The Debtor seeks to avoid a lien as a preferential transfer under 11 U.S.C. § 547 and § 522(f)(1) because it was recorded within 90 days prior to the petition date. The Court found that a judicial lien qualifies as a preference but the Debtor can only avoid the lien to the extent that it impairs the Debtor's exemption in the property under Section 522(f)(1). A debtor may bring an action to avoid a transfer of property of the debtor, to the extent that the property is properly claimed exempt by the debtor, if (1) the transfer was involuntary; (2) the debtor did not conceal the property; (3) the trustee could avoid the transfer, but does not attempt to do so; and (4) the debtor has exempted the transferred property. See 11 U.S.C. § 522(g)(1) and (h). Applying Section 522(f)(2), the Court held that the judicial lien may only be partially avoided.
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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.
The Court granted the United States Trustee’s motion to dismiss this case for substantial abuse because the debtor could pay some small amount in a Chapter 13 plan, experienced no financial trauma, maintained excessive vehicle payments, and filed inaccurate schedules; nevertheless, the Court granted the debtor leave to voluntarily convert to a case under Chapter 13.
Under section 362(b)(2)(B), the automatic stay does not apply to the collection of alimony, maintenance or support from property that is not property of the estate. Looking to federal law, the Court held that a portion of the award of attorney's fees to debtor's former spouse was in the nature of support based on the disparity of the parties' monthly incomes and its collection from the debtor's 401(k) plan was not affected by the automatic stay. The remainder of the award was in the nature of a sanction (and not support); former spouse did not demonstrate good cause to modify automatic stay to pursue collection of such award.
The Court denied the U.S. Trustee's request for entry of default because the affidavit in support was procedurally deficient; it was not signed and contained imprecise details regarding service.
The Court declined granting a "hardship discharge" and dismissed the case when the debtor died within a few months of confirming a Chapter 13 plan because of the debtor's lack of dependents and the plan's lack of distribution to creditors.
The Court denied a creditor's Petition for Approval of an Administrative Expense because the creditor filed a proof of secured claim that in no way indicated an intention to seek administrative expenses treatment on the Court Official Form 10 which states on its face that it is not for administrative expenses, the creditor recognized the claim of another creditor on the property at issue, and the creditor was too late.
The court revised its previous approval of a settlement agreement to remove the condition that the court imposed on an insider seeking release of all claims for guaranteeing the settlement payments.
The Debtor converted her bankruptcy to Chapter 13 and then reconverted back to Chapter 7. A creditor filed a Complaint to determine dischargeability of debt and deny the Debtor's discharge, and the Debtor filed a Motion to Dismiss the Complaint as untimely filed. The issue presented is whether the creditor filed the Complaint within the prescribed time period allowed under the Federal Rules of Bankruptcy Procedure. Rule 4007(b) provides that "[a] complaint other than under § 523(c) may be filed at any time." The Court determined that the creditor's Complaint arises under 11 U.S.C. § 523(c), and is therefore governed by Rule 4007(c), not Rule 4007(b). Rule 4007(c) provides that a "complaint to determine the dischargeability of a debt under § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). . . ." Rule 1019(2) provides that when a Chapter 13 case has been converted or reconverted to a Chapter 7 case, "a new time period for filing . . . a complaint to obtain a determination of dischargeability of any debt shall commence pursuant to Rule . . . 4007, provided that a new time period shall not commence if a chapter 7 case had been converted to a chapter . . . 13 case and thereafter reconverted to a chapter 7 case and the time for filing . . . a complaint to obtain a determination of the dischargeability of any debt, or any extension thereof, expired in the original chapter 7 case."
The Court determined that since the time for filing a complaint in the Debtor's original Chapter 7 filing had expired many months before the conversion to Chapter 13, Rule 1019(2) does not provide a new time period for the creditor to file a Complaint. Accordingly, the Court sustained the Debtor's Motion to Dismiss the Complaint as untimely.
A creditor objected to a report of sale of assets filed by the debtor. The Court held that the creditor, through its motions, briefs, and exhibits, improperly attempted to use its objection to sale as a motion for reconsideration of its previously adjudicated claim in this case. Accordingly, the objection is overruled except to the extent to which the sale includes collateral for a secured claim.
Debtors' motion to approve sale of residence free and clear of liens under section 363 approved. The motion was not served on the second lienholder, but the sale of the property free and clear of the first and second deeds of trust and tax lien was authorized by section 363(f)(3) because the net sale proceeds were more than enough to pay such liens in full. Second lienholder had already been paid in full with interest in accordance with the confirmed chapter 13 plan. Additionally, under section 1327(c), residence property was vested back in the debtors free and clear of the second lienholder's claim, subject only to the payment with interest of the determined amount of its claim, which had taken place already. However, as the second lienholder did not have notice of the sale, sale of property approved but the order authorizing the sale to be served on secured creditor and trustees of deed of trust with limited opportunity to file objection thereto.