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In re Buescher

United States Court of Appeals, Fifth Circuit

April 13, 2015

In the Matter of: DEAN E. BUESCHER; SHERRY R. BUESCHER, Debtors;
v.
FIRST UNITED BANK AND TRUST, Appellee DEAN E. BUESCHER; SHERRY R. BUESCHER, Appellants

Page 303

Appeals from the United States District Court for the Eastern District of Texas.

For Dean E. Buescher, Appellant: Larry A. Vick, Esq., Houston, TX.

For Sherry R. Buescher, Appellant: George Frederick May, Twomey May, P.L.L.C., Houston, TX.

For First United Bank And Trust, Appellee: Larry Ray Boyd, Esq., Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX.

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

OPINION

Page 304

EDITH BROWN CLEMENT, Circuit Judge:

The bankruptcy court declined to grant a discharge to defendant-appellant Dean E. Buescher (" Dean") and defendant-appellant Sherry R. Buescher ("Sherry") (collectively, " the Bueschers" ). The district court affirmed the judgment of the

Page 305

bankruptcy court. For the reasons explained below, we AFFIRM the district court.

Facts and Proceedings

Dean operated a home-building business through Buescher Interests, L.P. (" BIL" ). Sherry, who is Dean's spouse and a Texas-licensed attorney, often served as the closing officer for BIL's real estate transactions. Plaintiff-appellee First United Bank & Trust Co. (" First United" ) loaned BIL approximately $19 million. Dean personally guaranteed the loans First United made to BIL.

The Bueschers filed a joint Chapter 7 bankruptcy petition. First United filed an adversary complaint arguing, inter alia, that the bankruptcy court should refuse to discharge both Dean and Sherry from the bankruptcy action under 11 U.S.C. § 727(a)(2)-(5). The Bueschers moved to dismiss First United's adversary complaint, alleging that First United failed to timely serve process. The bankruptcy court denied the Bueschers' motion and granted First United's request for additional time to effect service. First United then served the Bueschers.

First United moved for summary judgment against Dean and Sherry under § 727(a)(2)-(5). The bankruptcy court granted First United's motion as to Dean under § 727(a)(3)[1] and denied the motion as to Sherry. After a bench trial, the bankruptcy court denied Sherry a discharge under § 727(a)(2), (a)(3), and (a)(4)(A). See First United Bank & Trust Co. v. Buescher (In re Buescher), 491 B.R. 419 (Bankr. E.D. Tex. 2013). The bankruptcy court then entered a final judgment denying a discharge to Dean and Sherry. The district court ...


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