The court denied the Judgment Creditors’ motion to dismiss and their motion for relief from stay. Specifically, the court found that it had subject matter jurisdiction to hear the case, because the Debtor’s general partner ultimately possessed the authority to file a bankruptcy petition on the Debtor’s behalf. Furthermore, the court found the motion for relief from stay non-justiciable.
You are here
Opinions
Click here to view.
Honorable David L. Bissett
In re U.S.A. Parts Supply, Cadillac U.S.C. Oldsmobile U.S.A. LP, 20-bk-241
Date: 08/17/2020
Date: 08/17/2020
In denying creditors’ motion to dismiss, the court found that they showed neither an objective futility or subjective bad faith in seeking Chapter 11 relief. Additionally, the court held that a state-court receiver did not qualify under either of § 543(d)’s exceptions to the duties of a custodian to turnover property of the estate.
5:19-ap-36 Glaspell v. The United States Of America On Behalf of Its Agency The Internal Revenue Service
Date: 08/07/2020
Date: 08/07/2020
The court denied the Defendant’s motion to dismiss in part and granted it in part. Specifically, the court denied the Defendant’s Rule 12(b)(1) motion as it found subject-matter jurisdiction to hear the case. However, the court dismissed the Debtor’s claims for a failure to state a claim upon which relief can be granted.
In Re: USA Parts Supply, Cadillac USA & Oldsmobile USA LP v. Michael Chiacchieri AP No: 20-24
Date: 07/30/2020
Date: 07/30/2020
The court granted in part and denied in part the Defendants’ Rule 12(b) motion to dismiss the Debtor’s Amended Complaint. Specifically, the court dismissed Count I based upon a prior order entered in the bankruptcy case. However, the court did not dismiss Count II or Count III, because the Debtor stated plausible claims upon which relief can be granted and the Defendants failed to provide support to the contrary.
In re Trinity Homes, LLC (19-bk-1035)
Date: 07/22/2020
Date: 07/22/2020
In approving the Chapter 7 trustee’s compromise of a claim filed against the estate, the court finds the proposed settlement reasonable under the circumstances of the case. Notably, the settlement ultimately resulted in a net benefit to the estate and was critical in allowing the trustee to close a significant sale of estate property.
Flora v. Tagliaferri (In re Tagliaferri), Adv. Proc. No. 19-ap-39 (Bankr. N.D.W. Va. July 2, 2002).
Date: 07/02/2020
Date: 07/02/2020
The court dismissed the Plaintiffs’ motion for summary judgment to find a debt non-dischargeable under 11 U.S.C § 523(a)(4). The court found that the Plaintiff failed to meet its burden of proving “defalcation” in accordance with Bullock v. BankChampaign, N.A., 569 U.S. 267 (2013) which required the Plaintiff to prove a heightened culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior.
Rodgers v. Chase Bank USA, NA (In re Rodgers), Adv. Proc. No. 20-ap-15 (Bankr. N.D.W. Va. June 30, 2020).
Date: 06/30/2020
Date: 06/30/2020
The court found that the West Virginia Computer Crime and Abuse Act applied to telephone calls, and denied the defendant’s motion to dismiss a claim for damages under it. The court also found that the plaintiffs insufficiently pled their claims for intentional infliction of emotional distress and invasion of privacy.
In re Tara Retail Group, LLC 17-bk-57
Date: 01/27/2020
Date: 01/27/2020
Considering competing proposed Chapter 11 plans, the court finds both plans to be confirmable. Ultimately, the court confirms the Debtor’s proposed plan of reorganization based upon overwhelming support from the creditor body.
Patrick M. Flatley
Trinity Homes, LLC, No. 19-bk-1035 (Bankr. N.D.W. Va. May 20, 2020)
Date: 05/20/2020
Date: 05/20/2020
The Chapter 7 trustee adequately identified manufactured homes in various sale agreements even though the trustee did not specifically include the serial number of the property.
Sheehan v. Levine (In re Geostellar), 19-ap-24
Date: 02/07/2020
Date: 02/07/2020
In adjudging the Defendants’ motion to dismiss, the court analyzes the enforceability of a relevant arbitration clause. Ultimately, however, the court stays consideration of the proceeding pending the claims bar date in the Chapter 13 case of the individual defendant.
Nagot v. Suncoast Credit Union (In re Nagot), Adv. No. 19-ap-04
Date: 12/19/2019
Date: 12/19/2019
In granting Suncoast’s partial motion to dismiss, the court dismissed without prejudice Counts II, III, and V of the Plaintiffs’ complaint based upon a failure to state causes of action upon which the court could grant relief.
In re Gilmore, 13-bk-1311
Date: 09/24/2019
Date: 09/24/2019
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.
Coots v. Ford Motor Credit Co. (In re Coots), 19-ap-10
Date: 09/17/2019
Date: 09/17/2019
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.
U.S. Bank v. Tara Retail Group, LLC (In re Tara Retail Group, LLC), 18-ap-10
Date: 09/12/2019
Date: 09/12/2019
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.
Arthur-Nelson v. U.S. Bank (In re Tara Retail Group, LLC), 18-ap-11; The Elswick Co. v. U.S. Bank (In re Tara Retail Group, LLC), 18-ap-12; Leeson v. U.S. Bank (In re Tara Retail Group, LLC), 18-ap-13
Date: 08/15/2019
Date: 08/15/2019
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 re Schultze, 18-bk-00363
Date: 03/27/2019
Date: 03/27/2019
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 re Emerald Grande, 17-bk-21
Date: 03/27/2019
Date: 03/27/2019
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.
Johns v. Western Surety Co. (In re Rock Branch Mechanical, Inc.), 17-ap-3015
Date: 03/13/2019
Date: 03/13/2019
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.
In re Orellana, 18-bk-1001
Date: 03/08/2019
Date: 03/08/2019
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.
In re Tara Retail Group, LLC 18-ap-16
Date: 12/10/2018
Date: 12/10/2018
An unsecured creditor had constitutional and prudential standing to pursue claims for recharacterization and equitable subordination; however, the court directed the unsecured creditor to file a motion in the main bankruptcy case seeking authority from the court on notice to the chapter 11 debtor in possession regarding the unsecured creditor's authority to proceed on those causes of action under the Bankruptcy Code and Rules.