In re: Tracy Diane Helms
Filing
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MEMORANDUM OPINION AND ORDER directing that this 1 appeal of the findings and conclusions on which no judgment order is shown as having been entered is dismissed without prejudice; further directing that this action is remanded to the bankruptcy court for further proceedings not inconsistent with this order. Signed by Judge John T. Copenhaver, Jr. on 4/18/2011. (cc: attys; Honorable Ronald G. Pearson, United States Bankruptcy Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
IN RE:
TRACY DIANE HELMS
Debtor
______________________________
W. CLARKSON MCDOW, JR.,
United States Trustee, Region Four,
Civil Action No. 2:11-0249
Bankruptcy No. 08-20027
Adversary No. 08-2026
Plaintiff,
v.
TRACY DIANE HELMS,
Defendant.
Interested Party
and Appellant:
George Wilson, M.D.
MEMORANDUM OPINION AND ORDER
On February 1, 2011, the United States Bankruptcy Court
entered its findings of fact and conclusions of law (“findings
and conclusions”).
The findings and conclusions discharged all
obligations by debtor to George Wilson, M.D.
Neither the docket
nor the findings and conclusions reflect that appellant George
Wilson, M.D., was a party to the adversary proceeding.
Nevertheless, on February 15, 2011, Dr. Wilson noticed
his appeal of the findings and conclusions.
The same day, Dr.
Wilson moved to intervene in the adversary proceeding, stating as
follows:
1. That the Adversary Proceeding was filed by the
Office of the U.S. Trustee in an attempt to deny
discharge to the Debtor, in its entirety;
2. That while George B. Wilson, M.D. was not a party to
the Adversary Proceeding, the Order entered by the
Honorable Ronald G. Pearson, is a targeted Order which
had the effect of carving out the interest of George B.
Wilson, M.D. and treating in a manner which is
diametrically opposed to the manner in which every
other creditor was treated;
3. That the Order of the Court had the effect of making
George B. Wilson, M.D. the true party in interest
without making him a party to the Adversary Proceeding;
4. That denying George B. Wilson, M.D. the ability to
intervene in this Adversary Proceeding would be
tantamount to deny George B. Wilson, M.D. due process.
(Mot. to Interv. at 1-2).
On February 18, 2011, the debtor
objected, noting the intervention request was untimely.
On February 25, 2011, the bankruptcy court entered the
following order:
This matter comes before the Court on the motion of Dr.
George B. Wilson to intervene. The matter is currently
pending before the District Court on Dr. Wilson's
appeal from this Court's findings of fact and
conclusions of law. Accordingly, the Court finds that
the District Court is the proper authority to determine
if Dr. Wilson may intervene to prosecute an appeal of
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the Court's order. Therefore, the Court shall abstain
from ruling on the motion to intervene.
(Ord. at 1).
On April 14, 2011, the undersigned judge was
assigned Dr. Wilson’s appeal.
The bankruptcy court convened a trial in this adversary
proceeding on June 15, 2010.
It is thus familiar with the
trustee’s complaint to deny discharge and the proceedings
thereon.
Those proceedings included testimony by Dr. Wilson.
The bankruptcy court is thus better positioned to adjudicate the
merits of Dr. Wilson’s motion to intervene in the first instance.
This is especially so in the event that the taking of evidence
becomes necessary.
The court, accordingly, ORDERS that this appeal of the
findings and conclusions on which no judgment order is shown as
having been entered be, and it hereby is, dismissed without
prejudice.
It is further ORDERED that this action be, and it
hereby is, remanded to the bankruptcy court for further
proceedings not inconsistent with this order.
The Clerk is directed to forward a copy of this written
opinion and order to counsel of record and to the Honorable
Ronald G. Pearson, United States Bankruptcy Judge.
DATED: April 18, 2011
John T. Copenhaver, Jr.
United States District Judge
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