Title

• In re 210 West Liberty Holdings, LLC, Case No. 08-677
  Motion for relief from the automatic stay to pursue litigation against the debtor in state court is granted.

• Carroll v. FIA Card Services (In re Carroll), Case No. 07-110
  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.

• Klein v. Virginia Electric Power Co. (In re Barton Mining Company, Inc.), Case No. 08-69
  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.

• In re Eskim, LLC, Case No. 08-509
  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.

• In re Morrell, Case No. 08-519
  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

• In re Bricker, Case No. 08-340
  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
  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.

• In re Quigley, Case No. 08-24
  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
  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
  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
  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
  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
  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
  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
  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
  910 car creditors hold secured claims and are entitled to interest at the Till rate.

• In re Bland, Case No. 06-1159
  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
  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
  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 Windwood Heights, Case No. 07-1001
  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.

• In re United Energy, Case No. 06-453
  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.

• In re Tackley Mill, LLC, Case No. 06-820
  The Unsecured Creditor's Committee negotiated a carveout agreement whereby a secured creditor would pay the fees of the Committee's professionals pursuant to a Rule 9019 settlement agreement. Because no estate funds were being used to pay the Committee's professionals, the court determined that it was not required to examine those fees under section 330 of the Bankruptcy Code, or to require that any disbursement to the Committee's professional comply with the Bankruptcy Code's required distribution scheme. The court also determined that the allocation being made to unsecured creditors under the settlement's carveout agreement included both those unsecured creditors that were in existence at the time the settlement agreement was negotiated, and those creditors that subsequently became unsecured as a result of a foreclosure action.

• In re Waters, Case No. 07-459
  Exempt monthly VA benefits are considered income for purpose of the section 1325(b) disposable income test regardless of their exempt status. The Chapter 13 trustee's disposable income objection to confirmation of the debtor's plan on the basis that the debtor was not committing her VA benefits to make payments under the plan is overruled because the debtor, who was unemployed for five of the six months before filing bankruptcy, had already included the receipt of her VA benefits on Form B22C.

• In re Simms, Case No. 06-1206
  Form B22C is the method by which an above the median income debtor's disposable income is to be determined; Schedules I and J may not be used for this purpose. A debtor is entitled to claim the standard vehicle expense deduction provided by the means test regardless of whether the debtor also owes a secured debt obligation on the vehicle. The Internal Revenue Manual is not an appropriate tool for determining the extent to which a debtor may claim deductions for applicable National and Local Standards. Confirmation of the debtor's Chapter 13 plan is continued to take evidence and testimony on the debtor's claim of home energy, food, and clothing expenses in excess of the National and Local Standards.

• Ostrum v. Porter (In re Porter), Case No. 03-118
  The debt owed to Plaintiffs is excepted from discharge pursuant to § 523(a)(4) because the Debtor was unable to account for funds used while acting under a power of attorney.

• In re Campbell, Case No. 07-457
  The debtor filed a motion to voluntarily dismiss his Chapter 13 case, and sold real property during the time when the Clerk noticed out his motion to dismiss to parties in interest. A creditor then sought to set aside the sale of the property as being unauthorized under section 363(b) of the Bankruptcy Code. The court ruled that a Chapter 13 debtor has an absolute right to dismiss his case under section 1307(b), which right is not restricted by a creditor's competing motion to convert under section 1307(c). The Clerk, however, acted appropriately in sending out notice of the debtor's motion to dismiss because, at a minimum, other parties should be allowed the opportunity to request that the debtor's dismissal be conditioned under section 349. Considering the voluntary nature of Chapter 13, the order dismissing the debtor's case is effective nunc pro tunc to the date of the filing of the motion. Consequently, the creditor's motion to set aside the sale of property as being unauthorized under section 363(b) is denied.

• Leneski v. Smith (In re Smith), Case No. 07-14
  Landlord's section 523(a)(6) cause of action against a debtor/tenant for wilful and malicious injury to property is denied.

• In re Fiddler, Case No. 04-4213
  The Chapter 13 trustee's motion to modify the debtor's confirmed plan on the basis that the value of the property increased from $112,000 in Novmeber 2004 to $204,000 by July 2007 is denied because the trustee failed to prove that the increase in the value of the property was unanticipated given the pre-petition, and pre-confirmation, local real estate trends in Ranson, West Virginia. Without a showing that the property's increase in value was unanticipated, the trustee could not overcome the res judicata effect of confirmation.

• In re Simms, Case No. 06-1206
  The debtor's request that the creditor's proof of claim be disallowed based on an alleged failure to include appropriate supporting documentation, or a notice of an assignment, is overruled. The debtor failed to allege any grounds under section 502 of the Bankruptcy Code for the disallowance of the claim, and the debtor's objection, even if valid, would only affect the creditor's entitlement to a Rule 3001(f) prima facie presumption as to the claim's validity and amount. Because the debtor failed to assert any basis for departing from the American Rule on attorney's fees, the debtor's request that the creditor pay his attorney's fees of $250 is denied.

• In re Nestor, Case No. 05-6772
  Because the Debtor's exemption in real property that he owned as of the petition date was impaired by the judicial lien, the Debtor's motion to avoid judicial lien is granted. Sale of the property after the petition date and subsequent conversion from Chapter 13 to Chapter 7 do not impact the analysis of the judicial lien because the petition date is the appropriate time for calculations concerning judicial lien avoidance.

• Johnston v. Valley Credit Services, Inc. (In re Johnston), Case No. 06-180
  Debtor's motion for summary judgment for the creditor's alleged violaiton of the discharge injunction is denied on the basis that the debtor failed to demonstrate that the creditor had knoweldge that the discharge injunction applied to the debt it sought to collect. Creditor's motion for summary judgment is granted on the grounds that debtor could not prove that Valley Credit was seeking to collect on what it knew to be a discharged debt.

• Aylsworth v. U.S. Department of Education (In re Aylsworth), Case No. 04-67
  Debtor's student loans were excepted from discharge because he presented insufficient medical evidence to satisfy the second prong and he failed to demonstrate a good faith effort to repay his loans in light of his lack of communication with the Department of Education and minimal payments.

• Faircloth v. Palmer (In re Palmer), Case No. 06-76
  The Plaintiff's claims to except an alleged debt under 11 U.S.C. § 523(a)(2)(A) or to deny entry of a discharge pursuant to § 727(a)(4)(A) are denied. Plaintiff failed to prove that he allegedly loaned the Debtor money when she fraudulently misrepresented her intention to repay him. Plaintiff also failed to prove that the Debtor knowingly and fraudulently undervalued her home on Schedule A of her bankruptcy petition.

• Sheehan v. Little (In re Lauri), Case No. 06-85
  The trustee's motion for partial summary judgment on a section 548 fraudulent transfer cause of action is denied on the basis that genuine issues of material fact exists regarding whether the alleged fraudulent transfer concerned property of the debtor, or property that the debtor was holding for the benefit of another under an oral trust of personal property.

• Kinder Morgan/Pinney Dock & Transport LLC v. Mittal Steel USA, Inc. (In re Weirton Steel Corp.), Case No. 06-186
  The court dismissed the case for lack of subject matter jurisdiction when the dispute involved the non-payment of a cure amount for the assignement of an executory contract. Payment of the cure amount was delegated to the Debtor's bankruptcy purchaser with the non-debtor party to the executory contract giving a full release of liability to the Debtor. The outcome of the contract dispute would have no effect on the Debtor's bankrutpcy estate.

• Puller v. Credit Collections, USA, Inc., (In re Puller), Case No. 06-157
  The debtor stated a cause of action for a violation of the discharge injunction when the debtor alleged that the creditor failed to timely update information that the creditor furnished to credit reporting agencies pre-pretition. The debtor is entitled to conduct further discovery on that cause of action before the court rules on the creditor's motion for summary judgment.

• In re Cottrill, Case No. 06-00819
  The Debtors cannot waive 11 U.S.C. § 524(c)(1) in order to file reaffirmation agreements made after the court enters the Debtors' discharge order. The court would not vacate the Debtors' discharge for the purpose of approving reaffirmation agreements in the absence of a valid reason under Rule 60(b). Because the reaffirmation agreements are untimely, the court lacks jurisdiction to consider them.

• United Bank v. Fedczak (In re Fedczak), Case No. 05-195
  The debtor's discharge is denied under section 727(a)(2)(A) for concealing property, and, in the alternative, under section 727(a)(4)(A) for making a false oath or account.

• In re Ball, Case No. 06-1002
  Motions for a prelimiary injunction asserted by creditors of the bankruptcy estate and by the United States trustee to prohibit the distribution of sale proceeds to a co-owner of real property, on the grounds that the co-owner may be liable to the bankrutpcy estate on either a fradulent transfer or unjust enrichment cause of action, are denied. The causes of action asserted by the parties are property of the bankrutpcy estate; without a grant of derivative standing to the creditors or the United States trustee, only the Chapter 11 debtor-in-possession has the standing to litigate those causes of action. Pursuant to Scott v. National Century Fin. Enters. (In re Baltimore Emergency Serv. II, Corp.), 432 F.3d 557 (4th Cir. 2005), a court may not issue a preliminary injunction to a party without standing to assert a cause of action against the defendant.

• Johnston v. Valley Credit Services, Inc. (In re Johnston), Case No. 06-180
  A debtor's cause of action under section 46A-2-128(e) of the Code of West Virginia, for impermissible contact with a debtor when the debtor is represented by an attorney, is not preempted by the Bankruptcy Code's remedies for a violation of the automatic stay or discharge injunction because section 46A-2-128(e) is an independent remedy based on a separate wrong from those addressed in the Bankruptcy Code. The debtor's cause of action under section 46A-2-128(e), however, is not one that "arises under" or "arises in" the Bankruptcy Code, and is not one that is "realted to" the debtor's bankrutpcy case because win, lose, or draw, the outcome of the case will not have any effect on the bankruptcy estate. No bankruptcy court jursidiction exists to adjudicate the cause of action under the district court's supplemental jurisdiction granted by section 1367 of title 28 of the United States Code because that jurisdictional grant is not applicable to the bankrutpcy courts.

• In re McNeely, Case No. 05-5512
  The court denied confirmation of Debtors' Chapter 13 plan, which proposed to retain a $50,000 houseboat as treatment for depression, and granted relief from the automatic stay because the houseboat was not necessary for an effective reorganization.

• Bayer Employees Fed. Credit Union v. Sapp (In re Sapp), Case No. 06-10, 06-63
  Creditor's section 523(a)(2)(B) adversary complaint to except a debt from discharge is granted based on the debtor's adoption of a loan application that falsely stated his gross monthly income. Trustee's preference action against the creditor for untimely perfecting an interest in the debtor's mobile home is granted, and the trustee's fraudulent conveyance action against the debtor's father, who was listed on the mobile home's certificate of title, is granted on the grounds that the father did not pay a reasonably equivalent value in exchange for that ownership interest.
  

• Johnston v. Telecheck Services, Inc. (In re Johnston), Case No. 06-178
  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.
  

• In re La Rosa, Case No. 03-4115
  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.

• In re Bardell, Case No. 05-06808
  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.

• Robinson v. Robinson (In re Robinson), Case No. 05-137
  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.

• Walters Construction, Inc. v. Cook (In re Cook), Case No. 05-231
  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.

• Kohls v. Bank of Charles Town (In re Kohls), Case No. 06-86
  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.

• In Re Buffalo Coal Company, Inc., et al., Case No. 06-366
  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.

• In re Nice, Case No. 05-5500
  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.

• In re LaRosa, Case No. 03-4115
  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.

• In re Lee, Case No. 06-155
  The Debor's motion to reopen the bankruptcy case to "amend" a defective and unenforceable reaffirmation agreement is denied.

• In re Brown, Case No. 02-53538
  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).
  

• Eddy v. Educational Credit Management Corporation and U.S. Department of Education (In re Eddy), Case No. 05-210
  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.

• McNemar v. Student Loan Servicing Center (In re McNemar), Case No. 05-219
  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.

• Thornton v. U.S. Department of Education (In re Thornton), Case No. 05-218
  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.

• Chase Manhattan Bank v. Shreck (In re Shreck), Case No. 05-114
  Plaintiffs' motions to reconsider the court's dismissal of its adversary proceedings is denied because the Plaintiffs failed to show excusable neglect.

• In re Lackey, Case No. 06-679
  Debtor's motion to reconsider the dismissal of his Chapter 13 bankruptcy is denied on the basis that he cannot be a debtor under Title 11 because he failed to obtain a pre-petition credit counseling briefing as outlined in 11 U.S.C. §109(h)(1)

• In re Brown, Case No. 02-53538
  The Chapter 7 trustee is allowed to transfer the bankrutpcy estate's interest in a personal injury tort claim back to the debtors themselves, in return for a payment of money sufficient to pay all allowed claims in full, without violating any West Virginia prohibition on champerty. Creditor's motion for a Rule 2004 examination regarding the source and terms of the debtors post- petition loan with a private businessman, the proceeds of which are to be used to pay the trustee, is denied because the creditor is not a party to the loan transaction and no showing was made that the proposed loan violated West Virginia's public policy.