Month: March 2013

Bankr. W.D.N.C.: In re Jennings- Denial of Conversion from Chapter 7 to Chapter 13

Summary:

In addition to a misstatement regarding their residency in the Western District of North Carolina, the Debtors failed to disclose in their Chapter 7 petition that they had transferred real property to their daughter within one year of their bankruptcy filing. Upon discovery by the Trustee (and likely facing avoidance of the transfer) the Debtors sought to convert to Chapter 13, amending their petition to include the transfer and also including additional income from the Female Debtor.

Beginning from Marrama v. Citizens Bank of Massachusetts, and then heavily relying on In re Goines, 397 B.R. 26, 30 (Bankr. M.D.N.C. 2007) and In re Southern, 2011 WL 1226058, at *3 (Bankr.… Read More

Tagged with: ,

4th Circuit: McCauley v. Home Loan Investment Bank- Home Owner’s Loan Act Preemption of State Law; Pleading Fraud Allegation

Summary:

McCauley raised state law claims against Home Loan Investment Bank (“Home Loan”) for unconscionability and fraud, due to multiple factors, including a hurried closing, the inducement by inflated appraisal, the disparity between the size of the loan and the value of the home, and an “exploding” ARM. Home Loan moved to dismiss on the basis that the Home Owner’s Loan Act (“HOLA”) and related regulations at 12 C.F.R. § 560.2 pre-empted these state law claims.

The District Court analyzed each aspect of the unconscionablity claim separately, ultimately finding that each was in the nature of the laws pre-empted by 12 C.F.R.… Read More

Tagged with: ,

Bankr. E.D.N.C.: In re Burcam Capital II, L.L.C.- Motion for Stay Pending Appeal

Summary:

The standard for a stay pending appeal requires a showing of all of the following:

(1) That the movant is likely to succeed on the merits;
(2) That the movant is likely to suffer irreparable harm in the absence of the injunction;
(3) That the balance of equities tips in his favor; and
(4) That the injunction is in the public interest.

Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) vacated on other grounds, 130 S. Ct. 2371 (2010). In this case, the appellant was being treated as fully secured in a feasible plan with a multi-million dollar equity cushion.… Read More

Tagged with:

Bankr. M.D.N.C.: In re Carpenter- Dismissal following Multiple Refilings

Summary:

The Debtor had filed four case within nine months. The first was dismissed for failure to obtain credit counseling, although no schedules had been filed either nor had the Debtor attended the §341 Meeting of Creditors. The second case was dismissed for failure to file schedules, attend the §341 Meeting of Creditors, or make any payments. The third case was voluntarily dismissed following partial payment of the filing fee and filing of schedules, but still without attendance at the §341 Meeting of Creditors or any plan payment. The Debtor did file a Motion to impose the automatic stay, pursuant to 11 U.S.C.… Read More

Tagged with:

E.D.N.C.: Gateway Bank & Trust v. Clarendon Holdings- Valuation for Surrendered Property in Dirt for Debt Plans

Summary:

In a “Dirt for Debt” Plan, the Chapter 11 Debtor’s proposed to surrender real property to Gateway. The Bankruptcy Court held that the proper basis for valuation for such tender was the fair market value standard, where Gateway had urged a liquidation value.

On appeal, the District Court held that while 11 U.S.C. § 506(a)(1) mandates use of the fair market or “replacement” value where the Debtor intends to retain the collateral for its own use, the same is not true where the Debtor intends to surrender the property. In such circumstance, “[w]here a plan shifts to the creditor the burden to sell, and hence the risk of loss or potential for gain”, the court should take into “account the loss of income a creditor may encounter prior to the sale or liquidation of the property” and also whether the potential for loss is greater.… Read More

Tagged with: ,

Bankr. E.D.N.C.: In re Meade- No Collateral Attack Allowed due to Failure to Obtain a Stay Pending Appeal

Summary:

The Bankruptcy Court, subsequently affirmed by the District Court, determined that the two liens held by Bank of America against real property were void pursuant to 11 U.S.C. § 544(a)(1) because of inaccurate property descriptions. See Meade v. Bank of America (In re Meade), 2011 Bankr. LEXIS 4631, 2011 WL 5909398 (Bankr. E.D.N.C. July 29, 2011), and Bank of America v. Meade,Bank of Am. v. Meade, 2012 U.S. Dist. LEXIS 96071 (E.D.N.C. July 9, 2012). Bank of America appealed to the 4th Circuit, but failed to seek a stay pending appeal and, pursuant to the Chapter 11 plan and other orders of the Bankruptcy Court, the Debtor sold the real property free and clear of all liens.… Read More

Tagged with:

E.D.N.C.: Rodgers v. Preferred Carolinas Realty – Stern v. Marshall; Abuse of Process, Fraudulent Practices by Attorneys

Summary:

Rodgers had filed a complaint for claims arising from a real estate dispute. The Bankruptcy Court granted a judgment on the pleadings as to two defendants, but, in light of Sterns v. Marshall, the District Court returned the matter to the Bankruptcy Court for a determination of whether the issues raised were “core” or “non-core” and the basis for jurisdiction. (See: http://ncbankruptcyexpert.com/?p=1137) The Bankruptcy Court then found that the claims were “non-core” pursuant to 28 U.S.C. § 157, but that it did have jurisdiction under § 157(c)(1).

On this second appeal, the District Court agreed with the Bankruptcy Court both that the claims were non-core, but that jurisdiction was property as the claims were “related to” the bankruptcy as they “could have any conceivable effect on the bankruptcy estate.” See Morrison v.… Read More

Tagged with: , ,

4th Circuit: United Marketing Solutions v. Fowler- Settlement Agreement was not Contract for Sale of Judgment

Summary:

United Marketing Solutions (UMS) obtained a judgment against the Fowlers for $106,076.82. Subsequently, Rees Associates obtained a judgment against UMS for $172,194.94. Rees then initiated garnishment proceeding against the Fowlers, but then entered into a Settlement and Release with the Fowlers which called for the Fowlers to pay Rees “the sum of $ ___ upon execution of this Agreement in full and complete satisfaction of the Garnishment. In return for this payment, Rees will credit the Rees Judgment for [$111,766.92] resulting in full satisfaction of the Fowler Judgment.” UMS refused to mark its judgment against the Fowlers as satisfied, despite Rees having its judgment against UMS marked as partially satisfied, and the district court largely agreed, only giving the Fowlers a $10,000 equitable offset in the amount actually paid to Rees.… Read More

Tagged with:

Bankr. M.D.N.C.: In re Griffin- Redemption following Conversion from Chapter 13

Summary:

Following conversion from Chapter 13, the Debtor sought to redeem a motor vehicle based on the NADA trade-in value from the commencement of the bankruptcy case. Finding that BAPCPA amendments in 2005 to 11 U.S.C. § 506(a)(2) abrogated the previous rule as stated in In re Murray, No. 00-10603, slip op. at 5-6 (Bankr. M.D.N.C. June 23, 2000), the bankruptcy court held that, absent contrary evidence, the proper value for redemption was 90% of the NADA retail value, adjusted for age and condition.

For a copy of the opinion, please see:

Griffin- Redemption following Conversion from Chapter 13.pdf Read More

Tagged with: ,

Bankr. E.D.N.C.: In re Gately- Stay Violation by Hospital

Summary:

After the Gatelys had filed Chapter 13 bankruptcy and provided written notice, Holly Hills Hospital sent the Debtors ten (10) billing statements and also threatening telephone calls for several weeks. As Mrs. Gately suffers from mental health issues (for which she had presumably received treatment from Holly Hills Hospital), these letters and telephone calls “informed the debtors that bankruptcy was futile” and caused Mrs. Gately to seek additional treatment.

Accordingly, the bankruptcy court found that Holly Hills Hospital had violated the automatic stay and awarded $8500 in sanctions, consisting of $1,000 in damages for the billing statements, $2500 for the telephone calls, $2500 in actual damages for additional medical treatment and $2500 in attorneys’ fees.… Read More

Tagged with: ,
Top