Court.
We also reject Mr. Georges’ argument that the Bankruptcy Court improperly
precluded him from cross-examining Ms. Georges’ attorney about the legal advice he had

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given to his client. Under our rules, the Appellant’s brief was required to contain “a
designation by reference to specific pages of the appendix or place in the proceedings at
which each issue on appeal was raised, objected to, and ruled upon.” LAR 28.1(a)(1). In
this case, Appellant’s brief identifies App. 75-76 as the place in the record where this
objection was raised and ruled upon. After reviewing that portion of the Appendix and
the remainder of the Appendix, we hold that no valid objection to the Bankruptcy Court’s
handling of this matter was preserved.
At the hearing, Mr. Georges, during his cross-examination of Ms. Georges, offered
into evidence a letter written in 2000 to Ms. Georges by her attorney, Mr. Hess, in which
the attorney expressed personal animosity toward Mr. Georges. App. 68. During a
colloquy with Mr. Georges, the Bankruptcy Court questioned the relevance of the letter,
since Mr. Georges’ complaint was based on Ms. Georges’ omission of certain property
from her schedules and the schedules were completed before Mr. George and Mr. Hess
first met. See App. 68, 72. The Bankruptcy Court also noted that Mr. Georges had not
averred in his complaint that “counsel for [his] ex-wife ha[d] done anything to aid her
fraud or concealment or anything else.” App. 70. Nevertheless, the Bankruptcy Court
admitted the letter. App. 75. The following exchange then occurred:
MR. GEORGES: Your Honor, I’d like to call Mr. Hess to the
stand.
THE COURT: I don’t know if I’m going to allow that. Do
you have any final questions of your ex-wife?
App. 75-76.

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Neither party’s brief suggests that Mr. Georges did anything further to call Mr.
Hess to the stand or that the Bankruptcy Court ever revisited the question. Nor is there
anything additional in the Appendix that bears on this matter. Under these circumstances,
we must reject Mr. Georges’ argument. The Bankruptcy Judge was certainly entitled to
question Mr. Georges about his basis for seeking to call his ex-wife’s attorney to the
stand, and in the exchange quoted above, the Bankruptcy Court did not rule definitively
on the question but merely stated that he did not know whether he would allow Mr.
Georges to call Mr. Hess. We cannot overturn the decision of the Bankruptcy Court on
such a record.
For the foregoing reasons, we will affirm the order.

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