The debtor's state law claims under sections 46A-2-124(c) and 46A-2-127(d) of the Code of West Virginia are dismissed because, as applied, they are preempted by the Bankurptcy Code's remedies for violations of the automatic stay and discharge injunciton. The debtor's cause of action for damages based on the creditor's violation of the automatic stay is dismissed because the debtor failed to demonstrate that she ever knew the automatic stay was violated; thus, she never suffered a compensable injury. The court awarded the debtor $500 in compensation for losses she sustained as a result of the creditor's violation of the discharge injunction, and awarded her attorney $2,343 in fees and costs incurred to enforce the discharge injunction against the creditor.
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Patrick M. Flatley
Date: 03/02/2007
Date: 03/01/2007
The debtor was not a domicilarly of West Virginia for the full 730-day period preceding the date of the debtor's bankruptcy petition as required by section 522(b)(3) of the Bankruptcy Code; thus, the West Virginia exemption statutes were not applicable. Because the debtor was a domiciliary of the State of Georgia during the 180-day period preceeding the 730-day period before the filing of her petition, Georgia was the applicable State for determining what exemptions the debtor was entitled to claim. Although Georgia is an opt-out State, its opt-out statute did not include former domiciliaries such as the debtor. Since no prohibition existed under Georgia law to the debtor's use of the federal exemptions provided in section 522(d), the Chapter 7 trustee's objection to the debtor's claim of the federal homestead exemption was overruled. Additionally, the court did not find any Uniformity Clause violation in either Congress's enactment of section 522(b)(3), or in the court's conclusion that Georgia's opt-out statute would not apply to non-domicilaries like the debtor.
Date: 02/28/2007
The motion of the debtors-in-possession to approve the employment of special counsel for the purpose of administering the death estate of one of the joint-debtors is denied. Approval of the employment application is not in the best interests of the bankruptcy estate under section 327(e) because property of the bankruptcy estate is separate and distinct from property in belonging to the decedent at the time of his death.
Date: 02/28/2007
When the debtor's bankruptcy filing intervenes between the sale of his residence at a foreclosure auction and the recording of the foreclosure sale deed, the debtor's right to cure the mortgage arrearage under § 1322(c)(1) was extinguished upon the execution of the memorandum of sale.
Date: 02/05/2007
Debtor's obligation under a property settlement agreement is discharged because he does not have the ability to pay it. Debtor's former spouse has a lien on the Debtor's real estate, by virtue of the divorce decree, which survives bankruptcy. Debtor's former spouse does not an equitable lien on the Debtor's real estate because she failed to demonstrate that an equitable lien arose from a writing or that an equitable lien would be necessary to prevent the unjust enrichment of the Debtor.
Date: 01/31/2007
The Debtor's motion to approve the disbursement of sale proceeds to a co-owner of real property pursuant to section 363(j) of the Bankruptcy Code is continued; objections to the Debtor's motion are converted by the court into motions for a preliminary injunction under Fed. R. Bankr. P. 7065, and the parties are given the opportunity to prove that the co-owner's presently defined interest in the real property should be withheld by court order pending the adjudication of a future lawsuit against the co-owner to avoid her interest.
Date: 01/22/2007
Creditor's complaint to except a debt from discharge pursuant to section 523(a)(2)(A) or (B) is denied because the creditor failed to establish the requisite intent to support those claims.
Date: 01/11/2007
The Bank's motion for summary judgment is granted because insufficient evidence of unconscionability exists with regard to loan terms under section 46A-2-121 of the West Virginia Code.
Date: 11/16/2006
In a dispute between creditors over auction proceeds, the court declared that a leased commercial building was personal property. The court also determined the allocation of auction proceeds to individual items of equipment that were sold pursuant to a bulk sale, and the court denied one creditor's request for contribution from the other based on the absence of evidence supporting the alleged contribution contract.
Date: 11/15/2006
If a sale under Section 363(b) also compromises claims, then the standards and procedures governing compromises of claims under Rule 9019 must also be adhered to in the sale process.
Date: 10/30/2006
The Debor's motion to reopen the bankruptcy case to "amend" a defective and unenforceable reaffirmation agreement is denied.
Date: 10/30/2006
Chapter 13 debtor's motion to value automobile is granted. The presumptive replacement value is the average between the N.A.D.A. trade-in and retail value, which is to be determined as of the effective date of the debtor's Chapter 13 plan.
Date: 10/30/2006
The Debtor's motion to stay the Chapter 11 proceeding, and associated adversary proceedings, pending the outcome of a separate dispute in arbitration is denied.
Date: 10/03/2006
Chapter 13 debtor's motion to modify the automatic stay to allow a secured creditor to send the debtor monthly statements of account pursuant to Section 46A-2-114 of the Code of West Virginia is granted.
Date: 09/29/2006
Motion for stay pending appeal is denied based on the four-part test set forth by the Fourth Circuit in Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
Date: 09/28/2006
Debtor's complaint to discharge student loans is denied based on Debtor's failure to establish an undue hardship under all three prongs of the Brunner test.
Date: 09/28/2006
Debtor's parent PLUS loan was excepted from discharge because the Debtor failed to make any payments on the loan for ten years, indicating a lack of good faith.
Date: 09/28/2006
Debtor's student loans were excepted from discharge because the Debtor failed to satisfy the second and third prongs of the Brunner test. The Debtor's recent purchase of two new vehicles and failure to make any payments on his student loans were indicative of a lack of good faith. Furthermore, the Debtor's promising future as a counselor indicate an improvement in his current circumstances.
Date: 09/18/2006
Plaintiffs' motions to reconsider the court's dismissal of its adversary proceedings is denied because the Plaintiffs failed to show excusable neglect.
Date: 09/18/2006
Motion to reconsider denial of motion for default judgment was denied because the Plaintiff had failed to properly serve the U.S. Department of Education as required by Bankruptcy Rule 7004(b)(5), in that the Plaintiff did not serve the U.S. Attorney for the Northern District of West Virginia nor the Attorney General.