West Virginia's bankruptcy only exemptions, listed in section 38-10-4 of the West Virginia Code, are not preempted by the list of federal exemptions, listed in section 522(d) of the Bankruptcy Code.
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Patrick M. Flatley
In re Bricker, Case No. 08-340
Date: 07/02/2008
Date: 07/02/2008
Debtor’s general objection to the creditor’s proof of claim, when considered in conjunction with parallel litigation concerning the creditor’s objection to confirmation of the debtor’s chapter 13 plan, is sufficient to overcome the Rule 3001(f) prima facie presumption as to the claim’s validity and amount.
In re AB&C Group, Inc., Case No. 08-482
Date: 07/02/2008
Date: 07/02/2008
Money held in the debtor’s bank account that was intended to be used to pay the pre-petition wages of the debtor’s employees is property of the debtor’s bankruptcy estate. The money may be used by the debtor’s Chapter 7 trustee in the ordinary administration of the debtor’s bankruptcy case.
Copley v. West Virginia State Tax Dep't (In re Copley), No. 07-2061
Date: 06/27/2008
Date: 06/27/2008
Chapter 7 debtor suffered no damage and lacked standing to vindicate a violation of the automatic stay against property of the debtor's bankruptcy estate.
In re Quigley, Case No. 08-24
Date: 06/20/2008
Date: 06/20/2008
The debtor may claim a secured debt expense for secured collateral that the debtor intends to surrender on Form B22C. When a non-debtor third party has paid a secured debt expense for the debtor, then the amount of those payments must be included in the determination of the debtor’s current monthly income.
In re Kleeb, Case No. 07-1322
Date: 05/23/2008
Date: 05/23/2008
Creditor's objection to confirmation is sustained on the grounds that the debtor is required to pay the creditor's secured car claim at the Till rate of interest -- not the contract rate of 0% -- when the debtor proposed to cram down the claim by lowering the monthly payments and extending the loan's maturity date.
In re Ball, Case No. 06-1002
Date: 05/23/2008
Date: 05/23/2008
Individual Chapter 11 debtor’s motion for discharge and case closing is denied because all payments had not been made under the plan and assets still existed to be administered.
In re Bland, Case No. 06-1159
Date: 05/06/2008
Date: 05/06/2008
Debtor's Chapter 13 petition is dismissed for lack of good faith due to the debtor's failure to cooperate with an interested creditor and the Chapter 13 trustee in the proper identification of estate assets.
In re Buffalo Coal Co., Case No. 06-366
Date: 04/30/2008
Date: 04/30/2008
The court grants the application to approve Thorp Reed & Armstrong, LLP, former counsel to the Chapter 11 unsecured creditor's committee, as special counsel to the Chapter 7 trustee for the purpose of suing a former committee member on a pre-petition cause of action.
Weekly v. Bank One Wheeling-Steubenville, N.A. (In re Weekly), Case No. 07-1
Date: 04/17/2008
Date: 04/17/2008
A portion of the bank’s third deed of trust was secured by the value of the debtor’s principal residence, therefore, the debtor is prohibited from stripping off the deed of trust as wholly unsecured in her Chapter 13 plan.
In re Hrapchak, Case No. 07-1668
Date: 04/16/2008
Date: 04/16/2008
An absolute assignment of rents clause in a note and deed of trust is given as security, and is therefore property of the estate subject to the rules regarding cash collateral.
City of Clarksburg v. Sprouse (In re Sprouse), Case No. 07-120
Date: 04/15/2008
Date: 04/15/2008
Even though the City did not perform demolition services until after the debtor’s no-asset, Chapter 7 bankruptcy filing, the City had an unliquidated, contingent, and/or unmatured claim for those services when the debtor filed bankruptcy. Therefore, the City’s claim against the debtor for the cost of demolition is discharged.
In re Vandernick, Case No 07-1192
Date: 03/31/2008
Date: 03/31/2008
910 car creditors hold secured claims and are entitled to interest at the Till rate.
In re Bland, Case No. 06-1159
Date: 03/31/2008
Date: 03/31/2008
Debtor met the eligibility requirements in 11 U.S.C. § 109(e) that she be an “individual with regular income” when she had stable and regular contributions from her non-debtor husband.
Grimes v. First-Citizens Bank & Trust Co. (In re Grimes), Case No. 07-57
Date: 03/31/2008
Date: 03/31/2008
Debtor’s cause of action for negligence against First-Citizens for, inter alia, making allegedly unauthorized withdraws from his checking that resulted in his alleged “humiliation, embarrassment, and emotional distress” is not a personal injury tort within the meaning of 28 U.S.C. § 157(b)(5). The adversary proceeding is “non-core.” Because the alleged cause of action is property of the Debtor’s bankruptcy estate, the Debtor is given 30 days to add his Chapter 7 trustee as the party plaintiff.
Copley v. West Virginia State Tax Department (In re Copley), Case No. 07-2061
Date: 03/13/2008
Date: 03/13/2008
The State received a final determination notice from the IRS in 1999 that it had readjusted the debtor’s tax obligation from 1993. The State’s additional tax assessment notice to the debtor, sent within 90 days of the IRS’s notification, was timely under the applicable statute of limitations. Because the debtor’s 1993 taxes were due within three years of his February 1997 bankruptcy petition, the additional taxes owed to the State are excepted from his discharge pursuant to sections 523(a)(1)(A) and 507(a)(8)(A)(i) of the Bankruptcy Code. The defense of laches is not applicable because the debtor knew when he filed his bankruptcy petition that his tax returns from 1993 were subject to being readjusted, and the debtor failed to fulfill his statutory duty of notifying the State before 1999 that the IRS had readjusted his tax returns. The debtor proved that the State violated the automatic stay when, post-petition, it recorded lien on property of the estate for the debtor’s pre-petition taxes.
In re Linn, Case No. 07-1593
Date: 03/10/2008
Date: 03/10/2008
The trustee's objection to the debtor's Chapter 13 plan based on the disposable income test of section 1325(b) is overruled. Application of the disposable income test would render the Chapter 13 plan infeasible, which is an absurd result.
In re Windwood Heights, Case No. 07-1001
Date: 02/25/2008
Date: 02/25/2008
A judgment creditor's motion for relief from the automatic stay against single asset real estate under section 362(d)(3)(A) of the Bankruptcy Code is denied. The court determined that a judgment creditor could utilize the stay relief provisions of section 362(d)(3), but determined that the Debtor could file an amended plan that would have a reasonable possibility of being confirmed within a reasonable time. The Debtor's current plan, however, was patently unconfirmable because it provided for a negative amortization period of up to eight years.
McDow v. Wamsley (In re Wamsley), Case No. 04-44
Date: 02/22/2008
Date: 02/22/2008
The U.S. Trustee has successfully satisfied his burden in establishing the requisite elements under 11 U.S.C. 727(d)(1), and, therefore, the Debtor's discharge shall be revoked.
In re United Energy, Case No. 06-453
Date: 02/21/2008
Date: 02/21/2008
A security agreement that identified collateral as certificates of deposit and letters of credit that "shall be deposited" with the creitor was sufficiently descriptive and forward looking to include after acquired certificates of deposit and letters of credit. Because the certificates of deposit were pledged to the creditor, the creditor had a perfected security interest in them by possession. Because the letters of credit were issued directly to the creditor, the creditor perfected its security interest in them by control. Accordingly, the creditor's motion for relief from stay was granted on the basis that it was a perfected secured creditor, and pursuant to an indemnity agreement, the creditor had the right to collect on the certificates of deposit and letters of credit.