MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge . David A. Levine and Indeco Union (collectively, the "Defendants") seek the dismissal of the adversary complaint filed against them by Martin P. Sheehan, the Chapter 7 trustee administering the bankruptcy estate of Geostellar, Inc (the "Debtor"). The Defendants contend that the court should dismiss the trustee's complaint based upon either the arbitration clause and forum selection clause contained in Mr. Levine's...
MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge . Pending before the court are competing proposed Chapter 11 plans: one filed by Tara Retail Group, LLC (the "Debtor") to reorganize its financial affairs and the other filed by Comm 2013-CCRE12 Crossings Mall Road, LLC ("Comm2013"), the Debtor's principal creditor and mortgagee, seeking to liquidate the Debtor's property. Also pending is Comm2013's motion to exclude certain evidence from the court's consideration in...
MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge . Pending before the court are cross motions for summary judgment regarding the adversary complaint filed by the Plaintiffs against the Defendant. Specifically, the Defendant has filed a motion for summary judgment as to all seven counts, while the Plaintiffs seek summary judgment as to Counts II, IV, V, VI, and VII. For the reasons stated herein, the court will grant and deny each in part. I. BACKGROUND This...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Suncoast Credit Union seeks the dismissal of Counts II, III, and V of the complaint filed against it by Ross E. Nagot (the "Debtor") and Martin P. Sheehan, the Chapter 7 trustee administering Mr. Nagot's bankruptcy estate. Specifically, Suncoast contends that the Plaintiffs failed to adequately plead facts supporting their contention that Suncoast violated the West Virginia Consumer Credit Protection Act ("WVCCPA") (Count II),...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Pending before the court is a dispute between the Debtors and their mortgagee, U.S. Bank, N.A., as Trustee for LSF8 Master Participation Trust ("U.S. Bank"), regarding the legal effect of the court's order confirming the Debtors' Chapter 13 plan. U.S. Bank asserts that the Debtors have a post-petition delinquency on their mortgage totaling $12,166.27. The Debtors and the Chapter 13 trustee contend that the Debtors are current on...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Ford Motor Credit Co., LLC ("Ford Credit"), seeks the dismissal of the complaint filed against it by Sean C. Coots. It contends that the court should dismiss Mr. Coots five-count complaint because he fails to state a cause of action upon which the court can grant relief. The Mr. Coots asserts that each count of his complaint states a cause of action upon which the court can grant relief. For the reasons stated here, the court...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . U.S. Bank, National Association, as Trustee for the benefit of the holders of COMM 2013-CCRE12 Commercial Mortgage Pass-Through Certificates ("U.S. Bank"), Wells Fargo Commercial Mortgage Servicing, ("Wells Fargo"), and COMM 2013 CCRE12 Crossings Mall Road, LLC, ("COMM2013") (collectively, the "Movants"), seek the dismissal of the Third-Party Complaint and Second Amended Counterclaim filed against them by Tara Retail Group, LLC (...
MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge . Pending before the court are motions to dismiss the three above-captioned adversary proceedings filed against U.S. Bank, N.A., as Trustee for the benefit of COMM 2013-CCRE12 Mortgage Trust Commercial Mortgage Pass-Through Certificates ("U.S. Bank") and Wells Fargo Bank, N.A. ("Wells Fargo"). U.S. Bank and Wells Fargo (collectively, the "Defendants") seek the dismissal of the adversary proceedings based upon their...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . The Debtor objects to the amended proof of claim for $2,089,773.28 filed by Premier Bank. 1 Specifically, the Debtor seeks the disallowance of a portion of Premier's claim for post-petition attorney fees. Premier contends that the court should overrule the Debtor's objection because its fees were reasonable and necessary to protect its interests in the case. In fact, Premier contends that its participation in this case benefited...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Pending before the court is the Chapter 7 trustee's motion to dismiss based upon the Debtors' alleged failure to cooperate with him. According to the trustee, the court should dismiss the Debtors bankruptcy case under 521(e)(2) of the Bankruptcy Code because they failed to provide him with a copy of the federal income tax return for the most recent tax year (2017) before the petition date. The Debtors oppose the trustee's motion...
MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge . The Elswick Company, LLC ("Elswick"), seeks to recharacterize or equitably subordinate the $17 million proof of claim that Comm2013 CCRE12 Crossings Mall Road LLC 1 ("Comm2013"), filed against the bankruptcy estate of Tara Retail Group, LLC (the "Debtor"). Comm2013 seeks to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and (6) 2 on the basis that Elswick lacks standing to assert those claims. For the...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Rocco Salvadore Polce ("the Debtor") seeks to dismiss the above captioned adversary proceeding filed against him by Monongalia County Coal Company ("the Plaintiff"). According to the Debtor, the court should dismiss this proceeding because the Plaintiff fails to state a cause of action upon which the court can grant relief. The Plaintiff asserts that the court should deny Debtor's motion because it has stated a valid action under...
MEMORANDUM OPINION & ORDER PATRICK M. FLATLEY , Bankruptcy Judge . Protea Biosciences Inc., and Protea Biosciences Group, Inc. (collectively, "Protea"), object to an unsecured proof of claim filed by Laidlaw & Company (UK) Ltd. ("Laidlaw"), in the amount of $380,000 and to an unsecured proof of claim filed by PPLL Partners, LLC ("PPLL") in the amount of $360,000. Protea also requests that both unsecured claims be recharacterized as capital contributions. Laidlaw and PPLL move to dismiss...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Pending before the court is a dispute between Tara Retail Group, LLC (the "Debtor"), and its principal secured lender, Comm 2013-CCRE12 Crossings Mall Road, LLC ("Comm2013"), regarding the amount of Comm2013's proof of claim. Specifically, the parties dispute whether Comm2013 may collect as part of its proof of claim $3,139,776.71, which Comm2013 identifies as a "Prepayment Premium" in a rider appended to its proof of claim. 1...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . The Office of the United States Trustee (the "UST") seeks the dismissal of the bankruptcy case of Rex and Amy Dotson (the "Debtors") based on the totality of the Debtors' financial circumstances under 707(b)(3) of the Bankruptcy Code. The court will grant the UST's motion to dismiss under 707(b)(3) for the reasons stated herein. I. BACKGROUND The UST and the Debtors stipulated to a number of facts in connection with this...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Charles R. Boggs (the "Plaintiff") seeks summary judgment on his complaint against Harry H. West (the "Debtor"). He claims that his judgment against the Debtor rendered by the Circuit Court of Brooke County, West Virginia (the "State Court"), entitles him to summary judgment on his complaint under 523(a)(6) of the Bankruptcy Code because the State Court adjudicated all the material facts necessary to succeed on his complaint...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . The Debtor and its counsel, Kay Casto & Chaney PLLC ("Kay Casto"), seek approval of Kay Casto's first application for compensation for fees and expenses incurred from January 24 to October 31, 2017 (the "Fee Application"). Because the Debtor lacks any unencumbered cash to pay its attorney's fees and expenses, it also seeks payment by way of surcharging the collateral of Comm 2013 CCRE Crossings Mall Road, LLC ("Comm 2013"), under...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . First Bank of Charleston, Inc. ("First Bank"), and Carter Bank and Trust ("Carter Bank") (together, the "Creditors") seek to convert the Debtor's Chapter 11 case under 1112(b) of the Bankruptcy Code. The Debtor opposes conversion and argues that its case should proceed under Chapter 11. On April 26, 2018, the court held an evidentiary hearing to consider the motion to convert, and the parties simultaneously submitted post-trial...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Helen M. Morris, the Chapter 13 trustee administering the Chapter 13 estate of Ray and Jamie White (the "Debtors"), seeks judgment on her amended complaint against Mortgage Solutions of Colorado, LLC ("Mortgage Solutions"), under Fed. R. Civ. P. ("Rule") 12(c), made applicable here by Fed. R. Bankr. P. 7012(b). Mortgage Solutions asserts that judgment on the pleadings is not appropriate because the Trustee's amended complaint...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . On February 14, 2018, the court entered an order approving the resolution of a disputed claim filed in this case by The Elswick Co., LLC d/b/a Anytime Fitness ("Elswick"). On February 26, 2018, COMM 2013 CCRE12 Crossings Mall Road, LLC ("Comm 2013"), filed a notice of appeal of the court's order. In order to create a more robust record for the District Court, the court issues this written memorandum opinion restating its...
