Month: January 2015

Bankr. M.D.N.C.: In re Martin- Confirmation Vacated Pursuant to Rule 60(b) due to Mistake

Summary:

Debtor’s Chapter 13 plan was confirmed cramming down the claim of Greater Piedmont Credit Union against mobile home and land, prior to the filing of the Proof of Claim by GPCU showing that title to the mobile home had been cancelled, affixing it to the real property. Within thirty days of confirmation and before the passing of the bar date for filing claims, GPCU filed a Motion pursuant to Rule 60(b) for relief from the Confirmation Order based on mistake.

The bankruptcy court held that to obtain relief under Rule 60(b)(1), GPCU was required to show:

(1) That the underlying motion was filed within one year of the date the Confirmation Order;
(2) That GFCU had a meritorious defense;
(3) That the Debtor would not be unfairly prejudiced by having the judgment set aside; and
(4) The existence of mistake, inadvertence, surprise, or excusable neglect as a ground for relief.… Read More

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Bankr. M.D.N.C.: In re Nevils- Exempt Worker’s Compensation Award is not Disposable Income

Summary:

After the filing of a Chapter 13 bankruptcy, Mr. Nevils received a lump-sum Worker’s Compensation award of $235,000. Over the Trustee’s objection, the bankruptcy court previously allowed Mr. Nevils’ exemption of the proceeds, without ruling at that time on whether such constituted disposable income. The Trustee, supported by the Bankruptcy Administrator, then brought a motion to modify, arguing that even though exempt, the award constituted a substantial and unanticipated change in circumstances and should be considered in calculating Mr. Nevils’ disposable income.

The bankruptcy court rejected this argument, finding that 11 U.S.C. § 522(c) provides “property exempted under this section is not liable during or after the case for any debt of the debtor that arose, or that is determined under section 502 of this title as if such debt had arisen before the commencement of the case….” Relying on Judge Doub’s opinion from In re Daniels, the bankruptcy court held that “[t]he clear language of [§ 522(c)] protects exempt property, regardless of form, from prepetition debts…[t]his express limitation cannot be ignored for purposes of defining disposable income under [§ 1325(b)]”).… Read More

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Law Review: Jiménez, Dalié- Dirty Debts Sold Dirt Cheap

Debt Buyer keeps naggin’ at you night and day
Enough to drive you nuts
Pick up the phone, leave me alone
It’s time you made a stand.

Paraphrase of AC/DC- Dirty Deeds Done Dirt Cheap

Abstract:

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence.… Read More

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4th Circuit: Powell v. Palisades Acquisition- Assignment of Judgment was an Action in Connection with the Collection of a Debt

Summary:

Ms. Powell incurred a credit card debt original with Direct Merchants. After losing her job, she fell into default and Platinum Financial, the assignee of the debt, obtained a judgment against Ms. Powell. Several years later, Platinum Financial sold the debt to Palisades Acquisition, whose attorney filed an Assignment of Judgment that erroneously stated the outstanding balance owed. Ms. Powell was able to have the judgment vacated due to such errors and then commenced suit against Palisades Acquisition and its attorney, asserting claims under the FDCPA for overstating the balance due in the Assignment of Judgment. The District Court granted summary judgment for Palisades Acquisition, finding that an Assignment of Judgment did not qualify as conduct taken “in connection with the collection of any debt” under 15 U.S.C.… Read More

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Obituary: Judge Randy D. Doub, Bankruptcy Judge Eastern District of North Carolina

Out of a hesitation that anything written here would fall short and do a disservice to his memory, I will leave words of remembrance and mourning for others who knew Randy Doub better as a judge, an attorney and as man. The unanimous consensus of those who did know him well is that, though he was an accomplished attorney and well-respected jurist, he was an even better man, dedicated to his family, his community and his church.

But attention must be paid by all of us where we can and I hope to call at least some small amount of attention to one aspect of Judge Doub’s profession and life, namely as a consumer debtor’s attorney.… Read More

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