The court denied the trustee's proposed order, which set forth a procedure for the court to authorize payments from the corpus of the Debtor's 401(k) Plan to cover the costs of terminating the Plan. The court lacked subject matter jurisdiction to enter the order, because the Plan is not an asset of the bankruptcy estate and the proceedings to be conducted under the order would have no effect on the administration of the bankruptcy case.
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Patrick M. Flatley
In re 210 West Liberty Holdings, LLC., Case No. 08-677
Date: 05/29/2009
Date: 05/29/2009
The filing of the LLC's bankruptcy case is an authorized act under its operating agreement. The Chapter 11 case is converted to Chapter 7 under section 1112(b) for gross mismanagement and failure to timely file operating reports.
In re Cheyenne Sales Company, Inc., No. 09-741
Date: 05/19/2009
Date: 05/19/2009
Automatic stay extended to non-debtor third parties when the third parties share an identity with the debtor such that the debtor may be said to be the real party defendant
The Business Backer v. Weber (In re Weber) , No. 08-78
Date: 04/17/2009
Date: 04/17/2009
Creditor's complaint to except a debt from discharge under sections 523(a)(2) and 523(a)(4) of the Bankruptcy Code is denied.
Ngo v. Webb (In re Webb), Case No. 08-AP-65
Date: 03/31/2009
Date: 03/31/2009
Cross motions for summary judgment asserted the issue preclusive effects of a default judgment taken from state court in the context of a section 523 adversary proceeding. Court applied California's issue preclusion doctrine and found that a default judgment did not expressly or necessarily decide the issue of fraud under section 523(a)(2)(A) or willful and malicious injury under section 523(a)(6).
In re LaRosa, Case no. 03-4115
Date: 03/25/2009
Date: 03/25/2009
Creditor's motion to convert under section 1112(b) of the Bankruptcy Code is conditionally granted because the Debtors have not proposed a plan that is capable of meeting the confirmation requirement of section 1129(a)(10).
In re Hoskins, Case No. 08-565
Date: 03/16/2009
Date: 03/16/2009
Creditor is entitled to an allowed claim against the debtor’s estate on an unjust enrichment theory of recovery.
In re Ashraf S. Badour, Case No. 08-bk-196
Date: 03/13/2009
Date: 03/13/2009
The court granted creditor's motion to exercise its setoff rights against the debtor's general deposit accounts pursuant to section 553.
Siewick v. Clayborn (In re Siewick), Case No. 06-57
Date: 02/09/2009
Date: 02/09/2009
Debtor's adversary proceeding seeking damages against a former employee for breach of an employment agreement with the debtor's company is denied. Pro se employee's claim against the Debtor for unpaid wages is denied.
In re 210 West Liberty Holdings, LLC, Case No. 08-677
Date: 02/04/2009
Date: 02/04/2009
Motion for relief from the automatic stay to pursue litigation against the debtor in state court is granted.
In re Mitchell, Case No. 06-144
Date: 01/28/2009
Date: 01/28/2009
The debtor did not wholly exempt her real property by declaration when she listed the property's value at $21,000, and claimed an exemption in the property in the amount of $21,000. The claimed exemption was proper considering that the West Virginia Code's statutory bankruptcy homestead exemption is $25,000, and there were an absence of "red flags" to communicate to the debtor's Chapter 7 trustee that the debtor intended to exempt her real property regardless of its actual value.
Harrold v. Raeder (In re Raeder), Case No. 08-47
Date: 01/12/2009
Date: 01/12/2009
The court denied the Plaintiff's motion for summary judgment on causes of action arising under sections 523(a)(2)(A), (4), (6), and 727(a)(4) of the Bankruptcy Code.
Moyers v. Fair Collections and Outsourcing, Inc. (In re Moyers), Case No. 07-29
Date: 12/22/2008
Date: 12/22/2008
Collection agent's motion for summary judgment on the debtor's causes of action for violation of the automatic stay and discharge injunction is granted. The debtor did not include the collection agent's correct address in her mailing matrix, and when the debtor informed the collection agent that she filed bankruptcy, it immediately took step.
Carroll v. FIA Card Services (In re Carroll), Case No. 07-110
Date: 12/22/2008
Date: 12/22/2008
Service of process is quashed because the trustee served process at the wrong address; the trustee is given an additional 30 days to effect service of process at the correct address in accordance with Bankruptcy Rule 7004(b)(3). The trustee's claims for illegal pre-petition debt collection practices are not time-barred because under section 108 of the Bankruptcy Code, the causes of action were still viable with the debtor filed bankruptcy, and the trustee has two years from the filing of the petition to assert those causes of action. Because knowledge of a principal is not imputed to the agent, a communication that the debtor sent to the principal requesting that further debt collection contacts be through his attorney has no effect on the debt collecting agent unless the agent also had knowledge of that communication.
Robb v. National Tree Co. (In re Robb), Case No. 08-9
Date: 12/22/2008
Date: 12/22/2008
Creditor recorded a judgment lien without knowledge of the debtors' bankruptcy. Creditor subsequently received notice of the bankruptcy filing and received a copy of the debtors' discharge order, but did not undertake any affirmative act to release its judgment lien. Creditor's motion to dismiss the debtors' causes of action for violation of the automatic stay is denied because such inaction could be construed to be an attempt to collect a discharged debt. Debtors' motion for summary judgment is denied because the uncontested facts fail to establish that the creditor's inaction was an attempt to collect on the debt.
In re Ohio Valley Amusement Company, Case No. 03-50356
Date: 12/01/2008
Date: 12/01/2008
Debtor's post-petition borrowing was not done in the ordinary course of business under section 364(a). No court approval was obtained for the loans under section 364(b), and nunc pro tunc approval was not appropriate under the circumstances. Lender's application for administrative expense status is denied.
Klein v. Virginia Electric Power Co. (In re Barton Mining Company, Inc.), Case No. 08-69
Date: 11/25/2008
Date: 11/25/2008
Motion to dismiss cause of action for tortious interference with contract is denied because the plaintiff put the defendant on notice of the claim, no insuperable bar to relief existed, and the right to relief was more than speculative.
United Energy Coal, Inc., v. Virginia Electric Power Co. Inc. (In re United Energy Coal, Inc.), Case No. 08-38
Date: 11/19/2008
Date: 11/19/2008
Motion for leave to file an amended complaint to assert a claim for tortious interference is granted. Defendant's motion to dismiss claim for breach of contract is granted on the grounds that the allegations in the amended complaint are insufficient to show that the Plaintiff was a third party beneficiary to the contract alleged to have been breached.
Jackson v. Harris (In re Harris), Case No. 08-13
Date: 09/15/2008
Date: 09/15/2008
The debtor’s motion for summary judgment on the creditor’s 11 U.S.C. § 523(a)(15) adversary complaint is denied because: (1) collateral estoppel prevents the debtor from relitigating issues related to a purported contractual waiver of rights arising under the parties’ separation agreement; (2) the debtor’s assertion of the unclean hands defense did not relate to the specific judgment debts sought to be excluded from the debtor’s discharge, and (3) the debtor’s assertion of offsetting debts involved a factual dispute, and one which may have already been settled by the parties in previous litigation.
In re Eskim, LLC, Case No. 08-509
Date: 08/28/2008
Date: 08/28/2008
Creditor’s motions for relief from the automatic stay and to prohibit the debtor’s use of cash collateral is denied based on the existence of an equity cushion and a proposed outline for reorganization.