In re Jackson (Case No. 05-60594) 03/31/2005
The Court denied the debtors' Motion for Reconsideration of dismissal because the debtors cited no manifest error of law or fact or asserted the existence of any new evidence.
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Opinions
The summaries on this website are summaries of the opinions issued by the judges of the Bankruptcy Court for the Western District of Virginia from October 2004 to date. The opinions may be searched by year, judge, category and chapter. For a more detailed search, enter a keyword in the search box above. This opinion bank, however, is not an exhaustive list of opinions issued by the judges of the Western District. These summaries are not intended to replace other research methods, but may be used as a starting point for your research. These summaries do not contain information as to whether an opinion has been published, appealed or the disposition of any such appeal, or otherwise overruled or affected by subsequent case law or statute. These summaries have been prepared for the convenience of the researcher and in no way constitute an interpretation by the Court of the opinion summarized. Please rely on the opinion not the summary. Please contact Judge Connelly's chambers or Judge Black's chambers regarding any questions or errors.
In re Watkins (Case No. 04-74730) 03/30/2005
Liquidation value as of filing date is the proper standard for valuing vehicle for purpose of redeeming under 11 U.S.C. section 722. Debtor bears burden of proving that the value is less than the debt secured thereby.
Allen v. Hancock (In re Tawney) (Case No. 02-04277; A.P. No. 03-00184) 3/29/2005
A deed of trust held by the debtor was conveyed to her for the sole purpose of being held as collateral for bond for the defendant in the defendant's criminal case. Shortly before her bankruptcy filing, the debtor reconveyed the property back to the defendant. The Chapter 7 trustee sought to recover the parcel of real estate pursuant to 11 U.S.C. § 548(a)(1)(B)(i)(ii)(I) as a fraudulent conveyance. The Court held that the evidence supported the contention that the debtor never had an actual interest in the property but was merely a bailee for the defendant; thus, the debtor held no interest in the property which the trustee could recover under Section 548. Accordingly, the Court denied the trustee’s motion to avoid the fraudulent conveyance.
Burnt Chimney Props., Inc. v. KGG, LLC (In re KGG, LLC) (Case No. 04-74550; A.P. No. 05-07005) 3/28/2005
The plaintiff sought removal of the litigation from circuit court to the bankruptcy court pursuant to 28 U.S.C. § 1452 and Federal Rule of Bankruptcy Procedure 9027. The defendant opposed removal, arguing that removal from the circuit court to the bankruptcy court was impossible because the debtor filed the notice of removal with bankruptcy court clerk rather than the district court clerk in contravention of Rule 9027(a)(1), and because the 90-day time frame mandated by Rule 9027(a)(2) had expired, thereby barring removal. The Court held that removal was proper because the Federal Rules of Bankruptcy Procedure define "clerk" as the bankruptcy court clerk, the majority of case law supports this position, and modal errors of process are not jurisdictional. Therefore, since the plaintiff’s notice and motion for removal were properly submitted to the bankruptcy court clerk, and is in compliance with Rule 9027(a)(1) and (2), the removed litigation will be heard in the bankruptcy court.
In re Jenkins (Case No. 04-64573) 03/22/2005
The Court denied a secured creditors Motion for Adequate Protection because the creditor had a sufficient equity cushion to protect its interest.
In re Cassidy (Case No. 04-64032) 03/18/2005
The Court permitted the debtor's criminal counsel to hire an accountant to assist in his defense, subject to Court review of all fees.
In re Giles (Case No. 03-01084) 03/17/2005
Debtor sanctioned under Rule 9011 for violating Court order requiring particular objection to claim. Evidence of bad faith where debtor filed numerous Chapter 13 petitions for the purpose of taking advantage of automatic stay without intentions of confirming or completing a plan.
In re Fulcher (Case No. 04-01442) 03/09/2005
The Court determined that the relatively high income debtors' Chapter 7 case did not constitute substantial abuse, because the debtors did not have to include overtime pay in their schedules for disposable income calculation and "free wheel" spending does not include incurring secured debt.
In re O'Dell (Case No. 04-03415) 3/8/2005
The Court granted the debtor's motion to avoid lien and for turnover of garnished wages because the debtor is entitled to avoid the lien of writ of fieri facias pursuant to 11 U.S.C. § 522(f) because it impaired an exemption to which the debtor would otherwise be entitled. Virginia’s homestead exemption can “trump” the lien from the writ of fieri facias because before the Court orders the garnishee to make payment to the judgment creditor or the garnishee pays the withheld funds to the Court, the debtor still maintains an interest in the garnished wages withheld by the garnishee. Accordingly, the Court ordered that the garnished wages be returned to the debtor as property exempted from the bankruptcy estate under the homestead exemption pursuant to Va. Code Ann. § 34-4.
In re Wells (Case No. 04-75100) 03/04/2005
The Court denied the U.S. Trustee's Motion to Convert the Chapter 11 case to one under Chapter 7 before the debtor had a reasonable opportunity to proceed.