2008 Court Opinions

 

Title

  
Date
  • Moyers v. Fair Collections and Outsourcing, Inc. (In re Moyers), Case No. 07-29
    Collection agent's motion for summary judgment on the debtor's causes of action for violation of the automatic stay and discharge injunction is granted. The debtor did not include the collection agent's correct address in her mailing matrix, and when the debtor informed the collection agent that she filed bankruptcy, it immediately took step
  
12/22/08
  
 
  • Carroll v. FIA Card Services (In re Carroll), Case No. 07-110
    Service of process is quashed because the trustee served process at the wrong address; the trustee is given an additional 30 days to effect service of process at the correct address in accordance with Bankruptcy Rule 7004(b)(3). The trustee's claims for illegal pre-petition debt collection practices are not time-barred because under section 108 of the Bankruptcy Code, the causes of action were still viable with the debtor filed bankruptcy, and the trustee has two years from the filing of the petition to assert those causes of action. Because knowledge of a principal is not imputed to the agent, a communication that the debtor sent to the principal requesting that further debt collection contacts be through his attorney has no effect on the debt collecting agent unless the agent also had knowledge of that communication.
 
12/22/08
  
 
  • Robb v. National Tree Co. (In re Robb), Case No. 08-9
    Creditor recorded a judgment lien without knowledge of the debtors' bankruptcy. Creditor subsequently received notice of the bankruptcy filing and received a copy of the debtors' discharge order, but did not undertake any affirmative act to release its judgment lien. Creditor's motion to dismiss the debtors' causes of action for violation of the automatic stay is denied because such inaction could be construed to be an attempt to collect a discharged debt. Debtors' motion for summary judgment is denied because the uncontested facts fail to establish that the creditor's inaction was an attempt to collect on the debt.
  
12/22/08
  
 
  • In re Ohio Valley Amusement Company, Case No. 03-50356
    Debtor's post-petition borrowing was not done in the ordinary course of business under section 364(a). No court approval was obtained for the loans under section 364(b), and nunc pro tunc approval was not appropriate under the circumstances. Lender's application for administrative expense status is denied.
  
12/01/08
  
 
 
11/25/08
  
 
 
11/19/08
  
 
  • Jackson v. Harris (In re Harris), Case No. 08-13
    The debtor’s motion for summary judgment on the creditor’s 11 U.S.C. § 523(a)(15) adversary complaint is denied because: (1) collateral estoppel prevents the debtor from relitigating issues related to a purported contractual waiver of rights arising under the parties’ separation agreement; (2) the debtor’s assertion of the unclean hands defense did not relate to the specific judgment debts sought to be excluded from the debtor’s discharge, and (3) the debtor’s assertion of offsetting debts involved a factual dispute, and one which may have already been settled by the parties in previous litigation.
 
09/15/08
  
 
  • In re Eskim, LLC, Case No. 08-509
    Creditor’s motions for relief from the automatic stay and to prohibit the debtor’s use of cash collateral is denied based on the existence of an equity cushion and a proposed outline for reorganization.
 
08/28/08
  
 
  • In re Morrell, Case No. 08-519
    West Virginia's bankruptcy only exemptions, listed in section 38-10-4 of the West Virginia Code, are not preempted by the list of federal exemptions, listed in section 522(d) of the Bankruptcy Code.
 
08/14/08
  
 
  • In re Bricker, Case No. 08-340
    Debtor’s general objection to the creditor’s proof of claim, when considered in conjunction with parallel litigation concerning the creditor’s objection to confirmation of the debtor’s chapter 13 plan, is sufficient to overcome the Rule 3001(f) prima facie presumption as to the claim’s validity and amount.
 
07/02/08
  
 
  • In re AB&C Group, Inc., Case No. 08-482
    Money held in the debtor’s bank account that was intended to be used to pay the pre-petition wages of the debtor’s employees is property of the debtor’s bankruptcy estate. The money may be used by the debtor’s Chapter 7 trustee in the ordinary administration of the debtor’s bankruptcy case.
 
07/02/08
  
 
 
06/27/08
  
 
  • In re Quigley, Case No. 08-24
    The debtor may claim a secured debt expense for secured collateral that the debtor intends to surrender on Form B22C. When a non-debtor third party has paid a secured debt expense for the debtor, then the amount of those payments must be included in the determination of the debtor’s current monthly income.
 
06/20/08
  
 
  • In re Kleeb, Case No. 07-1322
    Creditor's objection to confirmation is sustained on the grounds that the debtor is required to pay the creditor's secured car claim at the Till rate of interest -- not the contract rate of 0% -- when the debtor proposed to cram down the claim by lowering the monthly payments and extending the loan's maturity date.
 
05/23/08
  
 
  • In re Ball, Case No. 06-1002
    Individual Chapter 11 debtor’s motion for discharge and case closing is denied because all payments had not been made under the plan and assets still existed to be administered.
 
05/23/08
  
 
  • In re Bland, Case No. 06-1159
    Debtor's Chapter 13 petition is dismissed for lack of good faith due to the debtor's failure to cooperate with an interested creditor and the Chapter 13 trustee in the proper identification of estate assets.
  
05/06/08
  
 
  • In re Buffalo Coal Co., Case No. 06-366
    The court grants the application to approve Thorp Reed & Armstrong, LLP, former counsel to the Chapter 11 unsecured creditor's committee, as special counsel to the Chapter 7 trustee for the purpose of suing a former committee member on a pre-petition cause of action.
 
04/30/08
  
 
 
04/17/08
  
 
  • In re Hrapchak, Case No. 07-1668
    An absolute assignment of rents clause in a note and deed of trust is given as security, and is therefore property of the estate subject to the rules regarding cash collateral.
  
04/16/08
  
 
  • City of Clarksburg v. Sprouse (In re Sprouse), Case No. 07-120
    Even though the City did not perform demolition services until after the debtor’s no-asset, Chapter 7 bankruptcy filing, the City had an unliquidated, contingent, and/or unmatured claim for those services when the debtor filed bankruptcy. Therefore, the City’s claim against the debtor for the cost of demolition is discharged.
  
04/15/08
  
 
 
03/31/08
  
 
  • In re Bland, Case No. 06-1159
    Debtor met the eligibility requirements in 11 U.S.C. § 109(e) that she be an “individual with regular income” when she had stable and regular contributions from her non-debtor husband.
 
03/31/08
  
 
  • Grimes v. First-Citizens Bank & Trust Co. (In re Grimes), Case No. 07-57
    Debtor’s cause of action for negligence against First-Citizens for, inter alia, making allegedly unauthorized withdraws from his checking that resulted in his alleged “humiliation, embarrassment, and emotional distress” is not a personal injury tort within the meaning of 28 U.S.C. § 157(b)(5). The adversary proceeding is “non-core.” Because the alleged cause of action is property of the Debtor’s bankruptcy estate, the Debtor is given 30 days to add his Chapter 7 trustee as the party plaintiff.
 
03/31/08
  
 
  • Copley v. West Virginia State Tax Department (In re Copley), Case No. 07-2061
    The State received a final determination notice from the IRS in 1999 that it had readjusted the debtor’s tax obligation from 1993. The State’s additional tax assessment notice to the debtor, sent within 90 days of the IRS’s notification, was timely under the applicable statute of limitations. Because the debtor’s 1993 taxes were due within three years of his February 1997 bankruptcy petition, the additional taxes owed to the State are excepted from his discharge pursuant to sections 523(a)(1)(A) and 507(a)(8)(A)(i) of the Bankruptcy Code. The defense of laches is not applicable because the debtor knew when he filed his bankruptcy petition that his tax returns from 1993 were subject to being readjusted, and the debtor failed to fulfill his statutory duty of notifying the State before 1999 that the IRS had readjusted his tax returns. The debtor proved that the State violated the automatic stay when, post-petition, it recorded lien on property of the estate for the debtor’s pre-petition taxes.
 
03/13/08
  
 
  • In re Linn, Case No. 07-1593
    The trustee's objection to the debtor's Chapter 13 plan based on the disposable income test of section 1325(b) is overruled. Application of the disposable income test would render the Chapter 13 plan infeasible, which is an absurd result.
 
03/10/08
  
 
  • In re Windwood Heights, Case No. 07-1001
    A judgment creditor's motion for relief from the automatic stay against single asset real estate under section 362(d)(3)(A) of the Bankruptcy Code is denied. The court determined that a judgment creditor could utilize the stay relief provisions of section 362(d)(3), but determined that the Debtor could file an amended plan that would have a reasonable possibility of being confirmed within a reasonable time. The Debtor's current plan, however, was patently unconfirmable because it provided for a negative amortization period of up to eight years.
 
02/25/08
  
 
 
02/22/08
  
 
  • In re United Energy, Case No. 06-453
    A security agreement that identified collateral as certificates of deposit and letters of credit that "shall be deposited" with the creitor was sufficiently descriptive and forward looking to include after acquired certificates of deposit and letters of credit. Because the certificates of deposit were pledged to the creditor, the creditor had a perfected security interest in them by possession. Because the letters of credit were issued directly to the creditor, the creditor perfected its security interest in them by control. Accordingly, the creditor's motion for relief from stay was granted on the basis that it was a perfected secured creditor, and pursuant to an indemnity agreement, the creditor had the right to collect on the certificates of deposit and letters of credit.
 
02/21/08
  
 
  • In re Tackley Mill, LLC, Case No. 06-820
    The Unsecured Creditor's Committee negotiated a carveout agreement whereby a secured creditor would pay the fees of the Committee's professionals pursuant to a Rule 9019 settlement agreement. Because no estate funds were being used to pay the Committee's professionals, the court determined that it was not required to examine those fees under section 330 of the Bankruptcy Code, or to require that any disbursement to the Committee's professional comply with the Bankruptcy Code's required distribution scheme. The court also determined that the allocation being made to unsecured creditors under the settlement's carveout agreement included both those unsecured creditors that were in existence at the time the settlement agreement was negotiated, and those creditors that subsequently became unsecured as a result of a foreclosure action.
  
02/08/08
  
 
  • In re Waters, Case No. 07-459
    Exempt monthly VA benefits are considered income for purpose of the section 1325(b) disposable income test regardless of their exempt status. The Chapter 13 trustee's disposable income objection to confirmation of the debtor's plan on the basis that the debtor was not committing her VA benefits to make payments under the plan is overruled because the debtor, who was unemployed for five of the six months before filing bankruptcy, had already included the receipt of her VA benefits on Form B22C.
 
01/24/08
  
 
  • In re Simms, Case No. 06-1206
    Form B22C is the method by which an above the median income debtor's disposable income is to be determined; Schedules I and J may not be used for this purpose. A debtor is entitled to claim the standard vehicle expense deduction provided by the means test regardless of whether the debtor also owes a secured debt obligation on the vehicle. The Internal Revenue Manual is not an appropriate tool for determining the extent to which a debtor may claim deductions for applicable National and Local Standards. Confirmation of the debtor's Chapter 13 plan is continued to take evidence and testimony on the debtor's claim of home energy, food, and clothing expenses in excess of the National and Local Standards.
 
01/23/08
  
 
 
01/10/08