The debtor was paying the IRS in full through a confirmed Chapter 13 plan. Subsequently, the IRS seized the debtor’s tax refund to apply it to the same delinquent tax liability that was being paid through the plan. Accordingly, the debtor moved to hold the IRS in contempt for violating the order of confirmation. The precise language of the Court’s model plan and the Trustee’s confirmation order, however, did not specifically address how the IRS could treat post-confirmation tax refunds owed to the debtor. Because there was a failure to address the permissibility of the IRS’s offset, the debtor failed to state a claim for contempt.
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Honorable David L. Bissett
In re Timberline Four Seasons, Utilities, Inc., No. 21-bk-125
Date: 10/25/2021
Date: 10/25/2021
The Court stated that a default judgment entered against the Debtor in Virginia, after a receiver had been appointed in Tucker County, West Virginia, rendered the Virginia default judgment void because the Tucker County Court was vested with exclusive jurisdiction. On the other hand, the Court found that the underlying agreement was valid even though it had not been affirmatively approved by the WV Public Service Commission, and found that the agreement was voidable by the creditor, at its option, based on material misrepresentations by the Debtor’s former officers.
Amore v. Ridgely (In re Doc's Truck Center, LLC), 20-ap-25 (Bankr. N.D.W. Va. September 13, 2021)
Date: 09/13/2021
Date: 09/13/2021
Amore v. Ridgely (In re Doc’s Truck Center, LLC), 20-ap-25
In adjudging the Third-Party Defendants’ motion for summary judgment, the court dismissed the third-party complaint—an avoidance action belonging to the bankruptcy estate—based upon the Defendant/Third-Party Plaintiff’s lack of standing. Although the Defendant/Third-Party Plaintiff did not seek derivative standing, the court held that such standing is unavailable in this context.
Coots v. Ford Motor Credit (In re Coots), 19-ap-10
Date: 06/28/2021
Date: 06/28/2021
In granting the Defendant summary judgment on Counts I through III, the court found that the defendant collection of its Kentucky judgment via a wage garnishment in Ohio did not violate the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) despite the Plaintiff-Debtor residing in West Virginia. Also, the court denied summary judgment to the Plaintiff on Count IV alleging a preference action based upon disputed material facts, particularly whether the Defendant, a judgment lien creditor, obtained more than it would have in a case under Chapter 7.
Lockhart v. Jackson (In re Lockhart), Adv. Proc. No. 20-38 (Bankr. N.D.W. Va. June 24, 2021) (Doc. No. 65)
Date: 06/24/2021
Date: 06/24/2021
Debtor alleged a violation of the automatic stay and sought a declaration of contempt for notification of child support arrearage addressed in the Chapter 13 plan after child relocated to another state. Mere notification does not amount to a willful violation of the automatic stay and the agency was exercising its state police and regulatory powers.
Lockhart v. Jackson (In re Lockhart), Adv. Proc. No. 20-38 (Bankr. N.D.W. Va. June 24, 2021) (Doc. No. 67)
Date: 06/24/2021
Date: 06/24/2021
Debtor alleged a violation of the automatic stay and sought declaration of contempt against a county child support agency and the IRS when his COVID-19 economic stimulus payment was intercepted to offset arrearages. Debtor claimed that the stimulus payment was a credit not subject to offset, but agency guidance and effective application renders the payment to be characterized as a tax refund. As a refund, interception under the Treasury Offset Program was excepted from the automatic stay under 11 U.S.C. § 362(b)(2)(F).
In re USA Parts Supply, No. 20-bk-241 (Bankr. N.D.W. Va. April 28, 2021)
Date: 04/28/2021
Date: 04/28/2021
The court finds cause to dismiss the Chapter 11 Debtor’s case. Among other things, the Debtor paid prepetition creditors postpetition and received an insider loan postpetition without court authorization.
Nagot v. Suncoast Credit Union (In re Nagot), 19-ap-04
Date: 03/17/2021
Date: 03/17/2021
The court grants the Defendant’s motion for summary judgment on the Debtor’s claim that it violated the West Virginia Uniform Enforcement of Foreign Judgment Act, W. Va. Code § 55-14-1 et seq. Despite the Debtor residing and working in West Virginia, the court found that the Defendant’s enforcement of its Florida judgment by garnishing the Debtor’s wages in Florida did not constitute the enforcement of its judgment in West Virginia.
Glaspell v. IRS (In re Glaspell), Adv Proc. No. 19-ap-36(Bankr. N.D.W. Va. Jan. 20, 2021)
Date: 01/20/2021
Date: 01/20/2021
The court granted the Defendant’s motion to dismiss the Debtor’s second complaint with prejudice. Despite the Defendant’s arguments, the Debtor was permitted to amend its complaint for a second time. Moreover, res judicata did not bar litigation of the second amended complaint, because the court dismissed the previous complaint without prejudice. However, the Debtor ultimately failed to state a plausible claim regarding equitable subrogation under West Virginia law.
Alliance Coal, LLC v. Savage (In re Savage), Adv. Proc. No. 20-ap-26 (Bankr. N.D.W. Va. Jan. 14, 2020)
Date: 01/14/2021
Date: 01/14/2021
The court denied the Plaintiff’s motion for judgment on the pleadings. In the case, the Plaintiff obtained a money judgment against the Debtors by the Maryland State Court and a subsequent judicial lien by the West Virginia State Court. The Plaintiff did not argue that the indebtedness relating to the Maryland State Court Judgment should be excepted from discharge, but rather the judicial lien granted by the West Virginia State Court. Notably, the Debtors did not contest whether they committed actual fraud; however, they did dispute whether the debt was “obtained by” fraud. The court ultimately held that the judicial lien obtained by the Plaintiff in the West Virginia State Court was not a debt for money obtained by actual fraud which could be excepted from the Debtors’ dischargeable under § 523(a)(2)(A) of the Bankruptcy Code. As a result, the court also dismissed the Plaintiff’s adversary proceeding as it could not state a plausible claim to relief.
Honorable Paul M. Black
In re Emerald Grande, LLC, No. 17-bk-21 (Bankr. N.D.W. Va. Oct. 7, 2021)(Judge Black)
Date: 10/07/2021
Date: 10/07/2021
A prospective hotel purchaser’s award of attorneys’ fees against the bankruptcy estate was entitled to administrative expense priority under section 503(b)(1) because it was a post-petition expense and it was (a) incurred in the operation of the debtor’s business and (b) the prospective purchaser’s approved stalking horse bid allowed the debtor to market the property to other potential purchasers at a higher price (the Court stated that the purchaser had not breach the purchase-sale agreement and had the Debtor complied with the provisions in the purchase-sale agreement, the hotel would have sold for nearly $1 million more than its eventual sales price).
U.S. Bank, Nat'l Ass'n, v. Tara Retail Group, LLC (In re Tara Retail Group, LLC). Adv. Proc No. 18-10 (Bankr. N.D.W. Va. Aug. 10, 2021)
Date: 08/10/2021
Date: 08/10/2021
The Court determined that it had the authority to enter a final order in the case. Because the court found that the debtor-creditor relationship did not rise to the level of a “special relationship” under West Virginia law that was sufficient to support a cause of action for breach of a fiduciary duty, the Court dismissed that cause of action in the complaint and also dismissed a cause of action for an accounting.
Emerald Grande, LLC v. KM Hotels, LLC (In re Emerald Grande, LLC), Adv. Proc. No. 20-28 (Bankr. N.D.W. Va. July 27, 2021)
Date: 07/27/2021
Date: 07/27/2021
Emerald Grande, LLC v. KM Hotels, LLC (In re Emerald Grande, LLC), Adv. Proc. No. 20-28 (Bankr. N.D.W. Va. July 27, 2021).
The court determined the reasonableness of the prevailing party’s attorneys’ fees under a contractual fee shifting provision.
Emerald Grande, LLC v. KM Hotels, LLC et al. (In re Emerald Grande LLC), Adv. Proc. No. 20-ap-28 (Bankr. N.D.W. Va. May 28, 2021)
Date: 05/28/2021
Date: 05/28/2021
The debtor-seller failed to provide insurable access to a hotel pursuant to an express provision in the purchase and sell agreement. The buyer was not obligated to purchase the hotel and was entitled to a return of its earnest money deposit.
In re Panthera Enterprises, LLC, No. 19-787 (Bankr. N.D.W. Va. April 1, 2021) (Hon. Paul M. Black)
Date: 04/01/2021
Date: 04/01/2021
The Debtor alleged that the Plaintiff filed a complaint in bad faith and advanced it without first conducting a reasonable investigation in violation of Fed. R. Bankr. P. 9011. When Rule 9011 sanctions are sought by motion, the movant must comply with the safe-harbor provision of Rule 9011(c)(1)(A), which requires the offending party to be given notice and an opportunity to cure the offending conduct. Because the Debto did not comply with that requirement, the motion for sanctions was denied.
Honorable Becker McKay Wyckoff Mignault
In re BK Technologies, No. 20-bk-170 (Bankr. N.D.W. Va. March, 30, 2021)
Date: 03/30/2021
Date: 03/30/2021
In dismissing the Debtor’s Chapter 11 case based upon a finding of bad faith, the court found as significant the fact that the Debtor liquidated several months prepetition. In short, there was no bankruptcy purpose—reorganization or liquidation—to be served by the Debtor’s case.
Positech Int., LLC 19-bk-866 20-ap-007
Date: 03/17/2021
Date: 03/17/2021
The court grants the Debtor’s motion for judgment on the pleadings. Specifically, the court finds that after the Decedent entered into a binding contract with the Debtor for the sale of real property, the Defendants as co-administrators of the Decedent’s death estate were under a duty to pay the purchase price for the benefit of the death estate.