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.
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Patrick M. Flatley
Carroll v. FIA Card Services (In re Carroll), Case No. 07-110
Date: 12/22/2008
Date: 12/22/2008
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.
Robb v. National Tree Co. (In re Robb), Case No. 08-9
Date: 12/22/2008
Date: 12/22/2008
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.
In re Ohio Valley Amusement Company, Case No. 03-50356
Date: 12/01/2008
Date: 12/01/2008
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.
Klein v. Virginia Electric Power Co. (In re Barton Mining Company, Inc.), Case No. 08-69
Date: 11/25/2008
Date: 11/25/2008
Motion to dismiss cause of action for tortious interference with contract is denied because the plaintiff put the defendant on notice of the claim, no insuperable bar to relief existed, and the right to relief was more than speculative.
United Energy Coal, Inc., v. Virginia Electric Power Co. Inc. (In re United Energy Coal, Inc.), Case No. 08-38
Date: 11/19/2008
Date: 11/19/2008
Motion for leave to file an amended complaint to assert a claim for tortious interference is granted. Defendant's motion to dismiss claim for breach of contract is granted on the grounds that the allegations in the amended complaint are insufficient to show that the Plaintiff was a third party beneficiary to the contract alleged to have been breached.
Jackson v. Harris (In re Harris), Case No. 08-13
Date: 09/15/2008
Date: 09/15/2008
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.
In re Eskim, LLC, Case No. 08-509
Date: 08/28/2008
Date: 08/28/2008
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.
In re Morrell, Case No. 08-519
Date: 08/14/2008
Date: 08/14/2008
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.
In re Bricker, Case No. 08-340
Date: 07/02/2008
Date: 07/02/2008
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.
In re AB&C Group, Inc., Case No. 08-482
Date: 07/02/2008
Date: 07/02/2008
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.
Copley v. West Virginia State Tax Dep't (In re Copley), No. 07-2061
Date: 06/27/2008
Date: 06/27/2008
Chapter 7 debtor suffered no damage and lacked standing to vindicate a violation of the automatic stay against property of the debtor's bankruptcy estate.
In re Quigley, Case No. 08-24
Date: 06/20/2008
Date: 06/20/2008
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.
In re Kleeb, Case No. 07-1322
Date: 05/23/2008
Date: 05/23/2008
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.
In re Ball, Case No. 06-1002
Date: 05/23/2008
Date: 05/23/2008
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.
In re Bland, Case No. 06-1159
Date: 05/06/2008
Date: 05/06/2008
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.
In re Buffalo Coal Co., Case No. 06-366
Date: 04/30/2008
Date: 04/30/2008
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.
Weekly v. Bank One Wheeling-Steubenville, N.A. (In re Weekly), Case No. 07-1
Date: 04/17/2008
Date: 04/17/2008
A portion of the bank’s third deed of trust was secured by the value of the debtor’s principal residence, therefore, the debtor is prohibited from stripping off the deed of trust as wholly unsecured in her Chapter 13 plan.
In re Hrapchak, Case No. 07-1668
Date: 04/16/2008
Date: 04/16/2008
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.
City of Clarksburg v. Sprouse (In re Sprouse), Case No. 07-120
Date: 04/15/2008
Date: 04/15/2008
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.