21 B 00472, 22 A 00102
Defendant Ben Tesler sought dismissal of Plaintiff 4820 & 4901 Ltd.’s five count complaint seeking denial of Tesler’s discharge.  HELD: Plaintiff plausibly alleged a claim for relief under three subsections of 11 U.S.C. § 727(a).  First, the complaint adequately stated a cause of action for concealment under § 727(a)(2).  At this stage of the proceedings, an allegation that assets were deliberately withheld from Defendant’s schedules is sufficient to state a claim for concealment.  The intent requirement of this section is in the disjunctive, so the complaint need only allege an intent to hinder or delay or defraud.  Allegations regarding Defendant’s course of conduct plausibly pleaded the required intent.  Second, the complaint adequately stated a cause of action for failure to keep or preserve records under § 727(a)(3).  It contained allegations that Defendant did not produce all requested documents and, with his background and experience, should have known how to keep and preserve records.  Finally, the complaint adequately stated a cause of action for making a false oath in connection with the case under § 727(a)(4)(A), because Plaintiff alleged that Defendant omitted two assets from his schedules that he should have known to disclose.  As with the claim for relief under § 727(a)(2), allegations regarding Defendant’s course of conduct were sufficient to plead an intent to defraud.  The court granted the motion to dismiss the counts in which Plaintiff sought relief under § 727(a)(4)(D) and (a)(6).  Section 727(a)(4)(D) requires allegations that a defendant withheld information with an officer of the estate, and there were none in the complaint.  Finally, in its response Plaintiff asked to withdraw the § 727(a)(6) count.