First United Bank & Trust Co. v. Buescher (In re Buescher)

491 B.R. 419
CourtUnited States Bankruptcy Court, E.D. Texas
DecidedApril 16, 2013
DocketBankruptcy No. 09-42926; Adversary No. 09-4239
StatusPublished
Cited by20 cases

This text of 491 B.R. 419 (First United Bank & Trust Co. v. Buescher (In re Buescher)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First United Bank & Trust Co. v. Buescher (In re Buescher), 491 B.R. 419 (Tex. 2013).

Opinion

MEMORANDUM OF DECISION

BILL PARKER, Bankruptcy Judge.

This matter came before the Court for trial of the Complaint of the Plaintiff, First United Bank and Trust Co. (the “Plaintiff’), through which it seeks to deny the entry of a Chapter 7 discharge in favor of the joint Debtor-Defendant, Sherry R. Buescher (“Debtor”), pursuant to 11 U.S.C. § 727(a)(2), § 727(a)(3) or § 727(a)(5) or, alternatively, seeking a determination that a debt purportedly owed to the Plaintiff by Defendant should be declared non-dischargeable under § 523(a)(2), (a)(4) or (a)(6). The trial pertained solely to the actions of the Defendant since a discharge has already been denied to Ms. Buescher’s spouse, Dean E. Buescher, pursuant to that certain “Order Granting in Part and Denying in Part Motion for Summary Judgment Filed by Plaintiff, First United Bank & Trust Co.” entered in this cause on April 24, 2012 and for the reasons set forth on the oral record of this Court on that date. However, the Plaintiff failed to demonstrate the propriety of entry of summary judgment against the Debtor as the spouse of Mr. Buescher.1 At the conclusion of the trial and upon receipt of certain post-trial submissions by the parties, the Court took the matter under advisement. The following memorandum of decision disposes of all issues before the Court.2

Background

The Debtor, Sherry R. Buescher,3 is an attorney that has been licensed to practice law in the State of Texas since May 1985 with a concentration in real estate matters.4 She has been married for the past 15 years to Dean E. Buescher, who was formerly engaged in a significant residential homebuilding enterprise through an entity known as Buescher Interests, L.P. (“BIL”). Through her connections to certain title companies, the Debtor served as the closing officer on numerous real estate transactions involving BIL.5

The Plaintiff, First United Bank & Trust Co., had previously loaned BIL ap[427]*427proximately $19 million6 that was personally guaranteed by Dean Bueseher.7 In February 2008, an involuntary bankruptcy petition was filed against BIL in the United States Bankruptcy Court for the Northern District of Texas. This ultimately led to the liquidation of BIL and the triggering of guaranty demands by First United against Dean Bueseher for satisfaction of a deficiency of approximately $8 million. First United initiated litigation on the guaranty in July 2009. Being unable to satisfy the financial demands of First United, as well as other creditors, the Buesch-ers intensified their efforts to investigate the process of filing for personal bankruptcy protection.

The Bueschers eventually sought professional legal assistance from the Pelley Law Office in Sherman. The law firm provided the Bueschers with worksheets as a preliminary step to the production of the required schedules and statements.8 The Debtor completed the worksheets on behalf of her and her husband, although she expressed concerns to the firm prior to the filing via email regarding ongoing questions about the required information and that she was “just trying to get everything listed as I can.”9

On September 18, 2009, the Debtor and her husband filed a voluntary petition for relief under Chapter 7 in this Court without accompanying schedules and statements.10 On September 24, 2009, the Debtor again expressed concerns to the firm via email that communications had been sporadic and making a specific inquiry regarding the availability of a draft of the schedules for review.11

The required schedules and statements for the Debtor and her husband were filed by electronic means by the law firm on October 2, 2009.12 As has been the required process in this district since the advent of the CM-ECF filing system, though the schedules and statements were ostensibly signed by the debtors through the use of a 7s/” designation next to their typed names, a declaration containing an actual “wet signature” of the Debtor and her husband was filed with the Court on October 6, 2009, attesting that each of them had read the original statements and schedules to be filed “and that the information provided therein is true and correct.”

Prior to the initial § 341(a) meeting of creditors, Mark Weisbart, the Chapter 7 Trustee,13 sent email correspondence to the Debtor’s attorney on Tuesday, October 13, 2009, asking for:

(1) all personal bank account statements and cancelled checks for the year prior to bankruptcy;
(2) homeowners’ policies for 2006-2009;
(3) the Pacific Life insurance policy;
(4) all documentation relating to 2009 transfers listed in Question 10 of the Statement of Financial Affairs; and
(5) a picture of the referenced boat and a copy of its title certificate.14

[428]*428That correspondence was immediately forwarded to the Debtor and her husband by their lawyers.15

At the initial § 341(a) meeting of creditors conducted by the Trustee on Friday, October 16, 2009, Mr. Buescher, while under oath, affirmatively answered his attorney’s inquiry regarding whether he had “had the opportunity to review your petition, schedules and statement of financial affairs,” whether “all your assets and liabilities [are] listed,” and confirming that all of the information supplied to the attorneys that was used in the preparation of the schedules and statements was true and correct.16 Upon subsequent inquiry at the meeting, the Debtor confirmed under oath that her answers to those questions would have been the same as her husband’s.17 However, notwithstanding such sworn testimony, the Debtor testified at trial that she had not, in fact, reviewed the schedules for accuracy prior to the time that they were electronically filed and that she had only seen them immediately prior to that first creditors’ meeting.

After a home inspection was conducted by the Trustee, he tendered correspondence to Mr. Pelley on November 12, 2009, seeking assistance from the Debtors in coordinating the inspection photographs with the property items listed in the schedules, seeking relevant bank and credit card statements, and requesting documentation of a number of property transfers involving the Debtors.18 To accommodate the Debtors’ efforts, the § 341 meeting was continued on two more occasions.

On February 15, 2010, the Trustee sent correspondence to Mr. Pelley, notifying him that the § 341 meeting will be continued to, and likely concluded on, February 22, 2010.19 While acknowledging the receipt of certain materials from Mr. Pelley on January 8, 2010,20 the Trustee asserted that the documentation response was incomplete and he sought a significant, detailed list of documentation from the Debtors.

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Cite This Page — Counsel Stack

Bluebook (online)
491 B.R. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-united-bank-trust-co-v-buescher-in-re-buescher-txeb-2013.