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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 Davis (Case No. 07-70272) 7/20/2007

The debtor filed an application for waiver of the Chapter 7 filing fee (application to proceed in forma pauperis) pursuant to 28 U.S.C. § 1930(f).  The Court went through the two-step analysis and determined that the debtor's monthly income is less than 150% of the poverty guidelines published by the United States Department of Health and Human Services applicable to her family size, which satisfies the first prong, but the debtor has not shown that she is unable to pay the filing fee in installments, so she fails the second prong.  Concluding that the debtor did not meet her burden of proving that she is unable to pay the filing fee in installments as required by 28 U.S.C. § 1930(f)(1), the Court denied the debtor's application to waive the Chapter 7 filing fee.

In re Avery (Case No. 07-50300) 7/20/2007

The debtor filed motion to redeem personal property of her estate pursuant to 11 U.S.C. § 722, namely, a vehicle.  The issue before the Court is the appropriate redemption value for the vehicle.  The debtor, in her motion, seeks to set the redemption price of the car based on the Kelley Blue Book for Private Party Value, which is the "price a retail merchant would charge for the property."  The Court held that setting the value based on the Kelley Blue Book for Private Party Value, without taking into account the Suggested Retail Value, conflicts with the language of Va. Code § 8.01- 419.1 and 11 U.S.C. § 506(a)(2) because the Private Party Value does not take into account retail merchant price for the property; rather, the Private Party Value focuses on private party transactions.  Thus, the Court held that while movants are not precluded from using Kelley Blue Book as a starting point for valuation, in order to be consistent with 11 U.S.C. § 506(a)(2), the retail value must be the starting point for any valuation in redemption proceedings under Section 722.

In re Meadows (Case No. 06-62050) 07/13/2007

The Court held that, due to the hanging paragraph of 11 U.S.C. § 1325(a)(5), a Chapter 13 debtor may surrender collateral in full satisfaction of a secured creditor's claim when: (i) the value of the collateral is less than the amount of the claim, (ii) the collateral is a vehicle purchased during the 910-day period pre-petition, (iii) the vehicle is for the debtor's personal use, and (iv) the creditor's interest is a purchase money security interest (a "910 vehicle").  Further, the Court held that if a debtor elects to retain a 910 vehicle under 11 U.S.C. § 1325(a)(5)(B), the debtor is required to pay the claim in full during the pendency of the plan because the hanging paragraph eliminates the mechanism (11 U.S.C. § 506(a)) of bifurcating a claim secured by collateral of a value less than the amount of the claim, and therefore, the claim is treated as a fully secured claim.

In re Kirby (Case No. 06-61539) 07/13/2007

The Court held that, due to the hanging paragraph of 11 U.S.C. § 1325(a)(5), a Chapter 13 debtor may surrender collateral in full satisfaction of a secured creditor's claim when: (i) the value of the collateral is less than the amount of the claim, (ii) the collateral is a vehicle purchased during the 910-day period pre-petition, (iii) the vehicle is for the debtor's personal use, and (iv) the creditor's interest is a purchase money security interest (a "910 vehicle").  Further, the Court held that if a debtor elects to retain a 910 vehicle under 11 U.S.C. § 1325(a)(5)(B), the debtor is required to pay the claim in full during the pendency of the plan because the hanging paragraph eliminates the mechanism (11 U.S.C. § 506(a)) of bifurcating a claim secured by collateral of a value less than the amount of the claim, and therefore, the claim is treated as a fully secured claim.

In re Viecelli (Case No. 06-61806) 07/03/2007

The Court denied debtor's motion to amend (under Federal Rule of Civil Procedure 59, as made applicable under Federal Rule of Bankruptcy Procedure 9023) an order granting the Chapter 7 trustee's motion to compel the turnover of one-half of the debtor's tax refund generated during the pre-petition period under 11 U.S.C. § 542(a) because (1) debtor's wife did not petition for bankruptcy with debtor, (2) the tax refund is property of the estate based on In re Shearin, 224 F.3d 353 (4th Cir. 2000) because debtor had an ownership interest in at least some portion of the tax refund that he could have asserted against his wife, (3) debtor failed to timely file a homestead deed exempting the refund or any portion thereof, and (4) there is no exclusion for earned income credits in the Bankruptcy Code.

Leach v. Wells (In re Wells) (Case No. 06-60319; A.P. No. 06-06116) 06/20/2007

The matters before the Court are counter-motions for summary judgment.  A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  Fed. R. Civ. P. 56(c); Fed. R Bankr. P. 7056. 

The Court denied summary judgment as to the first cause of action, which was brought under 11 U.S.C. § 727 (denial of discharge) because there was a genuine issue of material fact as to whether the defendant owned the company, what the value of the company was at that time, and whether the defendant violated § 727(a)(2).

The Court granted the defendant's motion for summary judgment as to the second count, which was brought under 11 U.S.C. § 523 because § 523(a)(19) applies only to judgments entered pursuant to claims asserting violations of federal or state securities laws, which is not relevant to this case.

In re Barker (Case No. 06-60835) 06/12/2007

The United States Trustee filed a motion to dismiss this case as an abuse of the provisions of Chapter 7 of the Bankruptcy Code, pursuant to 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 United States Trustee has the burden of proof to prove by a preponderance of the evidence that allowing the Debtor to continue in Chapter 7 would constitute abuse.

In considering Section 707(b)(3), the Court applied the factors enumerated by the Fourth Circuit in Green v. Staples (In re Green), 934 F.2d 568 (4th Cir. 1991).   The Court concluded that it would not be a substantial abuse to permit the Debtor to continue under Chapter 7.  The Debtor has disposable income that could fund a Chapter 13 plan; however, unsecured creditors would receive a dividend equal to less than 20%.  Accordingly, the Court denied the United States Trustee's motion to dismiss this case for abuse.

In re Hendricks (Case No. 06-50335) 5/31/2007

The matter before the Court is the trustee's objection to the debtor's claim of exemption in real property.  The debtor and his non-debtor spouse own two parcels of real property as tenants by the entireties, and the debtor claimed both properties as exempt in his schedules.  Prior to filing bankruptcy, the debtor and his spouse executed a Post-Nuptial Property Settlement Agreement, which provided the debtor with a 60-day option to refinance the couple's credit line deed of trust, removing his wife as an obligor.  In turn, his wife had to convey her interest in the property to the debtor.  The trustee objected to the debtor's claim of exemption in the property, seeking disallowance of any tenancy by the entireties exemption claimed by the debtor.   The trustee sought to sever the tenancy by the entities interest so that the debtor cannot properly claim the property as exempt.  The Court held that the trustee cannot assume the refinancing agreement pursuant to 11 U.S.C. § 365(a) in order to destroy the debtor's tenancy by the entireties interest because the agreement does not constitute an "executory contract."

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