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.
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Patrick M. Flatley
Date: 04/09/2007
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.
Date: 03/26/2007
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.
Date: 03/02/2007
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.
Date: 03/01/2007
The debtor was not a domicilarly of West Virginia for the full 730-day period preceding the date of the debtor's bankruptcy petition as required by section 522(b)(3) of the Bankruptcy Code; thus, the West Virginia exemption statutes were not applicable. Because the debtor was a domiciliary of the State of Georgia during the 180-day period preceeding the 730-day period before the filing of her petition, Georgia was the applicable State for determining what exemptions the debtor was entitled to claim. Although Georgia is an opt-out State, its opt-out statute did not include former domiciliaries such as the debtor. Since no prohibition existed under Georgia law to the debtor's use of the federal exemptions provided in section 522(d), the Chapter 7 trustee's objection to the debtor's claim of the federal homestead exemption was overruled. Additionally, the court did not find any Uniformity Clause violation in either Congress's enactment of section 522(b)(3), or in the court's conclusion that Georgia's opt-out statute would not apply to non-domicilaries like the debtor.
Date: 02/28/2007
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.
Date: 02/28/2007
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.
Date: 02/05/2007
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.
Date: 01/31/2007
The Debtor's motion to approve the disbursement of sale proceeds to a co-owner of real property pursuant to section 363(j) of the Bankruptcy Code is continued; objections to the Debtor's motion are converted by the court into motions for a preliminary injunction under Fed. R. Bankr. P. 7065, and the parties are given the opportunity to prove that the co-owner's presently defined interest in the real property should be withheld by court order pending the adjudication of a future lawsuit against the co-owner to avoid her interest.
Date: 01/22/2007
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.
Date: 01/11/2007
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.