IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40361

In the Matter of: DEAN E. BUESCHER; SHERRY R. BUESCHER, 

 Debtors

------------------------------

DEAN E. BUESCHER; SHERRY R. BUESCHER, 

 Appellants

v.

FIRST UNITED BANK AND TRUST, 

 Appellee

Appeals from the United States District Court

for the Eastern District of Texas

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

The bankruptcy court declined to grant a discharge to defendantappellant Dean E. Buescher (“Dean”) and defendant-appellant Sherry R. 

Buescher (“Sherry”) (collectively, “the Bueschers”). The district court affirmed 

the judgment of the bankruptcy court. For the reasons explained below, we 

AFFIRM the district court.

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2015

Lyle W. Cayce

Clerk

 Case: 14-40361 Document: 00513003561 Page: 1 Date Filed: 04/13/2015
No. 14-40361

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. Plaintiffappellee 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 

1 Section 727(a)(3) provides:

The court shall grant the debtor a discharge, unless . . . the debtor has 

concealed, destroyed, mutilated, falsified, or failed to keep or preserve any 

recorded information, including books, documents, records, and papers, from 

which the debtor’s financial condition or business transactions might be 

ascertained, unless such act or failure to act was justified under all of the 

circumstances of the case[.]

Id.

2

 

 Case: 14-40361 Document: 00513003561 Page: 2 Date Filed: 04/13/2015
No. 14-40361

affirmed the judgment of the bankruptcy court. The Bueschers appeal the 

district court’s order affirming the judgment of the bankruptcy court.

STANDARD OF REVIEW

The bankruptcy court disposed of Dean’s request for discharge at the 

summary judgment stage, while it disposed of Sherry’s request after a bench 

trial. Thus, when considering Dean’s appeal, we review the bankruptcy court’s 

decision de novo. See Deutsche Bank Nat’l Trust v. Oparaji (In re Oparaji), 698 

F.3d 231, 235 (5th Cir. 2012). When considering Sherry’s appeal, we review the 

bankruptcy court’s findings of fact for clear error, and its conclusions of law de 

novo. See Endeavor Energy Res., L.P. v. Heritage Consol., L.L.C. (In re Heritage 

Consol., L.L.C.), 765 F.3d 507, 510 (5th Cir. 2014).

DISCUSSION

I.

Sherry argues that First United did not have standing to object to her 

discharge, because it is not her creditor under 11 U.S.C. § 727(c)(1). Section 

727(c)(1) provides that “[t]he trustee, a creditor, or the United States trustee 

may object to the granting of a discharge.” We hold that First United is Sherry’s 

creditor under § 727(c)(1).

Sherry never personally guaranteed the loans First United made to BIL. 

Thus Sherry is not personally liable to First United. See Tex. Fam. Code Ann. 

§ 3.201(a) (providing that a party is personally liable for acts of spouse only in 

specified circumstances). But Texas is a community property state, and under 

Texas law, First United has an in rem claim against any community property 

that Dean jointly holds with Sherry. See Tex. Fam. Code Ann. § 3.202(c) 

(providing that “[t]he community property subject to a spouse’s sole or joint 

management, control, and disposition is subject to the liabilities incurred by 

the spouse before or during marriage”); see also United States v. Loftis, 607 

F.3d 173, 179 (5th Cir. 2010) (explaining that “[§] 3.202(c) . . . renders all jointly 

3

 Case: 14-40361 Document: 00513003561 Page: 3 Date Filed: 04/13/2015
No. 14-40361

managed community property subject to the nontortious liabilities incurred by 

[the debtor spouse]”). Because Dean and Sherry have jointly-held community 

property, First United could seek repayment in Texas court through an in rem

suit against Sherry. See, e.g., Carlton v. Estate of Estes, 664 S.W.2d 322, 322-

23 (Tex. 1983) (per curiam) (holding that predecessor statute to § 3.202(c) 

authorized husband’s creditor to sue deceased wife’s estate to satisfy judgment 

against husband).

The Bankruptcy Code defines “creditor” to include an “entity that has a 

community claim.” 11 U.S.C. § 101(10)(C). It defines “community claim” as a

claim “for which property of the kind specified in section 541(a)(2) of this title 

is liable.” Id. § 101(7). Section 541(a)(2) provides that a bankruptcy estate 

includes “[a]ll interests of the debtor and the debtor’s spouse in community 

property” that is either “(A) under the sole, equal, or joint management and 

control of the debtor;” or “(B) liable for an allowable claim against the debtor, 

or for both an allowable claim against the debtor and an allowable claim 

against the debtor’s spouse, to the extent that such interest is so liable.” 

Id. § 541(a)(2)(A)-(B). Read together, these provisions show that “[a]n entity 

that holds a claim against the nondebtor spouse under state law but does not 

hold a claim against the debtor, may nonetheless be considered a ‘creditor’ of 

the debtor under section 101(10), so long as that claimant could, under state 

law, satisfy the claim from community property of the type which would have 

passed to the estate.” Collier on Bankruptcy ¶ 101.10 (Alan N. Resnick & 

Henry J. Sommer eds., 16th ed. 2014). Because First United could satisfy its 

claim against Dean through an in rem suit against Sherry, First United is 

Sherry’s creditor under § 727(c)(1).

Sherry cites an opinion from another circuit’s bankruptcy appellate 

panel that reached a contrary result. See Warchol v. Barry (In re Barry), 451 

B.R. 654 (B.A.P. 1st Cir. 2011). But that case was based on Massachusetts law, 

4

 Case: 14-40361 Document: 00513003561 Page: 4 Date Filed: 04/13/2015
No. 14-40361

which is not a community property state. Sherry also contends that the 

bankruptcy court erred by assuming that Texas law creates a community debt 

for which the community property is liable. But we find nothing in the 

bankruptcy court’s opinion that suggests such an error. The bankruptcy court 

simply interpreted Tex. Fam. Code Ann. § 3.202(c), which makes all jointlyheld community property liable for the debts of either spouse.

We hold that First United is Sherry’s creditor under 11 U.S.C. § 

702(c)(1). Accordingly, the bankruptcy court did not err by holding that First 

United had standing to object to Sherry’s discharge.

II.

Dean and Sherry contend that the bankruptcy court erred by granting 

First United’s request for additional time to serve them, and by denying their 

motion to dismiss. We disagree.

Federal Rule of Civil Procedure 4 governs service of process in adversary 

proceedings in bankruptcy. See Fed. R. Bankr. P. 7004(a)(1). Under Rule 4(m), 

a plaintiff must serve the defendant within 120 days after the complaint is 

filed. “But if the plaintiff shows good cause for [a] failure” to timely serve the 

defendant, “the court must extend the time for service for an appropriate 

period.” Fed. R. Civ. P. 4(m). “The [bankruptcy] court’s finding of good cause is 

reviewed under an abuse of discretion standard.” Resolution Trust Corp. v. 

Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995).

The Bueschers filed a motion to dismiss First United’s complaint under 

Rule 4(m) and Bankruptcy Rule 7004.2 In its response, First United argued 

that the Bueschers had intentionally avoided service, and asked for more time 

2 Although the Bueschers did not cite the relevant rules, defendants in an adversary 

proceeding may move to dismiss a complaint for “insufficient service of process.” Fed. R. Civ. 

P. 12(b)(5); see Fed. R. Bankr. P. 7012(b) (providing that Rule 12(b) is applicable in adversary 

proceedings).

5

 

 Case: 14-40361 Document: 00513003561 Page: 5 Date Filed: 04/13/2015
No. 14-40361

to perfect service. The bankruptcy court held a hearing to consider the 

Bueschers’ motion and First United’s request for more time. The bankruptcy 

court found that First United had made repeated attempts to serve the 

Bueschers, and “that the Bueschers either failed to update their address as 

required by the bankruptcy rules or purposefully avoided service.”3 These 

findings were sufficient to support the bankruptcy court’s finding of good cause

to extend the time for First United to perfect service.

The Bueschers argue that the bankruptcy court should have required a 

written motion from First United addressing the “excusable neglect” factors 

discussed in Pioneer Investment Services Co. v. Brunswick Associates Ltd.

Partnership, 507 U.S. 380 (1993). They cite no caselaw holding that Rule 4(m) 

requires a written motion. Moreover, Pioneer interprets Bankruptcy Rule 

9006(b), see Pioneer, 507 U.S. at 382, not Bankruptcy Rule 7004(a)(1), which 

controls the time limit for service. Pioneer did not alter the “good cause” test 

that applies under Rule 4(m). See McGinnis v. Shalala, 2 F.3d 548, 550 n.1 

(5th Cir. 1993) (per curiam).4

Accordingly, we hold that the bankruptcy court did not abuse its 

discretion when it granted First United’s request for additional time to serve 

the Bueschers and denied the Bueschers’ motion to dismiss.

III.

Dean and Sherry further contend that First United failed to carry its 

burden to show that they did not keep adequate financial records, or to show

3 See Fed. R. Bankr. P. 4002(a)(5) (requiring debtor to “file a statement of any change 

of the debtor’s address”).

4 Indeed, even if Pioneer applied to Bankruptcy Rule 7004(a)(1), First United 

necessarily satisfied the excusable neglect standard by showing good cause. See Thrasher v. 

City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (reasoning that “[p]roof of good cause 

requires at least as much as would be required to show excusable neglect” (internal quotation 

marks and alteration omitted)). 

6

 

 Case: 14-40361 Document: 00513003561 Page: 6 Date Filed: 04/13/2015
No. 14-40361

that the financial records that exist are insufficient for First United to evaluate 

their financial condition. We hold that First United carried its burden as to 

both Dean and Sherry.

Section 727(a)(3) provides that the bankruptcy court may refuse a 

discharge if (1) the debtor fails to keep or preserve financial records, and (2) 

the failure makes it impossible for the creditor to discern the debtor’s financial 

condition. See 11 U.S.C. § 727(a)(3). The creditor has the initial burden to prove

both (1) and (2). See Robertson v. Dennis (In re Dennis), 330 F.3d 696, 703 (5th 

Cir. 2003). Once the debtor adduces relevant evidence establishing (1) and (2), 

the burden shifts to the creditor to show that the failure to keep records was

justified under the circumstances. Id.

Dean and Sherry make various arguments in an attempt to show that 

First United failed to show (1) and (2). First, the Bueschers contend that, 

because First United relied on documents it obtained from the trustee, instead 

of personally seeking discovery from them, First United could not have carried 

its evidentiary burden to show that they failed to keep financial records. This 

argument turns on a question of law: Could First United show that the 

Bueschers failed to keep financial records without personally seeking discovery 

from them?

The Bankruptcy Code imposes a positive duty upon debtors to “surrender 

to the trustee all property of the estate and any recorded information, including 

books, documents, records, and papers, relating to property of the estate.” 11 

U.S.C. § 521(a)(4). The Bankruptcy Code also requires debtors to cooperate 

with the trustee. See id. at § 521(a)(3). In this case, the trustee requested

records from the Bueschers, which they failed to provide. Moreover, the 

applicable civil procedure rules required the Bueschers to provide First United 

with “a copy—or a description by category and location—of all documents, 

electronically stored information, and tangible things that the disclosing party 

7

 Case: 14-40361 Document: 00513003561 Page: 7 Date Filed: 04/13/2015
No. 14-40361

has in its possession, custody, or control and may use to support its claims or 

defenses.” Fed. R. Civ. P. 26(a)(1)(A)(ii); see Fed. R. Bankr. P. 7026 (making 

Rule 26 applicable in adversary proceedings). Despite these various disclosure 

obligations, the Bueschers never turned over relevant financial records to the 

trustee or to First United. And the Bueschers fail to cite any provision of the 

Bankruptcy Code that requires creditors to personally make a discovery 

request before filing an objection to a debtor’s discharge. We hold that First 

United was not required to personally seek discovery from the Bueschers in 

order to show that they failed to keep financial records under § 727(a)(3).

Second, Dean maintains that his testimony at the § 341 examination5—

during which he stated that he had unspecified financial records—was 

sufficient to show a genuine issue for trial. But “a party’s uncorroborated selfserving testimony cannot prevent summary judgment, particularly if the 

overwhelming documentary evidence supports the opposite scenario.” 

Vinewood Capital, LLC v. Dar Al-Maal Al-Islami Trust, 541 F. App’x 443, 447-

48 (5th Cir. 2013) (per curiam) (citing Vais Arms, Inc. v. Vais, 383 F.3d 287, 

294 (5th Cir. 2004)). Not only did Dean state during a deposition that he did 

not keep personal financial or business records, but as discussed above, he 

failed to comply with various statutes and rules requiring full disclosure of all 

relevant records. Dean’s uncorroborated, self-serving testimony during the

§ 341 examination is insufficient to show a genuine issue for trial.

Third, the Bueschers argue that First United failed to present any

evidence that it could not discern their financial condition based on the existing

financial records. But First United did adduce such evidence. The trustee 

5 11 U.S.C. § 341(a) requires the trustee to call a meeting of creditors soon after the 

initiation of a bankruptcy case. Section 343 requires the debtor to “appear and submit to 

examination under oath” at that meeting (thus, the examination is sometimes called a “§ 341 

examination”). 11 U.S.C. § 343. The examination is intended to “assist in the administration 

of the debtor’s estate.” Collier on Bankruptcy, supra page 4, at ¶ 343.02.

8

 

 Case: 14-40361 Document: 00513003561 Page: 8 Date Filed: 04/13/2015
No. 14-40361

averred in an affidavit that “[t]he information [that the Bueschers] provided 

was insufficient to allow for a tracing of the proceeds from the sale of [their] 

lake house, the liquidation of the[ir] IRA account, or the proceeds from the sale 

of their investments and vehicles.” And during trial, the trustee testified that 

he was not able to discern the Bueschers’ financial condition based on the 

records Sherry provided. Because Dean failed to adduce contrary evidence, the 

trustee’s affidavit was sufficient to support First United’s motion for summary 

judgment. The bankruptcy court did not clearly err in accepting the trustee’s 

testimony during trial. The Bueschers also argue that First United should have 

hired an accountant to testify that it could not discern the Bueschers’ financial 

condition. This court has never held that creditors are required to hire an 

accountant to provide such testimony.

Finally, Dean argues that, even if First United carried its burden to show 

that (1) he failed to keep or preserve financial records, and (2) that his failure 

made it impossible for First United to discern his financial condition, the 

testimony in his summary judgment affidavit showed that there was a genuine 

issue for trial. He cites the opening page of that affidavit and maintains that 

he “provided financial records to [his] counsel (which the trustee averred w[ere] 

not forwarded by said counsel to him).” The affidavit shows that Dean kept 

some financial records, but that point is undisputed. The relevant question is 

whether he kept adequate financial records, and whether his failure to do so 

kept First United from discerning his financial condition. Nothing in Dean’s 

summary judgment affidavit shows that there is a genuine issue for trial on 

those points. Dean fails to argue that his failure to keep records was justified 

under the circumstances.

First United carried its relevant burden as to both Dean and Sherry, and 

the bankruptcy court did not err in refusing to grant Dean or Sherry a 

discharge.

9

 Case: 14-40361 Document: 00513003561 Page: 9 Date Filed: 04/13/2015
No. 14-40361

IV.

Sherry argues that First United failed to present legally or factually 

sufficient evidence to support the bankruptcy court’s conclusion that she 

violated § 727(a)(2) and (a)(4)(a). But the district court relied solely on the 

bankruptcy court’s § 727(a)(3) analysis in affirming the bankruptcy court’s 

denial of discharge as to Sherry. Because the district court did not consider 

First United’s objection under § 727(a)(2) or (a)(4)(a), Sherry’s arguments 

regarding these subsections are moot.

CONCLUSION

For the reasons explained, we AFFIRM the district court.

10

 Case: 14-40361 Document: 00513003561 Page: 10 Date Filed: 04/13/2015