West Virginia

Pague v. Harshman (In re Pague)

Plaintiff debtor filed a chapter 7 bankruptcy petition and received a discharge under 11 U.S.C.S. § 727(a). The debtor filed an adversary proceeding against defendants, a creditor and her attorney, seeking damages for violations of the discharge injunction under 11 U.S.C.S. § 524(a). The court granted the debtor's request for entry of default, but deferred ruling on the debtor's request for default judgment.
Ruling: 
Creditor liable for violating discharge injunction by pursuing personal liability of debtors.
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Consumer case opionion summary, case decided on April 05,2010, LexisNexis #0610-067

Barnhart v. Union Bank Inc. (In re Barnhart)

Debtors' complaint alleged that defendant creditor electronically filed a proof of claim in their chapter 7 bankruptcy case, which revealed personal identification data. Based on the creditor's filing of its unredacted proof of claim, debtors sought to recover tort damages, disallowance of the proof of claim, and contempt damages. The creditor moved to dismiss the complaint for failure to state a claim.
Ruling: 
Debtor's complaint for damages due to creditor's filing of proof of claim that revealed personal data dismissed.
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Consumer case opionion summary, case decided on February 26,2010, LexisNexis #0410-101

Wolfe v. Greentree Mortg. Corp.

Plaintiff debtor filed a voluntary petition in bankruptcy. The debtor then sued defendants, corporations, and alleged unconscionable inducement of the loan, misconduct by a notary public, breach of contract, estoppel preventing foreclosure on the loan, illegal debt collection, and illegal return of payment. The action sought, inter alia, invalidation of the deed of trust and damages. The corporations removed the case. The debtor moved to remand.
Ruling: 
Mandatory abstention not applicable to core proceeding for invalidation of deed of trust.
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Consumer case opionion summary, case decided on January 26,2010, LexisNexis #0210-131

In re Herlan

Movant principal sought an immediate turnover of vacation home management contracts that were in the possession of a chapter 11 debtor under 11 U.S.C.S. § 541(d) on the grounds that the principal was the equitable owner of those contracts. The court granted the oral motion of the principal to add a realty company as a moving party in its motion for turnover.
Ruling: 
Debtor real estate agent ordered to turn over vacation home management contracts to resort.
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Consumer case opionion summary, case decided on January 06,2010, LexisNexis #0210-014

LaRosa v. Pecora

Defendants, debtors, moved to stay entry of judgment by the court pending the determination of the amount of money that plaintiffs, brothers, had or would obtain through two bankruptcy proceedings still pending in the Northern District of West Virginia.
Ruling: 
Collection action for which stay was lifted could proceed and did not need to await outcome of debtors' bankruptcies.
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Commercial case opionion summary, case decided on December 22,2009, LexisNexis #0110-041

Jeffries v. Osborne (In re Osborne)

In this adversary case, plaintiff homeowner contended that money defendant debtor obtained from her under a construction contract was excepted from discharge under 11 U.S.C.S. §§ 523(a)(2)(A) and 523(a)(2)(B). She also contended that entry of the debtor's chapter 7 discharge should be denied under 11 U.S.C.S. § 727(a)(4) on the basis that he omitted assets and/or undervalued assets on his bankruptcy petition and schedules.
Ruling: 
Homeowner's claim against debtor contractor was dischargeable absent proof of fraud or intent to deceive.
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Consumer case opionion summary, case decided on December 18,2009, LexisNexis #0110-050

Williams v. Basic Contr. Servs.

Plaintiff former employee filed suit based on her allegedly unlawful termination by defendant employer. The complaint alleged: (1) intentional infliction of emotional distress; (2) unlawful reprisal on the basis of whistleblowing in violation of 41 U.S.C.S. § 265; and (3) termination of employment in violation of substantial public policy. The employer filed a motion for judgment on the pleadings or, in the alternative, for summary judgment.
Ruling: 
Debtor's defense that failure to disclose EEOC claim in bankruptcy was inadvertent was sufficient to prevent dismissal.
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Consumer case opionion summary, case decided on November 09,2009, LexisNexis #1209-014

Sampson v. Chase Home Fin.

Plaintiffs, mortgagors, sued defendants, bank, mortgage corporation, loan assignee, and mortgage broker, and asserted state law causes of action related to the origination, terms, and execution of the loan, the balloon note, and the forbearance agreement. The bank, mortgage corporation, loan assignee, and mortgage broker removed the action to federal court. The bank, the mortgage corporation, and the loan assignee filed motions to dismiss.
Ruling: 
Debtor's failure to timely raise claims regarding origination, terms and execution of loan resulted in waiver.
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Consumer case opionion summary, case decided on November 03,2009, LexisNexis #1209-030

Arbogast v. Wells Fargo Auto Fin. Inc.

Plaintiffs, buyers, asserted claims for assignee liability for certain breach of contract allegations and alleged, unspecified violations of the West Virginia Consumer Credit and Protection Act committed by a automobile dealership relating to the contract between the dealership and the buyers. The contract was assigned to defendant bank and the buyers' alleged assignee liability. The bank moved for summary judgment.
Ruling: 
Claim by debtor against bank as assignee of motor vehicle dealership for breach of installment contract not disclosed in schedules remained property of the estate.
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Commercial case opionion summary, case decided on October 21,2009, LexisNexis #1109-087

Centra Bank Inc. v. Burton (In re Burton)

Plaintiffs, a lender and a loan guarantor, brought an adversary proceeding against defendant bankruptcy debtor, a corporate principal who caused a corporation to obtain loans from the lender and personally guaranteed the loans, seeking a determination that debts to the lender and the guarantor were not dischargeable under 11 U.S.C.S. § 523(a)(4) based on fiduciary defalcation. The debtor moved to dismiss the complaint.
Ruling: 
Dischargeability proceeding based on debtor corporate principal's breach of fiduciary duty dismissed as to lender but not as to corporation.
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Consumer case opionion summary, case decided on September 17,2009, LexisNexis #1009-047

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