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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.

Erbschloe v. U.S. Department of Education (In re Erbschloe) (Case No. 11-72562; A.P. No. 12-07013) 01/16/2013

The debtor filed a motion to seek a discharge of her student loan debt under 11 U.S.C. § 523(a)(8).  The government in response filed a motion for summary judgment alleging that the debtor cannot establish the elements necessary to entitle her to a discharge under section 523(a)(8).  The court found that a genuine issue of material fact existed as to each element of the Brunner Test for a hardship discharge, which thus compelled the case to trial.  Accordingly, the court denied the motion for summary judgment.

In re Hodnett (Case No. 12-71825) 01/14/2013

In deciding whether to grant motions to avoid liens against residential property, the court considered whether a debtor must file a homestead deed under applicable Virginia law to perfect a claim in exempt equity in the property in order to obtain the relief sought of avoidance of the judgment liens which have attached to that equity.  Applying the then-recently decided Fourth Circuit Court of Appeals case of Botkin v. DuPont Community Credit Union, 650 F.3d 396 (4th Cir. 2011), the court concluded that no such homestead deed need be filed.

McDow v. Mayo (In re Mayo) (Case No. 10-70428; A.P. No. 11-07020) 12/28/2012

The United States Trustee filed a complaint to revoke the male debtor’s discharge pursuant to 11 U.S.C. § 727(d)(1), alleging that he obtained the discharge through fraud and fraudulently failed to disclose certain transfers to the trustee.  The court concluded that the debtor’s discharge should be revoked pursuant to its authority under 11 U.S.C. § 727(d)(1).

In re S&R Construction Co., Inc. (Case No. 09-70710) 12/13/2012

The United States Trustee objected to the commission sought by the chapter 7 trustee, arguing that the trustee’s inaction regarding a shareholder derivative suit and failure to respond to inquiries from the United States Trustee fell well below the acceptable standard.  The court sustained the objection and allowed the trustee, subject to his proper completion of his duties in the case, a reduced commission plus reimbursement of expenses.

In re Rankin (Case No. 12-62338) 12/12/2012

The Debtor filed a pro se motion, which the Court interpreted as seeking an order directing the refund of the Debtor’s pre-petition deposit paid to a utility company to be used as a post-petition deposit to avoid disruption of service.  The utility company had offset the refund from the amount owed to the company pre-petition.  The Court denied the motion with respect to compelling the company to transfer the deposit, finding that the Debtor provided no legal basis for such a request.  However, the Court scheduled a hearing regarding the request to enjoin the company from requiring a post-petition deposit or disconnecting service and ordered that the company was enjoined from requiring any deposit or disconnecting the Debtor’s electrical service until the hearing and further order of the Court.

In re Rankin (Case No. 12-62338) 12/12/2012

In a Chapter 7 case, the Debtor filed a motion seeking to “set a fair and reasonable deposit for water in the City of Lynchburg,” to enjoin “any further collection for any and all past due amounts,” and to enjoin “any disconnection of services.”  At the hearing on the motion, the Court determined that the City made no effort to collect any pre-petition debt, that the Debtor owed the City less than $10.00 for post-petition water services, that the City had no intention of collecting a deposit from the Debtor unless the Debtor became significantly delinquent in the future. 

The Court denied the motion, holding that, because the City did not intend to collect a deposit at the time, there was no need to set a deposit amount.  Further, because the automatic stay of § 362(a) remained in effect, and because the discharge injunction under § 524(c)(2) was to take effect upon expiration of the automatic stay, there was no need to issue an order enjoining the City from attempting to collect any dischargeable debt arising pre-petition.  The court also determined that it did not have jurisdiction over the post-petition disconnection policies or decisions of the City.

In re Akers (Case No. 12-70999); In re Noell (Case No. 12-70844) 12/10/2012

            The chapter 13 trustee objected to confirmation of plans in two unrelated cases based on failure to provide for the retention of a lien by an allowed secured claim holder in violation of 11 U.S.C. § 1325(a)(5)(B)(i).  The trustee argued that confirmation should be denied because both plans provided for a cramdown of secured debts without adequate notice to the creditors.  Counsel for the debtors contended that because the creditors will be paid their petition-date claims in full, the total amounts owing on the filing date upon the obligations as determined under nonbankruptcy law will be paid in full, albeit not necessarily with post-petition interest at the rates provided in the applicable contracts.  The Court determined that section 1325(a)(5)(A) contemplates an express rather than an implied acceptance of a plan’s treatment by the impaired creditor.  The Court concluded that the failure of the creditors affected by the provisions challenged by the trustee to object to them does not mean that the creditors have “accepted” such treatment within the meaning of section 1325(a)(5)(A).  The Court thus sustained the trustee’s objection.

In re Minor Family Hotels, LLC (Case No. 10-62543) 12/3/2012

The debtor filed a Motion for Distribution requesting that its attorneys' fees be paid from escrowed funds held in trust by the debtor, all of which serves as the collateral for secured creditors.  The Court granted the debtor's motion in part, holding that the debtor may distribute the attorneys' fees from the proceeds from the sale of real property.  A secured creditor also filed a Motion for Distribution, seeking that any distribution be pro rata between the secured creditors.  Under 11 U.S.C. § 506(c), the Court found that the motion filed by the secured creditor for any such distribution to be made pro rata between secured creditors is not appropriate as a pro rata distribution is not proper under the Bankruptcy Code.  The Court held that the remainder of the escrowed funds shall be distributed to claim holders in the order of priority.

Titus v. Smith (In re Titus) (Case No. 11-50254; A.P. No. 12-05041) 12/03/2012

A non-core, related false imprisonment and intentional infliction of emotional distress state-court action was removed to the district court and referred to the bankruptcy court for consideration of the defendants’ summary judgment motion.  The court found that the debtor was not judicially estopped from pursuing the action and recommended that district court grant summary judgment as it related to the availability of punitive damages for intentional infliction of emotional distress but deny summary judgment as to all other issues.

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