JACK D. ROSE and VANESSA PALMA ROSE v. DAVID M. REAVES, Chapter 7 Trustee, Trustee-Appellee. No. 17-16196 D.C. No.…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK D. ROSE and VANESSA PALMA
ROSE,
Debtors-Appellants,
v.
DAVID M. REAVES, Chapter 7 Trustee,
Trustee-Appellee.
No. 17-16196
D.C. No. 2:16-cv-03868-HRH
MEMORANDUM*
JACK D. ROSE; VANESSA PALMA
ROSE,
Debtors-Appellees,
v.
DAVID M. REAVES, Chapter 7 Trustee,
Trustee-Appellant.
No. 17-16239
D.C. No. 2:16-cv-03868-HRH
Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, District Judge, Presiding
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted February 6, 2019**
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Appellants, Jack D. Rose and Vanessa Palma Rose (“Appellants”), appeal the
bankruptcy court’s denial of discharge under 11 U.S.C. § 727(a)(2)(A) for transferring
property within a year of filing the petition with the intent to hinder, delay or defraud
a creditor. The denial was affirmed by the district court, In re Rose, 574 B.R. 141,
148-56 (D. Ariz. 2017), and finding the bankruptcy court committed no clear error,
In re Greene, 583 F.3d 614, 618 (9th Cir. 2009), we affirm as well.
Following a four-day trial, the bankruptcy court found that in the year prior to
filing for bankruptcy, Jack D. Rose (“Rose”) had transferred money and deposited tax
returns totaling over $400,000 into the account of an entity, Highpoint Management
Solutions, LLC (the “Highpoint account”), which had been formed just a few months
earlier by Rose's former employee and close personal friend, Mubeen Aliniazee. Rose
directed Aliniazee to disburse this money on Rose's behalf (using a separate ledger to
keep track of Rose’s use of the Highpoint account). Rose also had a debit card for the
Highpoint account and could withdraw money for personal expenses.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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In June 2010, a major creditor, Meridian Bank, obtained an $8 million judgment
against the Appellants and later pursued collection and garnishment of Rose's
accounts. Meridian sought information from Rose about any accounts maintained “by
or on behalf of him” in any depository, but Rose did not disclose the Highpoint
account.
In May 2011, Rose filed for bankruptcy. By that time, he had spent all but
approximately $1,300 of the amounts he had deposited into the Highpoint account.
He did not initially list the Highpoint account on any of his bankruptcy schedules
because he believed he had zeroed out any deposits made to the account. He testified
he had only used the Highpoint account because he had no account of his own into
which he could deposit the money and pay his attorneys.
Eventually, the trustee discovered the Highpoint account and commenced an
adversary proceeding seeking to deny discharge under various provisions of the
Bankruptcy Code. The bankruptcy court had “little difficulty” finding that Rose was
transferring his personal property to the Highpoint account for the purpose of
hindering or delaying creditors, especially Meridian, and denied the discharge under
11 U.S.C. § 727(a)(2)(A).
The deposits into the Highpoint account were properly considered “transfers.”
In re Tenderloin Health, 849 F.3d 1231, 1243-44 (9th Cir. 2017). Rose contends the
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funds did not “remain transferred” at the time of the petition because he had caused
the money to be paid out for various legitimate expenses, attempting to rely on our
decision in In re Adeeb, 787 F.2d 1339 (9th Cir. 1986), but that case is wholly
inapposite. In Adeeb, the debtor transferred real estate to friends pre-petition but then
realized his error and had it transferred back to him before the petition for bankruptcy
was filed. Id. at 1344-45. Here, Rose transferred the assets to the Highpoint account
and spent them, and thus the funds remained out of the reach of his creditors. Rose
argues there is insufficient evidence of his actual intent to defraud creditors, but this
ignores that § 727(a)(2)(A) is written in the disjunctive and can also be satisfied by
showing an intent to hinder or delay creditors. See In re Retz, 606 F.3d 1189, 1200
(9th Cir. 2010).
AFFIRMED.1
1 Because we affirm the denial of discharge under § 727(a)(2)(A), we need
not address the trustee’s cross-appeal.
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