Month: January 2013

Bankr. E.D.N.C.: In re Shoaf- Interest Rate and Amortization Term for Secured Claim in Chapter 11

Summary:

The Debtors guaranteed a $765,440.00 bridge loan with an adjustable interest rate, with range between 14% and 28%, and a 12 month term, with an option to extend the note for an additional 12 months. The Debtors filed Chapter 11 and proposed a 30-year amortization rate at 5% interest, to which the lender objected both as to the interest rate and the new term.

At hearing, an expert in commercial real estate testified that there was no effective market for this loan, so the bankruptcy court turned to the formula approach outlined in Till v. SCS Credit Corporation, 541 U.S.… Read More

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Bankr. M.D.N.C.: In re Sauls- Failure to Turnover Repossessed Vehicle

Summary:

The Debtor filed Chapter 13 on January 22, 2012, after Reliable Motors repossessed a vehicle four days earlier. The Debtor’s attorney both sent notice of the bankruptcy and was called Reliable that day. The Debtor went to Reliable car lot a few days later, seeking to regain possession of the vehicle, but Reliable refused to return the vehicle. On February 3, 2012, Reliable was again provided notice of the case, proof of insurance on the vehicle and evidence that the Debtor had made his first payment under the proposed plan. Reliable continued to refuse to return the vehicle, even up to the date of the Motion for Turnover and Sanctions on March 8, 2012.… Read More

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E.D.N.C.: Rodgers v. Preferred Carolinas Realty (In re Rodgers) – Stern v. Marshall

Summary:

In December 2005, the Eichorns were seeking to purchase a home and entered hired Preferred Carolinas Realty (“PCR”) and James Allen to represent them in the process. The Eichorns wer shown property located in Wake Forest, North Carolina (”the property”) and were told by PCR that it was owned by Toth Building Company, when it was, in fact, owned by Rodgers. Following negotiations through PCR, the Eichorns signed as sales contract with Toth, although Rodgers, the true owner of the property, had no knowledge of it. Unbeknownst to the Eichorns, PCR had modified the contract by “whiting out” the name of the seller, Toth Building Company, and substituting Rodgers’ name.… Read More

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Bankr. E.D.N.C.: In re Ramadan- Rule 2004 Production of Confidential Settlement Agreements

Summary:

The Debtor was involved in a lawsuit Gennaro Vitale, Gary Annino, and GG Mirage, LLC (a limited liability company owned by Annino) relating to business and financial issues which had arisen between those parties (the “GG Mirage lawsuit”). That lawsuit was settled, subject to a confidentiality provision. Subsequently, Designer Glass sought production of the settlement agreement, first in state court and, following the Debtor’s bankruptcy filing, obtained a copy through an ex parte motion pursuant to Rule 2004, without serving such motion on Vitale or Annino. The Debtor produced the Settlement Agreement and Vitale & Annino sought reconsideration of that order.… Read More

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4th Circuit: Klein v. Household Realty- Arbitration Rider did not Render Rescission Notice invalid under TILA

Summary:

The Court of Appeals held that arbitration rider in mortgage refinance agreement did not render consumer’s right to rescind credit transaction unclear or non-conspicuous under TILA.

For a copy of the opinion, please see:

Klein v. Household Realty- Arbitration Rider did not Render Rescission Notice invalid under TILA.pdf Read More

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Bankr. E.D.N.C.: In re Johnson – Bankruptcy Petition Preparer

Summary:

The Debtor, who suffers from a learning disability, called telephone directory assistance asking to be connected with “legal aid.” The operator connected him with “Legal Aid Alternatives”, which then referred him Glenda Ocasio. Ms Ocasio charge the Debtor $399 to prepare his Chapter 7 bankruptcy petition. She told the Debtor that she would be representing him in the bankruptcy case, that he would be able to keep all of his assets; that he did not need an attorney; that he should file under chapter 7; and that all of his debts would be discharged. Ms. Ocasio also filed several reaffirmation agreements on the debtor’s behalf, without his knowledge.… Read More

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Law Review: Shepard- It’s All about the Principal: Preserving Consumers’ Right of Rescission under the Truth in Lending Act

Abstract:

This Article explores a significant market-based threat to the Truth in Lending Act’s (“TILA”) right of rescission, a remedy that attempts to deter lender overreaching and fraud during one of the most complex financial transactions of a consumer’s lifetime. The depressed housing market has substantially impaired many borrowers’ ability to fulfill their responsibilities in rescission’s unwinding process: restoring the lender to the status quo ante by repaying the net loan proceeds of the mortgage transaction.

When a consumer is unable to finance her tender obligation, nonbankruptcy judges’ overwhelming response has been to protect the lender and deny rescission to the borrower.… Read More

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Bankr. E.D.N.C.: Raleigh Plumbing & Heating v. Lamanna- Dischargeability from Bad Check under 11 U.S.C.§ § 523(a)(2)(A) and (B)

Summary:

In 2005, the Debtor paid Raleigh Plumbing & Heating (“RPH”) by check for a residential remodeling project for which the Debtor was a contractor. RPH confirmed with the Debtor’s bank the availability of funds and completed work. Three days later, RPH received notice that the Debtor had placed a stop payment on the check. RPH brought civil suit against the Debtor later in 2005, obtaining a judgment. In 2011, the Debtor filed Chapter 13 and RPH commenced an Adversary Proceeding seeking to have its claim declared non-dischargeable pursuant to 11 U.S.C. §§ 1328(a)(2), 523(a)(2)(A) and (B).

Under § 523(a)(2)(A), a creditor seeking to except a debt from discharge on the basis of fraud
must establish the following:
(1) false representation,
(2) knowledge that the representation was false,
(3) intent to deceive,
(4) justifiable reliance on the representation, and
(5) proximate cause of damages.… Read More

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4th Circuit: Ross v. R.A. North Development (In re Total Realty Management) – Liability under the Interstate Land Sales Act

Summary:

The Chapter 7 Trustee alleged that the Debtor, Total Realty Management (“TRM”), with the assistance and knowledge of R.A. North and its affiliates sold property in North and South Carolina at real estate seminars at inflated prices, falsely representing that the properties were owned by TRM, when they were , in fact owned by R.A. North. The Trustee sued R.A. North seeking statutory contribution from R.A. North related to TRM’s alleged liability to aggrieved buyers under the Interstate Land Sales Act provisions that allow for rescission of violative sales and damages stemming from fraudulent and misleading actions. After having the Adversary Proceeding removed to district court, R.A.… Read More

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Bankr. E.D.N.C.: Virginia Brands, L.L.C. v. Kingston Tobacco Company, Inc.- Removal of Matter only to the district court for the district where the civil action was pending

Summary:

Virginia Brands brought suit against Kingston Tobacco originally in Virginia state court, but the matter was removed to the U.S. District Court for the Western District of Virginia. Following a Motion to pierce the corporate veil of Kingston Tobacco, Kingston filed a Chapter 7 bankruptcy and sought to have the matter removed to the Bankruptcy Court for the Eastern District of North Carolina.

The bankruptcy court denied this motion to remove, holding that 11 U.S.C. § 1452 allows removal only “to the district court for the district where such civil action is pending.” The attempt to have the matter heard by the E.D.N.C.… Read More

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