Secured creditor's motion to dismiss for cause under 11 U.S.C. § 1112(b)(4)(A) was granted based upon the Debtor's negative cash flow, depreciating asset values, and lack of any reasonable likelihood of rehabilitation.
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Patrick M. Flatley
In re Hickory Ridge, LLC, Case No. 07-1251
Date: 04/26/2010
Date: 04/26/2010
Bank's motion for relief from the automatic stay under section 362(d)(1) of the Bankruptcy Code is granted. Debtor's motion to convert case from Chapter 7 to Chapter 11 is denied because the individual purportedly authorizing the conversion was a dissociated member without management authority.
Bailey v. Davant (In re Bailey), Case No. 10-5
Date: 04/12/2010
Date: 04/12/2010
Creditor's failure to affirmatively release a pre-petition garnishment of the debtor's wages violated the automatic stay. The creditor and her attorney may be held jointly and severally liable for the violation.
Pague v. Harshman, et al. (In re Pague), Case No. 09-ap-00071
Date: 04/05/2010
Date: 04/05/2010
A creditor and her attorney violated the discharge injunction under 11 U.S.C. § 524(a)(2) by suing the Debtor on a pre-petition promissory note, obtaining judgment on that debt, and undertaking post-judgment collection efforts. Court imposed sanctions for civil contempt, which included payment to the Debtor of attorneys' fees, costs, and compensatory damages. The record did not justify sanctions for punitive damages.
Walker v. Wells Fargo (In re Walker), Case No. 08-ap-00011
Date: 03/30/2010
Date: 03/30/2010
Motion for judgment on the pleadings was granted in part and denied in part. Post-petition presentment of an account statement was not an attempt to collect from the estate under § 362(a)(3) or a collection effort against the Debtors under § 362(a)(6). The complaint, however, alleged sufficient facts to establish a plausible claim that Wells Fargo made a post-petition assessment of a pre-petition claim under § 362(a)(6). Debtors' claims under the West Virginia Consumer Credit and Protection Act were preempted by the Bankruptcy Code. Debtors' claims under the FDCPA failed to state a claim because Wells Fargo is not a debt collector under that Act. Debtors' causes of action under §§ 506 and 105 and Fed. R. Bankr. P. 2016 failed to state a claim because those provisions do not create a private right of action. Debtors' claim under Fed. R. Bankr. P. 9011 failed to state a claim because the Debtors failed to comply with the safe harbor provisions of that Rule.
Brackett v. Corinthian Mortgage Corporation (In re Brackett), Case No. 09-ap-00098
Date: 03/25/2010
Date: 03/25/2010
Complaint against home loan originator under the West Virginia Consumer Credit and Protection Act was dismissed on the grounds that the federal Home Owners' Loan Act and the regulations promulgated by the Office of Thrift Supervision preempt state law that regulates the lending practices of federal savings banks. Causes of action under the Truth In Lending Act were dismised, because those actions expired. Claims for violations of the Real Estate Settlement Procedures Act were dismissed, because that Act provides no private right of action for the alleged violations.
In re Pat J. Herlan, WV Real Estate Broker, Inc., Case No. 09-2665
Date: 03/25/2010
Date: 03/25/2010
Motion to contempt is denied on the basis that the moving party failed to show harm by clear and convincing evidence.
Goodman v. Blare (In re Blare), Case No. 09-33
Date: 03/22/2010
Date: 03/22/2010
Intervenor's complaint against the plaintiff is dismissed for lack of subject matter jurisdiction. Intervenor's motion to reconsider order granting the plaintiff stay relief against the debtor for the purpose of allowing the plaintiff to pursue the debtor to the extent of applicable insurance coverage is denied.
Teitz v. Virginia Electric Power Company, Inc. (In re Buffalo Coal Company, Inc.), Case No. 08-38
Date: 02/26/2010
Date: 02/26/2010
Defendant's motion in limine to exclude the testimony of plaintiff's coal industry expert is granted. The expert was to testify as to whether the termination of a coal supply agreement was commercially reasonable; however, because the defendant terminated the agreement pursuant to an express contractual right, the defendant's actions were not subject to a commercially reasonable or good faith analysis under Virginia law.
Barnhart v. Union Bank, Inc. (In re Barnhart), No. 09-ap-00109
Date: 02/26/2010
Date: 02/26/2010
The court granted the Bank's motion to dismiss the Debtors's complaint, which sought the disallowance of a proof of claim and alleged tort and contempt damages arising from the filing of an un-redacted proof of claim. The court lacked subject matter jurisdiction over post-petition tort claims. The facts alleged in the complaint failed to show that the proof of claim should be disallowed and either that the Bank acted with contempt or that the Debtors had suffered compensable damages.
Teitz v. Virginia Electric Power Company, Inc. (In re Buffalo Coal Company, Inc.), Case No. 08-38
Date: 02/16/2010
Date: 02/16/2010
Defendant's motion for summary judgment on plaintiff's breach of contract claim is denied. A contractual "termination payment" is not the sole remedy for breach of contract, and the contract's limitation of liability provision did not exclude "lost profits" as an element of "direct actual damage."
Graham v. Virginia Electric Power Co. (In re United Energy Coal, Inc.), Case No. 08-45
Date: 02/08/2010
Date: 02/08/2010
Defendant's motion for summary judgment on claims of tortious interference with contract and tortious interference with a prospective business advantage is granted. The plaintiff failed to prove the existence of an on-going oral contract on which to base a claim of tortious interference with contract. Similarly, the plaintiff failed to show that the defendant's motive or purpose were improper when it allegedly interfered with the plaintiff's business relations with a third party.
Teitz v. Virginia Electric Power Company, Inc. (In re Buffalo Coal Company, Inc.), Case No. 08-38
Date: 01/26/2010
Date: 01/26/2010
Defendant's motion for summary judgment on a tortious interference with contract claim is granted on the basis of privilege. The defendant enjoyed a "consultant's privilege" under section 722(b) of the Restatement (Second) of Torts, adopted by the Supreme Court of Appeals of West Virginia, to counsel its client to terminate a coal supply contract with the plaintiff/debtor.
In re Shaw, Case No. 09-219
Date: 01/11/2010
Date: 01/11/2010
Debtor cannot claim an exemption in jointly held property under section 522(b)(3)(B) of the Bankruptcy Code because West Virginia law does not prevent the debtor's undivided 1/2 interest in jointly owned property from passing to the bankruptcy estate. For purposes of conducting the liquidation analysis of section 1325(a)(4), the hypothetical sale of the debtor's 1/2 interest in jointly owned property is analyzed under section 363(h) of the Bankruptcy Code -- not section 37-4-3 of the West Virginia Code.
In re Pat J. Herlan, WV Real Estate Broker, Inc., Case No. 09-2665
Date: 01/05/2010
Date: 01/05/2010
An agent wrongfully took contracts belonging to her principal and transferred them to the debtor. The principal's motion for turnover of the contracts is granted pursuant to section 541(d) of the Bankruptcy Code because the principal retained equitable title to the contracts and all the estate obtained from the agent was legal title.
Jeffries v. Osborne (In re Osborne), Case No. 08-92
Date: 12/18/2009
Date: 12/18/2009
Complaint to except debts from discharge under section 523(a)(2) of the Bankruptcy Code is denied.
In re Smith, Case No. 09-691
Date: 11/23/2009
Date: 11/23/2009
The court may consider a debtor's actual ability to pay debts in making an abuse determination under section 707(b)(3)(B) of the Bankruptcy Code inasmuch as a debtor's actual ability to pay debts (as opposed to the ability to pay calculation under the hard-edged means test) is an important factor in determining whether the totality of the circumstances of the debtor's financial situation demonstrates that the filing of the Chapter 7 case is abusive.
Teitz v. Va. Elec. Power Co. (In re Buffalo Coal Co., Inc.), Case No. 08-ap-00038
Date: 09/30/2009
Date: 09/30/2009
The court denied summary judgment on the Trustee's complaint for breach of contract, finding that an issue of fact remained as to whether the defendant waived or is estopped from asserting defenses provided for in the contract. The court granted summary judgment on the Trustee's complaint for contractual indemnification because the liabilities for which the Trustee sought indemnification were consequential damages subject to the contract's limitation of liability provision.
Centra Bank v. Burton (In re Burton), Case No. 09-34
Date: 09/17/2009
Date: 09/17/2009
Creditor stated a claim for defalcation against the debtor, an officer and director of an alleged insolvent corporation, for his alleged inappropriate use of corporate funds, based on rights transferred from the corporation to the creditor, and based on the fiduciary duties owed by the debtor to the creditor in his capacity as an officer and director of an alleged insolvent corporation.
Jones v. Jones (In re Jones), Case No. 09-18
Date: 08/11/2009
Date: 08/11/2009
The court denied the Parties’ cross-motions for summary judgment on a complaint alleging that certain Family Court proceedings in state court violated the automatic stay pursuant to section 362(a)(1) of the Bankruptcy Code.