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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.

In re Harvey (Case No. 10-71616) 09/21/2010

The Court denied the debtor’s motion to approve a reaffirmation agreement because the attorney representing the debtor in the bankruptcy case did not sign the attorney certification. The Court rejected the argument that no certification was necessary because no negotiation took place within the meaning of § 524(c) when the creditor insisted on reaffirmation on the same terms as the original contract.  The Court concluded its responsibilities and authority with respect to approval of reaffirmation agreements are limited to those situations where (i) bankruptcy debtors are not represented by counsel in the bankruptcy case, or (ii) they are represented by counsel in cases where a “presumption of undue hardship” has arisen pursuant to the provisions of 11 U.S.C. § 524(m) and their counsel has executed the certification prescribed by § 524(k)(5)(B) that even though the presumption of undue hardship has been established, “in the opinion of the attorney, the debtor is able to make the payment.”

In re White (Case No. 08-71107) 8/24/2010

Court held that debtor's motions to join counsel for the Water Authority and his firm as party respondents to the underlying motion, to disqualify counsel from continuing to serve as counsel for the Water Authority and to enter summary judgment against the Water Authority and its counsel were without merit and denied.  Debtor accused Water Authority and its counsel of attempting to perpetrate fraud upon him and the Court in connection with an exhibit filed with the Court relating to the due date for charges on an account the debtor had with the Water Authority.

In re Shotwell (Case No. 09-62300) 08/23/2010

The United States Trustee filed a motion to dismiss the case for abuse under 11 U.S.C. § 707(b).  Section 707(b)(1) provides that a court may dismiss an individual case under Chapter 7 if (1) the debtor’s debts are primarily consumer debts and (2) it would be an abuse of the provisions of Chapter 7 of the Bankruptcy Code to grant relief to the debtor.  Section 707(b)(2) provides that abuse is presumed if a debtor's net monthly income exceeds a certain threshold amount as determined by the means test.  Section 707(b)(3)(B) provides that if the presumption in Section 707(b)(2) does not arise or is rebutted, the court must consider the totality of the debtor's financial circumstances in determining whether proceeding in Chapter 7 would be an abuse.  The Court concluded that the Debtors do not have sufficient disposable income to fund a Chapter 13 plan, and no other factors suggest substantial abuse.  Therefore, the Court denied the United States Trustee's motion to dismiss this case for abuse.

In re Smith (Case No. 09-61696) 08/20/2010

The U.S. Trustee filed a motion to dismiss the Chapter 7 case for abuse under 11 U.S.C. § 707(b)(3)(B) and 11 U.S.C. § 707(b)(2). The Court held that even if the debtors were not permitted to deduct expenses arising from student loan payments, the Court would still not find abuse under 11 U.S.C. § 707(b)(3)(B) and/or 11 U.S.C. § 707(b)(2). The Court held the debtors were entitled to deduct the full amount of the allowance for vehicle payments even if they owned the vehicle free and clear of any liens, citing In re Hylton, 374 B.R. 579 (Bankr. W.D. Va. 2007).  Thus, the debtors' monthly disposable income under the Means Test was less than the required statutory minimum; accordingly, the Court concluded that it would not be an abuse under 11 U.S.C. § 707(b)(2) for the debtors to remain in Chapter 7.  Further, the Court also held that the debtors did not have sufficient income to fund a Chapter 13 plan and no other factors suggest abuse; therefore, the Court concluded that it would not be an abuse under 11 U.S.C. § 707(b)(3)(B) for the debtors to remain in Chapter 7.

In re Lester (Case No. 09-70048) 07/13/2010

The Court sustained the bank’s objection to confirmation of the debtors’ Chapter 11 plan because the pending adversary proceeding in the case must first be resolved before the debtors can put forth a confirmable and viable plan.  The central issue in this case is whether the debtors, utilizing their powers as Chapter 11 debtors-in-possession, can successfully avoid a restitutionary transaction they made with the bank.  The debtors encumbered their home prior to the filing of this bankruptcy case for the purpose of providing restitution for losses incurred by the bank as a result of the criminal actions of their son while employed as one of its loan officers.  Without a resolution of that matter, the Court could not confirm the debtors’ plan.

Christmas v. Preston Mitchell Co. (In re Christmas) (Case No. 10-60826; A.P. No. 10-06059) 07/13/2010

The Plaintiff filed a complaint alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692.  The Court, on its own motion, dismissed the adversary proceeding for lack of subject matter jurisdiction because a cause of action under the FDCPA is not created by the Bankruptcy Code, it exists outside of the context of bankruptcy, and the causes of action alleged in the complaint do not arise under title 11.

In re Woods (Case No. 10-70870) 07/09/2010

The Court denied a reaffirmation agreement on the grounds that 11 U.S.C. § 524(c),(d), and (k)(5) - (7) did not provide authority for the Court to approve a reaffirmation agreement when a debtor was represented by counsel during the negotiation of a reaffirmation agreement except in the very limited situation that counsel has certified in his or her opinion the “debtor is able to make the payment” even though a presumption of undue hardship has been established. Counsel did not certify that the debtor would be able to make these payments, therefore, the Court denied reaffirmation.

In re Booker (Case No. 08-61565) 07/02/2010

            The debtor filed a motion for hardship discharge.  The debtor had paid the trustee $3,800.00 toward the plan. The debtor’s attorney’s fees were paid from that amount.  All creditors who filed unsecured claims would have been paid in full if the debtor paid an additional $2,273.00 to the trustee.  The Court concluded that the debtor did not meet the test under 11 U.S.C. § 1328(b)(2) and that the motion must be denied because the debtor had not paid all of his unsecured creditors as much as they would receive if this were a case under chapter 7.

Barber & Ross v. Wachovia Bank (In re Barber & Ross) (Case No. 07-50546; A.P. No. 09-05083) 06/29/2010

Defendant filed motion to strike jury demand and plaintiff’s prayer for punitive damages.  In its answer, the defendant did not specifically respond to the jury demand request made in the complaint.  Additionally, a statement of the kind referred to in Bankruptcy Rule 9015 and Local Rule 9015-1 was filed indicating the parties’ consent to jury trial. Court held that the defendant was bound by its earlier pleadings filed in the case and denied the motion to strike the jury demand.  Court held that punitive damages motion was premature, but could be renewed at trial at the conclusion of the evidence.

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