Debtors' pre-petition cause of action under W. Va. Code § 46A-2-128(e), which prohibits a debt collector from having any communication with a consumer whenever it appears that the consumer is represented by an attorney, is preempted under the National Bank Act because the state law attempts to regulate how a national bank may collect a validly owing debt and more than incidentally affects a national bank's lending powers.
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Patrick M. Flatley
Van Wagner v. Centra Bank (In re Van Wagner), Case No. 10-90
Date: 01/28/2011
Date: 01/28/2011
The bank's motion to dismiss is granted on the grounds that the debtor does not have standing to assert causes of action in his own name that belong to a limited liability company.
Wiles v. Wise (In re Wiles), Case No. 10-123
Date: 01/19/2011
Date: 01/19/2011
In rem action to reform a deed of trust after entry of discharge did not violate the discharge injunction. Debtors failed to state a cause of action under 11 U.S.C. § 522(g) and (h) to avoid the creditor's lien, and the court lacked subject matter jurisdiction to adjudicate alleged post-petition violations of state law by the creditor. The court also lacked subject matter jurisdiction to declare the creditor's lien invalid under state law when any state law cause of action in that regard had been abandoned to the debtors when their case closed in 2002.
Cole et al. v. Palmer (In re Palmer), AP No. 09-84
Date: 01/14/2011
Date: 01/14/2011
The plaintiffs sought to have a state court judgment against the debtor excepted from the debtor's anticipated bankruptcy discharge pursuant to 11 U.S.C. §§ 523(a)(2)(A) and/or (6). The bankruptcy court excepted a portion of the state court judgment, including attorney fees and costs, pursuant to § 523(a)(2)(A).
In re LaRosa, Case No. 03-4115
Date: 01/14/2011
Date: 01/14/2011
The creditor's attorney asserted a charging lien on property of the estate proposed to be distributed to his former client. The bankruptcy court determined that it had subject matter jurisdiction over the dispute, that the attorney had a valid charging lien under state law, but an evidentiary hearing was necessary to determine the extent of the charging lien.
In re Van Wagner, Case No. 08-435
Date: 11/22/2010
Date: 11/22/2010
Proper procedures were not followed to effect an abandonment of property.
Davant v. Bailey (In re Bailiey) Case No. 10-15
Date: 11/04/2010
Date: 11/04/2010
Attorney's fees awarded by the Family Court based on a disparity of income between the parties is in the nature of alimony, maintenance, or support and excepted from the debtor's anticipated Chapter 13 discharge under 11 U.S.C. § 523(a)(5). The evidence did not support a finding that a division of marital property or additional attorney's fees awarded for contemptuous conduct were in the nature of alimony, maintenance, or support; thus, those debts are subject to being discharged in a completed Chapter 13 plan.
Watson v. Stonewall Jackson Mem. Hosp. Co. (In re Watson), Case No. 10-109
Date: 11/01/2010
Date: 11/01/2010
The court recognized a cause of action under 11 U.S.C. § 105(a) for contempt based on the debtor's allegation that the creditor filed a false or fraudulent proof of claim. Motion to dismiss for failure to state a claim is denied.
In re Watson, Case No. 10-1292
Date: 11/01/2010
Date: 11/01/2010
Creditor's motion to dismiss the debtor's Chapter 7 case for bad faith under section 707(a) of the Bankruptcy Code is granted.
First Exchange Bank v. Cross (In re Cross), Case No. 09-110
Date: 10/01/2010
Date: 10/01/2010
Bank loan and collection officer, acting as a Bank customer, did not commit a defalcation under section 523(a)(4) of the Bankruptcy Code by submitting an application for a loan to his supervisor.
In re Bailey, No. 09-2564
Date: 09/24/2010
Date: 09/24/2010
Ex-spouse's motion to dismiss debtor's Chapter 13 bankruptcy case as being filed in bad faith is denied.
Parkvale Bank v. LaPosta ( In re LaPosta), Case No. 09-32
Date: 08/30/2010
Date: 08/30/2010
The court denied the debtors’ Rule 12(b)(6) motion to dismiss, finding the pleadings sufficient to state a claim under 11 U.S.C. §§ 523(a)(4) and (6), and granted the debtors’ Rule 9(b) motion, in part, giving the plaintiff additional time to provide a more definite statement.
In re Bon-Air, Case No. 09-2621
Date: 08/30/2010
Date: 08/30/2010
The debtor failed to demonstrate that dismissal of its Chapter 7 case under 11 U.S.C. § 707 would be in the best interest of all the parties, especially the creditor.
First Exchange Bank v. Cross (In re Cross), Case No. 09-110
Date: 08/27/2010
Date: 08/27/2010
he bank failed to demonstrate on summary judgment that its employee, a loan officer, was a "fiduciary" within the preview of 11 U.S.C. § 523(a)(4).
Teitz v. Virginia Electric Power Co. (In re Buffalo Coal Co.), Case No. 08-38
Date: 08/16/2010
Date: 08/16/2010
The court found insufficient evidence of waiver or estoppel to prevent the Virginia Electric Power Company from terminating a coal supply agreement with Buffalo Coal company based on its insolvency and inability to pay debts when due.
Davant v. Bailey (In re Bailey), Case No. 10-15
Date: 08/13/2010
Date: 08/13/2010
Motion for sanctions under Rule 9011 and 28 U.S.C. § 1927 is denied. A further hearing is set to determine if the debtor’s petition should be dismissed as being filed in bad faith.
In re Tiger Aircraft, LLC, Case No. 07-47
Date: 08/06/2010
Date: 08/06/2010
Unsecured claim reclassifed as an equity interest.
Sheehan v. Key Financial Corp. (In re Satterfield), Case No. 10-57
Date: 07/26/2010
Date: 07/26/2010
Defendant's motion to dismiss debtor's complaint for lack of standing and on grounds of judicial estoppel is denied. The debtor's Chapter 7 trustee elected to administer the debtor's causes of action and judicial estoppel does not apply against the case trustee.
Roy v. Navy Federal Credit Union (In re Roy), Case No. 10-24
Date: 07/26/2010
Date: 07/26/2010
Bankruptcy court jurisdiction over pre-petition causes of action alleged by the debtor was proper when the adversary proceeding was filed. The subsequent closing of the debtor's bankruptcy case and abandonment of the causes of action by operation of law did not divest the court of its jurisdiction.