Kenneth N. Whitehurst, III, Esq., AUST, VSB No. 48919

Cecelia Ann Weschler, Esq., VSB No. 28245

Nicholas S. Herron, Esq., NJSB No. 03007-2008, PASB No. 208988

Office of the U.S. Trustee

200 Granby Street, Room 625

Norfolk, VA 23510

(757) 441-6012

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

In re:

Dafney Dena Johnson,

Debtor.

Case No. 17-71664-SCS

Chapter 7

MOTION TO REOPEN CASE AND TO ORDER

APPOINTMENT OF TRUSTEE

Judy A. Robbins, the United States Trustee for Region Four, by counsel, moves this 

Court to reopen this case and to order the appointment of a trustee, and in support of the Motion 

states:

1. This case was filed as a voluntary chapter 7 on May 4, 2017. See Docket Entry 

No. 1. 

2. Clara P. Swanson was appointed trustee. 

3. On July 7, 2017, Swanson filed her Chapter 7 Trustee’s Report of No 

Distribution. See Docket Entry No. 10.

4. On August 21, 2017, the Court issued a discharge order. See Docket Entry No. 11. 

5. On August 28, 2017, the case was closed. See Docket Entry No. 13.

6. In or about 2009, the debtor had repairs done on a vehicle that resulted in a class 

action lawsuit. 

7. The class action lawsuit has settled and the debtor received a check for $1,049.

8. On October 30, 2017, the U.S. Trustee received correspondence from debtor’s 

counsel advising of the settlement. 

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9. The debtor’s cause of action arose prepetition. 

10. The cause of action was not listed as an asset in the debtor’s schedules and 

statements.

11. The bankruptcy estate, as defined by section 541, includes "all legal or equitable 

interests of the debtor in property as of the commencement" of bankruptcy. 11 U.S.C. § 

541(a)(1). 

12. The concept of property of the estate is broad and covers “every conceivable 

interest of the debtor, future, nonpossessory, contingent, speculative, and derivative.” Tyler v. 

DH Capital Management, Inc., 736 F.3d 455, 461 (6th Cir. 2013). "These legal and equitable 

interests include causes of action." In re Derivium Capital LLC, 716 F. 3d 355, 367 (4th Cir. 

2013)(citing Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., Inc., 267 F.3d 340, 

358 (3d Cir. 2001)).

13. A claim, therefore, need only be “sufficiently rooted in the pre-bankruptcy past” 

to comprise part of the debtor's bankruptcy estate. In re Shearin, 224 F. 3d 346 (4th Cir. 2000) 

(citing Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966)).

14. All assets of the estate are to be scheduled and disclosed on the debtor’s schedules 

and statements. Once an asset is scheduled the trustee has the right to either administer or, if 

burdensome, abandon the asset. See In re Lehoist, 344 B.R. 782, 784 (Bankr. N.D.W.Va. 2006).

15. If the trustee neither administers or abandons a scheduled asset, the asset will be 

deemed abandoned upon the closure of the case. See 11 U.S.C. § 554(c); Wissman v. Pittsburgh 

National Bank, 942 F.2d 867, 873 (4th Cir. 1991) (“If the trustee does nothing to administer the 

scheduled property before the case closes, i.e., does nothing to pursue the action, it will then be 

deemed abandoned by operation of law.”) (citations omitted).

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16. An undisclosed asset will remain property of the estate despite closure of the 

bankruptcy case. In re Ahearn, 318 B.R. 638, 642-43 (Bankr. E.D.Va. 2003) (citations omitted); 

see also In re Clark, BAP No. CC–11–1322–KiMkH, 2012 WL 1911926, at *6 (9th Cir. BAP 

May 25, 2012).

17. The debtor’s exposure to the defendants’ bad acts are well rooted in the prepetition past that any recovery for compensation would be property of the estate subject to 

distribution to creditors.

18. Since the cause of action was not listed in the debtor’s schedules it remains 

property of the estate.

19. Pursuant to Section 350(b) “a case may be reopened in the court in which such 

case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. 

§ 350(b).

20. The Court should reopen the underlying case to allow a chapter 7 trustee to

investigate whether to administer or abandon this previously undisclosed asset of the estate. Fed. 

R. Bankr. P. 5010. 

WHEREFORE the U.S. Trustee respectfully requests that this Court reopen this case, 

order the appointment of a trustee herein, and for such other and further relief as the Court shall 

deem necessary and just. 

RESPECTFULLY SUBMITTED, 

Judy A. Robbins, U.S. Trustee for Region Four 

Kenneth N. Whitehurst, III 

Assistant U.S. Trustee 

By: /s/ Nicholas S. Herron

Nicholas S. Herron

Trial Attorney 

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CERTIFICATE OF SERVICE

I certify that on 1st day of November 2017, service on all attorney Users in this case was 

accomplished through the Notice of Electronic Filing, pursuant to CM/ECF Policy 9 of the 

United States Bankruptcy Court for the Eastern District of Virginia, Case Management 

Electronic Case Files (CM/ECF) Policy Statement, Version 09/04/09. A copy of this Motion was 

mailed to: Dafney Dena Johnson, 1217 Ormer Road, Chesapeake, Virginia 23325 (Debtor); and

John Edwin Bedi, Esq., Lake Center I, 501 Independence Pkwy., Ste. 102, Chesapeake, Virginia 

23320 (Debtor’s Counsel) by regular first class, United States mail, postage prepaid. 

/s/ Nicholas S. Herron 

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