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Smith v. McLeskey (In re Bay Vista of Va. Inc.)

Defendants, creditors of a chapter 7 debtor, moved pursuant to 28 U.S.C.S. § 1334 for abstention of the complaint filed by plaintiff chapter 7 trustee, which sought a turnover pursuant to 11 U.S.C.S. § 542 of excess funds collected by the creditors on certain notes, alleged a breach of contract, and alleged that the creditors were judicially estopped from collecting an amount in excess of what they represented to a state court was owed them.
Ruling: 
Bankruptcy court declined to abstain from proceeding for turnover of excess funds received by creditor in foreclosure of debtor's property.
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Commercial case opionion summary, case decided on September 24,2008, LexisNexis #1108-019

In re Waller

Creditor filed two reaffirmation agreements, which sought to reaffirm debtors' first and second mortgages. Both agreements were filed on an outdated form requiring a hearing for proper determination of whether the reaffirmation agreements created a presumption of undue hardship on debtors. Debtors filed two amended reaffirmation agreements using the current form. The amended reaffirmation agreements indicated a presumption of undue hardship.
Ruling: 
Approval of reaffirmation agreement denied as not in best interest of debtors' who were current with mortgage payments.
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Consumer case opionion summary, case decided on September 24,2008, LexisNexis #0209-043

In re Miller

A debtor filed for relief under chapter 7 of the Bankruptcy Code and claimed on his schedules that he had jewelry valued at $5.00. The debtor also claimed that two creditors held secured claims for over $5,550 in jewelry purchases. The jewelry belonged to the debtor's non-filing spouse. The debtor then filed a motion to redeem and sought a valuation of $230 for the jewelry at issue, pursuant to 11 U.S.C.S. § 722.
Ruling: 
Debtor's proposed valuation of jewelry denied due to discrepancy between claimed value and higher amount owed on jewelry to creditors.
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Consumer case opionion summary, case decided on September 24,2008, LexisNexis #0109-020

In re Rascento

The chapter 13 debtor objected to a claim filed by the bank that held the mortgage on his residence, contending that the bank could not prove that it was the true owner of the note and that the note had been paid in full. The bank moved for relief from the automatic stay. The bankruptcy trustee moved to dismiss the bankruptcy, asserting that the debtor's plan did not comply with 11 U.S.C.S. §§ 1322 and 1325.
Ruling: 
Case dismissed due to failure of chapter 13 plan to provide for better recovery than in chapter 7 and debtor's failure to appear.
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Consumer case opionion summary, case decided on September 22,2008, LexisNexis #1208-026

In re Rodriguez

Debtors claimed two motor vehicles as exempt under 11 U.S.C.S. § 522(b)(3)(B), asserting that the vehicles were exempt as tenants by the entirety property. The chapter 7 trustee objected, contending that motor vehicles would not be held as tenants by the entirety.
Ruling: 
Vehicles could not be exempted as tenants by the entirety property where state law did not allow for entireties ownership of vehicles.
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Consumer case opionion summary, case decided on September 18,2008, LexisNexis #1208-011

In re Lee

A debtor filed an application for a waiver of the chapter 7 filing fee pursuant to 28 U.S.C.S. § 1930(f)(1).
Ruling: 
Debtor with income above 150 percent of poverty line not entitled to waiver of filing fee but allowed to make payments in installments.
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Consumer case opionion summary, case decided on September 12,2008, LexisNexis #1108-020

In re Shegog

The administratrix of an estate sought to reopen a debtor's chapter 7 case under 11 U.S.C.S. § 350 to lift the automatic stay and to pursue applicable insurance proceeds under Va. Code Ann. § 38.2-2200 (2008). The debtor opposed, arguing laches and legal prejudice.
Ruling: 
Case reopened to allow administratrix of decedent's estate who did not receive proper notice to pursue insurance proceeds to satisfy medical malpractice claim.
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Consumer case opionion summary, case decided on September 11,2008, LexisNexis #1208-062

In re Cespedes

The IRS filed a proof of claim in a debtor's chapter 13 bankruptcy case for a 10 percent early withdrawal liability incurred by the debtor pursuant to 26 U.S.C.S. § 72(t). The debtor objected to the classification of the liability as a priority claim under 11 U.S.C.S. § 507(a)(8)(E), asserting that the claim was a general unsecured claim.
Ruling: 
Liability for early withdrawal from IRA was a penalty, not a tax, and not a priority claim.
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Consumer case opionion summary, case decided on September 08,2008, LexisNexis #1008-036

In re Siddon

A debtor filed a motion seeking to impose an automatic stay as to his landlord's attempt to recover possession of an apartment.
Ruling: 
Motion to stay eviction denied where debtor failed to deposit rent due during 30-day period following petition date.
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Consumer case opionion summary, case decided on September 01,2008, LexisNexis #1208-007

In re Eskim LLC

A debtor filed for relief under chapter 11 of the Bankruptcy Code. A creditor sought relief from the automatic stay so that it could begin liquidating 47 residential properties that secured the debt owed to the creditor and sought to prohibit the debtor from using its cash collateral.
Ruling: 
Relief from stay denied where debtor's plan would cure default on loan from creditor.
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Commercial case opionion summary, case decided on August 28,2008, LexisNexis #0908-088

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