Court Locations

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6500 Cherrywood Ln - Greenbelt, MD 20770 - Main Tel: 301-344-8018 map
Baltimore
101 W Lombard St Room 8530 - Baltimore, MD 21201 - Main Tel: 410-962-2688
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Case Number Opinion Summary ( date sorted)
Duncan W. Keir
10-941
Fleming v Gordon
Mar 25, 2013

Plaintiffs filed separate complaints objecting to dischargeability pursuant to 11 U.S.C. § 523(a)(2), (4), (6) and (19). The Counts brought under § 523(a)(6) and (19) were dismissed by summary judgment. After trial on the remaining Counts, the Bankruptcy Court, Duncan W. Keir, J., ruled in favor of Defendant. The Court found (1) no fiduciary relationship existed as intended by the § 523(a)(4) and Plaintiffs did not plead or prove claims under embezzlement or larceny; and (2) Plaintiffs failed to prove that Defendant’s representations were made with fraudulent intent or with a reckless representation constituting a knowing false representation.

Duncan W. Keir
10-22579
In re Rhea K. Simms
Jun 30, 2011

Debtor: Rhea K. Simms
Counsel for Debtor: Jeffrey M. Sirody
Chapter 13 Trustee: Ellen Cosby

The Chapter 13 Trustee filed an objection to confirmation of the debtor’s chapter 13 plan on the grounds that the debtor had not committed all her projected disposable income for the applicable commitment period to the plan as required. The Bankruptcy Court, Duncan W. Keir, Chief J., denied confirmation with leave to amend because the debtor’s plan was funded significantly below the disposable income shown on the B22C form, which form did not list a marital adjustment for the non-debtor’s spouse’s arguably unavailable income. Debtor’s argument that her non-filing spouse refused to contribute his income to the plan was not the type of change to anticipated funding that would lead the court to deviate from using the B22C calculation as the required level of funding. The Court granted the debtor leave to amend the plan or the marital adjustment taken on the B22C statement, but cautioned that the court must carefully scrutinize issues of good faith in confirming a plan or an amended B22C statement under stated circumstances.

Duncan W. Keir
10-24656
Landmark Atlantic Hess Farm, LLC
Mar 03, 2011

Motions to dismiss or convert were brought by the United States Trustee and an interested party. The Bankruptcy Court, Duncan W. Keir, Chief J., held that cause for dismissal existed pursuant to 11 U.S.C. § 1112(b) as amended by the Bankruptcy Technical Corrections Act of 2010. In addition to other factual causes for dismissal, the court held that cause was demonstrated under 11 U.S.C. § 1112(b)(4)(A) because the Debtor had continuing postpetition losses and there was no likelihood of rehabilitation . The Debtor had no ongoing business and the purpose of filing the bankruptcy case was to collaterally attack a final order in a separate proceeding.

Duncan W. Keir
10-27738DK
Eloise Travers
Dec 16, 2010

Debtor objected to a proof of claim asserting that a three-year statute of limitation barred recovery of an unsecured claim resulting from the deficiency balance after sale of a vehicle. The Bankruptcy Court, Duncan W. Keir, Chief J., held that by Maryland statute, a four year statute of limitations applies to purchase installment contracts. However, the court further held that the period of limitation begins to run when the right to sue for payment accrues under the terms of the contract. The Court found that the record on the pleadings stated only the later date of disposition of the collateral and was insufficient for determination of the expiration of the statute of limitations. An evidentiary hearing on the objection to claim would be held.

Duncan W. Keir
09-30235DK
In re Short
Nov 16, 2010

This court finds no basis to depart from the holdings of In re Hurtz and In re Hernandez
based on the decision in Roseman and will not permit the debtor to have the windfalls in this
bankruptcy case that In re Hurtz and In re Hernandez correctly prevent.

Duncan W. Keir
08-17653
Sean C. Logan v. Citi Mortgage, Inc., et al.
Oct 12, 2010

Counsel for Plaintiff: James R. Schraf
Counsel for Defendant: Thomas C. Valkenet

Trustee sought preferential avoidance of deed of trust perfected within 90 days prior to bankruptcy petition date. The Bankruptcy Court, Duncan W. Keir, Chief J., held that the creditor was entitled to be equitably subrogated to the lien position held prior to the refinance transaction despite recording its new lien beyond ten days after the promissory note was signed on a date within the preference period and filing a certificate of satisfaction prior to recordation of its new lien.

Duncan W. Keir
09-20324
Thomas W. Cramblitt
Aug 16, 2010

Please see the attached PDF opinion.

Duncan W. Keir
08-14229
Charles Vernon Clarkson
Jun 11, 2010

Motions for appointment of chapter 11 trustees or alternatively for conversion were filed by the purported largest secured creditor, alleging, inter alia, dishonesty, mismanagement and futility. Debtors, who were married, but in separate cases, opposed the motions and the court held a lengthy evidentiary trial. The Bankruptcy Court, Duncan W. Keir, Chief J., explaining the different analyses of the applicable Bankruptcy Code sections, held that cause existed under both 11 U.S.C. § 1104 and § 1112 for appointment of a trustee, dismissal or conversion. The court found that the appropriate remedy was the appointment of a chapter 11 Trustee who could further assess whether there was any means for a financial reorganization.

Duncan W. Keir
08-14229
Janet Ann Sydnor
Jun 11, 2010

Motions for appointment of chapter 11 trustees or alternatively for conversion were filed by the purported largest secured creditor, alleging, inter alia, dishonesty, mismanagement and futility. Debtors, who were married, but in separate cases, opposed the motions and the court held a lengthy evidentiary trial. The Bankruptcy Court, Duncan W. Keir, Chief J., explaining the different analyses of the applicable Bankruptcy Code sections, held that cause existed under both 11 U.S.C. § 1104 and § 1112 for appointment of a trustee, dismissal or conversion. The court found that the appropriate remedy was the appointment of a chapter 11 Trustee who could further assess whether there was any means for a financial reorganization.

Duncan W. Keir
08-16965
RONNIE LYNN CARMAN
Apr 01, 2010

Please read the document.

Duncan W. Keir
09-32656
David W. Eader
Mar 22, 2010

Counsel for Debtor: Mark A. Pudinski Counsel for Mazda American Credit; Michael Klima Chapter 7 Debtors and Creditor filed a joint motion to allow Debtors to assume prepetition vehicle lease. The court, Duncan W. Keir, C.J. held that assumption of a lease of personal property in chapter 7 pursuant to 11 U.S.C. § 365(p)(2) does not require court approval but that the underlying indebtedness will be discharged by the discharge order entered in the Debtors’ case unless reaffirmed in compliance with the provisions of 11 U.S.C. § 524(c) et seq. Without such reaffirmation, any waiver of discharge contained in the assumption agreement is ineffective.

Duncan W. Keir
09-17787
TMST, Inc.
Feb 16, 2010

Please read the document.

Duncan W. Keir
08-11530
Dana Wick
Jan 05, 2010

Chapter 13 trustee objected to confirmation of debtor’s proposed plan which committed all of the debtor’s “projected disposable income” as calculated under the applicable statute, but permitted debtor to continue making mortgage payments in excess of what the Chapter 13 trustee argued was a reasonable amount for a housing allowance under Debtor’s circumstances. The court, Duncan W. Keir, C.J., held that it would not redefine “disposable income” based on the argument that the secured installment payments appeared disproportionate to the needs of debtor. The court also determined that the plan was proposed in good faith under the facts of this case.

Duncan W. Keir
09-17952
Plan 4 College, Inc.
Sep 22, 2009

Where a corporate debtor filed a voluntary Chapter 7 case and subsequently moved for an Order “confirming” that the automatic stay protected non-debtor officers, employees and shareholders, the court denied the motion. The court found that the uncontested facts failed to prove any of the bases for extending the automatic stay under the holdings of A.H. Robbins Company, Inc. v. Piccinin (In re A.H. Robbins Company, Inc.), 788 F.2d. 994 (4th Cir. 1986), and In re Johns-Manville Corp., 40 B.R. 219, 226 (S.D. N.Y. 1984). Furthermore, the court found that the automatic stay did not apply to Florida actions that had been commenced against the officers, employees and shareholders pursuant to 11 U.S.C. § 362(a)(3) as the actions did not seek to obtain possession of, or control assets of the bankruptcy estate.

Duncan W. Keir
07-20678
Chesapeake Contractors
Dec 10, 2008

The court ruled that a creditor cannot continue to file motions for relief from stay asserting the same factual averments and legal arguments, but expect different results. Here, the creditor, First Niagara Leasing, Inc., filed two consecutive motions for relief from stay. The first motion for relief from stay was denied by the court because the creditor failed to prove a security interest in the collateral. Later, the same creditor filed a second motion for relief from stay asserting the same factual averments and attaching one additional document to prove a security interest in the collateral. The court denied the motion under the doctrines of res judicata, law of the case, and finality of judgment.

Duncan W. Keir
07-20678
Chesapeake Contractors
Dec 10, 2008

The court ruled that a creditor cannot continue to file motions for relief from stay asserting the same factual averments and legal arguments, but expect different results. Here, the creditor, First Niagara Leasing, Inc., filed two consecutive motions for relief from stay. The first motion for relief from stay was denied by the court because the creditor failed to prove a security interest in the collateral. Later, the same creditor filed a second motion for relief from stay asserting the same factual averments and attaching one additional document to prove a security interest in the collateral. The court denied the motion under the doctrines of res judicata, law of the case, and finality of judgment.

Duncan W. Keir
08-16117
Carlista Davis
Nov 12, 2008

Upon the trustee’s objection to confirmation of a chapter 13 plan which, with respect to three secured judgment creditors, did not provide value, as of the effective date of the plan equal to the allowed amount of claims, the court determined that (1) that the chapter 13 trustee has standing to be heard as to all issues relevant to confirmation of a chapter 13 plan; (2) under the specific facts of this case, due process was satisfied and the absence of an objection to confirmation by any of the judgment creditors would constitute acceptance of the terms of the plan so as to satisfy Section 1325(a)(5).

Duncan W. Keir
08-16117
Carlista Davis
Nov 10, 2008

Upon the trustee’s objection to confirmation of a chapter 13 plan which, with respect to three secured judgment creditors, did not provide value, as of the effective date of the plan equal to the allowed amount of claims, the court determined that (1) that the chapter 13 trustee has standing to be heard as to all issues relevant to confirmation of a chapter 13 plan; (2) under the specific facts of this case, due process was satisfied and the absence of an objection to confirmation by any of the judgment creditors would constitute acceptance of the terms of the plan so as to satisfy Section 1325(a)(5).

Duncan W. Keir
05-32329
Juan Marcelino De La Cruz Asuncion, III
Aug 20, 2008

NOT FOR PUBLICATION. The court determined that it should not grant a creditor's motion to reopen a closed no asset Chapter 7 case to allow the filing of an adversary proceeding to determine non-dischargeability of an alleged debt under 11 U.S.C. § 523(a)(3). Under the circumstances of this case, Creditor can challenge in a filed state court action, the defense of discharge and obtain a ruling on its assertion of non-dischargeability in that action.

Duncan W. Keir
05-32329
Juan Marcelino De La Cruz Asuncion, III
Aug 20, 2008

NOT FOR PUBLICATION. The court determined that it should not grant a creditor's motion to reopen a closed no asset Chapter 7 case to allow the filing of an adversary proceeding to determine non-dischargeability of an alleged debt under 11 U.S.C. § 523(a)(3). Under the circumstances of this case, Creditor can challenge in a filed state court action, the defense of discharge and obtain a ruling on its assertion of non-dischargeability in that action.

Duncan W. Keir
07-11332
Jessie Willard Bellamy, Jr.
Nov 28, 2007

Counsel for Debtor: Jeffrey Sirody
Chapter 13 Trustee: Gerard Vetter
Counsel for (Amicus) National Association of Consumer Bankruptcy Attorneys: Brett Weiss
Debtor’s counsel filed an application for allowance of attorney’s fees and sought distribution of the requested fee as an administrative expense under the Chapter 13 plan. The court, Duncan W. Keir, C.J. held that the presumptively reasonable fee arrangements set forth in the court’s local rules were not mandatory. The court further held that Section 1326(b) requires payment of allowed administrative claims in full prior to distribution to other claimants. However, the court held that because counsel admittedly had not completed all work in the case, he was not entitled to immediate allowance of the entire “flat fee” being sought for representation of the debtor

Duncan W. Keir
03-64849
Walter Nieves
Oct 04, 2007

Nieves Opinion.

Duncan W. Keir
06-15074
Jeffrey and Marinelle Carter
May 24, 2007

Movants, Chapter 13 Debtors, pro se, sought to compel university to release academic transcripts and diploma earned by Debtors’ daughters during the 2005-2006 academic year. University opposed Debtors’ Motion maintaining that the university’s official policy of withholding transcripts and diplomas of students having delinquent accounts was properly enforced against Debtors’ daughters based upon the unpaid status of their student accounts. The Bankruptcy Court, Duncan W. Keir, Chief J. held that: Debtors’ daughters, and not Debtors, hold rights to the academic transcripts and diploma at issue. The Court found no violation of the automatic stay imposed by 11 U.S.C. §362(a)(3) or 11 U.S.C. §362(a)(6).

Duncan W. Keir
06-11948
Melvin Watson
Apr 11, 2007

Upon objection to confirmation by creditor, the Bankruptcy Court, Duncan W. Keir, Chief J., held that: (1) when calculating disposable income on Form B22C, the debtors were entitled to deduct the Local Ownership Allowance for vehicles which were not encumbered by liens; and (2) “disposable income” as calculated on Form B22C is the presumptive “projected disposable
income” for application of Section 1325(b)(1)(B), but may be rebutted by evidence of a substantial change in circumstance.

Duncan W. Keir
03-50819
David V. Barsh, Sr.
Dec 13, 2006

In 2004, this court (Derby, J) entered an order finding dischargeable collection fees and costs awarded by the state court on an otherwise nondischargeable debt owed to the State of Maryland. The State of Maryland appealed the decision and the United States District Court for the District of Maryland affirmed the bankruptcy court decision. The State of Maryland then filed an appeal with the United States Court of Appeals for the Fourth Circuit which reversed the lower courts’ decisions. Upon remand, the Bankruptcy Court, Duncan W. Keir, Chief J., vacated the prior order and ordered that all of the debt is nondischargeable , as required by the Court of Appeals’ unpublished opinion.
Judge Keir noted that the bankruptcy court has exclusive jurisdiction over nondischargeability actions set forth in 11 U.S.C. § 523(c) and concurrent jurisdiction as to the remaining subparts of 11 U.S.C. § 523(a). The court further noted the distinction between an action to determine dischargeability and one seeking to enforce the discharge injunction, the latter falling under the bankruptcy court’s exclusive jurisdiction regardless of the nature of the debt

Duncan W. Keir
06-10497
Richard Smith
Nov 02, 2006

Counsel for Debtor: Robert Greenwalt
Counsel for Finance Maryland, LLC: Anthony Cordwell
Prior to the petition date, Creditor obtained a judgment on a promissory note secured by Debtor’s vehicles. After the chapter 13 bankruptcy case was filed, Creditor moved to dismiss the case pursuant to 11 U.S.C. § 1307(c)(4) based upon Debtor’s failure to initiate payments allegedly due under 11 U.S.C. § 1326(a)(1)(C). The Bankruptcy Court, Duncan W. Keir, Chief J., held that while the Creditor retained its lien on the vehicles, Section 1326(a)(1)(C) was inapplicable because Creditor had obtained a judgment prepetition and therefore no portion of the objection, as intended by the statute, became due after the order for relief. Accordingly, Creditor had shown no cause for dismissal under Section 1307(c)(4

Duncan W. Keir
06-12813
Kerri Miskimon
Oct 24, 2006

Counsel for Debtor: Brett Weiss
Chapter 7 debtor moved to reopen her case to file the financial management certificate and sought waiver of the reopening fee. The Bankruptcy Court, Duncan W. Keir, Chief J., held that debtor’s unexplained failure to timely file the financial management certificate did not constitute appropriate circumstances to justify granting a waiver of the fee to reopen

Duncan W. Keir
06-10534
Tracey A. Brown
May 08, 2006

The creditor held a foreclosure sale after the date of petition and before the case was dismissed under Section 109(h). The Bankruptcy Court, Duncan W. Keir, Chief J., held that the filing of a petition by a debtor who is ineligible to be a debtor pursuant to Section 109(h)(1) and (3) creates an automatic stay under Section 362(a).

Duncan W. Keir
05-90551
Samuel Mark
Jan 23, 2006

Chapter 13 debtor moved for an extension of the automatic stay pursuant to 11 U.S.C. § 362(c)(3)(B). The Bankruptcy Court, Duncan W. Keir, Chief J., held that: (1) the dismissal of the debtor’s prior chapter 13 case for material default in plan payments gave rise to a mandatory presumption that the case was not filed in good faith; and (2) debtor was entitled to an extension of the automatic stay after demonstrating by clear and convincing evidence that the later case was filed in good faith

Duncan W. Keir
05-90045
Juanda D. Childs
Dec 19, 2005

Per Curiam Opinion Regarding the Sufficiency of Certifications to Waive Credit Counseling Certificate

Duncan W. Keir
05-12650
Kyle Smith
Oct 31, 2005

Plaintiff (chapter 7 Debtor) sought to avoid the transfer of funds garnished from her bank account prepetition. Creditor opposed avoidance on grounds that Debtor had entered into a consent agreement for the disbursement of the funds after service of the writ of garnishment on the Garnishee. The Bankruptcy Court, Duncan W. Keir, Chief J., held that: (1) the transfer was effective at the time of service of the writ of garnishment on the depository bank; (2) the waiver of the Debtor (by the Consent to Disbursement) of her right to challenge the garnishment did not transform the involuntary act of the garnishment to a voluntary transfer for purposes of 11 U.S.C. § 522(g).
Plaintiff’s Motion for Summary Judgement granted.

Duncan W. Keir
04-33883
Bessie West
Oct 12, 2005

NOT FOR PUBLICATION. The Movant, Baltimore County, Maryland, sought to have its late-filed proof of claim allowed on the basis that it had not received timely notice of the bankruptcy case. The Bankruptcy Court, Duncan W. Keir, Chief J., held that (1) the court is without the power to enlarge the period within which a claim can be timely filed in this chapter 13 case; (2) the prepetition indebtedness owed to Movant was secured by an unavoidable interest attached to the bankruptcy estate’s interest in property; (3) as a secured creditor the failure to file a timely proof of claim would have no practical effect on Movant because the plan provided that secured claims would not be paid through the plan and would not be discharged.
Motion denied.

Duncan W. Keir
04-33853
Yvonne Thompson-Mendez
Mar 15, 2005

Before the Court was Debtor’s Emergency Motion to Enforce the Automatic Stay. The Court held that a lease that is deemed rejected pursuant to 11 U.S.C. 365(d)(1) is not automatically abandoned. Therefore, a debtor’s interest in the unperformed agreement remains property of a debtor’s estate. A creditor must obtain relief from stay from the Bankruptcy Court before pursuing an action in state court to recover possession of the leased premises.

Duncan W. Keir
05-12650
Kyle Smith
Feb 17, 2005

Amended solely to correct Citation in footnote 3.

Duncan W. Keir
99-20539
Blair
Jan 10, 2005

OPINION FOR PUBLICATION
Honorable Duncan W. Keir

Counsel for Plaintiffs: Alvin I. Frederick
Irving Edward Walker

Counsel for Defendants: Jeanett Palacios Henry
Donald M. Temple

Before the court were motions for summary judgment filed by the Plaintiffs in two-related adversary proceedings. The complaints for which Plaintiffs sought summary judgment requested a declaratory judgment by this court determining that the Defendants, Shirley Blair, individually, and Blair Temporaries and Staffing, Inc. (hereinafter “Blair Temps”), are precluded by the doctrines of res judicata and judicial estoppel from bringing any malpractice claims against the Plaintiffs for services rendered by the Plaintiffs as special counsel to the Chapter 11 Trustee in the bankruptcy case of Blair Temps. The court found that the elements of res judicata were met and that equity prevented the Defendants from pursuing allegations of malpractice against the Plaintiffs in another court. Alternatively, the court determined that the doctrine of judicial estoppel precluded Defendants from pursuing such claims.

Duncan W. Keir
99-20539
Blair
Jan 10, 2005

OPINION FOR PUBLICATION
Honorable Duncan W. Keir

Counsel for Plaintiffs: Alvin I. Frederick
Irving Edward Walker

Counsel for Defendants: Jeanett Palacios Henry
Donald M. Temple

Before the court were motions for summary judgment filed by the Plaintiffs in two-related adversary proceedings. The complaints for which Plaintiffs sought summary judgment requested a declaratory judgment by this court determining that the Defendants, Shirley Blair, individually, and Blair Temporaries and Staffing, Inc. (hereinafter “Blair Temps”), are precluded by the doctrines of res judicata and judicial estoppel from bringing any malpractice claims against the Plaintiffs for services rendered by the Plaintiffs as special counsel to the Chapter 11 Trustee in the bankruptcy case of Blair Temps. The court found that the elements of res judicata were met and that equity prevented the Defendants from pursuing allegations of malpractice against the Plaintiffs in another court. Alternatively, the court determined that the doctrine of judicial estoppel precluded Defendants from pursuing such claims.

Duncan W. Keir
02-14169
Sue Ann Celeste
Jun 01, 2004

Not for Publication: Order Determining Debtor's Right to Immediate Entry of Discharge

Duncan W. Keir
99-22370
Scott D. Field
Mar 31, 2004

This case came before the court on cross motions for summary judgment. Plaintiff, the Chapter 7 Trustee appointed to Debtor’s bankruptcy case, filed a Complaint against the Defendant seeking to avoid a payment made by the Debtor to the Defendant as a preference pursuant to 11 U.S.C. § 547(b). The payment was for work performed by the Defendant pursuant to a sub-contract agreement between Debtor, as general contractor, and Defendant, as subcontractor. Defendant defended against the preference action by asserting that the Debtor’s estate lost no value as a result of the payment because if the Debtor had not made the disputed payment, the bonding company, which furnished a payment bond for the project, would have been required to make the payment and would have therefore acquired a secured claim against the Debtor’s estate in the amount of the disputed payment. Finding the existence of genuine disputes of material facts, the court denied both motions for summary judgment.

Duncan W. Keir
02-16678
Jerome C. Richardson
Mar 31, 2004

This case came before the court upon the Debtors’ Objection to the Proof of Claim (the “Objection”) filed by the United States Internal Revenue Service (the “IRS”). In the Objection, the Debtors assert that the secured claim of the IRS should be allowed in the amount of $21,224.00, which represents the value of the Debtors’ real property after deducting the balance due upon debts secured by liens having priority above the IRS tax lien. The Debtors argued that the remainder of the IRS claim should be treated as an unsecured claim. The IRS, on the other hand, asserted that the Debtors’ interest in an ERISA-qualified pension plan should be included in the bankruptcy estate for the limited purpose of securing the IRS claim. The Court held that the IRS claim is not secured within the meaning of 11 U.S.C. § 506(a) by the Debtors’ interest in the subject pension plan. Accordingly, the court sustained the Debtors’ Objection to the Proof of Claim filed by the IRS.

Duncan W. Keir
01-22328
Terri Morgan
Sep 17, 2003

Chapter 13 debtor sold real property post-confirmation and sought to retain portion of net proceeds and reduce balance of chapter 13 plan by amount paid to mortgagee at settlement and outside of plan provisions. The court granted the debtor’s request for modification and the chapter 13 trustee sought reconsideration. The Court, Duncan W. Keir, Judge, granted the motion for reconsideration. The court found that the best interest test set forth in 11 U.S.C. § 1325(a)(4) should be recalculated at the time of modification and that debtor was not entitled to reduce the funding of the chapter 13 plan to yield a lower dividend to unsecured creditors than that which would be received in a case under chapter 7.

Duncan W. Keir
03-11342
JOEL D. JOSEPH
Sep 12, 2003

The United States Trustee filed a motion to dismiss the chapter 11 case, arguing that the case was improperly filed for the sole purpose of disrupting foreclosure proceedings pending with respect to debtor’s residence. The Court, Duncan W. Keir, Judge, granted the motion to dismiss as a bad faith filing. Specifically, the court found that the debtor’s residence had been sold at foreclosure to debtor as bid purchaser and subsequently ratified, but that after default by bid purchaser, the property was resold to a third-party. The court held that debtor retained no interest in the party at the time of the bankruptcy filing and that no legitimate purpose existed for the continuance of the case.

Duncan W. Keir
02-21838
Carolyn Thomas
Jul 07, 2003

Defendant GMAC Residential Funding Corporation filed a Motion to Dismiss Plaintiff’s Complaint or in the Alternative, Summary Judgment arguing, inter alia, that Plaintiff’s notice of election to rescind via the adversary proceeding complaint was untimely under the Truth in Lending Act, 15 U.S.C. § 1635(f). Plaintiff, Carolyn Thomas, argued that the notice of election to rescind was timely under the extension of time granted by Federal Rule of Bankruptcy Procedure 9006. The court granted Defendant’s motion, finding that because Plaintiff’s notice of election to rescind was not required to have been brought in the bankruptcy case, the Federal Rules of Bankruptcy Procedure did not extend the statutory time for Plaintiff to give notice of her election to rescind.

Duncan W. Keir
02-24276
Mark Greathouse
Jun 12, 2003

The Chapter 7 Trustee, citing the recent United States Supreme Court decision in U.S. v. Craft, 535 U.S. 274 (2002), objected to the Debtor’s tenants by entireties exemption of real property in a case where only one spouse was a debtor in bankruptcy. The United States Bankruptcy Court, Duncan W. Keir, J., denied the Chapter 7 Trustee’s objection.

Duncan W. Keir
01-2-5013
Startec Global Communications
Apr 24, 2003

This case came before the court upon Motion of Defendant Videsh Sanchar Nigam Limited for Order Dismissing Staying Adversary Proceeding and Compelling Arbitration of Plaintiffs’ Claims and Granting Related Relief (the “Motion to Dismiss”) of a multi-count complaint filed by Plaintiffs (the “Complaint”). The Motion to Dismiss argued that this court should compel arbitration of alleged breaches of a pre-petition International Telecommunications Services Agreement between Videsh Sanchar Nigam, Ltd. and Startec Incorporated. This contract included a binding arbitration clause. The court found that certain causes of action arose out of post-petition disputes and alleged violations of this court’s orders; thus, the arbitration clause is inapplicable. Also, the court determined that the causes of action which may be subject to the arbitration clause are within this court’s core jurisdiction, and in it’s discretion, the court found that the best interest of the estate will be served by litigation of all claims before one forum, this court.

Duncan W. Keir
01-24155
Tracey F. Drazenovich
Apr 14, 2003

This case came before the court upon Ford Motor Credit Company’s (the “Defendant”) Motion to Dismiss Second Amended Complaint (the “Motion to Dismiss”). The Motion to Dismiss argued that this court does not possess subject matter jurisdiction over certain claims raised in the Second Amended Complaint because those claims should have been raised in a previous state court action and are thus barred by the doctrine of res judicata. This court found that the Tracey F. Drazenovich (the “Plaintiff”) was not precluded from asserting those claims in this court because Maryland does not have a compulsory counterclaim rule requiring all possible counterclaims to be raised in the original state court action.
This court granted the Motion to Dismiss as to one claim, the impairment of exemptions under 11 U.S.C. § 522(b)(2), because the Second Amended Complaint failed to state a basis upon which the requested compensatory damages could be granted.

Duncan W. Keir
96-19967
Yun Chin Kim
Jan 27, 2003

Prior to bankruptcy, Debtor co-owned real property as joint tenants with his mother. Debtor’s mother passed away intestate within 180 after the Debtor’s Chapter 7 case filed. Chapter 7 Trustee filed complaint seeking a declaratory judgment as to ownership interests in the subject property and further seeking authority to sell the property free and clear of the interests of the co-owner. The United States Bankruptcy Court, Duncan W. Keir, J., held that: (1) the pre-petition judgment creditor holding judgment against only the Debtor had not obtained a lien on the Debtor’s real property; (2) the filing of the chapter 7 bankruptcy case severed the joint tenancy; (3) Debtor’s one-half interest in the property at the time of petition constituted property of the Debtor’s bankruptcy estate; (4) upon the death of Debtor’s mother the property was co-owned by the Debtor’s bankruptcy estate and the Estate of Jeung Soon Kim to which Debtor (and therefore his estate) was a one-third beneficiary; and (5) the Chapter 7 Trustee was authorized to sell the property free and clear of the interests of the Estate of Jeung Soon Kim.

Duncan W. Keir
96-11099
Franklin Lamb
Oct 23, 2002

Order denying motion for payment of breakout fee

Duncan W. Keir
98-17615
Sylvia Viola Young
Oct 23, 2002

The United States Trustee filed a motion to disgorge attorney’s fees paid to the former attorney for debtor in this chapter 13 case. The Bankruptcy Court, Duncan W. Keir, Judge, denied the motion for disgorgement and also the United States Trustee’s subsequent motion for reconsideration. The Bankruptcy Court found that a debtor’s attorney in a chapter 13 case is not required to file a proof of claim for the unpaid balance of the attorney’s fees, however, an application for allowance of fees is required pursuant to Federal Rule of Bankruptcy Procedure 2016(a) in a chapter 13 case for any post-petition fee sought, other than a flat fee fully disclosed in the Rule 2016(b) statement filed at the outset of the case.

Duncan W. Keir
00-20393
THE PASTA CAFÉ CORPORATION WEST END GRILL
Oct 21, 2002

This case came before the court upon Montgomery County, Maryland's (the "Movant") Motion for Allowance and Payment of Personal Property Taxes as an Administrative Expense (the "Motion"). Finding that the taxing authority held an unliquidated tax claim on the petition date, the Court concluded that the tax was not incurred post-petition and therefore cannot be allowed as an administrative expense.
Alternatively, the Motion states that to the extent that the claim is not allowable as an administrative expense, it should be entitled to priority as a tax claim under 11 U.S.C. § 507(a)(8). However, the Movant also asserts that pursuant to Section 14-804 of the Tax-Property Article of the Annotated Code of Maryland, the tax claim is secured by a statutory lien upon the personal property assessed for the tax. As 11 U.S.C. § 507(a)(8) only provides priority treatment to ”unsecured claims” of governmental units, if the tax claim is in fact a secured claim, then it is not entitled to an unsecured priority. Therefore, the alternative treatment under Section 507(a)(8) was denied.

Duncan W. Keir
02-16662
CHERYL ZELL
Oct 21, 2002

Chapter 7 debtor filed a motion to redeem vehicle. The Bankruptcy Court, Duncan W. Keir, J., held that the proper valuation of the collateral to be redeemed pursuant to 11 U.S.C. § 722 is wholesale value.

Duncan W. Keir
01-11242
SANDRA E. WILLIAMS
Mar 12, 2002

After debtor’s motion to avoid lien was granted (by default), creditor filed a motion to vacate. The property was owned by debtor and debtor’s non-filed spouse and the lien was a subordinate deed of trust. Lender argued that the deed of trust trustees were necessary parties to the motion to avoid lien, without whom the order should not have been entered.
The court determined that deed of trust trustees are not necessary parties to motions to avoid liens. However, because the co-tenant by the entirety (debtor’s spouse) was not a party, the court granted the motion to vacate and dismissed the motion to avoid lien, without prejudice.

Duncan W. Keir
01-14507
ALWIN W.G. HARDING
Feb 15, 2002

A mortgage loan entered into in 1986 was modified in 1995. The court determined that the Modification and Extension Agreement entered into by the debtor and the secured creditor is a refinancing as referred to in the Legislative History of the Bankruptcy Reform Act of 1994, and that such refinancing constitutes an “agreement” as set out under Section 702(b)(2)(D) of the Bankruptcy Reform Act of 1994. As the Modification was entered into subsequent to enactment, 11 U.S.C. § 1322(e) applies. Accordingly, 11 U.S.C. § 1322(e) and not Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187 (1993), controls the Bank’s right to interest on the prepetition arrearage as a component of cure of the default.

Duncan W. Keir
99-1-0042
Pegues
Aug 01, 2001

Chapter 13 Trustee filed a motion to disallow claim of secured creditor and permit the funds to be redisbursed to other creditors entitled to disbursement under the confirmed chapter 13 plan. Court denied motion because case was converted to case under chapter 7. Upon a motion to reconsider by the Chapter 13 Trustee, the Bankruptcy Court, Duncan W. Keir, J., held that: (1) the Chapter 13 Trustee retained standing to allow winding up of the chapter 13 affairs; and (2) post-petition wages paid by the Debtor to the Chapter 13 Trustee for disbursement under the confirmed plan and held by the Chapter 13 Trustee at the time of conversion to chapter 7 should be distributed in accordance with the terms of the confirmed plan.

Duncan W. Keir
01-17154
Tolbert
Jun 01, 2001

Creditor willfully violated the Automatic Stay by conducting a foreclosure sale of its interest in property of the debtor after learning that debtor initiated a new bankruptcy case a few days before the sale. Creditor subsequently filed an emergency motion to dismiss debtor's case nunc pro tunc, arguing that serial filings by debtor and his wife on the eve of previous foreclosure sales, and the fact that debtor had another open bankruptcy case, demonstrated that the instant filing was in bad faith. The United States Bankruptcy Court for the District of Maryland, Duncan W. Keir, J., (1) denied the motion to dismiss nunc pro tunc; (2) found the foreclosure sale to be void; (3) prohibited any assessment of costs by creditor on account of the unlawful foreclosure sale; (4) found that debtor filed his case in bad faith; and (5) consolidated debtor's newly filed case into debtor's previously filed case.

Duncan W. Keir
00-19543
Fiels
Apr 01, 2001

Chapter 13 debtors objected to the priority claim of the IRS contending that the tax liabilities at issue were too old to qualify for priority treatment 11 U.S.C. § 507(a)(8)(A)(i). The Bankruptcy Court, Duncan W. Keir, held, by exercise of its 11 U.S.C. § 105(a) equitable powers, that the 11 U.S.C. § 507(a)(8)(A)(i) priority period was automatically tolled during the pendency of the automatic stay in debtors' prior Chapter 13 case.

Duncan W. Keir
00-21170
Hebert
Apr 01, 2001

This matter came before the court upon a Motion to Avoid Judicial Lien. The court has considered the motion and the case file and has decided, for the reasons stated below, to deny the motion.

Duncan W. Keir
99-24703
Keeler
Jan 01, 2001

Debtor filed motion to reopen case seeking declaratory judgment that the pre-petition Charging Order held by respondent had been extinguished by the order of discharge. The United States Bankruptcy Court for the District of Maryland, Duncan W. Keir, J., held that under Maryland law, the Charging Order constituted a pre-petition lien on certain partnership interests of the debtor, and that the rights of the holder of the charging order remained unaffected by the order of discharge.
Terri Lynn Sneider, Esq. for the Debtor. Patrick C. McKeever, Esq. for respondent, Academy of American Franciscan History, Inc., and Robert Brownwell, Esq. for respondent Wheeler & Korpeck, LLC.

Duncan W. Keir
99-24259
Bray
Dec 01, 2000

Plaintiffs filed a motion for summary judgment on count one of their complaint against debtor, seeking nondischargeability pursuant to 11 U.S.C. § 523(a)(6) of their claim arising from an Oregon Federal District Court judgment grounded in defendant's violation of the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. The Bankruptcy Court, Duncan W. Keir, Judge, granted the motion for summary judgment on grounds of collateral estoppel. Specifically the Bankruptcy Court found that both the jury award of $8,526,336.14, and the Oregon District Court's grant of injunctive relief based upon the same acts considered by the jury, established that defendant had intended to harm plaintiffs.

Duncan W. Keir
99-10726
Nadybol
Oct 01, 2000

Internal Revenue Service filed a proof of claim in debtor's bankruptcy case for non-payment of income taxes. Debtor objected, asserting that during the tax years in question, pursuant to 26 U.S.C. § 911(a), he met all the prerequisites to exclude the income from taxation as "foreign earned income." On cross motions for summary judgment, the parties stipulated that the only bar to debtor's use of the foreign earned income exclusion was whether debtor's employer, the Army Recreation Machine Program, was an "agency" for the United States for the purposes of 26 U.S.C. § 911(a).

The United States Bankruptcy Court, Duncan W. Keir, J., held that the United States Army exercised pervasive financial and supervisory control over the Army Recreation Machine Program, causing it to accomplish Army purposes, on a nonprofit basis, for persons directly or indirectly affiliated with the Army, such that it was an agency of the Army and the United States for purposes of 26 U.S.C. § 911(a). Debtor's motion for summary judgment denied, and the motion of the United States granted.

Duncan W. Keir
00-12885
Selby v. Allfirst Bank
Oct 01, 2000

Plaintiff/debtor filed an adversary complaint to avoid and recover money garnished by Allfirst Bank from debtor's employer. Both parties filed motions for summary judgment. In addition, Allfirst filed an objection to debtor's use of exemptions.
The United States Bankruptcy Court for the District of Maryland, Keir, J., found that, up to the extent of the debtor's limits on "cafeteria" exemptions not otherwise taken under 11 U.S.C. § 522, and Md. Code. Ann. Courts & Jud. Proc. § 11-504, that a debtor can utilize the trustee's avoidance powers 11 U.S.C. § 547 and § 550 to avoid garnishments made within 90 before the filing of debtor's petition in bankruptcy.

Debtor's motion for summary judgment granted. Objection of Allfirst Bank to debtor's use of exemptions denied.

Duncan W. Keir
98-23115
CRIIMI MAE
Jul 01, 2000

Creditor objected to debtors' disclosure statement asserting that it described a plan that could not be confirmed as a matter of law. Creditor first argued that the plan proposed to illegally sell securities which it owned under a repurchase agreement entered into by the parties. Creditor also argued that even if the court found that it only a security interest in the securities, that the disclosure statement still described a plan that could not be confirmed because it proposed to sell the securities free and clear of liens without affording the creditor an opportunity to credit bid its lien.

The United States Bankruptcy Court for the District of Maryland, Keir, J., denied the objection. The court found that the first issue (ownership of the securities) involved issues of fact necessitating an evidentiary hearing at the time of confirmation. As to the second issue, the court concluded that a plan of reorganization could be confirmed over a dissenting secured creditor's objection if it met any of three alternative tests of fair and equitable treatment enumerated in 11 U.S.C. § 1129(b)(2)(A)(i)-(iii). Because debtors' plan proposed to give the creditor the indubitable equivalence of its claim under section 1129(b)(2)(A)(iii), there was no requirement that it also provide credit bid rights pursuant to 1129(b)(2)(A)(ii). The issue of whether the proposed treatment of the creditor was the indubitable equivalent of secured creditor's claim is a question of fact to be determined upon the evidence introduced at the confirmation hearing.

Duncan W. Keir
BAJOWSKI
Jun 01, 2000

Plaintiff brought adversary proceeding seeking a determination that the $10,000 attorney fee award granted in the parties' divorce was excepted from discharge. Plaintiff moved for summary judgment. The Bankruptcy Court, Duncan W. Keir, J., held that: (1) the findings of the Master for Family Division met the federal standard for nondischargeability under 11 U.S.C. § 523(a)(5); and (2) the $10,000 attorney fee award was inextricably linked to the custody, visitation and child support litigation and was thus nondischargeable.
Motion granted.