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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 Moore (Case No. 07-71844) 12/05/2008

The Court denied debtor's motion to avoid judgment lien by holding that a debtor may not claim, under Virginia Code § 34-18, an exemption in the amount of the entire value of her real property (an amount that far exceeds the $5,000 homestead exemption provided in Virginia Code § 34-4).  Specifically, the Court noted that despite the debtor's exemption of the entire value of her real property in a prior bankruptcy case, it does not follow that the debtor is now entitled to exempt the entire value of the property in the current case.  Instead, the Court held that debtor is entitled to exempt only the amount of the exemption claimed by her in the prior homestead deed and, in accordance with the trustee's concession, a proportionate share of any appreciation in value of the fractional share of such property represented by such exemption amount based on the prior property value.  Further, the Court held that an increase in the value of a debtor's equity in property resulting from a reduction in the amount of any lien against it is more akin to permanent improvements placed upon real estate funded by the use of non-exempt funds which are not entitled to receive the exemption under the plain language of Virginia Code § 34-18.  The Court also held that a debtor is only entitled to assert against her own creditors her exemptions under Virginia law and not the exemptions of her deceased husband.

Romar Elevators, Inc. v. Tomer (In re Tomer) (Case No. 08-61265; A.P. No. 08-06097) 12/05/2008

The Court denied a motion to dismiss an adversary proceeding on the grounds that the issues presented in the adversary proceeding are the same as those issues currently before the Supreme Court of Virginia because there was no evidence that the state court action involving claims of embezzlement, larceny, and defalcation under 11 U.S.C. § 523(a)(4) included a request for a determination regarding the dischargeability of the debt in bankruptcy.

In re Griffin (Case No. 08-50237) 12/2/2008

Court held that the creditor's judgment lien attached to the debtor's interest in real estate and was fully secured by the debtor's equity in the property.  Court held that a judgment lien may attach to the debtor's equitable interest because it is real estate within the meaning of Virginia Code section 8.01-458.  A vendee's equitable interest in real property subject to an executory contract is real estate to which a judgment lien may attach.  A vendor that retains legal title to real property sold pursuant to an executory contract possesses an equitable lien securing full payment of the purchase price. The vendee acquires equitable title subject to the vendor's lien.  As a judgment creditor cannot acquire better title to real estate than the judgment debtor possesses, a judgment lien is subordinate to the vendor's lien. However, a subordinate lien may be secured by the debtor's equity in the real estate.

In re Styles (Case No. 07-50408) 11/21/2008

The matter before the Court is the Chapter 13 trustee's motion for denial of plan confirmation.  The issue is whether an above-median income single debtor may claim operating expense and ownership expense for more than one vehicle on Form B22C.  The Court overruled the trustee's objection, finding that both the language of 11 U.S.C. § 707(b)(2)(A)(ii)(I) and precedent clearly support the position that an above-median income single debtor may claim two vehicle operating and ownership expenses.

Kirkland v. Sallie Mae et al. (In re Kirkland) (Case No. 01-00627; A.P. No. 07-06057) 10/10/2008

The court denied the creditor's motion to alter or amend a judgment under Fed. R. Bankr. P. 9023 (applying Fed. R. Civ. P. 59) because at trial, the creditor did not raise the arguments or present the evidence (an accounting of principal, interest, and costs) in the motion.  Further, the court held that even if the creditor had provided the statutory basis under 20 U.S.C. § 1091(b)(1) for its request for costs at trial, those costs would have been denied because the creditor did not act prudently as required under C.F.R. 682.410(a)(5)(iii) and the failure to act in a prudent manner during the pendency of the bankruptcy case was the cause of the decision to incur the costs.

Jenkins v. A.T. Massey Coal Co. et al. (In re Jenkins) (Case No. 02-01755; A.P. No. 07-07085) 09/02/2008

The Court held that debtor's claims for malicious prosecution and abuse of process in state court are not property of the bankruptcy estate under 11 U.S.C. § 541(a) because their factual basis occurred post-petition and thus the claims are not sufficiently rooted in pre-petition conduct, and that debtor's claims for tort of outrage, tortious interference with a business relationship, defamation, and negligent investigation and misrepresentation in state court are property of the estate under 11 U.S.C. § 541(a) because the facts supporting such claims all took place before the commencement of the bankruptcy case and thus the claims are sufficiently rooted in pre-petition conduct.  Further, the Court found that Segal v. Rochell, 382 U.S. 375 (1966) has not been superseded by the passage of the Bankruptcy Code, and that bankruptcy law rather than state law determines whether a debtor's interest is property of the estate.

Perdue v. White (In re White) (Case No. 07-71909; A.P. No. 08-07012) 8/21/2008

Court granted defendants' motion to dismiss, in part, under Rule 12(b)(6)  for failure to state a claim upon which relief can be granted. Plaintiffs filed adversary proceeding to determine dischargeability of certain debts under section 523(a)(2), (a)(4) and (a)(6) arising out of renovation and construction services. Court held that a simple breach of contract claim was not excepted from discharge pursuant to any of the referenced sections and dismissed the breach of contract count of the plaintiff's complaint. Court denied defendants' motion regarding the fraud in the inducement count as it appeared that the plaintiffs could establish the necessary elements for a finding of nondischargeability under section 523(a)(2)(A).

In re Mullins (Case No. 05-73530) 8/21/2008

The Court dismissed the Movant's motion for specific performance of a settlement agreement.  The remedy of specific performance is an equitable one and must be brought by an adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7001(7).  An adversary proceeding must be commenced by the filing of a complaint, not by the filing of a motion, so there is a procedural defect here.  In addition, the Movant seeks specific performance from the non-debtor spouse, over whom the Court has no personal jurisdiction.

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