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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 Maupin (Case No. 07-61051) 11/01/2007

The Court held that additional paragraphs added by the debtor to Paragraph 11 of the Uniform Plan do not contain provisions peculiar to debtor's financial situation and instead are unnecessary and is likely, if applicable, to increase the costs of administration and litigation.  Further, if the language in Paragraph 11 is an inaccurate statement of law, it violates 11 U.S.C. § 1322(b)(11), which prohibits against including any provision that is not consistent with the Bankruptcy Code.  Therefore, the Court sustained the Chapter 13 trustee's objection to confirmation of debtor's plan and held that such additional paragraphs must be deleted from the Chapter 13 plan before confirmation or else they would require the Court to adjudicate matters that are not yet before it.

Elliott v. Citifinancial (In re Elliott) (Case No. 07-60784; A.P. No. 07-06064) 10/30/2007

The matter before the Court is a motion for summary judgment based on the debtor's motion to avoid a consensual second priority lien on her residence under 11 U.S.C. §§ 506(a) and 1322(b)(2), which permit a chapter 13 debtor to modify the rights of holders of claims secured by the debtor's principal residence only if all other senior liens on the property are greater than the value of the residence.  The fair market value of the debtor's residence is $102,000.  There are two liens on that property: a first priority lien in the amount of $47,000 and a second priority lien in the amount of $10,000.  The value of the property is greater than both liens on the property.  Accordingly, the debtor cannot modify the rights of the creditor by avoiding the second priority lien on the property.

In re Ennis (Case No. 07-60738) 10/26/2007

The Court granted, under 28 U.S.C. § 152(d)(2)(I), the debtors' motion for direct appeal to the United States Court of Appeals for the Fourth Circuit of an order sustaining creditor's objection to debtors' Chapter 13 plan on the grounds that it improperly provided for the bifurcation of creditor's claim into a secured claim and an unsecured claim because there is no controlling decision of the Fourth Circuit.

In re Fenderson (Case No. 07-71222) 10/25/2007

The Court granted, in part, the United States Trustee's motion to dismiss the case with prejudice and to bar future filings insofar as it sought to prohibit any new bankruptcy petition filing by the debtor within twelve months of the date of entry of the dismissal order for this case and to impose, under 11 U.S.C. § 349(a), the condition that any new case commenced thereafter shall be with prejudice as to the debtor's liability for incurred filing fees in the current case and the two preceding cases.  Furthermore, the Court ordered that no automatic stay shall arise in any case filed in the Court after such twelve month period, but within ten years of the date of such dismissal order, unless and until all fees incurred by reason of any such filing shall have been paid in full or the debtor shall have obtained from the Court an order waiving the payment of such fees.

In re Ennis (Case No. 07-60738) 10/17/2007

The Court held that, as held in In re Witt, 113 F.3d 508 (4th Cir. 1997), the term "real property" in 11 U.S.C. § 1322(b)(2) includes mobile homes, despite mobile home being personal property under state tax law (Va. Code § 58.13503(6)).  Therefore, the Court held that debtors were prohibited from modifying (and in particular, bifurcating) a secured creditor's claim arising from a lien on the debtors' mobile home.

 

Reversed by Ennis v. Green Tree Servicing, LLC (In re Ennis), 558 F.3d 343 (4th Cir. 2009).

In re Henshaw (Case No. 07-60957) 10/05/2007

The Court held that, as held in The Bank of New York, Tr. of the Oakwood Acceptance Corp. REMIC Trust 1994-1 v. Leake (In re Wuerzberger), 284 B.R. 814 (Bankr. W.D. Va. 2002), Virginia's titling statutes and version of Article 9 of the Uniform Commercial Code do not require an assignee to refile a financing statement to preserve its reflected status or to amend a certificate of title to reflect its name as a condition of perfection because, so long as no new liens are created by an assignment, the world is properly on notice of the lien and could readily ascertain the nature of the lien even if the assignee's name does not appear on the title.  Therefore, the Court sustained a creditor's objection to the confirmation of debtor's Chapter 13 plan based on debtor's treatment in the Chapter 13 plan of such creditor's claim as an unsecured claim rather than as a secured claim.

P.A. Plymouth, Inc. v. Benefit Plan Adm'rs, Inc. (In re P.A. Plymouth, Inc.) (Case No. 03-03350; A.P. No. 07-07032) 09/28/2007

Secured creditor filed an adversary proceeding against Benefit Plan Administrators ("BPA") to recover damages resulting from an alleged breach of contract in BPA's administration of the Debtor's employee insurance program.  The secured creditors asserted that BPA failed to process claims through a stop loss insurance provider as required under the Third Party Administration Agreement Contract.  BPA moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The Court found that the Third Party Administration Agreement did not mention any requirement to process claims through a stop loss insurer.  Accordingly, the Court granted BPA's motion to dismiss.

Hartman v. Barrientos (In re Barrientos) (Case No. 05-63448; A.P. No. 07-06064) 09/25/2007

The Court held that a Georgia state court judgment was nondischargeable under 11 U.S.C. § 524(a)(4).  The Court, relying on In re Ansari, 113 F.3d 17 (4th Cir. 1997) and In re Uwimana, 274 F.3d 806 (4th Cir. 2001), concluded that defalcation occurs when a fiduciary fails to properly account for funds or money held in a fiduciary capacity.  Further, it is sufficient for a finding of defalcation if the funds are missing due to negligence or an innocent mistake on the part of the fiduciary.  In the case of defalcation, once a plaintiff has shown that the defendant serves or served in a fiduciary capacity and that money or other property entrusted to the fiduciary for the benefit of the plaintiff is missing, the burden shifts to the defendant to properly account for the missing property. 

The defendant used assets in a Trust to fund business ventures owned by himself and his family.  The evisceration of the Trust was due to willful and deliberate conduct of the Defendant in his capacity as a trustee, which was calculated and intended to cause harm and loss to the plaintiff.  The defendant did not adequately explain his decision to invest trust assets in his own high-risk small businesses.  Accordingly, the Court held that the Georgia state court judgment was nondischargeable under 11 U.S.C. § 524(a)(4).

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