U.S. Tr. v. Beard (In re Beard)
U.S. Tr. v. Beard (In re Beard)
Opinion of the Court
On December 10, 2015, the United States Trustee [the UST] filed adversary proceeding 4:15-ap-1112, seeking the denial of the debtor's chapter 7 discharge under
Jurisdiction
The Court has jurisdiction over these matters under
Background
The debtor and Buch have been a couple since December 2011. According to Buch, his relationship with the debtor has improved over the years but he does not wish to be married now or at any point in the future because he wants to live an autonomous life. Buch worked for large corporations early in his professional life but for the past twenty-plus years has made his living by buying farms and other properties, renovating them, selling them for a profit, and immediately reinvesting the proceeds into additional properties. When Buch met the debtor in 2011, he was running a 400-acre farm in Eureka Springs, Arkansas [the farm] that he had purchased in or around 2001 with cash.
Approximately six months after Buch loaned the debtor the money to pay off her student loans, he hired real estate agent Kevin Lunceford [Lunceford] to look for commercial properties in Greenbrier and Conway-Greenbrier because the debtor wanted to open a medical practice there and Conway because Buch wanted to move closer to his elderly parents. At the beginning of April 2013, Lunceford told Buch about a piece of commercial property located at 2645 Prince Street in Conway, Arkansas [the Prince property] that would soon be listed for sale by Pam Macdowell Properties, where Lunceford worked. This particular property contained both office spaces and apartment units. Buch testified *281that he was told by Lunceford that the Prince Street property would sell quickly once it hit the market. In April 2013, Buch had approximately $2,000,000.00 in assets, including real estate worth $1,495,000.00 and an IRA account containing $338,620.00, but he did not have sufficient liquid assets at his disposal to buy the Prince Street property outright, which was his preference and historical practice. Although Buch was trying to sell his farm in Eureka Springs at the time, he was concerned that the Prince Street property would no longer be on the market by the time he sold the farm. As a result, Buch took Lunceford's recommendation that Buch expedite his purchase of the Prince Street property by having the debtor help him obtain immediate financing.
The debtor, who was still working in Batesville at the time and had regular income, agreed to co-sign a loan to facilitate Buch's purchase of the Prince Street property. On April 15, 2013, the debtor and Buch applied for a loan with First Community Bank-the same bank that the debtor had used to finance her home in Cushman. The loan application signed by both Buch and the debtor stated that the purchase price of the property was $240,000.00 and that title to the property was to be held by Paul Buch. UST Ex. 12. The loan application also contained a note identifying an account at First Community Bank that would be the source of a 20% down payment of $48,000.00. Both the account identified in the loan application and the funds in the account were Buch's; the debtor did not contribute any of her own money toward the down payment. The day of the closing, May 13, 2013, Buch wired $50,109.97 (the down payment of $48,000.00 plus closing costs) from his account at First Community Bank to Faulkner Title Company, the title company handling the closing. The "special instructions" section of the wire transfer form contained a note that identified the wired funds as "closing money for Paul Buch 2645 Prince Street, Conway, AR." Def. Ex. 16. Despite the loan application stating that Buch was to hold title to the Prince Street property, the seller deeded the property to both Buch and the debtor when the transaction closed on May 13, 2013.
In June 2013, the debtor opened a rural "concierge" practice in Greenbrier, Arkansas.
*282
Q. Okay. Tell the Court what happened in the amendment of the tax return, the 2013 tax return; did you have a discussion with your CPA about it after the -
A. Yes. He -he- when he saw that I was paying rent, he realized that the property was not mine. That was an assumption that he made *283incorrectly. And then he had to amend that.
Q. Okay. So the only - the only amendment was to the 2013; you did not do it - carry that in '14 or '15, correct?
A. Correct.
Q. Okay. And, of course, in '14 were - the filing of the '14 was before you filed your bankruptcy in '15?
A. Correct.
Q. So you had corrected it at that point.
A. Yes.
Trial Tr. vol II, 87.
On May 7, 2014, the debtor sold his Eureka Springs farm for $440,000.00 and used some of the proceeds to pay off the loan on the Prince Street property. After Buch paid the loan in full, First Community Bank released its lien on the Prince Street property despite a cross-collateralization provision in the mortgage stating that the mortgage secured all other debts owed to the bank by Buch or the debtor. UST Ex. 13. After Buch satisfied the debt to First Community Bank, the debtor's PLLC continued to make monthly rent payments to Buch for four more months. The debtor wrote the PLLC's last rent check to Buch in October 2014. UST Ex. 39. The same month, the debtor closed her Conway location to open a practice in Maumelle, Arkansas.
Buch testified that in early 2015, a couple that owned a restaurant across the street from the Prince Street property approached him and expressed interest in buying the Prince Street property. While the couple never made a written offer to buy the property because they were unable to get financing, Buch testified that it was their interest in the property that precipitated his realization that the debtor's name was on the deed to the Prince Street property. Trial Tr. vol II, 15-16. Buch and the debtor both testified that their intent was always for the Prince Street property to be Buch's alone. After Buch discovered that the Prince Street property was not titled solely in his name, he asked the debtor to execute a quitclaim deed that transferred her interest to him in order to clear up title to the property. Trial Tr. vol I, 167-68. The debtor executed the quitclaim deed on April 6, 2015, and the deed was filed of record two days later without transfer tax stamps.
Although the debtor had not resided in her home in Cushman since November 2013, she continued to make mortgage *284payments to First Community Bank until March 15, 2015. From November 2013 to March 2015, the debtor tried unsuccessfully to sell the Cushman property. The debtor testified that she believes the property did not sell because the road leading to it-a road that was paved when the debtor bought the property but had subsequently been turned into a gravel road by the county-had fallen into such disrepair that it was sometimes impassable. As a result, the pool of potential buyers for the Cushman property was limited to those with four-wheel drive vehicles. According to the debtor, three of the eleven homes in her small neighborhood had already gone into foreclosure when she moved out of her home in November 2013. On August 19, 2015, First Community Bank completed its foreclosure of the debtor's home in Cushman, resulting in the debtor owing a deficiency judgment of $53,941.15.
On August 31, 2015, the debtor filed a skeletal chapter 7 petition. On September 14, 2015, she filed her schedules and her statement of financial affairs [SOFA]. Relevant to the matters before the Court are the debtor's initial responses to three questions-one in her SOFA and two in Schedule B. Question 10 of the SOFA required the debtor to
List all other property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred either absolutely or as security within two years immediately preceding the commencement of this case.
In response, the debtor marked the box labeled "None." The trustees argue that the debtor should have disclosed in response to Question 10 that she transferred her interest in the Prince Street property to Buch on April 6, 2015.
On 04/08/15, the Debtor signed a quitclaim deed clearing up a cloud on the title of 2645 Prince Street, Conway, Arkansas. Mr. Buch purchased the property, the legal title erroniously [sic] had debtor on the deed. I had no equity ownership interest in the property. I did not own an actual interest in the property. I understood the Quitclaim Deed removed the mistake of legal title. It may appear to be a transfer of interest but it is not an actual transfer of any financial interest in the property.
UST Ex. 6.
The instructions on Schedule B directed the debtor to "list personal property of the debtor of whatever kind. If the debtor has no property in one or more of the categories, place an 'x' in the appropriate position in the column labeled "None." ' Question 2 on Schedule B asked the debtor to describe and value
Checking, savings, or other financial accounts, certificates of deposit, or shares in banks, savings and loan, thrift, building and loan, and homestead associations, or credit unions, brokerage houses, or cooperatives.
UST Ex. 4. In response, the debtor listed a checking account at Bank of America with a balance of $5888.00 and a business checking account for her PLLC at Bank of America with a balance of $34.00. However, the actual balance in the PLLC's checking account on the date the debtor *285filed her petition was $26,607.00. The debtor testified during her September 16, 2016 deposition that $34.00 was not the correct balance for the PLLC's account on the date that she filed her petition. At trial, the debtor testified that she filled out her schedules using an online form and that it was "very frustrating" because "it would refresh automatically, all my data would disappear. It wouldn't save the data."
Checking Account: business checking account (Amy Beard, MD, PLLC) net value of business includes checking account offset by business debts. Original Value used as marker, value of business included the value of company checking account less expenses. Location: Bank of America.
UST Ex. 6. On both her original and amended schedules, the debtor valued her business interest at $20,000.00. At trial, the debtor's attorney questioned Wetzel about the interplay between the value of the debtor's interest in the PLLC and the balance in the PLLC's checking account on the date that the debtor filed her individual chapter 7 petition:
Q. Okay. The corporation did not file bankruptcy along with Ms. - Ms. Beard, correct?
A. No.
Q. Okay.
A. Just her interest in the professional corporation would be included within the bankruptcy.
Q. Right. But that would only be the net interest, correct, not-
A. Well, not to put too fine a point on it, it would be the net - net worth of the professional corporation.
Q. Correct. And so, the cash in a checking account, in and of itself, if there were outstanding credit card charges that had to be paid by the PLLC, would deduct from the net value of that corporation, would it not?
A. As a liability, yes.
Q. Okay. And so, the cash in hand doesn't necessarily correspond - the cash in the checking account doesn't necessarily automatically increase or decrease the value of the - of the corporation; is that correct?
A. Well, it increases or decreases the value of the corporation depending on the amounts of the debits and credits to the account, so the net worth is going to fluctuate.
Trial Tr. vol I, 89-90.
Q. Okay. And so, the cash available in the checking account would need to be offset by those debts to find out what the available cash, plus any other outstanding debts that the PLLC owed, correct?
A. That would be correct.
Trial Tr. vol I, 91-92. On August 31, 2015, the PLLC had total outstanding credit card debt of $20,664.28, leaving an available balance of $5942.72 in the PLLC's account with which to pay employees and other business expenses. In response to *286her attorney's questions regarding what she intended to disclose about the PLLC's value, the debtor testified:
Q. Okay. The net balance was what you intended to put into the value of the practice, correct?
A. Yes.
Q. Okay. Were you trying to hide any of this? You disclosed the checking account of the corporation, but the corporation was not filing bankruptcy, correct?
A. Correct.
Trial Tr. vol II, 85.
Question 7 asked the debtor to list and value "Furs and jewelry." In response, the debtor put an "x" in the column labeled "None." However, on the date the debtor filed her petition, she owned a Tag Heuer watch gifted to her in 2007 by her former husband and some "small pieces of costume-like jewelry." Trial Tr. vol I, 86-87,141. When asked to explain why she did not disclose the watch on Schedule B, the debtor said that she did not consider watches to be jewelry-though she admitted that they do qualify as such-and she had not given any thought to the value of the watch or believed it to be valuable. Trial Tr. vol II, 86-87. In her amended schedules, the debtor added "Rings, Watch, Earrings" valued at $1200.00 to Schedule B and claimed an exemption of the same amount in her amended Schedule C. The debtor admitted at trial that she testified at her § 341(a) meeting of creditors on October 15, 2015, that she had listed her assets and debts and that her original schedules and statements were true and correct.
The trustees contend that the debtor's discharge should be denied under § 727(a)(2) and § 727(a)(4) because of her failure to disclose her transfer of the Prince Street property to Buch, her failure to schedule her jewelry-specifically, the Tag Heuer watch-and her failure to schedule the correct balance for the PLLC's bank account. In addition, Wetzel argues that the debtor fraudulently transferred her interest in the Prince Street property to Buch and that, as a result, Wetzel is entitled to recover the property for the benefit of the estate under § 548(a)(1)(A)(B).
Law & Analysis
To resolve these two adversary proceedings, the Court must decide the following: (1) whether the debtor fraudulently transferred the Prince Street property to Buch, entitling Wetzel to avoid the transfer and recover the value of the property for the benefit of the debtor's bankruptcy estate; and (2) whether the trustees' objections to the debtor's discharge should be sustained. The Court will address Wetzel's fraudulent transfer allegations before moving to the trustees' shared contention that the debtor's discharge should be denied.
I. Fraudulent Transfer Allegations
The bankruptcy code defines a "transfer" as "each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with-(i) property; or (ii) an interest in *287property."
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
(III) intended to incur or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured; or
(IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.
Property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case."
Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate ... only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.
Therefore, before the Court proceeds further in its analysis under § 548, the Court must determine under Arkansas law whether the debtor held only bare legal title to the Prince Street property when she transferred her interest to Buch or whether she held a more significant interest. See In re N.S. Garrott & Sons ,
The Court found Buch credible when he testified that he asked the debtor to co-sign the loan with First Community Bank because he believed that the Prince Street property would be off the market before he could generate the funds from the sale of his farm to allow for a cash purchase. The Court also believes that Buch never intended for the debtor to share in his ownership of the property. In fact, the loan application-signed by both Buch and the debtor-clearly indicated that title to the property was to be held by only Buch. Further, the debtor contributed none of her own funds toward the purchase or improvement of the Prince Street property-she paid none of the closing costs, none of the sizeable down payment, and none of the renovation costs. Buch paid for all of those things plus incurred the cost associated with rezoning the property. Buch also paid the insurance premiums on the Prince Street building, as well as the property taxes each year.
Based on the evidence discussed above, the Court finds that Buch paid for the Prince Street property without financial contribution from the debtor and did not intend to give the debtor a share of the property as a gift. Therefore, a resulting trust was established in favor of Buch and the debtor had only bare legal title to the property. As a result, the debtor had a duty to convey the property to the rightful owner, which she did on April 6, 2015. See In re Cowden ,
II. Objections to the Debtor's Discharge
Next, both trustees seek the denial of the debtor's discharge under § 727(a)(2) and (a)(4)(A). "The denial of a debtor's discharge is akin to financial capital punishment. It is reserved for the most egregious misconduct by a debtor." Manning v. Watkins (In re Watkins ),
*290Korte v. U.S. Internal Revenue Serv. (In re Korte ),
A. Section 727(a)(2)
Under § 727(a)(2) the Court shall grant a debtor a discharge, unless-
(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of the property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed-
(A) property of the debtor, within one year before the date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition[.]
(1) that the act complained of was done within one year prior to the date the petition was filed, or after the date the petition was filed;
(2) that the act was that of the debtor;
(3) that it consisted of a transfer, removal, destruction, or concealment of the debtor's property, or, if the act occurred after the date the petition was filed, the property of the estate; and
(4) that it was done with an intent to hinder, delay, or defraud either a creditor or an officer of the estate.
See
The Court finds that the first three factors are present in this case-the debtor transferred property within the year prior to filing her petition and failed to disclose the transfer on her SOFA in response to Question 10.
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer:
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all of the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
(31) The term "insider" includes-
(A) if the debtor is an individual-
(i) relative of the debtor or general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person in control[.]
The Court finds that the first badge of fraud is present in this case. The debtor transferred property to Buch, whom she had been dating for approximately four years at the time of the transfer. Although the Court recognizes that Buch and the debtor were not-and are not-married or otherwise related, the code's definition of an insider is not exclusive and the Court finds that the debtor's long-term committed relationship to Buch qualifies him as an insider in this case.
*292The Court finds that the second badge of fraud is not present here because the debtor did not retain possession or control of the property after she transferred it to Buch. In fact, she moved Hippocrates Health out of the Prince Street property in October 2014-six months prior to transferring her interest in the property to Buch.
The Court's determination of the third badge of fraud-whether the transfer was disclosed or concealed-is mixed. The debtor failed to disclose her transfer of the Prince Street property when she filed bankruptcy, meaning that the transfer was initially concealed from the UST, Wetzel, and the debtor's creditors. However, First Community Bank-the creditor holding the debt that led to the debtor's bankruptcy filing-knew that the Prince Street property would be titled in only Buch's name because the loan application that the bank approved specifically stated that very thing.
The Court finds that the fourth badge is not present here. Although the debtor made her last mortgage payment on the Cushman property in March 2015, she had not yet defaulted on her obligation to First Community Bank when she transferred her interest in the Prince Street property to Buch and had not been sued or threatened with suit at the time.
The Court also finds that the fifth badge is not present in this case. The debtor transferred bare legal title to Buch and, as the Court stated above in its discussion of § 548, bare legal title has no economic value. As a result, the debtor's transfer of an asset with no value was not a transfer of substantially all of her assets.
The Court finds that the sixth badge of fraud is not present in this case because the debtor did not abscond.
The Court finds that the seventh badge is present. Although there is no evidence that the debtor removed assets, she concealed her Tag Heuer watch and other jewelry when she failed to list them in her original schedules. However, the Court does not assign the presence of this particular badge much weight due to the plausibility of the debtor's explanation for her initial omission of the items-the watch was a gift she received in 2007 from her ex-husband that she did not, at the time she filled out her schedules, consider "jewelry" and the rest of her jewelry was costume.
The Court finds that the eighth badge is not present in this case. The debtor transferred her valueless interest in the Prince Street property to Buch and received nothing in exchange. Therefore, the Court finds that the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred. See Kapila v. Moodie (In re Moodie ),
The Court finds that the ninth badge of fraud is not present. There is no evidence to suggest that the debtor was insolvent on the date she transferred her interest in the Prince Street property to Buch and the *293Court finds that she could not have become insolvent as a result of transferring bare legal title that had no economic value. See
The Court finds that the tenth badge is present. The debtor transferred her interest to Buch shortly before she stopped making mortgage payments to First Community Bank on the Cushman property, leading the bank to foreclose and resulting in the debtor owing a $53,941.15 deficiency judgment. The Court finds that the eleventh badge, which relates to a transfer of business assets, is not applicable in this case.
After examining the circumstances surrounding the debtor's transfer of her interest in the Prince Street property to Buch, including the badges of fraud discussed above, the Court finds that the evidence fails to establish that the debtor made the transfer with the actual intent to defraud a creditor or her bankruptcy estate. Therefore, the Court finds that the trustees failed to carry their respective burdens of proof under § 727(a)(2) and denies the relief requested pursuant to that subsection in both complaints.
B. Section 727(a)(4)(A)
Section 727(a)(4)(A) provides for the denial of a debtor's discharge if "the debtor knowingly and fraudulently, in or in connection with the case, made a false oath or account."
(1) the debtor made the statement under oath;
(2) the statement was false;
(3) the statement was made with fraudulent intent;
(4) the debtor knew the statement was false; and
(5) the statement related materially to the debtor's bankruptcy.
In re Richmond ,
The first and second elements under § 727(a)(4)(A) require that the debtor made a false statement under oath. "For purposes of § 727(a)(4), a debtor's petition and schedules, statement of financial affairs, statements made at a § 341 meeting and testimony at a Rule 2004 examination all constitute statements that are made under oath." In re Stamat ,
Before discussing the third and fourth elements, the Court will address *294the fifth element under § 727(a)(4)(A) -whether the statements related materially to the debtor's bankruptcy. "A false statement is material if it 'bears a relationship to the [debtor's] business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of [her] property.' " In re Mathis ,
Here, the debtor failed to disclose in her initial schedules that she owned a Tag Heuer watch and other jewelry; she failed to disclose that she had transferred her interest in the Prince Street property to Buch on April 6, 2015; and she misstated the balance of the PLLC's bank account on the date she filed her individual bankruptcy case. The Court finds that the debtor's failure to disclose that she owned a watch and other jewelry in her initial schedules was a material misstatement regarding the debtor's assets-irrespective of whether those assets could be-and later were-claimed as exempt.
Likewise, the Court finds that the debtor's failure to disclose her transfer of the Prince Street property to Buch was a material misstatement. Even if the debtor believed that her transfer to Buch was meaningless to her estate because he was the true owner of the property and the quitclaim deed was only a means of clearing the title, she had a responsibility to answer Question 10 of her SOFA accurately, end of story. Although the Court has now determined that the debtor held and transferred only bare legal title to the Prince Street property, the Court's ruling on that issue does not retroactively absolve the debtor from the duty she had on the date she filed her SOFA to disclose every transfer that she had made within two years of the date she filed her petition-regardless of whether she subjectively believed the information to be material or not. Although the transfer disposed of an interest in property that the debtor's creditors could not have reached, it was nonetheless material and should have been disclosed. See In re Freese ,
The trustees also argue that the debtor made a material misstatement when she understated the balance of the PLLC's bank account as of the date she filed her individual bankruptcy petition. However, the Court finds that this particular misstatement was not material to the debtor's bankruptcy case, Although the PLLC is owned by the debtor-as she disclosed elsewhere on Schedule B-the PLLC itself is not in bankruptcy and the debtor was not required to separately list the PLLC's bank account, even if she occasionally used the account to pay personal expenses. See In re Watkins ,
*295The third and fourth elements under § 727(a)(4)(A) require that the debtor knew that her statements were false and had fraudulent intent. Whether the debtor had the requisite knowledge and intent under § 727(a)(4)(A) is a matter of fact. In re Sears ,
Conclusion
For the above stated reasons, the Court denies the relief requested in the UST's and Wetzel's respective complaints and will schedule the UST's motion to dismiss for hearing by subsequent notice.
IT IS SO ORDERED.
The UST also filed a motion to dismiss the debtor's case but requested that the Court decide the adversary proceedings before setting the motion for hearing.
It is Buch's practice to pay cash for his properties rather than finance them. He stated at trial that he retired from his corporate career to live a simple life and he is averse to carrying debt. Trial Tr. vol I, 27, Sept. 4, 2018; Trial Tr. vol II, 106, Sept. 5, 2018.
During medical school, the debtor participated in a financial assistance program offered by the Arkansas Rural Medical Practice Student Loan and Scholarship Board that provided tuition in exchange for the debtor's contractual agreement to practice medicine in a qualifying rural area once she became a physician. The debtor's job in Batesville satisfied her obligation to work in a rural area.
Lunceford did not testify at trial despite the fact that the debtor had subpoenaed him to do so. As a result of Lunceford's failure to appear, the parties agreed to treat his November 23, 2016 deposition transcript as his testimony for trial purposes. Lunceford's deposition testimony supported Buch's recollection of events surrounding the purchase of the Prince Street property. Specifically, Lunceford testified in his deposition that Buch contacted him to look for property in Conway around the first of April 2013, and that it was Lunceford's understanding that although Buch was the one buying the property, the financing would be in the debtor's name to allow for a quicker purchase. Lunceford testified he believed that it would be easier for the debtor to obtain financing because she had a "cleaner portfolio" than Buch, who was trying to sell his farm in Eureka Springs at the time. UST Ex. 29, p.1078-79.
The warranty deed for the Prince Street property states that the instrument was prepared by Graddy & Adkisson, LLP in Conway. Because both the debtor and Buch testified to being unfamiliar with the names Graddy and Adkisson and Buch also testified that he used attorney Wade Williams in Eureka Springs to prepare documents for real estate transcations, the Court finds it more likely than not that the seller hired Graddy & Adkisson, LLP to prepare the deed that titled the Prince Street property in both Buch's and the debtor's names.
The debtor described her concierge practice as a cash-based practice in which she did not accept insurance but instead provided patient care for a monthly fee. She later opened similar practices in Maumelle and Little Rock. As of the date of trial, she had closed all of her office locations to run an online "virtual practice." Trial Tr. vol I, 144.
The debtor's first check to Buch was written in December 2013 for $1000.00 and covered rent for November and December 2013.
At trial, the debtor introduced cancelled checks tendered to Buch by other tenants showing rent payments of $475.00, $500.00, and $425.00. Def. Ex. 44.
Buch was not employed by Hippocrates Health or the debtor's PLLC, but he testified that he sometimes helped the debtor with certain tasks associated with running her medical practice because he had a more flexible schedule than she and did not mind helping out. Trial Tr. vol II, 19. The debtor testified in her deposition on September 19, 2016, that Buch helped her with the administrative side of her practice but that she did not pay him to do so. Both Buch and the debtor testified at trial that she pays Buch only to make the bone broth that she provides to her patients.
The debtor filed her amended 2013 tax return on May 16, 2016.
Under Arkansas law, when consideration is paid for a transfer of property, transfer tax stamps must be affixed to the deed to show the amount of consideration that changed hands. See
Pender's title company acquired Faulkner Title Company the year after Faulkner Title Company handled the closing of the Prince Street property on May 13, 2013.
The debtor signed the quitclaim deed on April 6, 2015, and the deed was recorded on April 8, 2015.
Ostensibly, the "online form" referenced by the debtor was provided to her by Mr. Campbell's office.
Wetzel also alleged in his complaint that the debtor had a "secret interest" in what was referenced by the parties at trial as the Skywood property-a property purchased entirely by Buch with a portion of the proceeds from the sale of his farm and sold to a third party prior to trial. However, Wetzel did not dispute the debtor's attorney's assertion in closing argument that Wetzel had abandoned any alleged claim to the Skywood property and regardless, the Court finds that Wetzel did not prove that the debtor had an interest in the Skywood property.
Although Buch always paid the property taxes on the Prince Street property, the debtor claimed ownership of the Prince Street property on her original 2013 income tax returns. The debtor's prior statement to the IRS on her tax returns could have precluded her from claiming that she does not own the property in the context of the current proceedings. See Amtrust, Inc. v. Larson ,
Because the Court finds that Wetzel is not entitled to avoid the transfer, his cause of action against Buch as the transferee under § 550 is denied as moot. Likewise, the Court denies the relief requested by Wetzel under § 551, which is not applicable in the absence of an avoided transfer.
Both the UST's and Wetzel's complaints allege only one basis for denial of the debtor's discharge under § 727(a)(2) -her alleged concealment of the transfer of the Prince Street property to Buch.
Although the Court found Buch sincere when he repeatedly asserted at trial that he has no desire to wed at any point in his life, he and the debtor have sometimes worn wedding rings and otherwise held themselves out to the public as a married couple, allegedly to mollify Buch's conservative father.
In addition, once Buch had paid off the mortgage on the Prince Street property, First Community Bank released its lien despite cross-collateralization language in the loan documents that would have allowed the bank to retain a lien on the Prince Street property until the debtor's mortgage on the Cushman property was also satisfied. The fact that the bank did not exercise that right is some additional evidence that it considered the debtor's role in the Prince Street deal to be minimal.
The fact that the debtor filed amended schedules on September 3, 2018, does not negate the fact that the debtor's original schedules and statements were inaccurate. See Sholdra v. Chilmark Fin. LLP (In re Sholdra ),
Reference
- Full Case Name
- IN RE: Amy BEARD, Debtor United States Trustee v. Amy Beard, Frederick S. Wetzel, III v. Amy Beard and Paul Buch
- Cited By
- 16 cases
- Status
- Published