Month: June 2012

N.C. Supreme Court: Willis v. Willis- Mistake of One Party Insufficient to Reform Deed

Summary:

Janice Willis had two sons, Eddie and Anthony. In December 2004 she drafted a will bequeathing “any interest that I may own in my home place” to Eddie, expressing her “wish” that, if she conveyed the property to Eddie before her death and he decided to sell it, Eddie would divide the proceeds with his brother Anthony. The will also bequeathed the residue of her estate to Eddie and Anthony in equal shares, to pass to their children per stirpes if either or both predeceased her. Mrs. Willis did transfer the property to Eddie, subject to a life estate, but Eddie died a few years later, while Mrs.… Read More

Tagged with: , ,

Bankr. E.D.N.C.: Poston v. Toomey- Nondischargeability under 11 U.S.C. §§ 523(a)(2)(a) and 523 (a)(6)

Summary:

In 2002, the Toomey sold real property located at 1124 Berwyn Way, Raleigh, to the Postons. At the time of the sale, the Property was encumbered by a deed of trust and, in addition, by a home equity line of credit (“HELOC”) with Central Carolina Bank (“CCB”), which was secured by a second deed of trust. At the closing of the sale, the first deed of trust was paid off and canceled of record. The Toomeys’ HELOC with CCB was paid down to zero but, unfortunately, the deed of trust securing the HELOC was not canceled and the HELOC account was not closed.… Read More

Tagged with: ,

Bankr. E.D.N.C.: In re Mead- Violation of Discharge

Summary:

The Debtor had, after purchasing a 3rd parties interest in an Illinois home, been given title to the home by his then fiance, Ms. Ward, subject to an agreement that he would reconvey the real property to her in the event he pre-deceased her or their relationship ended. So, of course, their relationship ended and he declined to reconvey the property to her. Ms. Ward then commenced a lawsuit in Illinois against the Debtor seeking reconveyance of the property and damages for breach of contract. The Debtor filed Chapter 7, during which Ms. Ward unsuccessfully sought denial of the Debtor’s discharge.… Read More

Tagged with:

Bankr. E.D.N.C.: In re McClam- Consent Order In Prior Case is Not Res Judicata in Subsequent Bankruptcy

Summary:

In the Debtor’s first Chapter 13 case, the Debtor and his homeowner’s association entered into a consent order denying the homeowner’s motion for relief, subject to the Debtor complying with specific conditions. Failure to comply would result in the lifting of the automatic stay. The Debtor’s bankruptcy was shortly thereafter dismissed and the Debtor refiled. The homeowner’s association contended that the consent order in the previous case was res judicata and it was thereby entitled to relief from the automatic stay in the second case. The bankruptcy court, however, found that the consent order in the previous case was not a final adjudication in the present case, as “[t]he property of the estate and automatic stay in this case are distinct from the debtor’s previous case and not merely a revival of the prior proceedings.”

For a copy of the opinion, please see:

McClam- Consent Order In Prior Case is Not Res Judicata in Subsequent Bankruptcy.pdf Read More

Tagged with: ,

Bankr. E.D.N.C.: In Mansfield-High Commuting Costs are not a Special Circumstance for 707(b)(2)

Summary:

The Debtor, following some corrective amendments, had $731.36 of disposable income showing on Form B22. Because of a long commute in a pick-up truck with poor mileage, the Debtor claimed $612.00 a month of additional transportation expenses as a special circumstance under 11 U.S.C. § 707(b)(2)(B)(i). While not finding that high commuting costs never could be a special circumstance, the bankruptcy court did, however, hold that, as the Debtor had made this commute for more than 10 years, but had purchased the pick-up truck with poor mileage only 5 years ago, there were “more reasonable alternatives to the Debtor’s current mode of transportation that would reduce his expenses.”

For a copy of the opinion, please see:

Mansfield-High Commuting Costs are not a Special Circumstance for 707(b)(2).pdf Read More

Tagged with: ,

Bankr. E.D.N.C.: In re Goodman- Setoff of Social Security Funds

Summary:

In December 2010, the Social Security Administration the Debtor of an alleged overpayment of SSI benefits, seeking repayment of $11,585. In March 2011, the Debtor received a “Notice of Award” for Social Security Disability (“SSD”) benefits of $1,001.00 beginning March 2011. Also in March 2011, the Debtor was notified of SSA’s decision that she was entitled to receive a monthly payment of $674.00 and retroactive SSI benefits from May 2010 through March 2011 totaling $7,414.00. Then on March 24, 2011, SSA intercepted the debtor’s $7,414.00 in retroactive SSI benefits, which it applied toward the $11,585.00 overpayment. The Debtor filed bankruptcy on April 7, 2011, and subsequently sought turnover of the $7,414.00 seized within 90 days of the filing of her petition.… Read More

Tagged with: ,

Bankr. E.D.N.C.: Carter v. B-Line, L.L.C.- Solicitation of Reaffirmations is not Debt Collection

Summary:

B-Line purchased a charge account that the Debtors originally had with Kay Jewelers, which had been listed as a creditor on Schedule F of the Debtors’ petition, with a balance owing of $860.61. Following the filing of the Debtors’ bankruptcy, B-Line solicited a reaffirmation from the Debtors, including a warning/threat that “If the Jewelry purchased under this secured account have been destroyed, gifted or transferred, or sold, [B-Line] may have a non-dischargeability cause of action against you/your client(s) under 11 U.S.C. § 523.” In response, the Debtors initiated a adversary proceeding against B-Line, alleging that B-Line violated N.C.G.S. § 58-70-1 because it carried on a “collection agency business” without securing a permit through the Commissioner of Insurance before it solicited a reaffirmation agreement.… Read More

Tagged with: , ,

Bankr. E.D.N.C.: In Bowden- Ride-Through following Reaffirmation without Attorney Certification

Summary:

Debtor filed a reaffirmation agreement with Ally for a vehicle with the bankruptcy court, despite showing that her monthly income minus monthly expenses resulted in a negative net income, indicating a presumption of undue hardship. The reaffirmation stated that the Debtor intended to adjust her expenses to afford the car payments. The Debtor’s attorney did not complete the certification in the reaffirmation that there was no undue hardship. Due to the absence of the attorney certification, the bankruptcy court set the reaffirmation for hearing. Ally neither filed a proof of claim in the case, appeared at the reaffirmation hearing, nor responded to the eventual motion by the Debtor to declare the reaffirmation unenforceable.… Read More

Tagged with: , , ,

N.C. Court of Appeals: Epes v. B.E. Waterhouse, L.L.C.- Bankruptcy a Default

Summary:

Epes was the guarantor of a lease on behalf of the lessee, CRC Management. CRC eventually sold its assets to Fuddruckers. In April 2010, Fuddruckers filed bankruptcy. In July 2010, Epes brought an action for a declaratory judgment that he no longer had any liability under the guaranty, however summary judgment was granted to the Defendants.

The Court of Appeals affirmed the summary judgment for the defendants, finding that the lease included the filing of bankruptcy. Epes also argued that due to the Fuddruckers bankruptcy, Defendants had to obtain relief from the automatic stay in that case before seeking a summary judgment against him.… Read More

Tagged with: , ,

N.C. Court of Appeals: In re Vogler- Rule 60(b) does not redress errors of law

Summary:

Dorothy Vogler died testate, with her debts exceeding the value of her real and personal property. Chris Vogler, the executor of her estate, initiated a special proceeding for the purpose of obtaining authorization to sell the real estate that Ms. Vogler had owned at the time of her death and to use the proceeds to pay her debts. Such sale was authorized and subsequently confirmed on January 12, 2011, with the Clerk authorizing payment of the costs of the proceeding and the remaining balance on the mortgage owed to Bank of America (“BOA”) on the real property. On January 18, 2011, however, BOA commenced its own foreclosure against the property.… Read More

Tagged with: , ,
Top