In an Arizona Lawsuit? Keep Good Records or Risk Big Time LossesPosted on November 26, 2008 in Arizona Law Regarding Business and Real Estate
In a recent Arizona case that involved real estate, an entrepreneur named Caneva owned several businesses, mobile home parks and even an airplane. This guy was a classic Arizona developer. At the law firm of William A. Miller, PLLC, we have seen scores of cases like this. Anyway, in too much debt, he chose to file for Chapter 7 dissolution and discharge. He had every right to do so. While in Court, he amended his bankruptcy schedules. As noted on the record, each schedule was less and less clear as to what he owned.
Finally, his last amendment said his interest in the businesses was unclear or unknown. In a courtroom cross-examination of the status of his finances, the guy admitted that he failed to keep records for his businesses. I think the presumption was he was hiding something. Arizona judges do not like this at all.
In Arizona and virtually every other State, you must keep business financial records and electronic evidence in order to obtain a discharge in bankruptcy. One of Caneva’s creditors objected to the Court’s ability to discharge his debts due to his lack of financial records. The Court denied Caneva’s request for a discharge based on his lack of records, ruling that the court couldn’t tell what to discharge, and he appealed. He lost. Arizona lawyers and those who litigate often say, “the cover up is worse than the crime.”
Federal law allows discharges, but not if the debtor fails to preserve records “from which the debtor’s financial condition or business transactions might be ascertained.” Sufficient written evidence, as opposed to absolute completeness, must be presented.
Caneva argued he produced a substantial quantity of documents, but he admitted he did not keep records crucial to determine the extent of Caneva’s interest in his businesses. Since his creditors were not able to accurately understand Caneva’s financial condition, the court did not have to discharge his debts. In Maricopa County you must also keep or have retention policies regarding electronic records such as emails and computer programs.
I have heard of Maricopa County Judges tossing out suits for failure to keep and then produce good business records. The same goes for offering a defense. Keep good records or you may lose your chance at a case-winning argument.