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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 Breidert (Case No. 07-62329) 04/16/2008

The matter before the Court is the debtor's motion to avoid a judgment lien.  The debtor scheduled her real property at a fair market value of $127,100.  The real property secures a consensual lien in the amount of $62,156.07.  The Debtor claimed an exemption of $1,370.  There is a judgment lien in the amount of $15,388.80 that attached to the real property.  Added together, the judgment lien, the consensual lien, and the exemption total $78,914.87 ( = $15,488.80 + $62,156.07 + $1,370).  This amount is less than the scheduled value of the property, which is $127,100.  Therefore, because the judgment lien does not impair the debtor’s exemption, the Court denied the debtor’s motion to avoid the lien.

Barnett v. I.R.S. (In re Barnett) (Case No. 04-01283; A.P. No. 06-05022) 4/1/2008

The issue before the Court is whether the debtor, who was president of a company, was a "responsible person" of that company, and therefore, personally liable under 26 U.S.C. § 6672 for the company's unpaid trust fund taxes.  "Trust fund taxes" are federal income taxes and social security taxes that employers are required to withhold from their employees’ wages pursuant to 26 U.S.C. §§ 3402(a) and 3102(a).  To be held liable under Section 6672, two elements must exist: “(1) the party assessed must be a person required to collect, truthfully account for, and pay over the tax, referred to as a ‘responsible person’; and (2) the responsible person must have willfully failed to insure that the withholding taxes were paid.” O’Connor v. United States, 956 F.2d 48, 50 (4th Cir. 1992).  The Court applied the standard in United States v. Pomponio, 635 F.2d 293 (4th. Cir. 1980) to determine whether debtor was a responsible person or whether his failure to pay the taxes was not willful, and held that the weight of the evidence proved the debtor was not a responsible person at the company and therefore not personally liable for the failure to pay the trust fund taxes to the I.R.S.

In re Richardson (Case No. 07-60057) 03/19/2008

The matter before the Court is the United States Trustee's motion to dismiss this case for abuse under 11 U.S.C. § 707(b).  Section 707(b)(1) provides that a court may dismiss an individual case under Chapter 7 if (1) the debtor’s debts are primarily consumer debts and (2) it would be an abuse of the provisions of chapter 7 of the Bankruptcy Code to grant relief to the debtor.  Section 707(b)(2) provides that abuse is presumed if a debtor's net monthly income exceeds a certain threshold amount as determined by the means test.  Section 707(b)(3)(B) provides that if the presumption in Section 707(b)(2) does not arise or is rebutted, the court must consider the totality of the debtor's financial circumstances in determining whether proceeding in Chapter 7 would be an abuse.  The burden of proof is on the United States Trustee to prove by a preponderance of the evidence that continuance under Chapter 7 would constitute abuse of the Bankruptcy Code.  The Court concluded that the debtor does not have sufficient income to fund a Chapter 13 plan, and no other facts indicative of abuse are present.  Therefore, the Court denied the United States Trustee's motion to dismiss this case for abuse.

In re Greenwood (Case No. 07-62155) 3/14/2008

The Court denied a creditor’s motion to prosecute fraudulent conveyance actions on behalf of the estate under 11 U.S.C. § 548.  Section 548 grants trustees the authority to avoid fraudulent transfers and obligations.  The Bankruptcy Code does not expressly grant creditors "derivative standing" to initiate avoidance actions.  The Fourth Circuit has twice declined to decide whether the doctrine of derivative standing exists and the creditor did not provide a strong argument that such standing should be recognized.

In re Greenwood (Case No. 07-62155) 3/14/2008

The matter before the Court is a motion for relief from the automatic stay filed by a creditor.  Because the debtor is a single asset real estate debtor, as defined by 11 U.S.C. § 101(51B), the creditor's motion for relief from the automatic stay must be granted under 11 U.S.C. § 362(d)(3) unless the debtor has either: (a) filed a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time or (b) commenced monthly payments that are in an amount equal to the interest at the then applicable non-default contract rate of interest on the value of the creditor's interest in the real estate.  The debtor has made no post-petition payments to the secured creditor and debtor’s plan does not have a reasonable possibility of being confirmed within a reasonable time. Accordingly, the Court granted the creditor's motion for relief from the automatic stay.

Davis v. ABN AMRO Mortg. Grp.et al. (In re Davis) (Case No. 05-72683; A.P. No. 06-07126) 02/22/2008

The Court granted a motion to dismiss a negligence claim under Federal Rule of Civil Procedure 12(c) because, under Virginia law, creditor (a residential mortgage loan servicer) is not subject to any common law duty or fiduciary duty owed to debtors (loan obligors) and instead merely is subject to a contractual duty.  The Court also granted a motion for summary judgment against debtor-wife under Federal Rule of Civil Procedure 56 because debtors' loan is not in debtor-wife's name and therefore creditor could not have been negligent towards her or breached a fiduciary duty owed as to her.  Further, the Court granted creditor's motion for summary judgment with respect to debtor-husband only because any duty owed by creditor is limited to the terms of the loan and debtors did not allege any breach of the terms of the deed of trust.  Lastly, the Court held that debtors’ failure to mention only one of two creditors in relation to breach of contract litigation in their schedules for bankruptcy does not raise any equitable estoppel grounds against the assertion of any claims that may exist as a result of such litigation against either creditor.

Sims v. The Rector & Visitors of the University of Virginia (In re Sims) (Case No. 07-60860; A.P. No. 07-06090) 02/11/2008

The court held that creditor's refusal to return wages garnished post-petition pursuant to a pre-petition writ of garnishment constituted a knowing and willful violation of the automatic stay under 11 U.S.C. § 362(h) and that debtors are entitled to actual damages in the amount of wages garnished post-petition plus wages lost due to this proceeding, compensatory damages, attorney's fees, and punitive damages because creditor acted in disregard for the law and for debtors' rights under 11 U.S.C. § 362.

In re Clauden (Case No. 07-61438) 02/05/2008

The Court held that, prior to the date on which collateral is actually surrendered to secured creditor, adequate protection payments made by a debtor to a Chapter 13 trustee under Standing Order #9 and 11 U.S.C. § 1326(a)(1)(C) must be forwarded to the secured creditor because they account for the depreciation of collateral.  The Court also held that a proof of claim that is timely filed must be given effect nunc pro tunc from the filing date unless the Bankruptcy Code or Rules provide otherwise, and that surrender of collateral pursuant to a plan does not extinguish a secured claim prior to the surrender of the collateral.

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