Buckley v. Bartenwerfer (In re Bartenwerfer)

596 B.R. 675
CourtUnited States Bankruptcy Court, N.D. California
DecidedJanuary 4, 2019
DocketCase No. 13-30827 HLB; Adv. Proc. No. 13-03185 HLB
StatusPublished
Cited by1 cases

This text of 596 B.R. 675 (Buckley v. Bartenwerfer (In re Bartenwerfer)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckley v. Bartenwerfer (In re Bartenwerfer), 596 B.R. 675 (Cal. 2019).

Opinion

HANNAH L. BLUMENSTIEL, U.S. Bankruptcy Judge

On December 22, 2017, the Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP") issued a decision (Dkt. 179; the "BAP Decision") that, among other things, vacated and remanded in part this court's judgment of April 19, 2016 (Dkt. 70, as amended by Dkt. 125 and Dkt. 143; the "Judgment"). The Judgment declared a debt owed to Mr. Kieran Buckley by Chapter *6777 Debtors David and Kate Bartenwerfer nondischargeable under section 523(a)(2)(A)1 . The BAP Decision affirmed the Judgment as to Mr. Bartenwerfer but vacated and remanded the Judgment as to Mrs. Bartenwerfer so that the court could determine whether Mrs. Bartenwerfer "knew or had reason to know of Mr. Bartenwerfer's fraudulent omissions" in connection with the sale of a house to Mr. Buckley (the "Remanded Issue"). [BAP Decision, 22:23-25.]

After a delay caused by the parties' respective appeals from the BAP Decision and this court's need for additional briefing, the court reopened the evidentiary record to accept additional testimony on the Remanded Issue, which the parties elicited at a trial conducted on December 12, 2018.

A. Background

For the sake of brevity, the court will not repeat but incorporates by reference the relevant facts set forth in its Memorandum Decision of April 1, 2016 (Dkt. 69), which explain the origins and nature of the parties' dispute. The court also incorporates by reference (to the extent relevant) the BAP Decision's recitation of the procedural posture of this action.

B. Jurisdiction

This proceeding requests a determination of the dischargeability of a debt under section 523(a)(2)(A) and constitutes a core proceeding in which this court may enter a final judgment. 28 U.S.C. § 1334(b) ; 28 U.S.C. § 157(a) ; 28 U.S.C. § 157(b)(2)(I) ; General Order No. 24 of the United States District Court for the Northern District of California.

C. Findings of Fact as to Remanded Issue

When Mr. and Mrs. Bartenwerfer acquired the home located at 549 28th Street, San Francisco, California (the "Property"), they intended to remodel it. At first, their plans were relatively modest. Later, however, after Mr. Bartenwerfer became (according to Mrs. Bartenwerfer) "inspired," those plans morphed into a gargantuan project that involved tearing off the back wall of the Property and increasing its square footage by approximately one third. Mr. Bartenwerfer assumed full-time responsibility for managing these extensive renovations, even though he had no training or education in construction and did not possess a contractor's license.

At all times relevant to this action, Mrs. Bartenwerfer worked elsewhere. She currently works at Genentech. At the time of the original trial of this action, she had worked at McKesson for approximately ten years. Her work at both places was and remains largely the same. She works in Genentech's Law Department, assisting with licensing and regulatory issues. She has no specialized legal training, other than that which she might have obtained through her on-the-job experience.

In 2008, Mrs. Bartenwerfer obtained a California real estate broker's license. She obtained this license after studying books and other materials she obtained from some unspecified source; she attended no classes. After completing the required coursework, she took an exam. Although she failed this exam the first time she took it, she ultimately passed and received her license.

Mrs. Bartenwerfer never "used" her broker's license, explaining that she never *678associated her license with a real estate agency and never once acted as a broker for any buyer or seller of real property. She viewed the real estate business as too unstable and too risky to pursue as a profession. And although she originally wanted to obtain this license so that she could earn a commission on the sale of the Property, she came to view herself as too inexperienced to take part in what she believed to be a "complicated" real estate transaction. When she and Mr. Bartenwerfer sold the Property to Mr. Buckley, they engaged Mr. Peter Monti as their agent. Mrs. Bartenwerfer no longer holds an active broker's license.

Mr. and Mrs. Bartenwerfer lived in the Property until approximately April 2007, when the renovations made continued use of the Property as a residence impossible. Mrs. Bartenwerfer could not recall setting foot on the Property between April 2007 and approximately November 2007, when they put the Property on the market. This means that she never used the renovated Property as her residence. She never kept clothes in the new master closet, never slept in the new master bedroom, etc.

Managing the renovation of the Property was Mr. Bartenwerfer's full-time job. Mrs. Bartenwerfer never interacted with or gave instructions to laborers or contractors; never met with or gave instructions to architects; never wrote checks to contractors; etc. Mr. Henry Karnilowicz, a consultant employed to assist Mr. Bartenwerfer with obtaining necessary construction permits, abating violations, and obtaining approval of the construction at the Property, corroborated this aspect of Mrs. Bartenwerfer's testimony. Mr. Karnilowicz only ever dealt with Mr. Bartenwerfer - never with Mrs. Bartenwerfer - regarding the many outstanding permits and notices of violations pertaining to the Property.

In November 2007, as they prepared to market the Property for sale, Mr. and Mrs. Bartenwerfer executed a Real Estate Transfer Disclosure Statement, as well as a supplement thereto (Plaintiff's Ex. 2; the "TDS")2 . Mrs. Bartenwerfer admitted that she understood that the purpose of the TDS was to disclose any defects or problems associated with the Property of which a potential purchaser might want to be aware. She also understood that her signature on the document constituted her representation that the information disclosed in the TDS was true and correct. And she understood that she had a duty to update the TDS if any new material information came to light.

Even though Mr. and Mrs. Bartenwerfer attested in the TDS that they answered the questions therein in "an effort to fully disclose all material facts relating to the Property" and certified that "the information provided [was] true and correct," the TDS failed to disclose numerous significant problems. As detailed in the court's April 1, 2016 Memorandum Decision, the TDS failed to disclose several leaks, quite a few open permits, at least one notice of violation, several malfunctioning windows, and a missing fire escape. [Dkt. 69; pp. 11-19.]

The TDS is a "check-the-box" form, with only a very few places in which narrative information can be added.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
596 B.R. 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-bartenwerfer-in-re-bartenwerfer-canb-2019.