Month: March 2014

4th Circuit: In re Pliler- Applicable Commitment Period is a Temporal Requirement

Summary:

At issue in this case was first whether the Applicable Commitment period, as defined by 11 U.S.C. § 1325(b)(4), was a temporal requirement, i.e. 3 years for below median income debtors or 5 years for those with income above median, or was not applicable if the Debtors had no disposable income under § 1325(b)(1). Agreeing with now all of the Circuit Courts that have answered this question, the 4th Circuit held that the Applicable Commitment Period is, in fact temporal. This conclusion was based first on the language of the Bankruptcy Code, with the Court of Appeals, citing Tennyson from the 11th Circuit, that:

that “‘applicable’ and ‘commitment’ are modifiers of the noun, the core substance of the term, ‘period’.… Read More

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N.C. Ct. of Appeal: Petri v. Bank of America- Res Judicata and Collateral Estoppel from Foreclosure Proceeding

Summary:

Petri originally had a mortgage with Luxury Mortgage Corp., but subsequently Bank of America (“BOA”) commenced foreclosure proceedings. Appealing the order allowing foreclosure, Petri argued that BOA was not the true holder of the note authorized to foreclose. The Superior Court found that the original note had been transferred to BOA and further held that it was a valid debt, that Petri was in default, that BOA had a right to foreclose under the note, and that all proper parties had received notice, thereby meeting the requirements of N.C.G.S. § 45-21.16 and allowing the foreclosure to proceed. Petri then filed a separate complaint seeking to enjoin the foreclosure and asserting, among other causes of action, various UDTPA violations by BOA in failing to comply with a federal consent judgment.… Read More

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E.D.N.C.: Cashcall v. Moses- Arbitration and Bankuptcy

Summary:

The District Court held that while there is a clear “federal policy favoring arbitration”, Moses H Cone Mem’l Hasp. v. Mercury Canst. Corp., 460 U.S. 1, 24-25 (1983), “[t]he tension that exists between the policy favoring enforceability of agreements to arbitrate and the paramount interest of the bankruptcy courts in resolving bankruptcy matters is well recognized, see e.g. In re National Gypsum, 118 F.3d 1056, 1065-1070 (5th Cir. 1997). Although non-core matters are generally arbitrated, the District Court found no requirement that matters be sent to arbitration. In the present case, Moses’ first cause of action was that the underlying debt was void and the second was for damages resulting from collecting such an illegal loan.… Read More

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Bankr. M.D.N.C.: In re Styers- Motion to Dismiss as Alternative to Motion for Relief from Stay

Summary:

Chapter 13 Debtors had fallen behind on payment under their confirmed plan, wherein the mortgage held be Wells Fargo was paid directly by the Debtors. Instead of following the more customary path of seeking relief from the automatic stay, Wells Fargo instead sought dismissal of the Chapter 13 case. The Motion to Dismiss was resolved by bringing the payments “inside” the Chapter 13 plan, but the parties could not agree on the allowance of attorney’s fees in the amount of $350.00. Further, the Bankruptcy Administrator argued that Wells Fargo should instead have filed a Motion for Relief, with its required filing fee of $176.00.… Read More

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