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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.

McDow v. Eye (In re Eye) (Case No. 08-50723; A.P. No. 08-05061) 06/11/2010

            The debtor did not disclose her interest as a result of her mother’s passing away in either the personal property or the residual estate on her bankruptcy petition nor at the § 341 meeting.  The debtor was entitled to a one-third interest in proceeds from the sale of her mother’s house, but at the real estate closing the debtor disclaimed her interest in the proceeds in favor of one of her brothers.  As a result, the United States trustee filed a motion to deny the debtor’s discharge pursuant to 11 U.S.C. § 727(a)(2) as well as § 727(a)(4)(A).

            The Court found that the trustee failed to prove, beyond a preponderance of the evidence, all elements required for a denial of the debtor’s discharge under either 11 U.S.C. §727(a)(2) or 11 U.S.C. §727(a)(4)(A).  Specifically, the trustee failed to demonstrate that the debtor acted with the intent to delay, hinder or defraud creditors when she failed to disclose her interest in property bequeathed to her by her mother or when she disavowed her interest in said property to her brother.

In re Raymond (Case No. 10-70693) 06/08/2010

The Court denied CitiFinancial’s motion to approve a reaffirmation agreement. Counsel for the debtors was unwilling to sign the certification form because of the significant difference between the value of the vehicle and the amount to be reaffirmed.  Even though no actual negotiation occurred with regard to the agreement, the Court found that the debtors were represented by counsel in connection with the signing of the agreement.  Therefore, the Court held that it was not authorized to step in when no presumption of undue hardship existed and the debtors were represented by counsel.

In re Village in Roanoke (Case No. 09-72431) 05/28/2010

On a creditor's motion for relief from the automatic stay pursuant to 11 U.S.C. §§ 362(d), where the debtor has not commenced payments and has filed a plan within 90 days of the commencement of the case that does not have a reasonable possibility of being confirmed, the Court granted the motion for relief with conditions. The Court held that conditioning the automatic stay was more appropriate in this case than to terminate it altogether. The Court conditioned the continuation of the automatic stay upon the debtor’s ability to obtain confirmation of its amended by July 15, 2010.

In re Neilsen (Case No. 10-50124) 05/03/2010

            At hearing on a motion for relief, the Court found that the motion for relief was actually a request for a determination of non-dischargeability of debt and a request for the return of funds garnished from the female debtor.  The Court found that an adversary proceeding was required for a determination of non-dischargeability and since the matter before the Court was a not an adversary proceeding, the Court could not hear the issue.  The Court then took under advisement the issue of whether the funds the movant received from garnishing the wages of the female debtor were properly remitted to either the trustee or the debtor.  The Court found that the debtors were not entitled to exempt the garnished wages but that the movant was not entitled to the return of those wages because they became property of the estate when the debtors’ petition was filed.

In re Elkins (Case No. 08-70076) 4/13/2010

Debtor's case converted from Chapter 11 to Chapter 7 on Court's order requiring debtor to show cause why case should not be dismissed or converted to Chapter 7 under section 1112(b) as a result of his failure to pay the conversion fee from Chapter 13 to Chapter 11 and the creditor's motion to dismiss or convert the case to Chapter 7.  Court held that the best interests of creditors would be served by converting the case.

White v. Accelerated Recovery Systems, Inc. (In re White) (Case No. 08-61734; A.P. No. 08-06105) 04/12/2010

The Court awarded judgment in favor of the defendant regarding a complaint seeking damages under the Fair Debt Collection Practices Act.  The plaintiff appealed and the District Court remanded the matter instructing the Court to award statutory damages up to $1,000, to award costs and reasonable attorney's fees and to consider an award of actual damages.  On remand, the Court found that the debtor did not present any evidence in support of an award of actual damages.  Therefore, no actual damages awarded.   As only one violation of the Act was committed, the Court awarded statutory damages in the amount of $300.00.  The Court also awarded $122.50 in attorney's fees as reasonable.

White v. Accelerated Recovery Systems, Inc. (Case No. 08-61734; A.P. No. 08-06105) 04/12/2010

            The Court issued the original judgment on a complaint seeking damages under the Fair Debt Collection Practices Act finding in favor of the defendant.  The plaintiff appealed.  The district court remanded instructing the Court to award statutory damages up to $1,000, to award costs and reasonable attorney’s fees, and to consider an award of actual damages.

            The Court declined to award actual damages because at hearing the plaintiff did not present any evidence in support of an award of actual damages, nor did the plaintiff argue a basis on which actual damages might be awarded.  The Court entered $300 in statutory damages and $122.50 in attorney’s fees.

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