The court denied the Debtor/Defendant's motion to dismiss a pro se plaintiff's adversary complaint for failing to comply with Federal Rule of Civil Procedure 4(m)'s 120-day period.
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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.
Defendant filed a motion to dismiss this adversary proceeding on the ground that Court lacked subject matter jurisdiction because plaintiff failed to serve the summons and complaint on the defendant within 120 days of the issuance of the summons as provided for in Federal Rule of Civil Procedure 4(m) as made applicable by Federal Rule of Bankruptcy Procedure 7004. Court denied the motion as plaintiff showed good cause for such failure. The plaintiff proceeded pro se, had otherwise been diligent in prosecuting the adversary proceeding, and the defendant had actual knowledge of the adversary proceeding almost from its inception and would not be prejudiced by denial of the motion.
United States Trustee's motion to dismiss for substantial abuse granted under section 707(b), subject to the debtors' right to convert the case to Chapter 13. Upon review of the In re Green and In re Harrelson factors, the Court concluded that the debtors ran up large credit card balances and made consumer purchases significantly in excess of their ability to pay; their monthly budget was excessive and they inaccurately stated their income to a considerable degree in their bankruptcy schedules. Addiitonally, the debtors had an ability to pay the majority of their debt within 3 years. (Note: Opinion is dated July 1, 2004, but the correct date is July 1, 2005.)
A foreclosure sale took place the day after the Debtor filed for bankruptcy. The Debtor asserts that the foreclosure sale was an act in violation of the automatic stay of 11 U.S.C. § 362. The creditor asserts that (1) the automatic stay did not arise in the first place as the property was owned as tenants by the entireties with rights of survivorship; (2) if the automatic stay did arise, it should nevertheless be "annulled" pursuant to 11 U.S.C. § 362(d); and (3) if the stay should not be "annulled," relief from the stay should be granted for cause. The Court concluded that the circumstances of this case do not establish grounds for annulling the automatic stay and validating the foreclosure sale. Nevertheless, the Court concluded that there is undisputed evidence that the creditor will not have adequate protection if the automatic stay is continued; accordingly, the Court granted the Motion for Relief for cause, permitting the creditor to conduct a new foreclosure sale.
The Court denied the debtors' objection to a claim seeking a discount for early payment because the debtors entered into, and the Court approved, a post-petition contract with a creditor precluding such a discount.
Upon objection by the Trustee to the Debtor's claimed exemption on Schedule C, the Court held that an untimely filed homestead deed barred the Debtor's claim of exemption under Va. Code. § 34-4. To be effective in a Chapter 7 bankruptcy case, a claim of exemption pursuant to the Virginia homestead exemption provided by Va. Code. § 34-4 must be perfected by recording a homestead deed in the proper Clerk's Office within five (5) days after the first scheduled date of the meeting of creditors.
The Trustee filed a Motion to Dismiss Case with Prejudice on the ground that the Debtor failed to comply with the Court's Order, which required him to bring his plan payments current, amend his schedules, and provide the Chapter 13 Trustee with certain financial records. Although the Debtor failed to bring his plan payments current by the hearing date, he brought sufficient funds on that date to bring himself current under the Chapter 13 plan. Nevertheless, the Debtor failed to provide the Trustee with the financial documents. The Court determined that, notwithstanding the Debtor's cantakerousness and noncompliance with the Court's prior Orders, it was proper to deny dismissal and give the Debtor an additional opportunity to perform in this bankruptcy case.
The Plaintiff filed a motion for summary judgment regarding the dischargeability of debt arising from a Pennsylvania Court contempt order. The plaintiff, as the moving party, has the burden to show that in light of the facts most favorable to the non-moving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Specifically, the Court found that the Pennsylvania Court order and record lacked sufficient facts to establish either that the issue of larceny was tried and determined, or that the Debtor's actions were malicious. Accordingly, there existed a factual dispute regarding the issues and summary judgment is not appropriate.
The Debtor and his ex-spouse entered into a separation agreement which provided that the Debtor was to pay all of the undergraduate tuition for their three dependent children (approximately 17, 15 and 13 years old). A divorce decree was entered, which incorporated the terms of the separation agreement. The Debtor then filed for bankruptcy, and his ex-spouse filed a claim of $225,589.40 for reimbursement of primary and secondary school tuition for their children, which she asserts is entitled to priority status under 11 U.S.C. § 507(a)(7). The Chapter 7 Trustee objected to the priority status. The Court agreed with the Trustee, holding that a claim is a seventh priority claim under Section 507 only if the underlying debt was incurred in connection with a separation agreement, divorce decree, or other court order. In this case, neither the separation agreement nor the divorce decree provide for the payment of the dependent children's primary and secondary school tuition. The separation agreement only provides for the payment of the children's undergraduate tuition; "undergraduate" is defined as "of, relating to, or engaged in college or university studies prior to the first decree." Accordingly, the Court disallowed the ex-spouse's claim of $225,589.40 in full.
The Court granted the debtors' Motion to Reconvert their case to one under Chapter 13 after the debtors converted from Chapter 13 to Chapter 7 because they experienced a substantial increase in income, had substantial equity in their home, and sincerely intended to confirm and complete a plan.