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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 Tucker (Case No. 12-71910) 8/29/2014

Court denied the debtor's motion for sanctions under Federal Rule of Bankruptcy Procedure 9011, finding that the creditor had filed the allegedly inappropriate documents in a state court to determine its rights with regard to property and thus could not be the basis for sanctions because those documents were not filed with this Court.  Rule 9011 only authorizes the Court to sanction parties who inappropriately file signed documents before this Court.  Because the documents were filed in the state court, the Bankruptcy Court had no authority to sanction the creditor.

Shaver v. Shaver (In re Shaver) (Case No. 13-51460; A.P. No. 14-05005) 8/5/2014

Court ruled that provisions of a separation agreement wherein Husband agreed to pay certain expenses to the Wife on a monthly basis were nondischargeable under Bankruptcy Code § 523(a)(15).  Specifically, the Court found that the Separation Agreement created a new debt for which the Husband was liable to the Wife, which they then incorporated into the Property Settlement Agreement as part of their divorce.  Accordingly, the Court found that the debt arose in contemplation of divorce, as required by section 523(a)(15).

Sexton v. Internal Revenue Service (In re Sexton) (Case No. 13-70230; A.P. No. 13-07037) 07/21/02014

            The court had entered an order in an adversary proceeding.  After the fourteen-day time period to appeal had lapsed, the court closed the adversary proceeding and subsequently closed the debtor’s main bankruptcy case.  Thereafter, the government filed a motion to reopen the case, asserting that the court had only ruled on one of the two claims in the debtor’s complaint and thus the order was not a final order.  Therefore, the government argued, because the court closed the adversary proceeding and main bankruptcy case without having entered a final judgment, the court did so inappropriately and cause existed to reopen the case. 

            The court found that the government had not met its burden in showing sufficient cause existed to reopen the case and that reopening would be futile and a waste of judicial resources.  The court held that the opinion and order constituted a final judgment and reopening the case would only afford the government additional time to file an appeal, which is not a “compelling circumstance.”

United States Trustee v. Jennings (In re Oliphant) (Case No. 12-70668) 6/23/2014

Based on the respondent's continual efforts to assist the debtors in filing petitions, while accepting compensation, and for giving them inappropriate legal advice, the Court found that the respondent acted as a petition preparer under Bankruptcy Code section 110(e).  Accordingly, the Court fined the respondent a total of $8,000 for his actions as a petition preparer and issued a permanent injunction against him to refrain from acting as a petition prepaarer in the future, based on his "continually engaging" in such improper acts.

In re Ulrey (Case No. 13-70645) 06/02/2014

            SunTrust sought to have the confirmation order revoked because the debtor included real property in her schedules and plan despite the fact that a foreclosure sale was completed prior to the debtor’s filing, thereby extinguishing her property rights.  SunTrust also requested relief from the automatic stay.  The debtor responded, arguing that the foreclosure sale was not completed prior to the bankruptcy filing as no memorandum of sale was executed. 

            “By the thinnest of margins,” the court found that the necessary circumstances sufficient to challenge the confirmation order were not present.  Further, the court found that, even though there is case law providing that the debtor’s house did not become property of the estate, she still had a possessory interest in the real estate and the right to challenge the viability of the foreclosure sale.  As a condition of the stay remaining in effect as to her principal residence, the court required the debtor to tender all payments due to SunTrust and the chapter 13 trustee pursuant to her confirmed chapter 13 plan within thirty days of the date of the opinion or SunTrust would be granted relief from the automatic stay.

In re Jefferson (Case No. 13-62618) 04/04/2014

The matter before the Court is a motion to avoid a judicial lien on jointly owned property.  The Court noted that there is a split in authority on the issue of the application of 11 U.S.C. § 522(f) to jointly owned property.  The Court outlined the two approaches taken in Zeigler Eng'g Sales v. Cozad (In re Cozad), 208 B.R. 495 (B.A.P. 10th Cir. Utah 1997), and In re Staples, 2000 Bankr. LEXIS 2204 (Bankr. M.D.N.C. June 7, 2000).  The Court followed the approach outlined in Staples and allocated the lines on the property proportionate to the fractional interests prior to determining whether to avoid the lien.  Accordingly, the Court partially avoided the judicial lien on the Debtor's property.

United States Trustee v. Jennings (In re Oliphant) (Case No. 12-70668) 4/2/2014

Court granted United States Trustee's motion for disgorgement of fees received, as the Court found that the respondent was a "de facto petition preparer," under Code section 110(e), based on the respondent providing the debtors with blank voluntary petitions, advising the debtors in how to complete various forms, and instructing the debtors not to comply with various court orders.  Furthermore, the respondent took $1,000 per month and instructed the debtors to sign a Statement of No Assistance.  

In re Roberts (Case No. 10-51861) 04/01/2013

Pro se debtor filed a motion to reopen her bankruptcy case.  The court construed the motion as a motion to reopen to determine if a bank’s post-discharge actions involving a deed and trustee’s sale had violated the discharge injunction.  The court determined that in the event that the bank did not currently hold and  did not hold a perfected secured claim at the time of the discharge, any action taken by them to collect on a debt discharged under the debtor’s bankruptcy would potentially be a violation of the discharge injunction.  Therefore, the court found that cause existed to grant the debtor’s motion to reopen her bankruptcy case to determine if the bank’s actions had violated the discharge injunction.

Sexton v. Internal Revenue Service (In re Sexton) (Case No. 13-70230; A.P. No. 13-07037) 04/01/02014

The debtor filed a complaint to enforce the automatic stay against the Internal Revenue Service.  The IRS filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim and under Rule 12(b)(1) for lack of subject matter jurisdiction.  The main question the court had to answer was whether the government’s post-petition setoff of the debtor’s tax refund to satisfy a non-tax debt is a violation of the automatic stay.  The Court found that that the government’s actions of intercepting and withholding the debtor’s tax overpayment violated the automatic stay.  Accordingly, the Court denied the motions to dismiss and granted the relief requested by the debtor in her action to enforce the automatic stay.

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