Cronk v. Bushey (In re Bushey)

568 B.R. 821, 2017 Bankr. LEXIS 794
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedMarch 22, 2017
DocketNo. 7-15-10784 JA; Adversary Proceeding No. 15-1066; J, Adversary Proceeding No. 15-1068 J
StatusPublished
Cited by1 cases

This text of 568 B.R. 821 (Cronk v. Bushey (In re Bushey)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cronk v. Bushey (In re Bushey), 568 B.R. 821, 2017 Bankr. LEXIS 794 (N.M. 2017).

Opinion

MEMORANDUM OPINION

ROBERT H. JACOBVITZ, United States Bankruptcy Judge

The Court held a combined trial on the merits of the above adversary proceedings 1 which seek to deny Defendant Scott A. Bushey’s discharge under various subsections 2 of 11 U.S.C. § 727,3 After consid[823]*823ering the evidence, the Court finds that Mr. Bushey knowingly and fraudulently made false oaths in connection with his bankruptcy case, warranting the denial of his discharge under § 727(a)(4). Mr. Bush-ey concocted a scheme to divest himself of ownership of his business and free himself from his Small Business Association (“SBA”) guaranty, yet continue to operate and benefit from the business as if he were its owner. He intentionally lied about these business transactions at a Rule 2004 Examination and depositions taken in connection with his bankruptcy case. Those falsehoods will cost him his discharge.

FACTS

Defendant Scott Bushey owned and operated tanning salons in Albuquerque, New Mexico. Many people who knew him felt his charisma. In fact, the success of his tanning salons was due in large part to his ability to empower people. He operated his tanning salon business under the corporate name Sun Center of America, Inc. (“Sun Center”). Mr. Bushey was the president and 100% shareholder of Sun Center. He also franchised the tanning salon business under the name Solarius Lifestyle Spa through another business entity, Solarius Franchising, LLC (“Solarius”). In 2007, Mr. Bushey, through Solarius, sold a franchise to Blonde & Bitter, LLC (“B & B”), a limited liability company formed and owned by Brandon Aschraft and his wife, Amber Ashcraft. B & B planned to open a tanning salon on Alameda Boulevard in Albuquerque.

B & B obtained an SBA guaranteed loan in the amount of $495,200,00 from First Community Bank. See Exhibit 192. Brandon and Amber Ashcraft, along with Mr. Ashcraft’s parents, Roger and Nancy Cronk, guaranteed the loan. Id. The store opened in the spring of 2008, but failed to meet the anticipated sales projections. Sun Center, acting through its agent, Mr. Bushey, agreed to take over the business and assume the loan. Sun Center entered into an agreement with B & B to repurchase the franchise and assume certain obligations. Ultimately, however, Plaintiffs filed a lawsuit against Mr. Bushey, Sun Center, and Solarius over disputes concerning the franchise agreement and Sun Center’s agreement to repurchase the franchise and assume certain obligations. The parties entered into an agreement in February of 2009 to settle their dispute. See Settlement Agreement and Mutual Release (“Settlement Agreement”)—Exhibit 207. As part of the Settlement Agreement, Mr. Bushey guaranteed the SBA loan. Id. Sun Center assumed the loan, but First Community Bank would not release the Cronks or the Ashcrafts from their personal guaranties. Mr. Bushey executed an SBA Unconditional Guarantee on May 30, 2009. See Exhibit 192, p. 45. An addendum to the Settlement Agreement provided that First Community Bank’s release of Plaintiffs would not be required until November 30, 2015 and that Mr. Bushey, Sun Center, and Solarius would seek to refinance the loan. See Addendum to Settlement Agreement and Mutual Release (“Addendum”)—Exhibit 207. The Addendum provided further that Plaintiffs had the option to reassume operation, ownership and control of the tanning salon in the event Sun Center defaulted in payments due First Community Bank. Id. Sun Center defaulted under the loan, but neither Sun Center nor Mr. Bushey ever gave Plaintiffs the option to reassume the operation, ownership, and control of the tanning salon as contemplated under the Addendum.

The Sale of Sun Center America, Inc, to Alameda Assets Management, Inc.

U.S. Bank acquired First Community Bank and became the holder of the loan. Mr. Bushey contacted Second Wind Con-[824]*824sultanía, Inc. (“Second Wind”) sometime in 2012 to assist him with respect to the loan. He executed a Contract for Services from Second Wind on November 15, 2012. See Exhibit 1. Second Wind’s stated strategy was to “prepare ... for the implementation of the workout, which will include: a. A plan to protect the business assets ... from the secured creditors b. If appropriate, ... design and implement the asset sale which is the foundation of the reorganization.” Id. The Contract for Services also contemplated that Second Wind would assist in settling Mr. Bushey’s personal guaranty of the loan “[o]nce the assets are transferred and thus the business is re-organized under a new entity, with the assets (the collateral for the original loan) being released by the bank ...” Id.

Yance Dugger and Mr. Bushey were friends at one time. Mr. Dugger first met Mr. Bushey when Mr. Dugger went to the tanning salon as a customer. They went to bible study together. Mr. Bushey attended Mr. Dugger’s wedding. At some point, Mr. Bushey suggested to Mr. Digger that he consider taking over Sun Center’s tanning salon business. Mr. Dugger agreed that he would purchase the business and allow Mr. Bushey to continue to work at the business and act as its manager.

On September 20, 2013, Sun Center and Alameda Assets Management, LLC (“Alameda Assets”) entered into a Purchase and Sale Agreement for the sale of substantially all of Sun Center’s, assets to Alameda Assets for $30,000.00. See Exhibit 9. Mr. Dugger owned 100% of Alameda Assets. The amount of the purchase price was the amount U.S. Bank agreed to accept from the buyer in exchange for releasing its lien against the assets. Mr. Dugger did not have any direct contact with U.S. Bank before the sale. Nor did Mr. Dugger have any direct contact with Second Wind regarding the transaction, Mr. Dugger understood that Second Wind prepared the documents for the transaction. Mr. Dugger agreed to the asset sale to help his friend, Mr. Bushey. Mr. Dugger does not remember reviewing any profit and loss statements, tax returns, or payroll records before agreeing to purchase the business. Even though Mr. Dugger was willing to help Mr. Bushey, Mr. Dugger made it clear that he would not put up the money to purchase the business; Mr, Bushey would have to come up with the money himself.

Mr. Bushey provided from his personal assets the $30,000 purchase price for the sale of Sun Center’s assets to Alameda Assets. To fund the purchase price, Mr. Bushey obtained a loan secured by a 2008 GMC truck. The owner listed on the title on the 2008 GMC truck is Scott Bushey. He took $25,000 in cash from the loan and deposited it into his girlfriend’s checking account. See Exhibit 16. Mr. Bushey then withdrew money from the account, placed the cash in an envelope, and brought it to Mr. Dugger’s office.4

U.S. Bank released its lien on the collateral pledged to secure the loan to Sun Center upon its receipt of $30,000. See Letter from U.S. Bank to Sun Center confirming U.S. Bank’s preliminary approval of the release of its security interest in Sun Center’s assets upon receipt of $30,000, acknowledged by Sun Center and Mr. Bushey—Exhibit 101. U.S. Bank agreed to accept $30,000 in exchange for releasing its lien against the assets based on its belief that the purchase and sale transaction was at arm’s length. Mr. Bush-[825]*825ey, on behalf of Sun Center, and Mr.

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568 B.R. 821, 2017 Bankr. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cronk-v-bushey-in-re-bushey-nmb-2017.