Month: May 2013

4th Circuit: Community State Bank v. Knox- Arbitration and Aggrieved Parties


Knox obtained payday loans from loan servicers for Community State Bank (CSB), an out of state-chartered bank, and subsequently brought suit in state court alleging various violations of North Carolina lending and usury laws, as well as unfair and deceptive trade practices.

In response, the loan servicers advanced on two fronts- first, the loan servicers sought to have the matters removed to federal court in the Eastern District of North Carolina, arguing that the National Bank Act (NBA) and Federal Deposit Insurance Act (FDIA) completely pre-empted state-law usury claims. The district court remanded to state court, finding that the NBA did not completely pre-empt state law usury claims and accordingly the complaint did not present a federal question and, subject to 28 U.S.C.… Read More

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Bankr. E.D.N.C.: Bolton v. Jacobson (In re Province Grande Olde Liberty)- Mandatory Abstention Factors


Plaintiffs had brought suit against Howard A. Jacobson (“Jacobson”), Envision Sales & Marketing Group LLC (“Envision”), CILPS Acquisition LLC (“CILPS”), and the debtor (collectively “business court defendants”) and it was designated a mandatory complex business case and assigned to the North Carolina Business Court pursuant to N.C. Gen. Stat. § 7A–45.4(b). The dispute arose out of the plaintiffs’ investments in high–yield and fixed–return real estate investment groups that were allegedly established and utilized by Jacobson as vehicles to facilitate an elaborate Ponzi scheme.

28 U.S.C. § 1334 sets forth the situations where a bankruptcy court must abstain and when it may abstain in favor of state court adjudication of a particular issue or action.… Read More

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Law Review: Cappiello, Brendan- The Price of Inequality and the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act


In The Price of Inequality, Nobel Prize winning economist Joseph E. Stiglitz explores the growing problem of wealth inequality in the United States.1 Stiglitz, riding the momentum of the Occupy Wall Street protests and “the 99 percent” political slogan, argues that economic and political factors have worked in concert to increasingly help shift wealth from the middle and lower classes to those at the top of the American socioeconomic ladder.  With traditional economic models and political theory, Stiglitz analyzes the nature of wealth inequality by examining its causes, potential ramifications if policymakers continue to ignore it, and solutions to help reverse the trend.… Read More

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Bankr. M.D.N.C.: In re Assasepa- Judicial Recusal


The Debtor sought to have the bankruptcy judge recuse herself, based on an alleged financial interest held by the judge in JP Morgan Chase, a party in an adversary proceeding. The sole basis provided by the Debtor was an affidavit, which included a recusal by Judge Stephan Wilson, from the Central District of California, due to his financial interest in JP Morgan Chase.

The standard for determining whether a judge should be disqualified is whether a reasonable person with knowledge of all facts would conclude that the judge’s impartiality might reasonably be questioned. U.S. v. DeTemple, 162 F. 3d 279, 286 (4th Cir.… Read More

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4th Circuit: Branigan v. Davis (In re Davis)- Strip-off of Unsecured Mortgages and Chapter 20


As an initial matter, the 4th Circuit affirmed, in a published opinion, that pursuant to 11 U.S.C. §§ 506(a) and 1322(b)(2), a junior lien against real estate that serves as the debtor’s principal residence can be stripped-off if there is no equity above the senior lien(s).

The Court of Appeals next proceeded to the question of whether a Debtor, who had recently obtained and Chapter 7 discharge and was thus ineligible for a Chapter 13 discharge, could similarly strip-off a junior lien. The Chapter 13 Trustee argued that lien-stripping was contingent on receipt of a dsicahrge, as 11 U.S.C. § 132(a)(5)(B)(i)(I) provides that a lien is retained until either the underlying debt is paid or a discharge is granted.… Read More

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Supreme Court: Bullock v. Bank Champagne- Defalcation


The Supreme Court ruled that “defalcation” as used in 11 U.S.C. § 523(a)(4) requires a culpable state of mind, involving knowledge of, or gross recklessness in respect to, the improper nature of the fiduciary behavior.

For a copy of the opinion, please see:

Bullock v. Bank Champagne- Defalcation.pdf Read More

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Bankr. M.D.N.C.: Clean Burn Fuels v. Purdue Bioenergy (In re Clean Burn Fuels)- UCC and Delivery of Goods; Parol Evidence Rule


Clean Burn Fuels (CBF) operated a pant that converted corn supplied by Purdue Bionery (Purdue) into ethanol. The agreement between the parties provided that Purdue would retain ownership of the corn until it was delivered to CBF, defined as the when it passed over a weigh belt, the final stage before the conversion of the corn into ethanol began. The Trustee, however, contended that the agreement instead provided that the corn was delivered when it was received at CBF’s facility and placed in the storage bins leased by Purdue.

The bankruptcy court first found that pursuant to the Parol Evidence Rule, it could not consider any additional information outside of the agreement as to when the corn was delivered.… Read More

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4th Circuit: McFadden v. Fannie Mae- Complete Diversity Jurisdiction; Dual-Tracking of Loan Modification and Foreclosure


The McFaddens obtained a mortgage from Flagstar in July 2007 for $116,500.00, secured by their real property located in Virginia. The note provided that it could be freely transfered by Flagstar and that the agreements in the Deed of Trust would bind and benefit successors and assignees of the note. Before August 2009, the note was transferred to Fannie Mae and around the same time the McFaddens fell delinquent on their payments. The McFaddens attempted to complete a HAMP modification, but the application took several months due to missing documents, with the parties disputing who was responsible for the missing documents.… Read More

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