In finding the debtors current under Fed. R. Bankr. P. 3002.1(h), the court also determined the effect of the debtors’ confirmed plan on their mortgagee’s allowed proof of claim. Specifically, the court found that the term of the debtors’ confirmed plan, providing for less than the full monthly mortgage payment, did not operate to discharge the shortfall that accrued during the term of their Chapter 13 plan. In that regard, the court declined to extend Espinosa to the facts of the debtors’ case.
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Honorable Patrick M. Flatley
In dismissing four counts of the Debtor’s five-count complaint, the court found that the Debtor failed to state causes of action for violations of the Uniform Enforcement of Foreign Judgment Act and the automatic stay. The Debtor’s action under § 547(b) of the Bankruptcy Code survived dismissal.
In adjudging the sufficiency of Tara Retail’s second amended counterclaim and third-party complaint, the court granted the movants’ motion to dismiss in part and denied it in part. The Debtor’s actions alleging Breach of a Fiduciary Duty and an Action for Accounting survive the motion.
The court dismissed the Plaintiffs’ respective complaints for failure to state claims upon which the court could grant relief. In that regard, the court found as highly persuasive the District Court’s analysis in Nidy v. U.S. Bank, No. 2:18-cv-01061, 2019 WL 2537418 (S.D.W. Va. June 19, 2019), in which the plaintiff brought claims almost identical to the claims here.
In overruling the Chapter 7 trustee's objection to exemptions, the court found that language in a deed reserving a life estate to the co-debtor husband of the grantor-debtor, manifested a clear intention to convey an interest in the property such that the conveyance was effective under West Virginia law and the Debtor had an exemptible interest.
In disallowing a portion of secured creditor’s proof of claim for attorney fees, the court finds such fees to be disallowable under § 502(b)(1) as not collectible against the Debtor based upon the relevant loan documents.
The Chapter 7 trustee is entitled to summary judgment to the extent he seeks to avoid the creditor’s recordation of a financing statement encumbering property of the estate. Nonetheless, the court sets further proceedings regarding the creditor’s motion for summary judgment alleging that it obtained a property interest in the subject property outside the 90-day look-back period in § 547 of the Bankruptcy Code.
The court found that when the Debtors had not filed a tax return for the tax year ending immediately before the commencement of their case, § 521(e)(2)(A)(i) requires them to provide to the Trustee a copy or transcript of their most recently filed tax return.