Kocher v. Campbell, 712 S.E.2d 477

Plaintiff Edward Campbell was involved in a 2004 motor vehicle collision with Kocher in Spotsylvania County.
Campbell filed a voluntary Chapter 7 bankruptcy on October 1, 2005, without listing the personal injury claim as an asset or exempt property.
Discharge was granted on January 6, 2006; Campbell later filed three circuit court complaints (Feb 2006, Apr 2006, May 2008) against Kocher for personal injuries, none of which served Kocher.
The bankruptcy trustee reopened Campbell’s case in 2008; Campbell amended schedules to list the personal injury claim and claimed it as exempt.
May 29, 2009 bankruptcy court order exempted the personal injury claim; Campbell argued final bankruptcy order abandoned the estate, asserting retroactive restoration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Campbell had standing to sue after bankruptcy filing	Campbell maintained standing post-exemption.	Estate remained, so no standing to sue until exemption.	Lack of standing at filing; action a nullity; no standing retroactively cured.
Whether exemption restored the claim to Campbell and ended the trustee's control	Exemption restored the claim and bypassed trustee control.	Restoration only via exemption could occur; abandonment not shown.	Exemption on May 29, 2009 restored the claim to Campbell; before that, it stayed with the estate.
Effect of final bankruptcy order on retroactivity and tolling	Final order abandoned unadministered property, retroactively tolling limitations.	Exemption already removed asset; final order cannot retroactively toll limitations.	Final order did not retroactively toll; exemption had already removed the action from the estate.
Tolling of the statute of limitations given lack of standing	Nonsuits tolled limitations while action was pending.	No tolling where action was a nullity due to lack of standing.	Action filed while lacking standing is a nullity and does not toll the two-year period.

Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339 (7th Cir. 1987) (bankruptcy estate includes all debtor interests; extends to inchoate claims)
Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir. 1986) (estate includes inchoate causes of action)
U.S. ex rel. Gebert v. Trans. Admin. Servs., 260 F.3d 909 (8th Cir. 2001) (statutory assignments of estate interests; timing matters)
Parker v. Wendy's Int'l, Inc., 365 F.3d 1268 (11th Cir. 2004) (abandonment under § 554; value considerations of estate assets)
Tavenner v. Smoot, 257 F.3d 401 (4th Cir. 2001) (exemption procedure governs when property is removed from estate)
Brown v. O'Keefe, 300 U.S. 598 (1937) (abandonment principles and retroactivity not favoring debtor)
Johnston Memorial Hospital v. Bazemore, 277 Va. 308 (2009) (standing determines viability; lack of standing yields nullity)
Fowler v. Winchester Medical Center, Inc., 266 Va. 131 (2003) (Virginia standing and tolling principles for medical claims)