The court denied a creditor's motion to dismiss a case pursuant to Section 1112(b) of the Bankruptcy Code for failing to file its bankruptcy petition with proper corporate authority because the Debtor's independent manager, through the independent manager's Independent Director, ratified the Debtor's filing of its bankruptcy petition by failing to object or otherwise come forward. Specifically, the Independent Director elected to remain silent despite a court order providing him with the opportunity to be heard regarding the Debtor's ability to remain in bankruptcy or whether its case should be dismissed pursuant to the creditor's motion.
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Patrick M. Flatley
In re West Virginia High Technology Consortium Foundation, 16-bk-806
Date: 04/21/2017
Date: 04/21/2017
The court denied a secured creditor's motion seeking the appointment of a Chapter 11 trustee under 11 U.S.C. § 1104 upon concluding that the creditor failed to indicate cause existed to justify such an appointment and that the appointment of a Chapter 11 trustee was not in the best interest of creditors and other interests of the estate.
World's Foremost Bank v. Black, 16-ap-43
Date: 04/21/2017
Date: 04/21/2017
In denying judgment to the Bank on its cause of action under § 523(a)(2)(A), the court finds that the Debtor did not possess the requisite deceptive intent when she obtained and used a credit card from the Bank. In that regard, the presumption of nondischargeability under § 523(a)(2)(C) either did not arise or was adequately rebutted by the Debtor.
Signature Springs, LLC v. Pak (In re Pak), 16-ap-42
Date: 03/31/2017
Date: 03/31/2017
The court grants the Debtors' motion to dismiss the Plaintiff's complaint against them under § 523(a)(2)(A), (4), and (6). In the court’s view, the Plaintiff failed to adequately plead plausible causes of action where one of the Debtors unilaterally changed the business relationship among his corporation, the Plaintiff, and third-parties.
In re Fairmont General Hospital, Inc., 13-bk-1054
Date: 03/24/2017
Date: 03/24/2017
The court overruled in part the Liquidating Trustee's objections to an amended proof of claim seeking to recover compensation for termination in violation of an executive employment agreement despite the Liquidating Trustee's assertion that the employee resigned and should be estopped from seeking to recover benefits availed to him only if he was terminated without cause while simultaneously representing that he resigned in order to preserve his professional reputation. The court determined that estoppel is not proper, and the doctrine of constructive termination applies, despite the former employee's request to represent his termination as a resignation, when the Debtor's Board of Directors informed the former employee, before the employee's request, that (1) he was terminated and (2) his replacement had been hired.
Davis Trust Company v. Citizens Bank of West Virginia (In re Reckart Equipment Co., Inc.), 13-ap-26
Date: 03/09/2017
Date: 03/09/2017
In conjunction with issuing proposed findings of fact and conclusions of law on the parties' cross-motions for summary judgment regarding negligence claims, the court also finally determined a priority dispute between two lenders. The court found that a lender that filed a financing statement months before the second lender entered into a security agreement with the debtor and disbursed the funds maintained priority over the second lender despite an indexing error that caused the second lender to disburse funds without knowledge that it was not a first-priority secured creditor.
Corwin Place v. Premier Bank, 16-ap-48
Date: 02/27/2017
Date: 02/27/2017
The Defendant’s motion to dismiss is granted, in part, and denied, in part. The court dismissed counts I and II of the Plaintiffs’ complaint based upon the individual plaintiff not alleging a cause of action upon which the court could grant relief. The court, however, denied the Defendant’s motion to dismiss the plaintiff-entity’s claims arising from the defendants’ alleged conduct vis-à-vis the plaintiff-entity’s real estate development project.
Jacques v. Hoak (In re Hoak), 16-ap-32
Date: 01/09/2017
Date: 01/09/2017
The court grants summary judgment to the Plaintiff on her complaint against the Debtor under § 523(a)(6) of the Bankruptcy Code. In determining that the Plaintiff's civil judgment against the Debtor should be excepted from the Debtor’s Chapter 7 discharge, the court finds that the state court’s findings are entitled to preclusive effect under the doctrine of issue preclusion.
In Re Corwin Place, LLC, 16-bk-750
Date: 12/19/2016
Date: 12/19/2016
The court denied the debtor's motion to disqualify a law firm from representing a creditor bank based on an alleged violation of Rule 1.18 of the West Virginia Rules of Professional Conduct where the debtor failed to show that significantly harmful information was received by the firm in the course of its prior relationship with the debtor as a prospective client.
Gary L. Vance, LLC d/b/a South Branch Valley Livestock Exchange and Wayne Crites v. Allen L. Crites, 15-ap-30
Date: 10/21/2016
Date: 10/21/2016
The court denied the plaintiffs' motion for summary judgment in a nondischargeability action because the Plaintiffs failed to establish the necessary elements under Sections 523(a)(2)(a), (a)(4), and (a)(6) of the Bankruptcy Code.
Morgantown Excavators Inc. and Shirley Godfrey v. The Huntington National Bank, 13-ap-24
Date: 10/17/2016
Date: 10/17/2016
The court found that W. Va. Code § 46-9-625(d) does not bar recovery of permissible damages under § 46-9-625(b) to the extent that those damages exceed the reduction of a debtor's deficiency liability under § 46-9-626.
Flint v. West Virginia State Tax Department, 16-ap-15
Date: 09/12/2016
Date: 09/12/2016
The court granted summary judgment in favor of the Plaintiff regarding a claim that the West Virginia State Tax Department violated the discharge injunction set forth in 11 U.S.C. § 524(a)(2) by repeatedly mailing the Plaintiff Statements of Account which included a demand for payment and references to penalties if payment is not timely received.
Morgantown Excavators Inc. and Shirley Godfrey v. The Huntington National Bank, 13-ap-24
Date: 09/12/2016
Date: 09/12/2016
The court granted the Plaintiffs motion for summary judgment as to liability, finding that equitable title passed when an auctioneer paid the full purchase price for and took possession of the Defendant's collateral. The court further found that a transfer of equitable title amounts to a disposition under Article 9 of the Uniform Commercial Code. As the Defendant disposed of the collateral without providing adequate notice to the debtor, it violated W. Va. Code § § 46-9-610 and 611.
In re D&R Distributors, 14-bk-565
Date: 09/12/2016
Date: 09/12/2016
The court granted the Trustee's motion to compromise the claim against the estate over the objection of several creditors who asserted that the settlement was not in the best interest of the estate. The court found that, despite the objection, the Trustee demonstrated that, in his business judgment, the settlement was in the estate's best interest as the settlement saved the estate from undertaking considerable risk and litigation costs and eliminated a $28,669.03 unsecured claim in exchange for waiving the right to bring a law suit to recover $10,015.68.
Mooring Capital Fund, LLC v. Sullivan (In re 201 N. George St., LLC), Adv. No. 14-ap-16
Date: 04/20/2016
Date: 04/20/2016
In an adversary proceeding revolving around a lien dispute, the court partially granted the defendants' motion to dismiss the first amended complaint where the plaintiff failed to state plausible causes of action against the movants for negligence and tortious interference with contract.
Zucker v. WesBanco Bank, Inc. 15-ap-24
Date: 02/25/2016
Date: 02/25/2016
The court denied summary judgment requested by the Plaintiff regarding its attempt to avoid as a preference the recordation of a UCC-1 financing statement because the Defendant assigned its security interest in the Debtor's property to a third party such that it was not a creditor of the Debtor. However, the court granted summary judgment to the Plaintiff on a second count under § 544 of the Bankruptcy Code relating to the same security interest because the Defendant did not possess an attached and perfected interest in the Debtor's property as of the bankruptcy petition date, thus resolving both counts.
D’Amico v. U.S. Dept. of Treasury, 15-ap-05
Date: 02/01/2016
Date: 02/01/2016
The court granted summary judgment to the Debtor on his complaint, which alleged a willful stay violation under § 362(k) of the Bankruptcy Code against the U.S. Department of the Treasury and the United States Postal Service.
Fluharty v. Duet, 13-ap-45
Date: 01/29/2016
Date: 01/29/2016
The court partially granted summary judgment to the Defendant, finding that transfers made to the Defendant by the Debtor's member were not transfers of the Debtor's property, and thus not avoidable under §§ 544, 547, or 548 of the Bankruptcy Code.
Mooring Capital Fund, LLC v. Sullivan (In re 201 North George Street, LLC) , 14-ap-16
Date: 09/28/2015
Date: 09/28/2015
The court denies summary judgment to both Mooring and the Sullivans where their dispute regarding their relative lien positions vis-a-vis the Debtor's property revolves around whether Mooring's predecessor-in-interest knew about the Sullivans' intervening deed of trust at the time it released its first-priority deed of trust and took a subsequent deed of trust on the Debtor's property.
Godfrey v. The Huntington National Bank (In re Godfrey), Case No. 13-ap-24
Date: 09/18/2015
Date: 09/18/2015
The authenticated notice of private disposition sent to the party's attorney complies with W. Va. Code 46-9-611(c). Genuine issues of material fact exist regarding whether the bank's private disposition of collateral was commercially reasonable. Summary judgment is granted to the third party purchaser as a good faith transferee under W. Va. Code 46-9-617(b).