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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 Green (Case No. 04-75144) 03/01/2007

The Court granted the Chapter 7 trustee's motion for the debtor to turn over property of the estate (money in the debtor's checking account at the time of filing) under 11 U.S.C. § 542 because debtor did not claim a valid homestead exemption under Va. Code § 34-17 in such money.  Further, the Court held that it could not give the debtor the benefit of the equity in a vehicle which she claimed in her homestead deed because the debtor did not own such equity at the time the debtor signed her schedules or at the time the debtor claim such exemption by signing and filing for record the debtor's homestead deed.

In re Burke (Case No. 06-70923) 02/15/2007

The Court granted the debtor's motion to reopen the debtor's case based on a finding that there is cause to do so under 11 U.S.C. § 350(b) because the debtor's counsel failed to file a certification of the debtor's completion of an approved personal financial management course.  Further, the Court denied the debtor's motion to waive applicable filing fees because (1) Rule 4007 only applies when the debtor has obtained a discharge from the debtor's debts generally and (2) 28 U.S.C. § 1930 provides for the amount of the fees and no "appropriate circumstances" exist in this case to waive such fees.  However, the Court ordered that the debtor's counsel pay the applicable fees personally because the failure to file the certification was due to an administrative mix-up in counsel's own office.

Singer Asset Fin., Co. v. Mullins (In re Mullins) (Case No. 05-73530; A.P. No. 05-07383) 2/12/2007

The issue before the Court is whether the debtor is eligible for relief under Chapter 13 of the Bankruptcy Code pursuant to 11 U.S.C. § 109(e).  Section 109(e) requires that an individual have regular income and owe noncontingent, liquidated debt of less than $307,675 in order to qualify as a Chapter 13 debtor.  The Court analyzed whether the debtor qualified as an "individual with regular income," where she is unemployed but her non-debtor husband will make her plan payments, and held that she does.  Further the Court analyzed whether the debtor's noncontingent, liquidated debt is less than the debt limit imposed by Section 109(e), and held that it is.  Accordingly, the Court found that the debtor meets the eligibility requirements of Section 109(e) to be a debtor under Chapter 13.

Persons v. Rogers (In re Rogers) (Case No. 05-64531; A.P. No. 06-06016) 01/30/2007

The plaintiff filed a motion for summary judgment, seeking a declaration that any claim that he has against the Debtor is nondischargeable under 11 U.S.C. § 523(a)(2)(A).  Under Section 523(a)(2)(A), the plaintiff must prove the common law elements of fraud.  To prevail on a claim for actual fraud under Section 523(a)(2)(A), a plaintiff must prove the following elements: (1) the debtor made the representation; (2) at the time of the representation, the debtor knew it to be false; (3) the debtor made the representation with the intent and purpose of deceiving the plaintiff; (4) the plaintiff reasonably relied on the representation and the reliance was reasonably founded; and (5) the plaintiff sustained a loss or damage as the proximate consequence of the representation having been made.  The plaintiff must prove each element by a preponderance of the evidence in order to prevail.  Because there is a genuine issue as to defendant’s intent to deceive plaintiff, summary judgment is not appropriate.

Haertsch v. Moyer (In re Moyer) (Case No. 06-50080; A.P. No. 06-05020) 1/29/2007

A pro se plaintiff moved the Court for a finding that debt owed to him was nondischargeable pursuant to 11 U.S.C. § 523(a)(6), and the debtor filed a motion to dismiss on the ground that plaintiff's complaint was untimely pursuant to Federal Rule of Bankruptcy Procedure 4007.  Rule 4007(c) requires that a complaint under Section 523 “be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a).”  The plaintiff filed the objection to discharge in the form of a 1-page letter prior to the bar date.  The plaintiff then filed an "Amended Complaint" which was not docketed until after the bar date.  The debtor argues that the plaintiff's 1-page letter was not a "complaint," and thus, not a pleading under Rule 7007, which would mean that the subsequent "Amended Complaint" was not an "amendment" at all, but an original pleading which was filed after the bar date.  The Court found that the plaintiff's Amended Complaint was not time barred because amendment was not prejudicial to debtor, who was aware of the facts alleged, and because bad faith was not present when the pro se plaintiff amended his complaint to put the case in proper form and substance for adjudication.

Fuller v. The Sallie May Fund, Inc. (In re Fuller) (Case No. 05-64905; A.P. No. 06-06017) 01/17/2007

The Court held that debtor's debts owed to creditor arising from loans made for the purpose of permitting debtor to attend an institution or institutions of higher learning are dischargeable, notwithstanding 11 U.S.C. § 523(a)(8), because debtor met her burden under the undue-hardship test stated in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d. Cir. 1987) and adopted by the Fourth Circuit Court of Appeals in Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir. 2005).

Fuller v. Federal Direct Loan Program (In re Fuller) (Case No. 05-64905; A.P. 06-06018) 01/17/2007

The Court held that debtor's debts owed to creditor arising from loans made for the purpose of permitting debtor to attend an institution or institutions of higher learning are dischargeable, notwithstanding 11 U.S.C. § 523(a)(8), because debtor met her burden under the undue-hardship test stated in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d. Cir. 1987) and adopted by the Fourth Circuit Court of Appeals in Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir. 2005).

National Emergency Servs. v. Williams (In re R.J. Reynolds - Patrick Cnty. Mem'l Hosp., Inc.) (Case No. 03-01297; A.P. 06-06082A) 01/16/2007

The Court dismissed an adversary proceeding concerning equitable subordination of a claim under 11 U.S.C. § 510(c) because the parent case will be dismissed and the plaintiff will obtain no relief even if it prevails to the fullest extent of its prayer for relief.

In re Harris (Case No. 06-70538); In re Jarrell (Case No. 06-71129) 01/12/2007

The Court confirmed the debtors' Chapter 13 plans because (1) at least in cases in which no contrary position is asserted by some party in interest, 11 U.S.C. § 1325 (a)(5)(B)(iii) does not preclude the continuation of adequate protection payments post-confirmation until all administrative expenses have been paid in full, (2) interest begins to accrue on the secured loan balance on the date of confirmation, and (3) based on 11 U.S.C. § 1325(a)(5)(B)(i)(I) and (II), non-bankruptcy law (rather than plan provisions) controls how post-confirmation payments are applied to secured loan balances.

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