You are here

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.

Callahan v. Moore et al. (In re General Creations) (Case No. 03-01782, A.P. Nos. 05-07092, 05-07093, 05-07094, 05-07095) 2/28/2006

Court held that adversary proceeding was timely filed under section 546(a)(1)(A) and Rule 9006.  Using the anniversary date rule, the last day for instituting an action was the anniversary date of the relevant act even when the intervening period included an extra leap year day. The Court disagreed with the defendants' argument that the 2 year time frame was 730 days and did not include the extra leap year day and denied the defendants' motion to dismiss.

In re Shelton (Case No. 05-73640) 2/24/2006

Trustee's objection to debtor's claim of exemptions overruled except to the extent that the amount of the debtor's wages held by the trustee exceeded the amount claimed as exempt in the debtor's amended homestead deed.  Amended homestead deed filed after date initially set for 341 creditors meeting but before continued 341 meeting date.   Amended homestead deed timely filed under Va. Code section 34-17(A) as it was filed within five days of the conclusion of the 341 meeting.  The 5 day period begins to run when the meeting is concluded, not when it is merely commenced.

In re Ruffin (Case No. 05-65085) 02/24/2006

The debtor requested a waiver of 11 U.S.C. § 109(h)(1)'s requirement to obtain budget and credit counseling prior to filing bankruptcy, based on exigent circumstances.  However, the debtor did not file a certificate describing the exigent circumstances until 44 days after he filed his petition.  Further, the certificate failed to describe exigent circumstances that merit waiver and certify that he had requested counseling services but was unable to obtain the services during a 5-day period, as required by Section 109(h)(3).  The Court dismissed this case.

In re Moon (Case No. 05-61873) 2/24/2006

The United States Trustee filed a motion to dismiss this case as an abuse of the provisions of Chapter 7 of the Bankruptcy Code, pursuant to 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 United States Trustee has the burden of proof to prove by a preponderance of the evidence that allowing the Debtor to continue in Chapter 7 would constitute abuse.

The Court, applying the factors enumerated by the Fourth Circuit in Green v. Staples (In re Green), 934 F.2d 568 (4th Cir. 1991), concluded that it would not be a substantial abuse to permit the Debtor to continue under Chapter 7.  Although the Debtor might have some disposable income to fund a Chapter 13 plan, there is a significant possibility that the plan would not be feasible.  While the Debtor did not experience a financial trauma, there is nothing else on the record indicative of substantial abuse.  Accordingly, the Court denied the United States Trustee's motion to dismiss this case for abuse.

Pages