In a dispute between creditors over auction proceeds, the court declared that a leased commercial building was personal property. The court also determined the allocation of auction proceeds to individual items of equipment that were sold pursuant to a bulk sale, and the court denied one creditor's request for contribution from the other based on the absence of evidence supporting the alleged contribution contract.
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Patrick M. Flatley
In Re Buffalo Coal Company, Inc., et al., Case No. 06-366
Date: 11/15/2006
Date: 11/15/2006
If a sale under Section 363(b) also compromises claims, then the standards and procedures governing compromises of claims under Rule 9019 must also be adhered to in the sale process.
In re Nice, Case No. 05-5500
Date: 10/30/2006
Date: 10/30/2006
Chapter 13 debtor's motion to value automobile is granted. The presumptive replacement value is the average between the N.A.D.A. trade-in and retail value, which is to be determined as of the effective date of the debtor's Chapter 13 plan.
In re LaRosa, Case No. 03-4115
Date: 10/30/2006
Date: 10/30/2006
The Debtor's motion to stay the Chapter 11 proceeding, and associated adversary proceedings, pending the outcome of a separate dispute in arbitration is denied.
In re Lee, Case No. 06-155
Date: 10/30/2006
Date: 10/30/2006
The Debor's motion to reopen the bankruptcy case to "amend" a defective and unenforceable reaffirmation agreement is denied.
In re Freeman, Case No. 05-6791; In re Scott, Case No. 04-469
Date: 10/03/2006
Date: 10/03/2006
Chapter 13 debtor's motion to modify the automatic stay to allow a secured creditor to send the debtor monthly statements of account pursuant to Section 46A-2-114 of the Code of West Virginia is granted.
In re Brown, Case No. 02-53538
Date: 09/29/2006
Date: 09/29/2006
Motion for stay pending appeal is denied based on the four-part test set forth by the Fourth Circuit in Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
Eddy v. Educational Credit Management Corporation and U.S. Department of Education (In re Eddy), Case No. 05-210
Date: 09/28/2006
Date: 09/28/2006
Debtor's complaint to discharge student loans is denied based on Debtor's failure to establish an undue hardship under all three prongs of the Brunner test.
McNemar v. Student Loan Servicing Center (In re McNemar), Case No. 05-219
Date: 09/28/2006
Date: 09/28/2006
Debtor's parent PLUS loan was excepted from discharge because the Debtor failed to make any payments on the loan for ten years, indicating a lack of good faith.
Thornton v. U.S. Department of Education (In re Thornton), Case No. 05-218
Date: 09/28/2006
Date: 09/28/2006
Debtor's student loans were excepted from discharge because the Debtor failed to satisfy the second and third prongs of the Brunner test. The Debtor's recent purchase of two new vehicles and failure to make any payments on his student loans were indicative of a lack of good faith. Furthermore, the Debtor's promising future as a counselor indicate an improvement in his current circumstances.
Brown v. Fairmont State University (In re Brown), Case No. 06-24
Date: 09/18/2006
Date: 09/18/2006
Motion to reconsider denial of motion for default judgment was denied because the Plaintiff had failed to properly serve the U.S. Department of Education as required by Bankruptcy Rule 7004(b)(5), in that the Plaintiff did not serve the U.S. Attorney for the Northern District of West Virginia nor the Attorney General.
Chase Manhattan Bank v. Shreck (In re Shreck), Case No. 05-114
Date: 09/18/2006
Date: 09/18/2006
Plaintiffs' motions to reconsider the court's dismissal of its adversary proceedings is denied because the Plaintiffs failed to show excusable neglect.
In re Lackey, Case No. 06-679
Date: 09/14/2006
Date: 09/14/2006
Debtor's motion to reconsider the dismissal of his Chapter 13 bankruptcy is denied on the basis that he cannot be a debtor under Title 11 because he failed to obtain a pre-petition credit counseling briefing as outlined in 11 U.S.C. §109(h)(1)
In re Brown, Case No. 02-53538
Date: 09/01/2006
Date: 09/01/2006
The Chapter 7 trustee is allowed to transfer the bankrutpcy estate's interest in a personal injury tort claim back to the debtors themselves, in return for a payment of money sufficient to pay all allowed claims in full, without violating any West Virginia prohibition on champerty. Creditor's motion for a Rule 2004 examination regarding the source and terms of the debtors post- petition loan with a private businessman, the proceeds of which are to be used to pay the trustee, is denied because the creditor is not a party to the loan transaction and no showing was made that the proposed loan violated West Virginia's public policy.
In re Tropea, Case No. 04-1877
Date: 08/17/2006
Date: 08/17/2006
An unsuccessful stalking horse bidder is allowed to submit an administrative expense claim under section 503(b)(1) of the Bankrutpcy Code in the absence of a liquidated break-up fee when the stalkling horse bidder's actions preserved and increased the value of the bankruptcy estate.
Fluharty v. Household Finance (In re Boyd), Case No. 05-79
Date: 08/11/2006
Date: 08/11/2006
Defendant's motion to vacate a default judgment was denied because the defendant failed to demonstrate excusable neglect.
Walters Construction Inc v. Cook (In re Cook), Case No. 05-231
Date: 08/08/2006
Date: 08/08/2006
Under Fed. R. Bank. P. 9006(f), the defendant's response to the plaintiff's requests for admission were one-day late and treated by the court as timely filed. Motion for summary judgment denied.
In re Hall, Case No. 05-6746
Date: 08/04/2006
Date: 08/04/2006
Standards for obtaining an exemption from the instructional course concerning personal financial management pursuant to sections 727(a)(11) and 109(h)(4).
In re Stout, Case No. 06-64
Date: 07/27/2006
Date: 07/27/2006
Trustee was unsuccessful in his objection to discharge on the basis that the Debtors made false oaths on their petition and claimed excessive objections.
In re Delbrugge, Case No.05-6411
Date: 07/24/2006
Date: 07/24/2006
A liquidation / foreclosure analysis is appropriate in valuing property under the best interests of the creditors test of section 1325(a)(4); the replacement value method used by the Supreme Court in Rash is inapplicable. The court denied the creditor's request to impose a goodfaith exception to the formulaic best interests of the creditors test; however, the creditor may present a good faith objection to confirmation of the Debtors' proposed plan pursuant to section 1325(a)(3) at the continued confirmation hearing.