Case: 18-10469         Document: 00515613722   Page: 1   Date Filed: 10/23/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                         No. 18-10469                       FILED
                                                                     October 23, 2020
                                                                       Lyle W. Cayce
In the Matter of: LLOYD EUGENE WARD,
                                                                            Clerk
                  Debtor

--------------------------------------

ROBERT YAQUINTO, Chapter 7 Trustee for Bankruptcy Estate of Lloyd
Ward; MICHAEL FRANK; DANA BLOCK; GREG BURKE; JESSICA
CASEY; VICTORIA CASTILLO; JEREMY COZART; JOHNNY KEEL;
VALLERY MANN; JO MINAYA; BRIAN PARKER; CHRISTOPHER PITRE;
TIM CARR; CODDI DEAN; JOHN NELSON,

                 Appellees,

v.

LLOYD EUGENE WARD,

                 Appellant.


                      Appeal from the United States District Court
                           for the Northern District of Texas


Before OWEN, Chief Judge, and CLEMENT and HO, Circuit Judges.
PRISCILLA R. OWEN, Chief Judge:
        The issues in this appeal are whether the Appellees timely filed a
complaint seeking denial of Lloyd Eugene Ward’s discharge in bankruptcy
pursuant to 11 U.S.C. § 727(a)(4)(A) and (a)(5), and, if the complaint was
timely, as the district court held, whether the bankruptcy court erred in
denying the discharge. We affirm.
   Case: 18-10469       Document: 00515613722          Page: 2     Date Filed: 10/23/2020


                                       No. 18-10469
                                              I
       The Appellees, other than the Chapter 7 trustee Robert Yaquinto,
obtained a $782,838.25 judgment against Lloyd Eugene Ward, an attorney,
and Lloyd Ward, P.C. Those creditors filed suit in state court to collect on the
judgment. Ward then filed a petition for relief under Chapter 7 of the United
States Bankruptcy Code in the United States Bankruptcy Court for the
Eastern District of Texas.
       That court issued a notice (Eastern District Notice) on May 5, 2014, that
scheduled the initial meeting of creditors (a § 341(a) meeting 1) for May 30,
2014, and set July 29, 2014, as the deadline to object to Ward’s discharge
petition or to challenge the dischargeability of certain debts. However, before
May 30 arrived, an agreed motion to transfer the bankruptcy proceedings to
the Northern District was filed on May 13, 2014. The initial creditors’ meeting
that had been noticed for May 30 did not occur. On June 5, 2014, Ward’s case
was transferred to the Bankruptcy Court for the Northern District of Texas.
The Bankruptcy Court for the Northern District (Bankruptcy Court)
subsequently entered its own notice (Northern District Notice), which
identified July 22, 2014, as the date of the initial § 341(a) meeting of creditors,
and September 22, 2014, as the date for filing objections to Ward’s discharge.
Ward did not object to the Northern District Notice or the new discharge date.
       On August 27, 2014, Ward’s judgment creditors filed a motion for an
extension of the deadline to file objections (Motion for an Extension). Yaquinto,
the trustee of Ward’s bankruptcy estate, joined in this motion. Ward opposed
the Motion for an Extension, arguing it was untimely under Federal Rules of
Bankruptcy Procedure 4004(a) and 4007(c) because it was filed more than sixty


       1 See 11 U.S.C. § 341(a) (“Within a reasonable time after the order for relief in a case
under this title, the United States trustee shall convene and preside at a meeting of
creditors.”).
                                              2
   Case: 18-10469      Document: 00515613722         Page: 3     Date Filed: 10/23/2020


                                      No. 18-10469
days after the May 30, 2014 date set for the § 341(a) meeting in the Eastern
District Notice. The Bankruptcy Court granted the Motion for an Extension.
The Bankruptcy Court subsequently granted two more opposed motions for
extensions, ultimately establishing May 1, 2015, as the final deadline for filing
objections. It is clear from the record that had Ward raised his contentions
regarding the deadline for filing objections to discharge prior to July 29, 2014
(the deadline for filing objections in the notice sent by the Bankruptcy Clerk
for the Eastern District), the judgment creditors could have filed a motion for
extension of time, and the Bankruptcy Court would have granted such a
motion and would have authorized additional extensions, all of which would
clearly have been permitted by the Bankruptcy Rules.
       On April 30, 2015, Yaquinto and the judgment creditors (collectively,
Objectors) filed a complaint (Complaint) seeking denial of Ward’s discharge
under, inter alia, 11 U.S.C. § 727(a).2 After holding a trial on the merits of the
Complaint, the Bankruptcy Court issued an opinion (1) affirming its
conclusion that the initial Motion for an Extension and the Complaint were
timely, and (2) denying Ward’s discharge under 11 U.S.C. § 727(a)(4)(A) and
(a)(5).3 Ward appealed the Bankruptcy Court’s decision to the United States
District Court for the Northern District of Texas, which affirmed. 4 This appeal
followed.
                                            II
       We conclude that the Bankruptcy Court had the equitable power
emanating from 11 U.S.C. § 105(a) to correct any error it may have committed
in changing the date of the first creditors’ meeting after the case was



       2 Frank v. Ward (In re Ward), No. 14-32939, 

, at *3 (Bankr. N.D. Tex.
Jan. 26, 2017), aff’d sub nom. Ward v. Yaquinto (In re Ward), 

(N.D. Tex. 2018).
       3

Ward v. 

, 823.

                                             3
  Case: 18-10469      Document: 00515613722       Page: 4   Date Filed: 10/23/2020


                                     No. 18-10469
transferred out of the Eastern District. The Objectors reasonably relied on the
issuance by the Northern District Bankruptcy Court’s Clerk of a second, later
date for the § 341(a) initial creditors’ meeting and a corresponding new, later
deadline for filing objections to discharge.
      We begin with an overview of Rules 4004 and 4007.               Rule 4004(a)
provides that in cases such as this, “complaint[s] . . . objecting to the debtor’s
discharge shall be filed no later than 60 days after the first date set for the
meeting of creditors under § 341(a).”5         Bankruptcy courts can extend the
deadline for objecting to discharge “[o]n motion of any party in interest” if the
motion is “filed before the time [to object to discharge] has expired.” 6
Bankruptcy courts are required to “forthwith grant the discharge” if the
deadline for objecting expires and no complaints or motions for extension of
time are pending.7 Rule 4007(c) imposes the same restrictions on complaints
to determine the dischargeability of certain debts. 8 Both Rules 4004(a) and
4007(c) require a bankruptcy court to give creditors notice of the deadline for
filing objections.9
      Rule 9006(b) addresses the extent to which bankruptcy courts may
extend the deadlines established under the Bankruptcy Rules. Generally,
bankruptcy courts may extend upcoming deadlines “for cause shown” and may
excuse noncompliance with past deadlines “where the failure to act was the
result of excusable neglect.”10 However, Rule 9006(b)(3) provides that this
general rule is inapplicable to certain deadlines, including those established by
Rule 4004(a) and Rule 4007(c). Instead, bankruptcy courts “may enlarge the



      5 FED. R. BANKR. P. 4004(a).
      6

   Case: 18-10469       Document: 00515613722          Page: 5     Date Filed: 10/23/2020


                                       No. 18-10469
time for taking action under Rules . . . 4004(a) [and] 4007(c) . . . only to the
extent and under the conditions stated in those rules.” 11
       Our court has held that Rules 4004 and 4007 are strictly construed. 12
“Consequently, any exceptions to discharge must be filed within [their] strictly
enforced time limit[s].”13 The Rules “reflect[] the overall goal of the bankruptcy
process to provide individual debtors a fresh start.” 14 Although Rules 4004(a),
4007(c), and 9006(b) “place[] a heavy burden on the creditor to protect his [or
her] rights,” they embody a judgment that the burden they impose is justified. 15
       Bankruptcy courts have the authority under 11 U.S.C. § 105 to “issue
any order, process, or judgment that is necessary or appropriate to carry out
the provisions of” the Bankruptcy Code.16 “From this section emanate the
general equitable powers of bankruptcy courts.” 17 The powers afforded to
bankruptcy courts pursuant to § 105, however, are not unlimited.                          For
example, “a bankruptcy court may not contravene specific statutory
provisions” pursuant to its § 105 powers.18               Nor does § 105 permit “the
bankruptcy court to override explicit mandates of other sections of the
Bankruptcy Code.”19
       In the present case, the Bankruptcy Court moved the date of the first



       11

See Scarbrough v. Purser (In re Scarbrough), 

, 452 (5th Cir. 2016) (“The
deadline for filing a dischargeability complaint is inflexible.” (citing FDIC v. Meyer (In re
Meyer), 

, 68 (7th Cir. 1997))).
       13 Ichinose v. Homer Nat’l Bank (In re Ichinose), 

, 1172-73 (5th Cir.

1991).
       14

see also State Bank & Tr., N.A. v. Dunlap (In re Dunlap), 

,

315 (5th Cir. 2000) (“[T]his fixed, relatively short limitation period enables the debtor and
creditors to make better-informed decisions early in the . . . proceedings.” (quoting Neeley v.
Murchison, 

, 346-47 (5th Cir. 1987))).
       15 

.
       16 11 U.S.C. § 105(a).
       17 Omni Mfg., Inc. v. Smith (In re Smith), 

, 665 (5th Cir. 1994).
       18 Law v. Siegel, 

, 421 (2014).
       19

ON BANKRUPTCY ¶ 105.01[2], at 105-06 (16th ed. 2013)).

                                              5
   Case: 18-10469       Document: 00515613722          Page: 6     Date Filed: 10/23/2020


                                       No. 18-10469
creditors’ meeting and, consequently, the deadline to file objections. Assuming,
without deciding, that this was contrary to the letter of Rule 4004 even when
a case has been transferred to another district, the parties were justified in
relying on the Bankruptcy Court’s actions. Neither party brought the matter
to the Bankruptcy Court’s attention prior to the original deadline for filing
objections to discharge. Had they done so, the Bankruptcy Court would have
been authorized under the Rules to extend the time for filing an objection to
discharge. Under § 105, the Bankruptcy Court was empowered to craft an
appropriate solution to correct its own error, if any.
       We have previously recognized that bankruptcy courts “cannot use their
equity powers under [§ 105] to fashion substantive rights and remedies not
contained in the Bankruptcy Code or Rules.” 20 But the facts of this case are
materially distinguishable from one in which a court sua sponte extends the
sixty-day deadlines in Rules 4004(a) and 4007(c) by claiming to use its inherent
equitable authority.       Section 105 does not “allow [a] bankruptcy court to
override explicit mandates of other sections of the Bankruptcy Code.” 21 Here,
however, assuming the Bankruptcy Court issued an erroneous order, it
corrected its own error in the only way it could—by deeming the Objectors’
motion timely. This action was permissible under § 105’s grant of equitable
authority. After all, “[t]he equitable power given to courts by . . . § 105(a)
would be meaningless if courts were unable to correct their own mistakes.” 22
       Our sister circuits that have considered similar fact patterns have come




       20 In re 

.
       21  

(quoting 2 COLLIER ON BANKRUPTCY, supra note 19,
¶ 105.01[2], at 105-06); see, e.g., In re 

(holding that § 105(a) does not
authorize a court to “extend the deadline for filing a proof of claim in the [debtor’s]
reorganization case” in direct contravention of Rule 9006’s requirements).
       22 Anwiler v. Patchett (In re Anwiler), 

, 929 (9th Cir. 1992), as amended

on denial of reh’g (Apr. 8, 1992).
                                              6
   Case: 18-10469       Document: 00515613722          Page: 7     Date Filed: 10/23/2020


                                       No. 18-10469
to the same conclusion as we do today. 23 In re Themy serves as one example.24
There, the bankruptcy court sent a notice setting forth the date for the initial
creditors’ meeting and the date for filing complaints. The creditors’ meeting
occurred but was continued to allow the debtor’s attorney to file amended
schedules.     The bankruptcy court then sent another notice informing the
creditors of the continuance of the initial creditors’ meeting and setting a new,
later date as the deadline for filing objections. A creditor filed an objection
after the initial deadline had expired but before the new one. The bankruptcy
court found the creditor’s complaint timely. 25 The Tenth Circuit affirmed,
concluding that the bankruptcy court’s actions were permitted under § 105. 26
That court reasoned: “The bankruptcy court’s acceptance of [the] complaint . . .
was not a sua sponte extension of the deadline, but was an exercise of the
court’s authority to correct its own errors. A court has the inherent equitable
power to correct its own mistakes.” 27
       Ward contends that a bankruptcy court is powerless to remedy its error
in issuing a second, later notice of the deadline for objecting to a discharge.
First, citing cases such as State Bank & Trust, N.A. v. Dunlap,28 he contends
that Rules 4004 and 4007 are claims-processing rules not subject to equitable
tolling. Even assuming Rules 4004 and 4007 are claims-processing rules not
subject to equitable tolling, this premise in no way undermines a bankruptcy
court’s equitable power to craft solutions in response to its own missteps.
Governing law may preclude a bankruptcy court from excusing non-compliance




       23  See, e.g., Moss v. Block (In re Moss), 

, 542 (8th Cir. 2002); Themy v. Yu
(In re Themy), 

, 689-90 (10th Cir. 1993); In re 

.
        

.
        25

Id. at 689.
        28 

(5th Cir. 2000).

                                               7
   Case: 18-10469       Document: 00515613722          Page: 8     Date Filed: 10/23/2020


                                       No. 18-10469
with Rules 4004 and 4007.                Nevertheless, for the reasons previously
articulated, a bankruptcy court retains the authority to correct its own actions
in circumstances such as this one.
       Second, Ward contends the Objectors were not justified in relying on the
Bankruptcy Court’s mistake. He argues the Objectors “had a duty to protect
their rights under [Rules 4004 and 4007, a duty that] included making a
diligent effort to ascertain whether the deadlines contained in the [Northern
District] Notice were valid or erroneous under the applicable rules.” Ward
contends that our holding in Neeley v. Murchison29 supports his position. But
Ward fails to recognize that our Neeley holding does not encompass the
situation here, when instead of providing no information on deadlines, the
Northern District Bankruptcy Clerk “gave an affirmative but erroneous notice
of a bar date upon which the creditor might reasonably have relied.” 30
       Ward cites no authority that holds a bankruptcy court cannot extend the
deadline in circumstances such as those present here, so even had the creditors
“diligently” researched the issue, they would not have been put on notice that
there was a potential error. Under the present circumstances, the litigants
could rely on the bankruptcy judge’s interpretation and application of the
Rules.31 The Bankruptcy Court was entitled to correct its own error when
confronted with its own mistake.
       That a bankruptcy court has the equitable authority to correct its own
mistakes is hardly a novel concept. Although § 105 does not “constitute a




       29   See 

, 346-47 (5th Cir. 1987) (dismissing a creditor’s objection to
dischargeability as untimely when the bankruptcy clerk left blank the Rule 4007(c) deadline
for objections on the court’s notice of the initial creditors’ meeting and when the creditor was
told no date had been set when he inquired about the deadline).
        30

n.5 (citing Francis v. Riso (In re Riso), 

(D.N.H. 1986)).
        31 In re 

.

                                               8
   Case: 18-10469        Document: 00515613722          Page: 9     Date Filed: 10/23/2020


                                        No. 18-10469
roving commission to do equity,”32 courts are not infallible. As one of our sister
circuits expressed, “[i]t would be very harsh indeed to deny equitable relief in
cases where the delay in filing is not due to the fault of either party.” 33
Presented with that case, we hold that the Objectors’ Motion for an Extension
and their Complaint were timely.
                                              III
       We next consider whether the Bankruptcy Court correctly denied Ward’s
discharge under 11 U.S.C. § 727(a)(4)(A). Section 727(a)(4)(A) provides that a
“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.”34 The Bankruptcy Court denied Ward a discharge after finding that
he made a false oath or account regarding (1) his income, (2) his wife’s income,
(3) two automobiles, (4) a trust that he established for his family, and (5) the
operating dates of two entities with which he was associated, Lloyd Ward, P.C.
and VL Capital.35
       On appeal, Ward contends that his representations concerning his wife’s
income were not false and that his representations regarding his income, his
wife’s income, and Lloyd Ward, P.C. were either immaterial, not made with
fraudulent intent, or both. Ward challenges only some of the false oaths or
accounts identified by the Bankruptcy Court. 36                   The Bankruptcy Court’s


       32 Chiasson v. J. Louis Matherne & Assocs. (In re Oxford Mgmt., Inc.), 

,
1334 (5th Cir. 1993) (quoting United States v. Sutton, 

, 1308 (5th Cir. 1986)).
       33 Anwiler v. Patchett (In re Anwiler), 

, 929 (9th Cir. 1992), as amended

on denial of reh’g (Apr. 8, 1992).
       34 11 U.S.C. § 727(a)(4)(A).
       35 Frank v. Ward (In re Ward), No. 14-32939, 

, at *12-26 (Bankr. N.D.

Tex. Jan. 26, 2017), aff’d sub nom. Ward v. Yaquinto (In re Ward), 

(N.D. Tex.
2018).
       36 Ward v. 

. Of the several false oaths or accounts identified

by the Bankruptcy Court, Ward only adequately challenged a few of them before the district
court. See

parts of his brief in this court could be read as challenging all of
the Bankruptcy Court’s findings, Ward waived these arguments by failing to adequately brief
                                               9
  Case: 18-10469        Document: 00515613722          Page: 10     Date Filed: 10/23/2020


                                       No. 18-10469
judgment sufficiently rests on the unchallenged findings. 37 We thus affirm the
Bankruptcy Court’s denial of Ward’s discharge under 11 U.S.C. § 727(a)(4)(A).
                                              IV
       Although the Bankruptcy Court needed to establish only one ground
under 11 U.S.C. § 727(a) to deny Ward’s discharge, we recognize that the court
was correct in finding that Ward’s discharge could also be denied under
§ 727(a)(5).38 Section 727(a)(5) permits a bankruptcy court to deny a debtor’s
discharge if “the debtor has failed to explain satisfactorily, before
determination of denial of discharge[,] . . . any loss of assets or deficiency of
assets to meet the debtor’s liabilities.” 39
       The Objectors contended below that Ward was not entitled to a discharge
under § 727(a)(5) because he could not sufficiently account for compensation
he received as an officer of Lloyd Ward Group, P.C. (LWG).40 According to
LWG’s 2010 tax return, LWG paid its officers $1,325,000 in compensation that
year. At trial, Ward initially “testified that he was the sole officer of [LWG].” 41
“When questioned about this compensation, Ward testified that his prior
testimony that he was the sole officer of [LWG] was not accurate and that




them here and below. See Monteon-Camargo v. Barr, 

, 428 (5th Cir. 2019), as
revised (Apr. 26, 2019); Bradley v. Ingalls (In re Bradley), 

, 433 (5th Cir. 2007).
         37 See 11 U.S.C. § 727(a)(4)(A) (“[Bankruptcy] court[s] 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.” (emphasis added)); Robinson v. Worley, 

,
587 (4th Cir. 2017) (noting that “all that the provision requires for a denial of discharge is a
single false account or oath” (citing Schreiber v. Emerson (In re Emerson), 

, 28
(Bankr. D.N.H. 1999))); Smith v. Grondin (In re Grondin), 

, 277 (B.A.P. 1st Cir.
1999) (“According to the plain language of § 727(a)(4)(A), all that is required for a denial of
discharge is a single ‘false oath or account.’”).
         38 See McClendon v. DeVoll (In re DeVoll), 

, 98 (Bankr. N.D. Tex. 2001) (“If

any one ground for a denial of discharge is established, the Court does not need to decide the
propriety of any of the other grounds.”).
         39 11 U.S.C. § 727(a)(5).
         40 Frank v. Ward, 

, at *26-27.
         41

  Case: 18-10469       Document: 00515613722   Page: 11   Date Filed: 10/23/2020


                                  No. 18-10469
[LWG] had two additional officers, a CFO and a CEO.” 42 These individuals
were each allegedly paid $200,000 in 2010, thereby suggesting Ward received
“at least, $900,000 in compensation as an officer of [LWG]” in that year. 43
      In an attempt to account for this money, “Ward testified that a third
party (Mr. Miles) had been ‘misallocating funds’ in relation to [LWG].” 44
According to Ward, Mr. Miles “had been showing expenses that didn’t exist,
and taking money out of the company under the payroll.” 45 Ward further
contended that “these actions resulted in a lawsuit and a judgment against Mr.
Miles [and others]” but that the judgment was ultimately “uncollectible.” 46
Beyond this explanation, the Bankruptcy Court noted, “Ward gave no
explanation of where the $900,000 of compensation the tax return shows he
was paid went.”47
      The Bankruptcy Court ultimately found Ward’s explanation for the
$900,000 in compensation wanting. First, the court concluded that Ward’s
testimony concerning the compensation “was self-serving, not credible, or
both.”48 Moreover, “Ward’s testimony often changed based upon the situation
[with which] he was presented.” 49 Second, the court found Ward’s version of
events implausible. According to the court, it made little sense to classify the
$900,000 at issue as compensation for officers. If the money had been “stolen,”
it made little sense to consider the money “compensation.” Nor, if Mr. Miles
did take the money, could LWG classify his receipt of the money as “officer
compensation,” as “nothing in the record indicat[ed] that Mr. Miles was an



      42

  Case: 18-10469        Document: 00515613722          Page: 12      Date Filed: 10/23/2020


                                        No. 18-10469
officer of [LWG].”50 According to the court, “[i]t is simply not plausible that
Ward (a lawyer and sophisticated businessman) would permit an entity he
controlled to file a tax return showing substantial compensation to him if, in
fact, that money was not paid to him.”51                 The court thus denied Ward’s
discharge pursuant to § 727(a)(5).
       On appeal, Ward argues the Bankruptcy Court clearly erred when it
denied his discharge pursuant to § 727(a)(5). 52 First, he contends he was not
“the sole officer of [LWG]” in 2010.               Second, he contends that because
compensation includes more than simply an officer’s wage, the court “erred in
inferring that ‘compensation’ as identified on a company tax return equates to
‘assets’ for purposes of [§ 727(a)(5)].”
       As to Ward’s first argument, Ward’s testimony at trial sufficiently
confirms the Bankruptcy Court’s conclusion. Ward testified he was one of
three LWG officers; he confirmed that LWG’s 2010 tax return reflected
$1,325,000 in officer compensation; and he confirmed that such amount
included $400,000 paid to other LWG officers. The court was justified in
crediting these assertions. As to Ward’s second argument, “no facts suggest
. . . the figure reflected in the 2010 tax return was anything other than a direct
payment from the company to [its officers].”53 Thus, the Bankruptcy Court did
not clearly err when it concluded Ward received at least $900,000 in
compensation in 2010. We thus affirm the denial of Ward’s discharge pursuant


       50

See Cadle Co. v. Duncan (In re Duncan), 

, 694 (5th Cir. 2009) (noting

that courts of appeals “apply the same standard of review as the district court, reviewing the
bankruptcy court’s findings of fact for clear error” (citing Hickman v. Texas (In re Hickman),

, 401 (5th Cir. 2001))); see also Robertson v. Dennis (In re Dennis), 

,
701 (5th Cir. 2003) (“A finding of fact is clearly erroneous only if ‘on the entire evidence, the
court is left with the definite and firm conviction that a mistake has been committed.’”
(quoting Hibernia Nat’l Bank v. Perez (In re Perez), 

, 1027 (5th Cir. 1992))).
       53 Ward v. Yaquinto (In re Ward), 

, 823 (N.D. Tex. 2018).

                                              12
  Case: 18-10469   Document: 00515613722      Page: 13   Date Filed: 10/23/2020


                                   No. 18-10469
to § 727(a)(5).
                               *        *         *
      For the foregoing reasons, the district court’s judgment affirming the
Bankruptcy Court is AFFIRMED.




                                       13