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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.

In re Lambert Oil Company, Inc. (Case No. 03-01183) 11/28/2007

Court denied, without prejudice to the filing of a supplemental application, the third interim application for compensation and reimbursement of expenses of the trustee's attorney. It is within Court's sound discretion to decline to award compensation until all relevant circumstances and factors affecting the determination of fair and reasonable compensation for the attorney are known.  Court also questioned the firm's entitlement to any compensation for litigation in light of the failure of the trustee to seek approval of the Court for the firm's retention to provide such services.

In re Lephew (Case No. 07-71468) 11/9/2007

Debtors' application for waiver of filing fee under section 1930(f) denied as debtors had the financial means to pay the filing fee at the time of filing the petition.  The debtors no longer had the funds on hand at the time of the hearing on the application.  The Court found that to waive the filing fee for debtors who had, at the time of filing their application, the ability to pay the filing fee, but elected to use such funds beyond the immediate necessary support of themselves and their dependents, would constitute an abuse of the bankruptcy system. 

In re Maupin (Case No. 07-61051) 11/01/2007

The Court held that additional paragraphs added by the debtor to Paragraph 11 of the Uniform Plan do not contain provisions peculiar to debtor's financial situation and instead are unnecessary and is likely, if applicable, to increase the costs of administration and litigation.  Further, if the language in Paragraph 11 is an inaccurate statement of law, it violates 11 U.S.C. § 1322(b)(11), which prohibits against including any provision that is not consistent with the Bankruptcy Code.  Therefore, the Court sustained the Chapter 13 trustee's objection to confirmation of debtor's plan and held that such additional paragraphs must be deleted from the Chapter 13 plan before confirmation or else they would require the Court to adjudicate matters that are not yet before it.

In re Grate (Case No. 07-61118) 11/01/2007

The Court held that additional paragraphs added by the debtor to Paragraph 11 of the Uniform Plan do not contain provisions peculiar to debtor's financial situation and instead are unnecessary and is likely, if applicable, to increase the costs of administration and litigation.  Further, if the language in Paragraph 11 is an inaccurate statement of law, it violates 11 U.S.C. § 1322(b)(11), which prohibits against including any provision that is not consistent with the Bankruptcy Code.  Therefore, the Court sustained the Chapter 13 trustee's objection to confirmation of debtor's plan and held that such additional paragraphs must be deleted from the Chapter 13 plan before confirmation or else they would require the Court to adjudicate matters that are not yet before it.

Elliott v. Citifinancial (In re Elliott) (Case No. 07-60784; A.P. No. 07-06064) 10/30/2007

The matter before the Court is a motion for summary judgment based on the debtor's motion to avoid a consensual second priority lien on her residence under 11 U.S.C. §§ 506(a) and 1322(b)(2), which permit a chapter 13 debtor to modify the rights of holders of claims secured by the debtor's principal residence only if all other senior liens on the property are greater than the value of the residence.  The fair market value of the debtor's residence is $102,000.  There are two liens on that property: a first priority lien in the amount of $47,000 and a second priority lien in the amount of $10,000.  The value of the property is greater than both liens on the property.  Accordingly, the debtor cannot modify the rights of the creditor by avoiding the second priority lien on the property.

In re Ennis (Case No. 07-60738) 10/26/2007

The Court granted, under 28 U.S.C. § 152(d)(2)(I), the debtors' motion for direct appeal to the United States Court of Appeals for the Fourth Circuit of an order sustaining creditor's objection to debtors' Chapter 13 plan on the grounds that it improperly provided for the bifurcation of creditor's claim into a secured claim and an unsecured claim because there is no controlling decision of the Fourth Circuit.

In re Fenderson (Case No. 07-71222) 10/25/2007

The Court granted, in part, the United States Trustee's motion to dismiss the case with prejudice and to bar future filings insofar as it sought to prohibit any new bankruptcy petition filing by the debtor within twelve months of the date of entry of the dismissal order for this case and to impose, under 11 U.S.C. § 349(a), the condition that any new case commenced thereafter shall be with prejudice as to the debtor's liability for incurred filing fees in the current case and the two preceding cases.  Furthermore, the Court ordered that no automatic stay shall arise in any case filed in the Court after such twelve month period, but within ten years of the date of such dismissal order, unless and until all fees incurred by reason of any such filing shall have been paid in full or the debtor shall have obtained from the Court an order waiving the payment of such fees.

In re Ennis (Case No. 07-60738) 10/17/2007

The Court held that, as held in In re Witt, 113 F.3d 508 (4th Cir. 1997), the term "real property" in 11 U.S.C. § 1322(b)(2) includes mobile homes, despite mobile home being personal property under state tax law (Va. Code § 58.13503(6)).  Therefore, the Court held that debtors were prohibited from modifying (and in particular, bifurcating) a secured creditor's claim arising from a lien on the debtors' mobile home.

 

Reversed by Ennis v. Green Tree Servicing, LLC (In re Ennis), 558 F.3d 343 (4th Cir. 2009).

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