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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.

Keith's Tree Farm v. Cox (In re Keith's Tree Farm) (Case No. 13-71316; A.P. No. 13-07039) 12/11/2013

The court considered whether a lease of farming property owned by the defendants was validly terminated by them before the filing of the debtor’s chapter 12 case.  The court concluded that the failure of the property owners to make a demand for payment for unpaid rent due under the lease before notifying the debtor that the lease had been terminated meant that such notice of termination was ineffective.

In re Hilton (Case No. 12-61102) 12/02/2013

Both the debtors and the trustee filed an objection to proof of claim.  The court overruled the trustee’s objection but sustained the debtors’ objection, because the debtors’ objection was sufficient to carry their burden of calling into question the validity of the proof of claim other than lack of documentation and the claimant did not prove the validity and amount of the claim by a preponderance of the evidence.

Forster v. Forster (In re Forster) (Case No. 11-71909; A.P. No. 13-07030) 11/26/2013

The debtor and his ex-wife entered into a settlement agreement which was approved by the bankruptcy court.  Subsequently, the debtor filed a complaint alleging that the ex-wife had failed to adhere to the agreement.  The ex-wife initially was not going to contest the matter, but upon advice of counsel she retained counsel to answer the motion.  She thus filed a motion to enlarge time to file a responsive pleading to which the debtor objected.  The court granted the motion, however, finding that granting the motion did not appear to prejudice the debtor.

Cincinnati Insurance Company v. Chidester (In re Chidester) (Case No. 11-51591; A.P. No. 12-05008) 11/14/2013

The plaintiff filed a motion for summary judgment on its non-dischargeability complaint against the debtor which alleged that the debtor committed defalcation while acting in a fiduciary capacity, and seeks a non-dischargeability determination under 11 U.S.C. § 523(a)(4).  The court found that a dispute existed as to whether the debt was a result of the debtor's alleged defalcation.  Therefore, the court denied the motion for summary judgment.

Dotson v. United Recovery Group (In re Dotson) (Case No. 09-72188; A.P. No. 13-07027) 10/16/2013

The debtor filed a complaint seeking contempt for violation of the discharge injunction and seeking remedies for coercive collection practices in violation of the Fair Debt Collection Practices Act as well as a motion for default judgment.  The court found that it did not have subject matter jurisdiction on the FDCPA claims.  The court further found that the creditor either was aware that the debt had been discharged or proceeded, after being informed that the debtor had a bankruptcy attorney, with a reckless disregard as to whether or not the debtor continued to have any legal liability to pay the debt the creditor was bent on collecting.  The court awarded compensatory damages, punitive damages, and attorney’s fees.

Voegler v. Myrtle (In re Myrtle) (Case No. 12-51281; A.P. No. 12-05074) 10/15/2013

Plaintiffs initiated an adversary proceeding seeking a determination that the debt they allegedly held against the debtors was non-dischargeable under 11 U.S.C. § 523(a)(2)(A), including for fraud in the inducement, false representation, and actual fraud.  The defendant debtors filed a motion for summary judgment.  The Court concluded that the plaintiffs showed a genuine issue of material fact as to each element for which they carry the burden at trial. For this reason, the defendants were not entitled to judgment as a matter of law and their motion for summary judgment was denied.

In re Denson (Case No. 13-61602) 10/11/2013

The chapter 13 trustee filed a motion to dismiss the case of pro se debtors.  The court concluded that, given the complexity of the case and the difficulty that the debtors had experienced in the prosecution of the case, it was unlikely that the debtors would be able to file a confirmable plan without the assistance of counsel.  Further, the court had concerns over eligibility given the amount of educational debt one of the debtors had.  The court thus denied confirmation of the plan but allowed the debtors an opportunity to file a modified plan or convert to chapter 7, otherwise the case would be dismissed.

Smith v. Bowen (In re Bowen) (Case No. 12-60622; A.P. No. 12-06099) 10/04/2013

Plaintiff filed a complaint alleging that the debtor transferred property within one year of her bankruptcy with the intent to hinder, delay, or defraud the plaintiff and, therefore, should be denied a discharge in her underlying bankruptcy case pursuant to 11 U.S.C. § 727(a)(2)(A).  The court determined that the debtor did not have the actual intent to hinder, delay, or defraud the plaintiff.  Without proof of actual intent by a preponderance of the evidence, the plaintiff did not carry her burden, and her request to deny the debtor’s discharge was denied.

In re Denson (Case No. 13-61602) 10/03/2013

Female debtor moved to extend the time to complete the credit counseling course required by 11 U.S.C. § 109(h).  The court concluded that she met the requirement by complying with section 109(h)(3), because she filed a certificate that was satisfactory to the court that (a) described exigent circumstances that merited a waiver of the requirement of section 109(h)(1), and (b) stated that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain such counseling during the 7-day period beginning on the date on which the debtor made that request.

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