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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.

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 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.

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