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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.

Barber & Ross Co. v. Wachovia Bank, N.A. (In re Barber & Ross Co.) (Case No. 07-50546; A.P. No. 09-05083) 04/05/2010

            In an adversary proceeding concerning a pre-bankruptcy commercial lending relationship between the debtor and Wachovia Bank National Association, Wachovia filed a motion to dismiss certain counts in the debtor’s amended complaint pursuant to Bankruptcy Rule 7012(b) for failure to state a claim upon which relief could be granted.  The counts considered were for breach of contract, tortious interference with a business expectancy, constructive fraud, breach of the duty of good faith and fair dealing, failure to act in a commercially reasonable manner, and punitive damages.  The Court granted in part and denied in part the motion to dismiss.

In re Jones (Case No. 09-63951) 03/26/2010

The debtor filed eight petitions in bankruptcy in the last fifteen years, failed to actively prosecute the last three cases, filed petitions under at least three different social security numbers, and admitted that she filed the petitions only to enjoy the protection of the automatic stay.  As a result, the Court referred this case to the United States District Court for the Western District of Virginia. The purpose of the referral was to consider whether contempt proceedings should be commenced against the debtor.

In re Wharton (Case No. 09-61741) 03/26/2010

The matter before the Court is the debtors' motion to avoid a lien pursuant to 11 U.S.C. § 522(f) on the basis that it impairs an exemption to which the debtors are entitled.  The debtors filed amended schedules reducing the value of certain parcels of real property without providing any basis for the reduction in value.  The Court found that the only apparent reason for the reduction is to permit the debtors to avoid a greater portion of the lien.  Since ambiguities in a debtor's schedules must be construed against the debtor, the Court concluded that the higher value must be used, and therefore, the lien is only partially avoidable.

In re Woodhouse (Case No. 09-61399) 03/26/2010

Debtors filed an objection to claim indicating that the creditor did not provide proper documentation and that the debt was barred based on the statute of limitations for oral contracts. The Court overruled their objection because the debtors did not provide proper evidence that the claim arose from an oral contract and thus was subject to a three-year statute of limitations. Upon a motion for reconsideration, the Court found that the debtors provided sufficient evidence to show that the claim was based on an oral contract, and therefore, the proper statute of limitations period for this contract was three years. Accordingly, the Court sustained the objection to claim.

In re Hampton (Case No. 07-62119) 03/23/2010

            The debtors filed a motion to sell their residence and use a portion of the proceeds to pay in full the balance owed pursuant to their confirmed chapter 13 plan.  The chapter 13 trustee did not object to the motion to sell, but argued that if the motion was granted, the debtors should be required to pay their unsecured claims in full from the proceeds of the sale.  At the hearing on the matter, the chapter 13 trustee made an oral motion to modify the debtors’ chapter 13 plan to require the debtors to make such a payment.  The Court noted that in the Fourth Circuit a trial court must (a) determine whether the debtor has experienced a significant and unanticipated change in his or her financial condition; (b) determine whether the requirements of Section 1329(a) are met; and (c) determine whether the requirements of Section 1329(b) are met.

            The Court concluded that the increase in the value of the debtors’ real property did not form a basis for modifying their confirmed chapter 13 plan because it had no effect upon the debtors’ financial situation that is relevant to the administration of their chapter 13 case.  The Court thus denied the motion to modify.

Dabney v. Virginia Employment Commission (In re Dabney) (Case No. 09-62678; A.P. No. 09-06107) 02/23/2010

            The debtors filed an adversary proceeding to avoid three liens held by the Virginia Employment Commission under 11 U.S.C. § 522(f)(1).  The Court found that the liens in question were statutory liens because the recorded writ of fieri facias that created the lien was issued pursuant to the filing of a tax memorandum.  Accordingly, the Court denied the debtors’ request.

In re Morris (Case No. 09-72667) 02/10/2010

The Court denied the motion for approval of a reaffirmation agreement. Capital One Auto Finance filed a motion for approval of a reaffirmation agreement signed by the male debtor regarding a 2005 Chevrolet Cavalier automobile. The debtor was represented by counsel in the bankruptcy proceeding, but the agreement stated that he was not represented by counsel during the negotiation of the reaffirmation agreement. The Court found that the presumption of undue hardship, in Section 524(m)(1), could not be overcome by the debtor and did not address the merits of the issue raised by counsel regarding the lack of "negotiation" of terms with the creditor.

In re Shenandoah, L.P. (Case No. 09-72443); In re Village in Roanoke, L.P. (09-72431) 02/02/2010

This is a consolidated opinion with regard to two single asset real estate chapter 11 debtors.  Each debtor filed a plan and disclosure statement with the Court, but later conceded that the plans were not confirmable and requested leave to file amended plans and disclosure statements.  Also before the Court is the debtors' motion for continued use of cash collateral, to which a secured creditor objected.  The secured creditor did not suggest that the debtors have in any manner abused their continued use of cash collateral to continue their normal day-to-day operations.  Accordingly, the Court authorized the debtors to continue to collect and use cash collateral and granted the debtors twenty-one days to file amended plans and disclosure statements.

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