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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.

Foster v. Wynne (In re Foster) (Case No. 12-60619; A.P. No. 12-06047) 5/22/2012

The matter before the Court is a motion to abstain from hearing the complaint removing two lawsuits from state court.  The Court determined that the factors that a court should weigh when considering discretionary abstention and remand are the same.  The Court weighed twelve factors, citing to Eastport Assoc. v. Los Angeles, 935 F.2d 1071, 1075-76 (9th Cir. 1991) : (1) the effect or lack thereof on the efficient administration of the estate if a Court recommends abstention [or remand], (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court, (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted ‘core’ proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of [the bankruptcy court's] docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of non-debtor parties.  The Court determined that the twelve factors weighed in favor of remanding the case to state court.

In re Foster (Case No. 12-60619) 5/22/2012

Debtor filed a notice of removal, seeking to remove two lawsuits pending before the Lynchburg Circuit Court.  A notice of removal is to be brought by way of adversary complaint pursuant to Federal Rule of Bankruptcy Procedure 7001(10).  The Court abstained from hearing the removed matter and dismissed the notice of removal in the present case because it was not brought by way of adversary proceeding, and was therefore procedurally defective. 

In re Foster (Case No. 12-60619) 5/22/2012

The Court granted a creditor's Motion for Relief, determining that interests in property are determined under state law unless some federal law requires a different result.  Here, property that the debtor occupied had been determined to be the property of another.  Because the real property is not property of the debtor, it is not property of the estate, so the automatic stay does not apply with respect to that property.  However, litigation against the debtor regarding the property is subject to the automatic stay, and the Court found sufficient cause to grant relief from stay because the state court litigation is on the verge of conclusion, predominantly involves state law issues, and would promote judicial economy.  Accordingly, the Court granted relief from the automatic stay.

Gavin v. McGowan (In re Gavin) (Case No. 10-62822; A.P. No. 11-06071) 04/17/2012

Defendant filed a motion, under Federal Rule of Civil Procedure 59, for a new trial or to alter or amend the judgment in favor of the debtors which disallowed his claim.  The court denied the motion, because the new evidence proffered by the defendant was available prior to trial, was not admissable, and did not provide a basis for altering the judgment.

Gavin v. McGowan (In re Gavin) (Case No. 10-62822; A.P. No. 11-06071) 04/17/2012

Defendant moved, pursuant to Federal Rule of Civil Procedure 52(b), to amend or make additional findings of fact in the memorandum accompanying the judgment in favor of the debtors which disallowed the defendant’s claim.  The court denied the motion, among other reasons, because Rule 52 does not provide for reconsideration of findings of fact by the trial court.

In re Henson (Case No. 11-72242) 03/23/2012

Debtors wished to take a deduction on line 43 of Official Bankruptcy Form 22C for expenses relating to their daughter’s participation in a children’s choir.  The chapter 13 trustee objected, arguing that the plain wording of the instructions for line 43 and the wording of 11 U.S.C. § 707(b)(2)(A)(ii)(IV) foreclose such a deduction.  The court sustained the objection, citing Congress’s choice of language to limit the exemption to funding a child’s education at a primary or secondary school, not for extracurricular activities.

In re Adams (Case No. 09-70001) 3/14/12

The Court approved, subject to conditions, the sale of the debtor's residence and certain personal property located on the premises and purportedly owned by the debtor's daughter.  The Court required that one half of the allocated proceeds from the sale of the personal property be escrowed pending testimony from the debtor's daughter or her submission of an affidavit establishing her ownership of such property and the value assigned to it in the contract.  After further testimony, the Court concluded that, as to some of the property, the requisite delivery of such property to constitute a completed gift under Virginia Code section 55-3 never occurred and that such property remained the property of the debtor at the time of the sale. Therefore, the Court directed that the proceeds continue to be held in escrow pending determination of the net proceeds of the sale of the real estate remaining after satisfaction of the mortgage indebtedness encumbering it and the expenses of the sale.

In re Mary Adams (Case No. 09-7001) 03/14/12

The Court previously approved the sale of real estate and personal property purportedly owned by the debtor’s daughter, but conditioned its ruling by providing that one-half of the allocated proceeds to the personal property would be escrowed pending evidence establishing the daughter’s ownership of such property.  Where there was no evidence that the property in question was ever possessed by the debtor’s daughter, the Court held that the remaining proceeds allocated by the contract to the personal property shall continue to be held in escrow.  The Court held that property owned by the debtor's daughter was not legally hers, as of the time of its purported sale, to the exclusion of any interest of her mother or her mother's creditors.

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