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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.

Dotson v. United Recovery Group (In re Dotson) (Case No. 09-72188; A.P. No. 13-07027) 10/16/2013

The debtor filed a complaint seeking contempt for violation of the discharge injunction and seeking remedies for coercive collection practices in violation of the Fair Debt Collection Practices Act as well as a motion for default judgment.  The court found that it did not have subject matter jurisdiction on the FDCPA claims.  The court further found that the creditor either was aware that the debt had been discharged or proceeded, after being informed that the debtor had a bankruptcy attorney, with a reckless disregard as to whether or not the debtor continued to have any legal liability to pay the debt the creditor was bent on collecting.  The court awarded compensatory damages, punitive damages, and attorney’s fees.

Voegler v. Myrtle (In re Myrtle) (Case No. 12-51281; A.P. No. 12-05074) 10/15/2013

Plaintiffs initiated an adversary proceeding seeking a determination that the debt they allegedly held against the debtors was non-dischargeable under 11 U.S.C. § 523(a)(2)(A), including for fraud in the inducement, false representation, and actual fraud.  The defendant debtors filed a motion for summary judgment.  The Court concluded that the plaintiffs showed a genuine issue of material fact as to each element for which they carry the burden at trial. For this reason, the defendants were not entitled to judgment as a matter of law and their motion for summary judgment was denied.

In re Denson (Case No. 13-61602) 10/11/2013

The chapter 13 trustee filed a motion to dismiss the case of pro se debtors.  The court concluded that, given the complexity of the case and the difficulty that the debtors had experienced in the prosecution of the case, it was unlikely that the debtors would be able to file a confirmable plan without the assistance of counsel.  Further, the court had concerns over eligibility given the amount of educational debt one of the debtors had.  The court thus denied confirmation of the plan but allowed the debtors an opportunity to file a modified plan or convert to chapter 7, otherwise the case would be dismissed.

Smith v. Bowen (In re Bowen) (Case No. 12-60622; A.P. No. 12-06099) 10/04/2013

Plaintiff filed a complaint alleging that the debtor transferred property within one year of her bankruptcy with the intent to hinder, delay, or defraud the plaintiff and, therefore, should be denied a discharge in her underlying bankruptcy case pursuant to 11 U.S.C. § 727(a)(2)(A).  The court determined that the debtor did not have the actual intent to hinder, delay, or defraud the plaintiff.  Without proof of actual intent by a preponderance of the evidence, the plaintiff did not carry her burden, and her request to deny the debtor’s discharge was denied.

In re Denson (Case No. 13-61602) 10/03/2013

Female debtor moved to extend the time to complete the credit counseling course required by 11 U.S.C. § 109(h).  The court concluded that she met the requirement by complying with section 109(h)(3), because she filed a certificate that was satisfactory to the court that (a) described exigent circumstances that merited a waiver of the requirement of section 109(h)(1), and (b) stated that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain such counseling during the 7-day period beginning on the date on which the debtor made that request.

In re Wilcox (Case No. 13-70516) 09/09/2013

A purported judgment creditor filed a motion to dismiss the debtor’s case pursuant to section 707(b)(3)(A) on the basis that the debtor was chargeable with bad faith in allegedly filing the bankruptcy for the sole purpose of escaping the creditor’s judgment.  The court concluded that on strictly financial terms the debtor was clearly a candidate for bankruptcy relief and that the evidence offered in support of the motion to dismiss was simply insufficient to demonstrate that he made his decision to file in “bad faith.”  The court thus denied the motion to dismiss.

In re Virginia Broadband, LLC (Case No. 12-62535) 09/09/2013

The official committee of unsecured creditors filed a motion to dismiss the chapter 11 case pursuant to 11 U.S.C. § 1112(b), alleging that a majority of the debtor’s board did not authorize the filing of a chapter 11 petition.  The court concluded that the motion to dismiss rested entirely on the allegedly flawed authorization for the petition due to a member’s individual bankruptcy filing.  The court concluded that that member’s economic and non-economic interest in the debtor became property of his estate under section 541(c)(1) despite Virginia Code section 13.1-1040.1(6)(a) and revested in him upon the dismissal of his case pursuant to Bankruptcy Code section 349(b)(3).  As such, his vote in authorizing the petition was valid.

Beskin v. The Bank of New York Mellon (In re Perrow) (Case No. 09-61234; A.P. No. 11-06082) 09/05/2013

            The trustee and the debtors filed a complaint seeking to avoid the defendant’s alleged interest in the debtors’ real property and disallowance of the defendant’s proof of claim under section 502.  The defendants asserted a counterclaim and a third party claim seeking six grounds of equitable relief, namely: declaratory judgment, equitable subrogation, specific performance, constructive trust, equitable lien, and relief under 11 U.S.C. § 105.  The court thus considered whether a chapter 13 trustee’s strong arm powers under section 544(a)(3) may defeat an unrecorded deed of trust or whether equitable remedies may block the trustee’s powers.  Both sides moved for summary judgment.

            The court found that the defendant was without an interest in the debtors’ real property and was thus an unsecured creditor.  The defendant’s proof of claim was not timely filed, and thus the court disallowed the claim. The court thus granted the plaintiffs’ motion for summary judgment and denied the defendant’s motion for summary judgment.

In re Niday (Case No. 11-72431) 08/27/2013

The court considered whether a chapter 13 below median income debtor has the unqualified right to pay off early the remaining payments due under the terms of a confirmed plan providing for payments over a term of thirty-six months when the total of such remaining payments would be insufficient to pay all allowed unsecured claims in full.  The court concluded that there was no such unqualified right but that a debtor may seek modification of a confirmed plan for that purpose under the provisions of section 1329.

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