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...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Pending before the court is a dispute regarding whether Patrick and Kristin Jones (the "Debtors") must continue devoting disposable income to their confirmed Chapter 13 plan after they paid the base of the confirmed plan. Specifically, the Chapter 13 trustee filed a Notice of Increased Base in which she asserts that 1325(b)(4) of the Bankruptcy Code requires debtors to make payments for 60 months or pay unsecured creditors in...
MEMORANDUM OPINION PATRICK M. FLATLEY , Bankruptcy Judge . Frederic Maurice Haun Douay (the "Debtor") seeks to value his 2015 Toyota Rav4 (the "Vehicle"), which serves as collateral securing his debt to Toyota Motor Credit Corp ("Toyota Credit"). According to the Debtor, the fair market value of the Vehicle is $16,425, and it is subject to valuation, despite its purchase by him within 910 days before he filed his bankruptcy case, because his non-filing partner was the lone operator of the...
MEMORANDUM OPINION Patrick M. Flatley , United States Bankruptcy Judge On January 3, 2018, the court entered an order approving the resolution of a disputed claim filed in this case by Dollar Tree Stores, Inc ("Dollar Tree"). The court delivered its findings and legal conclusions in that regard during a telephonic status conference on December 19, 2017. On January 17, 2018, COMM 2013 CCRE12 Crossings Mall Road, LLC ("Comm2013"), filed a notice of appeal of the court's order. In order to...
