In re Gouge, Case No: 07-34839 (Bankr. S.D. Tex. 1/30/2008)
Decision Date | 30 January 2008 |
Docket Number | Case No: 07-34839. |
Parties | IN RE: ERNEST FRANK GOUGE, CHAPTER 7, Debtor(s). |
Court | U.S. Bankruptcy Court — Southern District of Texas |
Creditor Brickland Homes, Inc., was the beneficiary of a turnover order issued by a Texas state court for part of the proceeds from a lawsuit that Debtor had filed against Reliant. When the lawsuit settled and Debtor received his part of the settlement proceeds, Debtor used the proceeds to fund an annuity rather than paying part of the proceeds over to Brickland. Brickland objects to the Debtor's claimed exemption of the annuity. By separate order issued this date, the objection is sustained to the extent of the judgment owed to Brickland.
On January 29, 2008, the Court held a hearing on the objection to exemption (docket # 15) filed by Brickland Homes, Inc. ("Brickland"). Ernest Gouge ("Debtor") appeared in court, but did not testify. Evidence consists of the transcript of Debtor's Rule 2004 examination and Brickland's Exhibits 1 through 28 (which include excerpts from the deposition of Paul Simpson, Debtor's attorney in state court litigation). Following that hearing, the Court makes the following findings of fact consisting of a chronology, followed by analysis of the chronology.
Brickland's objection is focused on a constructive trust theory. That is, Brickland argues that the annuity is not exempt because the funds used to purchase it were held by Debtor in constructive trust for Brickland at the time of the purchase. Not until it's pretrial memorandum of authorities (docket # 35) does Brickland argue that Texas Insurance Code § 1108.053 disqualifies the exempt status of the annuity. Nevertheless, that issue is implied and subsumed within the facts and transactions alleged in the objection to exemption. And Debtor's counsel clearly tried and argued that issue at the hearing. Therefore the Court considers both arguments at issue. That is, the Court considers the issues in this contested matter to be (i) whether application of Texas Insurance Code § 1108.053 denies the Annuity an exemption from creditors' claims, and (ii) if the Annuity was purchased in fraud of Brickland, whether the Annuity is held in constructive trust.
Debtor did not file a memorandum of authorities as required by the Court's case management order (docket # 28, paragraph 3.) Nevertheless, Debtor's counsel's closing argument clearly demonstrates that Debtor defended the objection on the same two legal questions. Debtor's defense to Brickland's first legal theory is that the principles of constructive trust do not apply. Debtor's defense to Brickland's second legal theory is that Debtor was ill and lost any memory of the Brickland judgment and turnover order. Therefore, Debtor's counsel argues, Debtor could not have acted to hinder, defraud, or delay creditors or in fraud of creditors' rights.
Debtor did not testify and did not offer any evidence at the hearing. The only evidence in the record regarding Debtor's illness is the transcript of Debtor's Oral Deposition taken August 29, 2007.1 The testimony about Debtor's illness is mostly in response to questions about Debtor's alleged malpractice action that is listed as an asset in his bankruptcy case.
In his deposition, Debtor testified that he had "spots" on his lung, and that he underwent a medical procedure July 11, 2006, to remove part of his lung. Debtor testified that the physician failed properly to suture the lung, causing loss of blood into the chest cavity and a collapse of both lungs. This allegedly caused Debtor to lapse into a coma for some unspecified period of time. The evidence does not give a date when the coma terminated or any information concerning Debtor's current conditions or limitations. Debtor used a cannula in the courtroom, and the deposition contains some reference to Debtor using a wheelchair in the March 2007 timeframe.
Debtor makes several references to loss of memory. But there is no medical evidence concerning the extent of memory loss, if any. There is also no evidence in the record of the dates that Debtor was in a coma2 and whether memory has been partially or wholly restored (or when that restoration might have happened, if it did). In short, Debtor's testimony makes vague statements about a coma and about memory loss, but those statements are not convincing. There are several factors that imply less memory loss than Debtor alleges.
First, Debtor's counsel in the Reliant Lawsuit testified in their Rule 2004 examination that they conferred and exchanged emails with Debtor in February 2007, when the Reliant Lawsuit was settled. They believed that Debtor understood the proceedings and issues and participated, apparently as a client...
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