The court disapproves of the debtor's reaffirmation agreement. However, the court holds that because the debtor complied with the strictures of 11 U.S.C. §§ 521(a) and 362(h), the creditor may continue to accept payments, but may not repossess the debtor's vehicle unless there is a subsequent payment default.
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Patrick M. Flatley
In re: The Square at Falling Run, LLC, Case No. 11-753
Date: 04/30/2012
Date: 04/30/2012
Petition for involuntary Chapter 7 relief is granted.
In re Sonntag, Case No. 10-1749
Date: 03/28/2012
Date: 03/28/2012
The court granted the U.S. Trustee's motion to dismiss for abuse under 11 U.S.C.§ 707(b)(3). The court held that after balancing the Debtors' ability to repay their creditors and the other Greenfactors, the totality of the Debtors' financial circumstances demonstrates abuse.
Wolfe v. Greentree Mortg. Corp., et al. (In re Wolfe), AP 10-64
Date: 03/23/2012
Date: 03/23/2012
The defendants' motions for summary judgment are granted as to Count I because insufficient indicia of unconscionability exists under West Virginia Code § 46A-2-121(1)(a).
In re Sandra E. Kuhns and Stacia Fuller, Misc. Proc. No. 10-01
Date: 03/05/2012
Date: 03/05/2012
The court granted in part the U.S. Trustee's motion to enjoin bankruptcy petition preparers, and permanently enjoined the petition preparers under 11 U.S.C. § 110(j)(3) where the court found the petition preparers violated several provisions of § 110 and a previous order of the court.
Hixson v. HSBC Mortgage Services, Inc., AP 09-42
Date: 09/30/2011
Date: 09/30/2011
Plaintiff's motion for summary judgment is granted on Counts II and III of his complaint under the West Virginia Residential Mortgage Broker, Lender, and Servicer Act, W.Va. Code § 31-17-1, et seq. (the "Act"), where the Defendant did not provide the Plaintiff with signed copies of the loan documents executed by the Plaintiff at closing.
Defendant's motion for summary judgment is denied where the Defendant is not a "holder in due course" under W. Va. Code § 46-3-302(a), and the Act is not preempted by the Bankruptcy Code.
In re Kramp, Case No. 10-1681
Date: 09/06/2011
Date: 09/06/2011
Debtors' proposed Chapter 13 plan denied confirmation under 11 U.S.C. § 1325(a)(3) where debtors sought retention of a Harley Davidson motorcycle while repaying their unsecured creditors 5% of allowed claims.
In re Sonntag, Case No. 10-1749
Date: 09/06/2011
Date: 09/06/2011
The court denied the U.S. Trustee's motion to dismiss for abuse under 11 U.S.C. § 707(b)(2) but set an evidentiary hearing to consider the trustee's motion to dismiss under 11 U.S.C. § 707(b)(3). In denying the trustee's motion under § 707(b)(2), the court found that the debtors were entitled to a mortgage/rent expense deduction for their residence on line 20B, and a secured debt deduction on lines 42 and 43 for their former residence.
Munson v. American General (In re Munson), Adversary No. 10-132
Date: 09/06/2011
Date: 09/06/2011
Debtors' cause of action under 11 U.S.C. § 547 is dismissed as time barred under 11 U.S.C. § 546(a)(2), but Debtors pleaded facts alleging a violation of the automatic stay sufficient to defeat American General's motion to dismiss under Fed. R. Civ. P. 12(b)(6).
Moore v. American General (In re Moore), Adversary No. 10-92
Date: 09/01/2011
Date: 09/01/2011
Motion to Stay Adversary Proceeding and Compel Arbitration is granted where the terms of the arbitration agreement are not so unreasonably favorable to American General to be unconscionable
In re Dennis Majkowski, Case No. 07-bk-199
Date: 07/06/2011
Date: 07/06/2011
Motion to voluntarily dismiss confirmed Chapter 13 case revests in the Debtor all post-confirmation funds paid to the Trustee before dismissal, and held by the Trustee at the time of dismissal, pursuant to 11 U.S.C. § 349(b)(3). Funds paid to the Trustee after notice of dismissal were not property of the estate and must be returned to the Debtor.
Sheehan v. Warner (In re Warner), Case No. 10-100
Date: 07/01/2011
Date: 07/01/2011
Trustee's summary judgment to motion to avoid an alleged preferential and/or fraudulent transfer of LLC membership units is denied because the Trustee failed to show that a transfer of membership units occurred pursuant to the LLC's operating agreement.
First United Bank and Trust v. Warner (In re Grand Central Buildings, LLC), Case No. 10-68
Date: 06/07/2011
Date: 06/07/2011
Bankruptcy court has "related to" jurisdiction over a lawsuit between a creditor of the debtor and non-debtor guarantors.
Donham v. Walters (In re Walters), Case No. 10-93
Date: 06/06/2011
Date: 06/06/2011
Motion for summary judgment is denied as it related to causes of action to except a debt from discharge under 11 U.S.C. § 523(a)(2)(A) and (4). The court sua sponte dismissed the alleged cause of action under § 523(a)(6), for willful and malicious injury, because debts of that type are not excepted from discharge in a Chapter 13 case.
In re Mason, Case No. 10-2092
Date: 06/03/2011
Date: 06/03/2011
Student loan creditors may be separately classified under 11 U.S.C. § 1322(b)(1). The separate class of student loan creditors may be treated favorably as compared to other classes of unsecured creditors because: (1) a primary aim of the Bankruptcy Code is to afford a debtor with a fresh start and treating student loans favorably in a Chapter 13 plan manifests this aim to the extent that it ensures the debtor is no worse off for having filed bankruptcy; (2) Congress has expressly chosen to favor student loan debts over other unsecured debts by excepting student loans from discharge in all but the most dire of circumstances; (3) the purpose of this exception to discharge is not to punish the debtor for bad conduct (as in the case of fraud or willful and malicious injury), but to protect the rights of the creditor to repayment; (4) a strong public policy exists that favors the federal student loan program, the solvency of which is critical to our nation’s welfare and prosperity; (5) in contrast to allowing favorable treatment for student loan debts, nothing in the Bankruptcy Code, Rules, or policies underlying the nature of otherwise dischargeable, general unsecured debt would cause the court to allow similar discriminatory treatment for such creditors. Finding that a basis exists to treat student loan debts more favorably than other unsecured creditors, however, does not necessarily afford a license to a debtor to pay student loan creditors all their Chapter 13 actual, disposable income while not making any payments to other unsecured creditors – even assuming that the best interest of creditor test of § 1325(a)(4) would otherwise be met by a 0% payout. A debtor must be able to articulate a reason why the discriminatory treatment is being proposed, and be able to demonstrate that a lesser discriminatory means of treatment is not advisable.
Chase Bank USA, N.A. v. Brozstek (In re Brozstek), Case No. 10-145
Date: 05/09/2011
Date: 05/09/2011
Debtor's motion for summary judgment on creditor's complaint alleging causes of action under 11 U.S.C. § 523(a)(2)(A) and (C), for pre-petition credit card charges, is granted in part and denied in part. The debtor did not obtain any cash advances within the 70-day presumptive period of § 523(a)(2)(C)(i)(II). The debtor failed to demonstrate that she did not purchase any luxury goods within the 90-day presumptive period of § 523(a)(2)(C)(i)(I). The debtor also failed to show that Chase Bank was prevented from obtaining relief under § 523(a)(2)(A).
Wells Fargo Home Mortgage v. Van Wagner (In re Van Wagner), Case No. 11-3
Date: 04/28/2011
Date: 04/28/2011
Cause of action to void a tax lien sale as being in violation of the automatic stay is dismissed because the case trustee abandoned the property retroactively to the date of the petition, which validated the post-petition tax lien sale. Cause of action to except debts from the debtor's discharge under section 523(a)(2) of the Bankruptcy Code is dismissed as untimely.
McClure Properties, Inc. v. Fifth Third Bank (In re McClure Properties, Inc.), Case No. 10-146
Date: 04/04/2011
Date: 04/04/2011
Bank's motion for a judgment on the pleadings is granted in part and denied in part. Claim preclusion does not bar new causes of action arising after the initiation of the complaint in the first action. The West Virginia common law right to set aside a foreclosure sale for a price so low that shocks the conscience is not barred by W. Va. Code § 40-1A-3(b); however, the debtor's cause of action to set aside the foreclosure sale as a statutory fraudulent conveyance was barred by W. Va. Code § 40-1A-3(b). The debtor failed to show that the foreclosure sale was irregular or collusive.
Perks v. Access National Mortgage Corp. (In re Perks), Case No. 10-32
Date: 03/31/2011
Date: 03/31/2011
Relief sought by Plaintiffs for alleged violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1635, is denied because Plaintiffs failed to prove by a preponderance of the evidence that they only received 1 copy each of the Notice of Right to Cancel.
Timberline Four Seasons Resort, Inc., v. Herlan (In re Herlan), Case No. 09-120
Date: 03/18/2011
Date: 03/18/2011
Motion for partial summary judgment dismissing causes of action under 11 U.S.C. §§ 523(a)(4) and (6) is granted.