In re Estep (Case No. 06-70306) 05/03/2006
The court denied the Debtor's requested waiver of the requirement to obtain credit counseling prior to filing based on exigent circumstances and dismissed the case without prejudice at the Debtor's request.
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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 Lineberry (Case No. 06-70093) 05/01/2006
The court denied the joint-filing Debtors' application for waiver of the Chapter 7 filing fee after determining that their combined monthly income did not exceed 150% of the poverty line for family of four, because the Debtors received a tax return that would have enabled them to pay the fee and they could afford to pay in installments. Despite the fact that the Debtors were separated and maintained separate households, child support paid to a joint debtor should not be listed as a monthly expense of the payor spouse or as monthly income of the payee spouse.
In re Miller (Case No. 05-74341) 04/28/2006
The court declined to enter a proposed consent order that provided an undersecured creditor with an unsecured claim for post-petition attorneys' fees and costs because 11 U.S.C. § 506 only authorizes contractually authorized attorneys' fees for fully secured claims.
In re Jennings (Case No. 05-73129) 04/27/2006
The court reconverted the case to one under Chapter 7 upon a creditor's motion to dismiss when the court determined that proposed Chapter 13 plan was not feasible, because the court found that conversion, rather than dismissal, better served the interest of all creditors.
In re Rife (Case No. 05-70788) 04/26/2006
The court held that the Debtor's potential recovery from a loss of consortium claim pending in Kentucky state court was properly claimed exempt as a cause of action for personal injury.
Coffey v. M&I Bank, FSB (In re Coffey) (Case No. 05-64605; A.P. No. 06-06001) 04/21/2006
The Court declared a wholly unsecured second priority lien on the Chapter 13 Debtor's real property an unsecured claim for the pendency of the case, but declined to declare the lien void until the Debtor received a discharge.
Moore v. U.S. Dep't of Housing & Urban Dev. (Case No. 04-02949; A.P. 05-07108) 4/20/2006
The Debtor filed a Complaint against the U.S. Department of Housing and Urban Development ("HUD") to turnover his 2003 federal income tax refund which HUD set off against the debtor's pre-petition debt owed to HUD for a foreclosed home pursuant to 26 U.S.C. § 6402 (Federal Intercept Statute). The setoff occurred one day after the debtor filed his bankruptcy petition. In addition, the debtor sought a determination that HUD violated the automatic stay of 11 U.S.C. § 362. HUD moved for retroactive, or nunc pro tunc, relief from stay by annulment of the stay. The Bankruptcy Code preserves the right to setoff that exists under nonbankruptcy law, and Section 6402 allows the I.R.S. to offset a tax refund against any debt which the taxpayer may owe to a federal agency. See 26 U.S.C. § 6402(d). Nevertheless, regardless of any established rights to conduct a setoff, postpetition acts to conduct a setoff are prohibited by the automatic stay under Section 362. Further, prepetition creditors generally may not execute a postpetition setoff on property which the debtor has exempted. The Court found that annulment of the automatic stay would be contrary to the intent of Congress and the Commonwealth of Virginia. Accordingly, the Court concluded that the government's post-petition setoff of the debtor's tax refund to prepetition debt was a violation of the automatic stay, and therefore ordered that HUD turn the debtor's tax refunds over to the trustee to administer because it is property of the estate. Nevertheless, the Court found that HUD's actions were not willful, and therefore did not issue sanctions against HUD for violating the automatic stay.
Wolfe v. Farrior (In re Farrior) (Case No. 04-00263; A.P. No. 05-05032) 04/20/2006
The male debtor inherited the real property within 180 days of filing the bankruptcy petition. 11 U.S.C. § 541(a)(5)(A) provides that property acquired by inheritance, bequest, or devise within 180 days of the filing of the petition becomes property of the estate. The Chapter 7 Trustee filed a motion to sell real estate free and clear of liens and co-owner's interest pursuant to 11 U.S.C. § 363(h). The debtors argue that the provisions of Section 363(h) do not apply to the proposed sale because the male debtor made a partial disclaimer of his inheritance, and under Virginia law, the right to disclaim his inheritance permits exclusion of the disclaimed interest as property of the estate even when the disclaimer occurs after the filing of the bankruptcy petition. The Court disagrees, holding that federal law, not state law, governs property of the estate and legal rights and interests of the debtors.
In re Wolford (Case No. 05-75793) 04/19/2006
The court dismissed the Debtor's case because he failed to obtain credit counseling in the 180 days prior to filing.
In re United Home Health Care, Inc. (Case No. 05-72094) 04/18/2006
The court allowed hold-over rent at the pre-negotiated rate and the amount of damage resulting from the Debtor's removal of an alarm system upon vacating the property as an administrative expenses to the purchaser of real property formerly occupied by the Debtor. The Claimant failed to satisfy its burden of proof with regard to a counter the Debtor removed from the property.