Month: September 2016

Bankr. M.D.N.C.: NC & VA Warranty v. Fidelity Bank- Judicial Notice and Judicial Estoppel

Summary:

The bankruptcy court in this opinion begins by distinguishing between the judicial notice that a court may take of pleadings and proceedings in other courts and judicial estoppel. The bankruptcy court held that while a court cannot take judicial notice of the truth of facts alleged in those pleadings, it can nonetheless take judicial notice that such allegations were made. From the fact that such allegations had been made, the bankruptcy court then turned to determine whether such allegations judicially estopped a party in later proceedings. The requirements for judicial estoppel are:

1. The party sought to be estopped must be seeking to adopt a factual (opposed to legal) position that is inconsistent with a stance taken in prior litigation;
2.… Read More

Posted in Middle District, North Carolina Bankruptcy Cases Tagged with: ,

E.D.N.C.: Engell v. Sheetz – Appeal of Discharge or Dischargeability

Summary:

Mr. Sheetz filed a Chapter 7 bankruptcy on June 1, 2015, listing, among other creditors, Mr. Engell. The last day to oppose a discharge was August 31, 2015. On August 26, 2015, Mr. Engell filed an pleading titled as “Creditor’s Objection to Debtor’s Exemption” (“the objection”), but which, in fact, asserted that judgment held against Mr. Sheetz was nondischargeable due to fraud and unfair and deceptive trade practices. Subsequently, on October 27, 2015, Mr. Engell filed a motion to amend. On December 31, 2015, the bankruptcy court overruled the objection and denied the motion to amend, holding that Mr. Engell had been required to bring an Adversary Proceeding to oppose discharge and the objection was insufficient.… Read More

Posted in District Courts Tagged with: , , ,

N.C. Ct. of Appeals: HSBC Bank v. PRMC, Inc.- Representation of Corporation by Non-Attorney

Summary:

In 2004, PRMC, through its president and sole shareholder, Zulfiquar M. Khan, borrowed $1,950,000 from Business Loan Center, L.L.C. (“BLC”), with the note including an “Unconditional Guarantee” from Mr. Khan and a Deed of Trust against a hotel and all personal property. In September 2007, Mr. Khan, PRMC and BLC agreed to a four month reduced payment on the note, with the allonge including a release (in bold and all capitals) by both parties of all claims against each other. This same language was again included in a July 2008 payment deferral agreement. BLC filed a Chapter 11 bankruptcy in September 2008, with its reorganization being confirmed on November 12, 2010.… Read More

Posted in NC Court of Appeals, NC Courts Tagged with: ,