Debtors' cause of action under 11 U.S.C. § 547 is dismissed as time barred under 11 U.S.C. § 546(a)(2), but Debtors pleaded facts alleging a violation of the automatic stay sufficient to defeat American General's motion to dismiss under Fed. R. Civ. P. 12(b)(6).
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Patrick M. Flatley
Moore v. American General (In re Moore), Adversary No. 10-92
Date: 09/01/2011
Date: 09/01/2011
Motion to Stay Adversary Proceeding and Compel Arbitration is granted where the terms of the arbitration agreement are not so unreasonably favorable to American General to be unconscionable
In re Dennis Majkowski, Case No. 07-bk-199
Date: 07/06/2011
Date: 07/06/2011
Motion to voluntarily dismiss confirmed Chapter 13 case revests in the Debtor all post-confirmation funds paid to the Trustee before dismissal, and held by the Trustee at the time of dismissal, pursuant to 11 U.S.C. § 349(b)(3). Funds paid to the Trustee after notice of dismissal were not property of the estate and must be returned to the Debtor.
Sheehan v. Warner (In re Warner), Case No. 10-100
Date: 07/01/2011
Date: 07/01/2011
Trustee's summary judgment to motion to avoid an alleged preferential and/or fraudulent transfer of LLC membership units is denied because the Trustee failed to show that a transfer of membership units occurred pursuant to the LLC's operating agreement.
First United Bank and Trust v. Warner (In re Grand Central Buildings, LLC), Case No. 10-68
Date: 06/07/2011
Date: 06/07/2011
Bankruptcy court has "related to" jurisdiction over a lawsuit between a creditor of the debtor and non-debtor guarantors.
Donham v. Walters (In re Walters), Case No. 10-93
Date: 06/06/2011
Date: 06/06/2011
Motion for summary judgment is denied as it related to causes of action to except a debt from discharge under 11 U.S.C. § 523(a)(2)(A) and (4). The court sua sponte dismissed the alleged cause of action under § 523(a)(6), for willful and malicious injury, because debts of that type are not excepted from discharge in a Chapter 13 case.
In re Mason, Case No. 10-2092
Date: 06/03/2011
Date: 06/03/2011
Student loan creditors may be separately classified under 11 U.S.C. § 1322(b)(1). The separate class of student loan creditors may be treated favorably as compared to other classes of unsecured creditors because: (1) a primary aim of the Bankruptcy Code is to afford a debtor with a fresh start and treating student loans favorably in a Chapter 13 plan manifests this aim to the extent that it ensures the debtor is no worse off for having filed bankruptcy; (2) Congress has expressly chosen to favor student loan debts over other unsecured debts by excepting student loans from discharge in all but the most dire of circumstances; (3) the purpose of this exception to discharge is not to punish the debtor for bad conduct (as in the case of fraud or willful and malicious injury), but to protect the rights of the creditor to repayment; (4) a strong public policy exists that favors the federal student loan program, the solvency of which is critical to our nation’s welfare and prosperity; (5) in contrast to allowing favorable treatment for student loan debts, nothing in the Bankruptcy Code, Rules, or policies underlying the nature of otherwise dischargeable, general unsecured debt would cause the court to allow similar discriminatory treatment for such creditors. Finding that a basis exists to treat student loan debts more favorably than other unsecured creditors, however, does not necessarily afford a license to a debtor to pay student loan creditors all their Chapter 13 actual, disposable income while not making any payments to other unsecured creditors – even assuming that the best interest of creditor test of § 1325(a)(4) would otherwise be met by a 0% payout. A debtor must be able to articulate a reason why the discriminatory treatment is being proposed, and be able to demonstrate that a lesser discriminatory means of treatment is not advisable.
Chase Bank USA, N.A. v. Brozstek (In re Brozstek), Case No. 10-145
Date: 05/09/2011
Date: 05/09/2011
Debtor's motion for summary judgment on creditor's complaint alleging causes of action under 11 U.S.C. § 523(a)(2)(A) and (C), for pre-petition credit card charges, is granted in part and denied in part. The debtor did not obtain any cash advances within the 70-day presumptive period of § 523(a)(2)(C)(i)(II). The debtor failed to demonstrate that she did not purchase any luxury goods within the 90-day presumptive period of § 523(a)(2)(C)(i)(I). The debtor also failed to show that Chase Bank was prevented from obtaining relief under § 523(a)(2)(A).
Wells Fargo Home Mortgage v. Van Wagner (In re Van Wagner), Case No. 11-3
Date: 04/28/2011
Date: 04/28/2011
Cause of action to void a tax lien sale as being in violation of the automatic stay is dismissed because the case trustee abandoned the property retroactively to the date of the petition, which validated the post-petition tax lien sale. Cause of action to except debts from the debtor's discharge under section 523(a)(2) of the Bankruptcy Code is dismissed as untimely.
McClure Properties, Inc. v. Fifth Third Bank (In re McClure Properties, Inc.), Case No. 10-146
Date: 04/04/2011
Date: 04/04/2011
Bank's motion for a judgment on the pleadings is granted in part and denied in part. Claim preclusion does not bar new causes of action arising after the initiation of the complaint in the first action. The West Virginia common law right to set aside a foreclosure sale for a price so low that shocks the conscience is not barred by W. Va. Code § 40-1A-3(b); however, the debtor's cause of action to set aside the foreclosure sale as a statutory fraudulent conveyance was barred by W. Va. Code § 40-1A-3(b). The debtor failed to show that the foreclosure sale was irregular or collusive.
Perks v. Access National Mortgage Corp. (In re Perks), Case No. 10-32
Date: 03/31/2011
Date: 03/31/2011
Relief sought by Plaintiffs for alleged violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1635, is denied because Plaintiffs failed to prove by a preponderance of the evidence that they only received 1 copy each of the Notice of Right to Cancel.
Timberline Four Seasons Resort, Inc., v. Herlan (In re Herlan), Case No. 09-120
Date: 03/18/2011
Date: 03/18/2011
Motion for partial summary judgment dismissing causes of action under 11 U.S.C. §§ 523(a)(4) and (6) is granted.
Jones v. Capital One Bank (USA), N.A., (In re Jones), Case No. 10-125
Date: 03/07/2011
Date: 03/07/2011
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.
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.