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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.

Euler Hermes ACI v. Coal River Res., Inc., et al. (In re Coal River Res., Inc., et al.) (Case No. 04-00988; A.P. No. 04-07146) 07/25/2005

The Court found that an assignee Creditor did not have a workman's or materialman's lien under West Virginia law because the liens were not filed in accordance with the statute, despite an exception from the automatic stay.  A general unsecured creditor does not have standing to assert an equitable subordination motion against another general unsecured creditor without authorization of the Court after notice and hearing to all creditors and parties in interest.

In re Mullen (Case No. 05-70763) 07/15/2005

The Trustee objected to confirmation of the Debtor's Chapter 13 plan on the ground that it does not meet the requirement of 11 U.S.C. § 1325(a)(4) (the "liquidation test").  The Debtor co-owns her personal residence with her sister.  The issue before the Court is whether the Debtor would have to absorb the full cost of the sale of her residence, rather than prorating the costs of sale among the co-owners, thereby reducing the Debtor's equity, if any, in the property.  For purposes of the liquidation test, 11 U.S.C. § 363(j) is clear that if the case were liquidated under Chapter 7, the trustee would distribute any proceeds according to the interests of any co-owners after deducting costs and expenses.  There is no dispute in the courts in the interpretation of this provision and the costs of sale are to be pro-rated rather than charged first against any individual co-owner's interest.

American General Fin. Serv. of Am. v. Booher (In re Booher) (Case No. 04-74179; A.P. No. 04-07145) 07/15/2005

The Court found that the debtor purchased an engagement ring approximately one month prior to filing bankruptcy with the intent to not pay for it and to discharge the liability.  The Court denied the debtor’s discharge of the debt pursuant to 11 U.S.C. § 523(a)(2)(A).

In re Fenster (Case No. 03-05002) 7/14/2005

United States Trustee's motion to dismiss case under section 707(b) for substantial abuse denied. The Court found that the petition was filed as a result of a reasonably foreseeable business failure, consumer purchases were made beyond the debtor's means to pay for them, personal living expenses ($400,000 condominium) were excesssive and unreasonable in light of then existing circumstances and the debtor had ability to pay a reasonable portion of his earnings to creditors in a Chapter 11 case (as debtor was ineligible for Chapter 13).  However, after analyzing the In re Green and In re Harrelson factors, the Court found a fairly even split among the totality of the circumstances factors, which weighed in favor of the debtor.

Warren v. Richardson (In re Richardson) (Case No. 03-05172; A.P. No. 04-00077) 7/12/2005

Defendant filed a motion to dismiss this adversary proceeding on the ground that Court lacked subject matter jurisdiction because plaintiff failed to serve the summons and complaint on the defendant within 120 days of the issuance of the summons as provided for in Federal Rule of Civil Procedure 4(m) as made applicable by Federal Rule of Bankruptcy Procedure 7004.  Court denied the motion as plaintiff showed good cause for such failure.  The plaintiff proceeded pro se, had otherwise been diligent in prosecuting the adversary proceeding, and the defendant had actual knowledge of the adversary proceeding almost from its inception and would not be prejudiced by denial of the motion. 

In re Jacobs (Case No. 04-74235) 07/1/2005

United States Trustee's motion to dismiss for substantial abuse granted under section 707(b), subject to the debtors' right to convert the case to Chapter 13.  Upon review of the In re Green and In re Harrelson factors, the Court concluded that the debtors ran up large credit card balances and made consumer purchases significantly in excess of their ability to pay; their monthly budget was excessive and they inaccurately stated their income to a considerable degree in their bankruptcy schedules.  Addiitonally, the debtors had an ability to pay the majority of their debt within 3 years.  (Note: Opinion is dated July 1, 2004, but the correct date is July 1, 2005.)

In re Wilson (Case No. 05-71657) 6/29/2005

A foreclosure sale took place the day after the Debtor filed for bankruptcy.  The Debtor asserts that the foreclosure sale was an act in violation of the automatic stay of 11 U.S.C. § 362.  The creditor asserts that (1) the automatic stay did not arise in the first place as the property was owned as tenants by the entireties with rights of survivorship; (2) if the automatic stay did arise, it should nevertheless be "annulled" pursuant to 11 U.S.C. § 362(d); and (3) if the stay should not be "annulled," relief from the stay should be granted for cause.  The Court concluded that the circumstances of this case do not establish grounds for annulling the automatic stay and validating the foreclosure sale.  Nevertheless, the Court concluded that there is undisputed evidence that the creditor will not have adequate protection if the automatic stay is continued; accordingly, the Court granted the Motion for Relief for cause, permitting the creditor to conduct a new foreclosure sale.

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