Barbara Ann Miller

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IN RE:
BARBARA A. MILLER,
Debtor.
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ROBERT W. TRUMBLE, TRUSTEE OF
THE BANKRUPTCY ESTATE OF
BARBARA A. MILLER,
Plaintiff,
v.
D. MICHAEL BURKE; BARRY J. NACE;
BURKE, SHULTZ, HARMAN AND
JENKINSON; AND PAULSON & NACE,
Defendants.
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Case No. 04-3365
Chapter7
Adv. Proc. No. 10-136
MEMORANDUM OPINION
Robert W. Trumble, the Chapter 7 trustee (“Trustee”) for the bankruptcy estate (“Estate”)
of Barbara Ann Miller (“Debtor”) filed a complaint against D. Michael Burke, Barry J. Nace, and
their respective law firms (collectively, the “Defendants”) to recover from the Defendants for their
alleged breach of an employment contract with the Estate and legal negligence. Pending before the
court are two motions filed by the Defendants: a motion in this bankruptcy case to set aside the
court’s March 4, 2005 order authorizing their employment (“Motion to Vacate”); and a motion for
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summary judgment in this adversary proceeding.1
For the reasons stated herein, the court will deny the Defendants’ Motion to Vacate and the
Defendants’ motion for summary judgment.
BACKGROUND
On September 27, 2004, the Debtor filed her Chapter 7 voluntary petition. On line 17 of
Schedule B, the Debtor listed her interest in a “Malpractice Suit in re: deceased husband (D. Michael
Burke, Attorney)” (“Wrongful Death Claim”). The Debtor assigned to that interest an “unknown”
value as of the petition date and similarly claimed an exemption in the Wrongful Death Claim under
W. Va. Code § 38-10-4(a) in an “unknown” amount. 	The Debtor did not disclose on Schedule A2
any interest in real property and disclosed on Schedule B only a negligible amount —
notwithstanding the unknown value of the malpractice suit — of personal property, her interest in
which she exempted on Schedule C. The Trustee did not object to the Debtor’s claimed exemption
in the Wrongful Death Claim.
On October 21, 2004, the Trustee conducted the meeting of creditors in accordance with 11
U.S.C. § 341(a), and the Debtor received her Chapter 7 discharge on December 21, 2004. The
Trustee subsequently designated this case as one that contained assets to be administered for the
benefit of creditors of the Estate. On January 13, 2005, the Clerk of Court notified the Estate’s
creditors of the need to file proofs of claim; proofs of claim were due by April 13, 2005.
On March 3, 2005, the Trustee filed an application to employ the Defendants “to pursue the
Debtor’s personal injury claim as a result of a vehicular accident, under a contingency fee
arrangement with the same terms and conditions . . . as more fully set forth in the contingency fee
The Defendants originally filed their Motion to Vacate in this proceeding. On June 6,1
2013, the Defendants filed a duplicate motion in the main bankruptcy case because they believe
that since the order that they seek to have vacated was entered in the bankruptcy case,
consideration of their Motion to Vacate should likewise occur in the bankruptcy case. The court
will therefore deny as moot the Motion to Vacate filed in the adversary proceeding and adjudge
the Motion to Vacate in the context of the main bankruptcy case.
West Virginia Code § 38-10-4(a) provides, in pertinent part, that a bankrupt debtor may2
exempt her “interest, not to exceed twenty-five thousand dollars in value, in real property or
personal property that the debtor or a dependent of the debtor uses as a residence . . . .”
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contract attached [to the application to employ],” which was approved by the court pursuant to an
order entered on March 4, 2005. The Contract of Employment and Authority to Represent that was
attached to the Trustee’s application to employ was between Mr. Burke and the Debtor, as
administratrix of the Estate of Paul D. Miller. Pursuant to that contract, Mr. Burke was to receive
40% of all sums collected. The record shows that there was considerable imprecision regarding the
identification of the Wrongful Death Claim in conjunction with its appearance on the Debtor’s
bankruptcy schedules and its characterization in the materials connected with the motion to employ.
Ultimately, it came to life as a lawsuit claiming the death of the Debtor’s husband due to medical
malpractice and naming the Debtor as plaintiff in her own right and as the designated representative
of her husband’s estate.3
In September of 2006, Ms. Miller reached a $75,000 partial settlement of the Wrongful Death
Claim with one of the medical malpractice defendants. 	On November 9, 2006, the Defendants
obtained a $500,000 verdict in the Debtor’s favor. Upon receiving the proceeds flowing from the
verdict, the Defendants deducted their 40% fee and remitted the remainder to the Debtor. 	The
Defendants’ failure to remit any of the funds to the Trustee recovered as a result of the Wrongful
Death Claim precipitated the filing of this adversary proceeding and a parallel bar disciplinary
proceeding against the Defendants.4
DISCUSSION
The Defendants seek to vacate the March 4, 2005 order employing them on the basis that it
is void for lack of subject-matter jurisdiction. The Defendants likewise seek summary judgment on
The Defendant, D. Michael Burke, notified the Debtor on July 25, 2005, that he was3
withdrawing from his representation of her in connection with the Wrongful Death Claim due to
a conflict of interest. However, he failed to notify the Trustee and the court of his withdrawal.
The lawsuit continued to its conclusion with Defendant Barry J. Nace as the Debtor’s attorney of
record.
The Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”)4
ultimately found that each Defendant was engaged in an attorney-client relationship with the
Trustee, and that each of them violated certain provisions of the West Virginia Rules of
Professional Conduct in the course of their representation of the Trustee. Lawyer Disciplinary
Bd. v. Burke, 737 S.E.2d 55 (W. Va. 2012); Lawyer Disciplinary Bd. v. Nace, ___ S.E.2d ___,
2013 W. Va. LEXIS 260 (W. Va. 2013).
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the Trustee’s complaint based upon the Estate not having an interest in the Wrongful Death Claim
they were employed to pursue because it was wholly exempted by the Debtor. Although related, the
motions present two distinct issues to be resolved by the court: (A) whether the court had jurisdiction
to enter its March 4, 2005 order authorizing the Defendants’ employment by the Estate; and (B)
whether the Trustee’s failure to object to the Debtor’s claimed exemption in the cause of action
divested the Estate of any interest therein such that the Estate was not injured by the Defendants’
alleged breach of their duty to the Trustee.
A. The court’s jurisdiction to adjudge the employment application
The Defendants’ Motion to Vacate seeks to have this court set aside its March 4, 2005 order
authorizing their employment on the basis that the order is void. They assert that the order must be
vacated because the court did not have jurisdiction over the Wrongful Death Claim that was the
subject matter of the Trustee’s employment application. The Trustee argues that the court properly
entered its March 4, 2005 order pursuant to § 327(e) of the Bankruptcy Code; the court had subject-
matter jurisdiction over the Wrongful Death Claim; and the Defendants should not now be permitted
to challenge the propriety of the court’s order.
To be clear, there is no dispute that the court had subject-matter jurisdiction under § 327(e)
to determine whether to authorize the Defendants employment as special counsel. See 28 U.S.C. §§
1334(a) and 157(a). Rather, the Defendants assert that the court’s March 4, 2005 order must be set
aside because the court lacked subject-matter jurisdiction over the Wrongful Death Claim, the
pursuit of which necessitated their employment by the Estate. They contend that because the Trustee
failed to object to the Debtor’s claimed exemption in the Wrongful Death Claim, the court and Estate
lost jurisdiction over the asset and thus could not employ the Defendants. The court disagrees.
The court may set aside an order if the order is void. 	Fed. R. Civ. P. 60(b)(4), made
applicable to this case by Fed. R. Bankr. P. 9024. Unlike the other grounds under Fed. R. Civ. P.
60(b), a motion under Fed. R. Civ. P. 60(b)(4) can be brought at any time. Heckert v. Dotson (In re
Heckert), 272 F.3d 253, 256-57 (4th Cir. 2001). The concept of a void order under Fed. R. Civ. P.
60(b)(4) is narrowly construed because of the threat to finality of judgments and the risk that litigants
will use the rule to circumvent the appeal process. Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir.
2005). And a judgment is “void only if the court that rendered it lacked jurisdiction of the subject
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matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” ECMC v.
Doane (In re Doane), 102 Fed.Appx. 312, 314 (4th Cir. 2004). In fact, a lack of subject-matter
jurisdiction will not necessarily render a judgment void under Fed. R. Civ. P. 60(b)(4). 	The
jurisdictional error must be egregious before the court will vacate the judgment as void. Wendt, 431
F.3d at 413 (citing United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000)) (“A lack of subject
matter jurisdiction will not always render a final judgment void under Rule 60(b)(4). Only when the
jurisdictional error is egregious will courts treat the judgment as void.”).
Thus, when deciding whether an order is void under Rule 60(b)(4) for lack of subject
matter jurisdiction, courts must look for the rare instance of a clear usurpation of
power. 	A court plainly usurps jurisdiction only when there is a total want of
jurisdiction and no arguable basis on which it could have rested a finding that it had
jurisdiction.
Wendt, 431 F.3d at 413 (internal citations and quotation marks omitted). As a leading treatise notes,
“[i]n the context of Rule 60(b)(4), a lack of subject-matter jurisdiction for the purpose of making a
judgment void means a court’s lack of jurisdiction over an entire category of cases, not whether a
court makes a proper or improper determination of subject-matter jurisdiction in a particular case.”
12 Moore’s Federal Practice - Civil § 60.44[2][a] (Matthew Bender 3d Ed.). “The fact that a court
errs in assuming jurisdiction in one individual case is generally not sufficient to make the resulting
judgment void for lack of subject-matter jurisdiction.” Id. at § 60.44[2][b].
Although the Defendants’ motion to set aside the court’s March 4, 2005 order authorizing
their employment by the Estate — employment to which they agreed in the first instance, having
supplied affidavits to the Trustee in support of his motion to employ them — comes eight years after
the court authorized their employment and almost three years since the Trustee initiated this
proceeding, they are not time barred under Rule 60(b)(4). 	Heckert, 272 F.3d at 256-57.
Nonetheless, the court will not set aside its March 4, 2005 order.5
Notably, regarding the Defendants’ attorney-client relationship with the Trustee, the5
West Virginia Supreme Court found that such a relationship, and the duties that naturally flow
therefrom, existed in Nace’s case even in the absence of this court’s order authorizing his
employment by the bankruptcy estate. Nace, 2013 W. Va. LEXIS 260, at *30 n.10. Although
not directly before the Supreme Court, the court assumes the Supreme Court would have found
similarly in his Burke’s case. The court accepts, as it must, the findings of the Supreme Court in
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The Defendants misconstrue the concept of subject-matter jurisdiction as it relates to the
court’s authority to adjudge employment applications. 	On March 3, 2005, the Trustee filed his
application to employ the Defendants on behalf of the Estate. The Trustee sought to employ the
Defendants to pursue a cause of action the success of which the Trustee perceived to benefit the
Estate. Based upon the Trustee’s application and the Defendants’ affidavits attached thereto, the
court entered its March 4, 2005 order authorizing the Estate’s retention of the Defendants. 	By
entering the order, the court tacitly found subject-matter jurisdiction over the employment
application; employment applications on behalf of a bankruptcy estate clearly being a category of
relief that bankruptcy courts are empowered to grant and do so on a regular basis. Any error in that
regard based on the Wrongful Death Claim being wholly exempted from the Estate is not grounds
for the court to set aside its March 4, 2005 order because the court undoubtedly had subject-matter
jurisdiction under § 327(e) when it authorized the Defendants’ employment by the Estate.6
that regard; however, the court does not rely on the Supreme Court’s finding in reaching its
disposition regarding the challenged order of employment in this case.
Moreover, even assuming that the Estate lost a property interest in the Wrongful Death6
Claim based upon the Trustee’s failure to object to the Debtor’s claimed exemption therein, that
did not divest this court of subject-matter jurisdiction over the Trustee’s employment application
or the Wrongful Death Claim. In that regard, Congress conferred upon the district court in which
a bankruptcy case is commenced exclusive jurisdiction “of all property, wherever located, of the
debtor as of the commencement of such case, and of property of the estate . . . .” 28 U.S.C. §
1334(e)(1) (emphasis added). This is particularly evident in light of Taylor v. Freeland & Kronz,
503 U.S. 638 (1992), where, as here, the trustee sought to recover from special counsel after he
failed to timely object to the debtor’s claimed exemption in a pending lawsuit. This
jurisdictional grant “was a distinct departure from the jurisdiction conferred under previous Acts,
which had been limited to either possession of property by the debtor or consent as a basis for
jurisdiction.” Celotex Corp., v. Edwards, 514 U.S. 300, 308 (1995); see In re Gunter, 410 B.R.
178, 181 (Banke. E.D.N.C. 2008) (finding jurisdiction over property of the debtor after such
property had been abandoned by the bankruptcy estate).
Here, it is undisputed that the Debtor had at least a partial interest in the Wrongful Death
Claim, which would vest this court with jurisdiction over the same as of the petition date. In that
regard, the verdict form submitted by the Defendants with their Omnibus Supplemental Brief
(Doc. No. 49 in Case No. 04-3365) reflects that the Debtor, individually, was a named plaintiff,
and the jury returned in her favor a damages award in the amount of $150,000 for her loss of
“society, companionship, comfort, guidance, kindly offices and advice of [her deceased
husband].”
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The fact that the bankruptcy estate may have lacked an interest in the Wrongful Death Claim
at the time the Trustee made his application for employment did not divest the court of its power to
grant the application. The Defendants were hired as special litigation counsel; their brief was limited
to the pursuit of the Wrongful Death Claim. They were not counsel to the Trustee under § 327(a)
for general matters regarding the administration of the Estate. 	As such, their duty was to seek
recovery on the Claim. No one, including the Debtor, objected to their retention or the intention of
the Trustee to pursue the Wrongful Death Claim. Only after a successful recovery on the Claim, and
a demand by the Trustee for proceeds from the litigation, would the issue of the estate’s entitlement
to all or part of them become ripe. Of course, that is what unfolded. Just as the court did not lack
jurisdiction to enter the order of employment, it now possesses the power to rule upon the effect of
the exemption upon the Trustee’s demand against the Defendants for the recovered Wrongful Death
Claim proceeds. Therefore, the court will not vacate its March 4, 2005 order as being void.
B. The effect of an exemption value of “unknown” for an asset scheduled with an “unknown”
value
Turning to the second issue, the Defendants assert that the United States Supreme Court’s
holding in Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), entitles them to summary judgment
because the Trustee, as the representative of the Estate, lost any interest in the proceeds from the
Debtor’s Wrongful Death Claim when he failed to object to the Debtor’s claim of exemptions; they
therefore assert that the Trustee’s complaint must fail because the Estate suffered no damage as a
result of their action. The Trustee argues that the Defendants are not entitled to summary judgment
for several reasons: 1) the Defendants are precluded by the doctrines of estoppel and waiver from
now asserting that the Estate did not have an interest in the Wrongful Death Action; 2) the Trustee
had no obligation to object to the Debtor’s exemption because the Debtor did not properly disclose
the asset; 3) the court can disallow the exemption under 11 U.S.C. § 105 if it was taken in bad faith;
and 4) the exemption provision employed by the Debtor is capped at $25,800 such that that amount
was all that the Debtor exempted, leaving any amount beyond that for administration in the Debtor’s
bankruptcy case.
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
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P. 56(c); Fed. R. Bankr. P. 7056. The moving party bears the burden of demonstrating that there is
no genuine dispute of material fact. 	Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Procedurally, a party seeking summary judgment must make a prima facie case by showing: 1) the
apparent absence of any genuine dispute of material fact; and 2) movant’s entitlement to judgment
as a matter of law on the basis of undisputed facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Once the moving party has satisfied this burden of proof, the nonmoving party must set forth
specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp.,
477 U.S. at 325. The court is required to view the facts and draw reasonable inferences in the light
most favorable to the nonmovant. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). However, the
existence of a factual dispute is material - thereby precluding summary judgment - only if the
disputed fact is determinative of the outcome under applicable law. 	Id.; accord In re Crystal
Apparel, Inc., 220 B.R. 816, 828 (Bankr. S.D.N.Y. 1998) (“A fact is material only if it affects the
results of the proceeding and a fact is in dispute only when the opposing party submits evidence such
that a trial would be required to resolve the difference.”). A genuine issue of material fact exists only
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248 (1986). The court’s role is not “to weigh the evidence and determine the
truth of the matter [but to] determine whether there is a need for a trial.” Anderson, 477 U.S. at 249-
50. If no genuine issue of material fact exists, the court has a duty to prevent claims and defenses
not supported in fact from proceeding to trial. Celotex Corp., 477 U.S. at 317, 323-24.
Here, the dispute revolves around whether the Debtor exempted 100% of her interest in the
Wrongful Death Claim. “When a debtor files a bankruptcy petition, all of the debtor’s property
becomes property of a bankruptcy estate.” 	Taylor, 503 U.S. at 642 (citing 11 U.S.C. § 541).
However, a debtor may exempt certain property from the bankruptcy estate, thereby preventing its
distribution to creditors. 11 U.S.C. § 522(b)(1); Taylor, 503 U.S. at 642. Section 522(l) requires
a debtor to file a list of the property the debtor claims as exempt. West Virginia opted out of the
federal exemption scheme such that a West Virginia debtor may only exempt property from its
bankruptcy estate pursuant to West Virginia Code § 38-10-4. Sheehan v. Peveich, 574 F.3d 248, 251
(4th Cir. 2009). “Unless a party in interest objects, the property claimed as exempt on such list is
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exempt.” 11 U.S.C. § 522(l). Although § 522(l) does not set an objection deadline, Fed. R. Bankr.
P. 4003(b) provides that such an objection may be filed within 30 days after the meeting of creditors
held under § 341(a) is concluded or within 30 days after any amendment to the list of claimed
exemptions. Fed. R. Bankr. P. 4003(b)(1).
In Taylor, the trustee failed to timely object to the debtor’s claimed exemption but argued
that courts may nonetheless invalidate a claimed exemption if the debtor did not have a “reasonably
disputable basis for claiming it.” Taylor, 503 U.S. at 643. In rejecting the trustee’s argument, the
Court held that Fed. R. Bankr. P. 4003(b) indicates by negative implication that parties in interest
may not object to a claimed exemption after the 30 days “unless, within such period, further time is
granted by the court.” Id. (quoting Fed. R. Bankr. P. 4003(b)). Therefore, in the absence of a timely
objection, a debtor’s claimed exemption, whatever it may be, will be allowed and the subject
property will be excluded from the bankruptcy estate regardless of whether a debtor had a “colorable
statutory basis for claiming it.” Id. at 643-44.
Notably, however, “Taylor does not tell us what has been claimed as exempt–only that
whatever has been claimed as exempt is beyond the estate’s grasp once the deadline has elapsed.”
Barroso-Herrans v. Lugo-Mender (In re Barroso-Herrans), 524 F.3d 341, 344 (1st Cir. 2008)
(citation omitted) (emphasis in original). “Just as Taylor stands for the narrow proposition that a
trustee must object timely to a facially invalid exemption, [Schwab v. Reilly, 130 S. Ct. 2652 (2010)]
similarly stands for the equally limited proposition that the time limits for objecting to an exemption
do not apply if the claimed exemption is valid on its face.” Massey v. Pappalarado (In re Massey),
465 B.R. 720, 726 (B.A.P. 1st Cir. 2012). Taylor’s holding, therefore, only applies if what has been
claimed as exempt is the full value of the subject asset. In re Barroso-Herrans, 524 F.3d at 344.
In determining what a debtor has actually claimed as exempt, and whether the claimed exemptions
are objectionable, a Chapter 7 trustee is directed to examine three entries on a debtor’s Schedule C:
the description of the property in which the debtor is claiming an exemption; the federal or state
statute governing the claimed exemptions; and the amounts listed in the column titled “value of
claimed exemption.” Schwab, 130 S. Ct. at 2663. In that regard, Chapter 7 trustees are not tasked
with clarifying every ambiguous exemption claimed by debtors. 	See In re Mercer, 158 B.R. 886,
888 (Bankr.D.R.I. 1993), aff’d, 53 F.3d 1 (1st Cir. 1995) (finding that a Fed. R. Bankr. P. 4003(b)
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objection is only required when an exemption claim includes unambiguous language indicating the
debtor is asserting an exemption claim which would exceed the maximum statutory allowance); In
re Hall, 453 B.R. 22, 30 (Bankr.D.Mass. 2011) (citation omitted) (same).
Given the facts of this case, the Defendants’ reliance on Taylor is misplaced. Although the
parties in Taylor agreed that the debtor was only entitled to exempt a “small portion of the
[litigation] proceeds either under state law or under the federal exemptions specified in § 522(d),”
Taylor, 503 U.S. at 642, the debtor in fact claimed the full amount as exempt. 	Id. The trustee was7
therefore foreclosed from contesting the exemption after the expiration of Fed. R. Bankr. P.
4003(b)’s 30-day period. Id. at 643-44. The Debtor here claimed an exemption in her Wrongful
Death Claim under W. Va. Code § 38-10-4(a), commonly referred to as the “homestead exemption,”
which can be used by a debtor to exempt an interest “not to exceed [$25,000] in value, in real
property or personal property that the debtor or a dependent of the debtor uses as a residence . . . .”
W. Va. Code § 38-10-4(a). 	Unlike the debtor in Taylor, the Debtor here limited the amount of her8
exemption by employing an exemption provision, albeit a technically incorrect one, that limited the
amount of her claimed exemption. The Debtor therefore did not fully exempt the Wrongful Death
Although the Court does not offer extensive insight as to how the debtor in Taylor7
claimed the full amount of the lawsuit proceeds as exempt, presumably the exemption was based
upon the debtor’s use of “unknown” as the “value of the claimed exemption” coupled with the
use of “11 U.S.C. § 522(b)(d)” as the statutory basis for claiming such exemption. See In re
Hall, 453 B.R. at 30 (“Rather, the ‘unknown’ valuation in Taylor was objectionable on its face
because the debtor had not otherwise limited the amount of the exemption either through citation
to a specific statutory provision or through a circumscribed description of the property.”).
Importantly, in Taylor the parties and the Court accepted as an undisputed proposition that the
debtor had in fact claimed the full amount as exempt when she had no basis for doing so. Taylor,
503 U.S. at 642. There was thus no ambiguity about the scope of the exemption in Taylor; that is
markedly different than the case at hand.
The Debtor could have selected the “wildcard” exemption available to her under W. Va.8
Code § 38-10-4(e) or, perhaps more precisely, the exemption regarding wrongful death proceeds
under § 38-10-4(k)(2). Nevertheless, she did not do so and the court is limited to the relevant
entries on the Debtor’s Schedule C in assessing the legal consequence of the Debtor’s claimed
exemptions. Moreover, in stark contrast to every other case the court has surveyed in
conjunction with this opinion, the Debtor is not before the court having not been made a party to
the matter and proceeding under consideration.
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Claim in such a way that divested the Estate of an interest therein. See Stoebner v. Wick (In re Wick),
276 F.3d 412, 416 (8th Cir. 2002) (“[W]hen a specific dollar figure given by statute limited the
amount of the exemption . . . listing “unknown” does not, by itself, render the [asset] fully exempt.”).
Such a result is consistent with the Court’s analysis regarding exemptions in Taylor and Schwab;
particularly the Schwab opinion in which the Court was careful to differentiate the type of the
exemption claimed by the Debtor here and those exemptions that permit a debtor to exempt certain
assets in full. See Schwab, 130 S. Ct. at 2661-62, 2663, 2667, 2668 n.19; In re Hall, 453 B.R. at 30-
31.
Consequently, because the Trustee did not object to the Debtor’s claimed exemption in the
Wrongful Death Claim, the exemption stands as claimed. 	However, for the reasons noted, the
Debtor’s interest in the claimed exemption is not unlimited based upon the Debtor’s use of
“unknown” as the “value of the claimed exemption” on Schedule C because the exemption was
anchored to an exemption provision with a monetary cap and there is no unambiguous evidence that
the Debtor’s claimed exemption was intended to exempt the Wrongful Death Claim proceeds in full
or even in excess of the maximum statutory allowance chosen by her.
The Defendants are not entitled to summary judgment because the Debtor did not fully
exempt the Wrongful Death Claim from the Estate. The Estate, therefore, has an interest in the
Wrongful Death Claim proceeds upon which the Trustee’s complaint rests.
CONCLUSION
Based on the foregoing, the court will enter a separate order denying the Defendants’ Motion
to Vacate. The court will also enter a separate order pursuant to Federal Rule of Civil Procedure 58,
made applicable to this proceeding by Fed. R. Bankr. P. 7058, denying the Defendants’ motion for
summary judgment. 9
Also pending in this adversary proceeding is the Trustee’s motion for summary9
judgment dated November 21, 2011. Given the age of the motion and the procedural course this
proceeding has taken as of late, the court will also deny without prejudice the Trustee’s motion
for summary judgment.
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Notice Recipients
District/Off: 0424−3 	User: lam 	Date Created: 7/21/2013
Case: 3:10−ap−00136 	Form ID: pdfdoc 	Total: 20
Recipients submitted to the BNC (Bankruptcy Noticing Center) without an address:
ust 	W. Clarkson McDow TOTAL: 1
Recipients of Notice of Electronic Filing:
aty 	Christopher T. Nace 	ctnace@paulsonandnace.com
aty 	Lawrence M. Schultz 	lschultz@burkeandschultz.com
aty 	Mark Jenkinson 	mjenkinson@burkeandschultz.com
aty 	Mary Binns−Davis 	mbdavis@wvlawyers.com
aty 	Michael D. Crim 	mdcrim@wvlawyers.com
aty 	Richard R. Marsh 	rrmarsh@wvlawyers.com
aty 	Robert W. Trumble 	trumble275@aol.com
aty 	William A. O'Brien 	wob3@earthlink.net
TOTAL: 8
Recipients submitted to the BNC (Bankruptcy Noticing Center):
dft 	D. Michael Burke 	Burke, Schultz, Harman &Jenkinson 	1444 Edwin Miller Boulevard 	Martinsburg,
WV 25401
dft 	Barry J. Nace 	Paulson &Nace, PLLC 	1615 New Hampshire Avenue, N.W. 	Washington, DC 20009
pla 	Robert W. Trumble, Trustee 	Post Office Box 2509 	Martinsburg, WV 25402
dft 	Burke, Schultz, Harman, and Jenkinson 	1444 Edwin Miller Boulevard 	Martinsburg, WV 25401
dft 	Paulson &Nace 	1615 New Hampshire Avenue NW 	Washington, DC 20009
db 	Barbara Ann Miller 	200 Woodbury Avenue 	Apartment 217 	Martinsburg, WV 25401
3pp 	Barry J. Nace 	Paulson &Nace, PLLC 	1615 New Hampshire Avenue, N.W. 	Washington, DC 20009
3pd 	Robert W. Trumble, Trustee 	Post Office Box 2509 	Martinsburg, WV 25402
aty 	McNeer, Highland, McMunn and Varner, L.C. 	Post Office Box 2509 	Martinsburg, WV 25402
aty 	Allison S. McClure 	Empire Bank Building 	400 West Main Street 	Post Office Drawer
2040 	Clarksburg, WV 26302−2040
ust 	United States Trustee 	2025 United States Courthouse 	300 Virginia Street East 	Charleston, WV
25301
TOTAL: 11
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