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.
Debtor filed a motion for summary judgment in response to the United States Trustee’s motion to dismiss his Chapter 7 case pursuant to 11 U.S.C. § 707(b)(1). The U.S. Trustee sought dismissal of the Debtor’s Chapter 7 case for abuse and alleged that the presumption of abuse arose under 11 U.S.C. § 707(b)(2). The Debtor argued that the presumption of abuse did not arise because he deducted payments secured by property he intended to surrender.
Chapter 11 debtor has the burden of establishing that section 1129(a)(7)(A)(ii) is satsfied before plan can be confirmed. Even though Chapter 11 plan had been accepted by over 80% of unsecured creditors, the debtor must still show that the distributions to general unsecured creditors are at least as much as such creditors would receive in a chapter 7 liquidation. Plan also did not unambiguously state that the debtor did not qualify for a discharge if the provisions of section 1141(d)(3) were applicable. United States Trustee's objection to confirmation sustained.
The debtor sought a declaration that the debt owed to Sallie Mae on his student loans was dischargeable, 11 U.S.C. § 523(a)(8) notwithstanding. As the debt arose from a loan for an educational benefit guaranteed by a governmental unit, the burden shifted to the debtor to demonstrate that excepting Sallie Mae's debt from discharge would impose an undue hardship on him. The Court held that the debtor satisifed all three prongs of the Brunner test. Because of the debtor's medical difficulties which will continue to deteriorate, it would be an undue hardship on the debtor to not discharge the debts owed to Sallie Mae.
The City of Roanoke, Virginia filed a motion for annulment of automatic stay against the Debtor and Trustee. The motion requested that he automatic stay provisions of 11 U.S.C. § 362(e) be annulled, or alternatively, that stay be terminated or modified with regard to certain real property owned by the Debtor. The Court concluded that the proper relief was modify, rather than nullify, the automatic stay to permit the City to seek confirmation of the sale by the state circuit court.
Curtis Fort and the State of Florida filed motions for partial summary judgment. The Court partially granted and denied both motions. The Court examined five points of law. The first was Mr. Fort’s claim that the State of Florida’s continued collection through wage garnishment of the pre-petition domestic support obligation violated the provisions of the automatic stay. 11 U.S.C.
Debtor failed to timely record her homestead deed, therefore the Court sustained trustee's objection to the debtor's claimed homestead exemption. The debtor's 341 meeting concluded on April 7, 2009 and was not adjourned to a later date. The fact that the trustee issued a notice of assets on June 10, 2009 was immaterial. Because Virginia law includes weekends in computing the five day post section 341 meeting period, the period in the case ended on August 12, 2009. The debtor recorded her homestead deed on April 15, 2009. Thus, the debtor failed to timely record her homestead deed pursuant to Virginia Code section 34-17.
Debtor filed a motion for default judgment to discharge a judgment obligation. The defendant failed to file any responsive pleading. The Court considered when or whether a Court should grant perhaps unwarranted relief sought in a duly served complaint to which no defense or objection was filed by the defendant. Pursuant to 11 U.S.C. § 101(14A), the Court held that the debt the debtor sought to avoid was a domestic support obligation.
Debtor filed a motion for judgment to discharge a judgment obligation. The defendant failed to file any responsive pleading. The Court considered when or whether a Court should grant perhaps unwarranted relief sought in a duly served complaint to which no defense or objection was filed by the defendant. Pursuant to 11 U.S.C. § 101(14A), the Court held that the debt the debtor sought to avoid was a domestic support obligation. Pursuant 523(a)(5), the Court held that a discharge in a chapter 7 bankruptcy does not discharge an individual debtor from any debt for a domestic support obligation.
The United States Trustee filed a motion to dismiss this chapter 7 case pursuant to section 707(b)(1). The debtors argued that 707(b) does not apply to cases converted to chapter 7 from another chapter of the Bankruptcy Code and moved for summary judgment on that ground. The Court granted the debtors' motion for summary judgment and held that the plain meaning rule dictated that 707(b) applies only to cases filed under chapter 7 and that cases converted to chapter 7 from another chapter do not fall within the scope of 707(b). Literal application of the statutory language did not result in an outcome that could be characterized as absurd and did not produce an outcome demonstrably at odds with clearly expressed congressional intent.
The Court, on the creditor's first notice of default and notice of termination of automatic stay, found that the debtor was in default of her regular payment obligations under the loan. Therefore, under the terms of the consent order, the creditor was entitled to relief. However, the debtor sought an equitable modification of the consent order requesting time to either refinance or sell the property. The creditor did not specifically object to an equitable modification. Relying on Federal Rule of Civil Procedure 60(b)(6), incorporated into Bankruptcy Rule 9024, and 11 U.S.C. § 105(a), as the debtor lost her job (an unanticipated substantial change in circumstances) and because of the large amount of equity existing in the property, the court found that it would be an abuse of process to allow the creditor to immediately foreclose on the property. Therefore, the court granted deferred relief to the creditor -- relief not effective until expiration of three months and only then if the creditor was not paid in full by that date.