Title

• In re Campbell, Case No. 07-457
  The debtor filed a motion to voluntarily dismiss his Chapter 13 case, and sold real property during the time when the Clerk noticed out his motion to dismiss to parties in interest. A creditor then sought to set aside the sale of the property as being unauthorized under section 363(b) of the Bankruptcy Code. The court ruled that a Chapter 13 debtor has an absolute right to dismiss his case under section 1307(b), which right is not restricted by a creditor's competing motion to convert under section 1307(c). The Clerk, however, acted appropriately in sending out notice of the debtor's motion to dismiss because, at a minimum, other parties should be allowed the opportunity to request that the debtor's dismissal be conditioned under section 349. Considering the voluntary nature of Chapter 13, the order dismissing the debtor's case is effective nunc pro tunc to the date of the filing of the motion. Consequently, the creditor's motion to set aside the sale of property as being unauthorized under section 363(b) is denied.

• Leneski v. Smith (In re Smith), Case No. 07-14
  Landlord's section 523(a)(6) cause of action against a debtor/tenant for wilful and malicious injury to property is denied.

• In re Simms, Case No. 06-1206
  The debtor's request that the creditor's proof of claim be disallowed based on an alleged failure to include appropriate supporting documentation, or a notice of an assignment, is overruled. The debtor failed to allege any grounds under section 502 of the Bankruptcy Code for the disallowance of the claim, and the debtor's objection, even if valid, would only affect the creditor's entitlement to a Rule 3001(f) prima facie presumption as to the claim's validity and amount. Because the debtor failed to assert any basis for departing from the American Rule on attorney's fees, the debtor's request that the creditor pay his attorney's fees of $250 is denied.

• In re Nestor, Case No. 05-6772
  Because the Debtor's exemption in real property that he owned as of the petition date was impaired by the judicial lien, the Debtor's motion to avoid judicial lien is granted. Sale of the property after the petition date and subsequent conversion from Chapter 13 to Chapter 7 do not impact the analysis of the judicial lien because the petition date is the appropriate time for calculations concerning judicial lien avoidance.

• Johnston v. Valley Credit Services, Inc. (In re Johnston), Case No. 06-180
  Debtor's motion for summary judgment for the creditor's alleged violaiton of the discharge injunction is denied on the basis that the debtor failed to demonstrate that the creditor had knoweldge that the discharge injunction applied to the debt it sought to collect. Creditor's motion for summary judgment is granted on the grounds that debtor could not prove that Valley Credit was seeking to collect on what it knew to be a discharged debt.

• Aylsworth v. U.S. Department of Education (In re Aylsworth), Case No. 04-67
  Debtor's student loans were excepted from discharge because he presented insufficient medical evidence to satisfy the second prong and he failed to demonstrate a good faith effort to repay his loans in light of his lack of communication with the Department of Education and minimal payments.

• Faircloth v. Palmer (In re Palmer), Case No. 06-76
  The Plaintiff's claims to except an alleged debt under 11 U.S.C. § 523(a)(2)(A) or to deny entry of a discharge pursuant to § 727(a)(4)(A) are denied. Plaintiff failed to prove that he allegedly loaned the Debtor money when she fraudulently misrepresented her intention to repay him. Plaintiff also failed to prove that the Debtor knowingly and fraudulently undervalued her home on Schedule A of her bankruptcy petition.

• Sheehan v. Little (In re Lauri), Case No. 06-85
  The trustee's motion for partial summary judgment on a section 548 fraudulent transfer cause of action is denied on the basis that genuine issues of material fact exists regarding whether the alleged fraudulent transfer concerned property of the debtor, or property that the debtor was holding for the benefit of another under an oral trust of personal property.

• Kinder Morgan/Pinney Dock & Transport LLC v. Mittal Steel USA, Inc. (In re Weirton Steel Corp.), Case No. 06-186
  The court dismissed the case for lack of subject matter jurisdiction when the dispute involved the non-payment of a cure amount for the assignement of an executory contract. Payment of the cure amount was delegated to the Debtor's bankruptcy purchaser with the non-debtor party to the executory contract giving a full release of liability to the Debtor. The outcome of the contract dispute would have no effect on the Debtor's bankrutpcy estate.

• Robinson v. Robinson (In re Robinson), Case No. 05-137
  Debtor's motion to reconsider is denied. A "discharge" in bankruptcy, as the term is defined by section 524(a) of the Bankruptcy Code, does not "discharge" a judgment lien within the meaning of section 38-3-6 of the West Virginia Code.

• Puller v. Credit Collections, USA, Inc., (In re Puller), Case No. 06-157
  The debtor stated a cause of action for a violation of the discharge injunction when the debtor alleged that the creditor failed to timely update information that the creditor furnished to credit reporting agencies pre-pretition. The debtor is entitled to conduct further discovery on that cause of action before the court rules on the creditor's motion for summary judgment.

• In re Cottrill, Case No. 06-00819
  The Debtors cannot waive 11 U.S.C. § 524(c)(1) in order to file reaffirmation agreements made after the court enters the Debtors' discharge order. The court would not vacate the Debtors' discharge for the purpose of approving reaffirmation agreements in the absence of a valid reason under Rule 60(b). Because the reaffirmation agreements are untimely, the court lacks jurisdiction to consider them.

• Brown v. Fairmont State University (In re Brown), Case No. 06-24
  Debtor's student loans were discharged because she satisfied the three prongs of the Brunner test.

• United Bank v. Fedczak (In re Fedczak), Case No. 05-195
  The debtor's discharge is denied under section 727(a)(2)(A) for concealing property, and, in the alternative, under section 727(a)(4)(A) for making a false oath or account.

• Wilson v. Wilson (In re Wilson), Case No. 06-00005
  Summary judgment was appropriate where the Debtor was collaterally estopped from relitigating the State Court's factual findings that she intentionally interfered with her former husband's relationship with his daughter by falsely accusing him of child sexual abuse. Therefore, the debts arising from such willful and malicious conduct are excepted from discharge pursuant 11 U.S.C. § 523(a)(6).

• In re Ball, Case No. 06-1002
  Motions for a prelimiary injunction asserted by creditors of the bankruptcy estate and by the United States trustee to prohibit the distribution of sale proceeds to a co-owner of real property, on the grounds that the co-owner may be liable to the bankrutpcy estate on either a fradulent transfer or unjust enrichment cause of action, are denied. The causes of action asserted by the parties are property of the bankrutpcy estate; without a grant of derivative standing to the creditors or the United States trustee, only the Chapter 11 debtor-in-possession has the standing to litigate those causes of action. Pursuant to Scott v. National Century Fin. Enters. (In re Baltimore Emergency Serv. II, Corp.), 432 F.3d 557 (4th Cir. 2005), a court may not issue a preliminary injunction to a party without standing to assert a cause of action against the defendant.

• Nixon v. United States (In re Nixon), Case No. 06-219
  The Chapter 13 debtor's pre-discharge complaint to determine the dischargeability of a 2002 income tax laibility is dismissed pursuant to the IRS's motion for a judgment on the pleadings. The IRS conceeded that, should the debtor receive a discharge at the end of the debtor's proposed 60 month plan, the taxes would be discharged. Therefore, although all the facts necessary for making the dischargeability determination had already occurred, the issue was not ripe for review because no hardship existed to the debtor by withholding a court order on dischargeabiltiy until after the debtor obtained his discharge.

• In re Smith, Case No. 92-20159
  Domestic support creditor's objection to the Chapter 7 trustee's final report is sustained in part and overruled in part. The creditor filed a proof of claim nearly ten years after the claim's bar date, but because part of that claim purported to be priority, and because the trustee had not begun distribution, the late filed priority claim should be considered by the trustee under section 726(a)(1) of the Bankruptcy Code. The creditor's objection that she was entitled to earmark about $26,000 of estate assets for her sole benefit based on the language of an unapproved legal services agreement, that the debtor signed before the conversion of his Chapter 11 case, was overruled on the grounds that the court never approved that provision of the legal services agreement, and because the court would not approve a distribution scheme that was contrary to section 726.
  

• Johnston v. Valley Credit Services, Inc. (In re Johnston), Case No. 06-180
  A debtor's cause of action under section 46A-2-128(e) of the Code of West Virginia, for impermissible contact with a debtor when the debtor is represented by an attorney, is not preempted by the Bankruptcy Code's remedies for a violation of the automatic stay or discharge injunction because section 46A-2-128(e) is an independent remedy based on a separate wrong from those addressed in the Bankruptcy Code. The debtor's cause of action under section 46A-2-128(e), however, is not one that "arises under" or "arises in" the Bankruptcy Code, and is not one that is "realted to" the debtor's bankrutpcy case because win, lose, or draw, the outcome of the case will not have any effect on the bankruptcy estate. No bankruptcy court jursidiction exists to adjudicate the cause of action under the district court's supplemental jurisdiction granted by section 1367 of title 28 of the United States Code because that jurisdictional grant is not applicable to the bankrutpcy courts.

• In re McNeely, Case No. 05-5512
  The court denied confirmation of Debtors' Chapter 13 plan, which proposed to retain a $50,000 houseboat as treatment for depression, and granted relief from the automatic stay because the houseboat was not necessary for an effective reorganization.
  

• Bayer Employees Fed. Credit Union v. Sapp (In re Sapp), Case No. 06-10, 06-63
  Creditor's section 523(a)(2)(B) adversary complaint to except a debt from discharge is granted based on the debtor's adoption of a loan application that falsely stated his gross monthly income. Trustee's preference action against the creditor for untimely perfecting an interest in the debtor's mobile home is granted, and the trustee's fraudulent conveyance action against the debtor's father, who was listed on the mobile home's certificate of title, is granted on the grounds that the father did not pay a reasonably equivalent value in exchange for that ownership interest.
  
  

• Johnston v. Telecheck Services, Inc. (In re Johnston), Case No. 06-178
  The debtor's state law claims under sections 46A-2-124(c) and 46A-2-127(d) of the Code of West Virginia are dismissed because, as applied, they are preempted by the Bankurptcy Code's remedies for violations of the automatic stay and discharge injunciton. The debtor's cause of action for damages based on the creditor's violation of the automatic stay is dismissed because the debtor failed to demonstrate that she ever knew the automatic stay was violated; thus, she never suffered a compensable injury. The court awarded the debtor $500 in compensation for losses she sustained as a result of the creditor's violation of the discharge injunction, and awarded her attorney $2,343 in fees and costs incurred to enforce the discharge injunction against the creditor.
  

• In re LaRosa, Case No. 03-4115
  The motion of the debtors-in-possession to approve the employment of special counsel for the purpose of administering the death estate of one of the joint-debtors is denied. Approval of the employment application is not in the best interests of the bankruptcy estate under section 327(e) because property of the bankruptcy estate is separate and distinct from property in belonging to the decedent at the time of his death.

• In re Bardell, Case No. 05-06808
  When the debtor's bankruptcy filing intervenes between the sale of his residence at a foreclosure auction and the recording of the foreclosure sale deed, the debtor's right to cure the mortgage arrearage under § 1322(c)(1) was extinguished upon the execution of the memorandum of sale.

• Robinson v. Robinson (In re Robinson), Case No. 05-137
  Debtor's obligation under a property settlement agreement is discharged because he does not have the ability to pay it. Debtor's former spouse has a lien on the Debtor's real estate, by virtue of the divorce decree, which survives bankruptcy. Debtor's former spouse does not an equitable lien on the Debtor's real estate because she failed to demonstrate that an equitable lien arose from a writing or that an equitable lien would be necessary to prevent the unjust enrichment of the Debtor.

• Walters Construction, Inc. v. Cook (In re Cook), Case No. 05-231
  Creditor's complaint to except a debt from discharge pursuant to section 523(a)(2)(A) or (B) is denied because the creditor failed to establish the requisite intent to support those claims.

• Kohls v. Bank of Charles Town (In re Kohls), Case No. 06-86
  The Bank's motion for summary judgment is granted because insufficient evidence of unconscionability exists with regard to loan terms under section 46A-2-121 of the West Virginia Code.