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 Moriarty (Case No. 13-51437) 05/18/2015

United States Trustee sought dismissal or conversion of the debtor's case under the totality of the circumstances test of section 707(b)(3)(B) based on her substantial monthly Social Security benefits.  Court held on motion for partial summary judgment that because it could not consider such income in chapter 13, based on the definition in the Bankruptcy Code of "current monthly income" and the Fourth Circuit's opinion in Mort Ranta v. Gorman, it follows that the Court was unable to consider such income for purposes of the totality of the circumstances test as well.  

Lewis v. Long (In re Long) (Case No. 13-60044; A.P. No. 13-06030) 4/22/2015

District Court remanded for clarification of the Bankruptcy Court's prior decision holding the creditor had not established the debtor's willfulness and intent to cause her injuries.  On remand, the Bankruptcy Court explained it disagreed with other courts finding an implied intent to injury in sexual assault and statutory rape (carnal knowledge) cases based on the nature of the crime and held that it would be improper to imply an intent to willfully and maliciously cause such an injury when mere negligence would suffice for the state court judgment.

In re Fisher (Case No. 14-61076) 3/19/2015

Debtor filed a motion to dismiss pursuant to section 1307(b).  Immediately after the debtor filed his motion, a creditor filed a motion to convert the case to Chapter 7 pursuant to section 1307(c).  After review of Law v. Siegel, the Court granted the debtor's motion to dismiss.  The Court denied the creditor's competing motion to convert,  but barred the debtor from filing a new petition for 180 days under section 109(g)(2) as sufficient nexus existed between a prior order granting relief from stay and the motion to dismiss.

In re Tucker (Case No. 12-71910) 2/27/2015

Debtor brought a Motion for Sanctions for Violation of the Automatic Stay after she received a mortgage billing statement from a creditor that did not contain any disclaimer language acknowledging that she had received a discharge in bankruptcy and was no longer personally obligated on the debt.  The Court construed her request as a request for damages for violation of the discharge injunction of 11 U.S.C. § 524(a).  The creditor asserted that the mortgage billing statement was sent as a result of an innocent clerical error and was a mistake.  The Court concluded that the creditor willfully violated the discharge injunction by sending the mortgage billing statement without any disclaimer language, but held that the debtor failed to prove any damages since she only alleged emotional distress, which the Fourth Circuit has disallowed as an item of damages of civil contempt.

In re Guertler (Case No. 14-50483) 2/20/2015

On debtors' objection to claim of DuPont Community Credit Union, the Court  ruled that DuPont had carried its burden of proving that both husband and wife intended to obtain a MasterCard with DuPont and both were jointly liable on the debts accrued thereunder.  Furthermore, the Court ruled that the fact DuPont had already obtained a warrant in debt against only Mr. Guertler and not also Mrs. Guertler did not bar the credit union from asserting both debtors were jointly liable on the debt.

Reedy v. Obama (In re Reedy) (Case No. 14-71616; A.P. No. 14-07053) 2/5/2015

Adversary Proceeding complaint dismissed for lack of subject matter jurisdiction pursuant to Bankruptcy Rule 7012(b) and Federal Rule of Civil Procedure 12(h)(3).  Federal court does not have subject matter jurisdiction over a claim "so attenuated and unsubstantial as to be absolutely devoid of merit," "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," or "no longer open to discussion."

Cincinnati Ins. Co. v. Chidester (In re Chidester) (Case No. 11-51591; A.P. No. 12-05008) 1/28/2015

On renewed motion for summary judgment to declare a debt nondischargeable as defalcation under Bankruptcy Code section 523(a)(4), the Court ruled in favor of the movant.  The Court, relying on the Supreme Court's opinion in Bullock v. BankChampaign, N.A, 133 S. Ct. 1754 (2013), found that the debtor's failure to make any effort to file a final accounting of his stepfather's estate, for whom he was appointed conservator, constituted at least recklessness with regard to his fiduciary duties.

In re Kiser (Case No. 14-71331) 1/16/2015

Creditor not entitled to recover its post petition attorney's fees as creditor failed to prove that fees were reasonable.  Creditor was receiving the balance owed on the indebtedness as alleged in its proof of claim and in the amount requested in its proposed order -- terms that were identical to what creditor would have received under the debtor's proposed plan.  

Robbins v. Groggins (In re Groggins) (Case No. 14-71033; A.P. No. 15-07018) 12/4/2015

The United States Trustee filed a complaint to deny the Debtor’s discharge, alleging that, under penalty of perjury, the Debtor declared that the information contained in the petition was true and correct, when in fact, the Debtor know the petition failed to disclose a prior bankruptcy filing in the District of Maryland.  The Debtor denied filing for bankruptcy in Maryland in his response to the complaint. 

Following the petition date, but prior to conversion of the case from Chapter 13 to Chapter 7, a federal grand jury indicted the Debtor and charged him with bankruptcy fraud under 18 U.S.C. § 152.  The Debtor later entered a guilty plea and judgment was entered against the Debtor in the U.S. District Court for the Western District of Virginia.  The Debtor was later incarcerated as a result of this plea agreement.

The Court granted the United States Trustee’s Motion for Summary Judgment, holding that there is no dispute that the Debtor signed the plea agreement, and in signing the plea agreement, the Debtor waived his right to challenge that he committed bankruptcy fraud in violation of 18 U.S.C. § 152.  Therefore, the Court denied the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(4)(A).

In re Keen (Case No. 13-71705) 12/3/2014

Debtor's motion to redeem under section 722 and Federal Rule of Bankruptcy Procedure 6008 denied as the debtor failed to prove that the property sought to be redeemed was intended primarily for personal, family or household use and that it was subject to a lien securing a dischargeable consumer debt.  Creditor's motion for relief from stay partially granted as the creditor failed to meet its burden of proof on the issue of whether a security interest existed against all the property at issue.

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