Month: December 2016

Bankr. E.D.N.C.: In re Rogers- Denial of Homestead Exemption in Adjacent Property


Ms. Roger inherited real property from her mother, which included a residence and a building originally used as a country store, which was subsequently renovated into a residential rental property. After obtaining a mortgage against the entire property, Ms. Rogers, with the consent of the lienholder, subdivided the residence and the rental properties. Upon filing Chapter 13, Ms. Rogers claimed both properties under her homestead exemption, as the two were previous a single parcel and the rental property produced revenue necessary for payment of taxes and insurance on both.

Relying on both the definitions of the term “residence” from the dictionary and the Bankruptcy Code at 11 U.S.C.… Read More

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

Bankr. E.D.N.C.: Baum v. Baum- Discharge under § 523(a)(15) for Debts In Connection with Divorce Decree


During a period of financial distress and shortly before their divorce, Doreen Baum made repeated unauthorized withdrawals from the Martin Baum’s IRAs, and did not pay the mortgage on the couple’s beach house, using the funds for the support and maintenance of the family. When the Baums divorced, the parties entered into an consent orders for Alimony and Equitable Distribution. While aware of the unauthorized withdrawals, Martin Baum believed any claims he had for fraud were preserved, whereas Doreen Baum believe these consent orders resolved all issues, including for the unauthorized withdrawals.

Doreen Baum filed Chapter 7 and Martin Baum brought an Adversary Proceeding seeking to both have the bankruptcy court determine that Doreen Baum was indebted to him for compensatory and punitive damages resulting from fraud and to have such declared nondischargable.… Read More

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

Bankr. W.D.N.C.: In re Hudgins- Secured Status of Fixture versus Consumer Good


Lendmark financed the purchase and installation of an HVAC unit for Ms. Hudgins’ home. All parties agreed that the HVAC unit was a “consumer good” as defined by N.C.G.S. § 25-9-102, that Lendmark held an automatically perfected purchase money security interest in the HVAC as chattel pursuant to N.C.G.S. § 25-9-309(1) and that Lendmark did not record a fixture filing.

The Trustee argued that without the fixture filing Lendmark’s security interest fell to the hypothetical judgment lien creditor status of bankruptcy estate under 11 U.S.C. § 544. Lendmark countered that its perfected lien against the HVAC as a consumer good was not lost when it became a fixture.… Read More

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

N.C. Ct. of Appeals: Henkel v. Triangle Homes- Foreclosure Sale does not Extinguish Tax Lien unless Federal Foreclosure Requirements are Met


The IRS recorded two tax liens against real property and subsequently the Village of Sugar Mountain (“the Village”) obtain a third lien against the property for local property taxes. The Village ultimately sought to foreclose on its tax lien, but did not, despite the requirement in 26 U.S.C. § 7425(a), give notice to the federal government of the sale. The property was sold on November 13, 2013, in a judicial tax foreclosure for $6,673.73 to the Village. The following day, November, 14, 2013,the property was sold at a federal tax foreclosure to Mr. Henkel for $172,000.00. At that second foreclosure, the Village agreed to assign its interest in the property to Mr.… Read More

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

Bankr. E.D.N.C.: In re McGregor – Lack of Jurisdiction to Enforce Order following Dismissal


Turnover of a vehicle held by a Raeford Collision and subject to a possessory mechanic’s lien was resolved subject to a Consent Order, which required the MacGregor to provide the title to the vehicle so that a lien could be recorded with the North Carolina DMV. When the MacGregor’s Chapter 13 case was dismissed and they failed to produce the title, Raeford Collision sought an order “divesting title” or to sequester the vehicle and to hold the McGregors in contempt.

The bankruptcy court held that, while it would have had authority to grant relief in an open case, because a dismissal is a final appealable order and neither had a reservation of jurisdiction nor had been appealed, the bankruptcy court not able to “affect the rights of litigants before it .… Read More

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

M.D.N.C.: In re Washabaugh- Denial of Interlocutory Appeal


Following the re-opening of Ms. Washabaugh’s Chapter 7, the Bankruptcy Administrator sought revocation of her discharge. Ms. ’s motion to dismiss that complaint, alleging that the Bankruptcy Administrator lacked standing for such action, was denied by the bankruptcy court and Ms. Washabaugh sought leave to bring an interlocutory appeal to the district court.

The district court began with 28 U.S.C. § 158, which allows “with leave from the court” appeal of interlocutory orders based on the following factors:

(1) the appeal involves a controlling question of pure law, the resolution of which will completely determine the outcome of the litigation;
(2) as to which there is a substantial ground for difference of opinion between courts; and
(3) the resolution of the question as a whole would materially advance the termination of the litigation.… Read More

Posted in District Courts, Middle District Tagged with: ,

Bankr. W.D.N.C.: In re Foley- Sole Use and Benefit under Life Insurance Exemption


Mr. and Mrs. Foley each had several life insurance policies which named as the beneficiary a testamentary trust created by virtually identical wills. These directed the estate trustee to use any income and principal from the trust “for the health, maintenance and support” of the surviving spouse or subsequently their son. A later provision, however, authorized the trustee to “compromise claims”. Based on this provision, the bankruptcy trustee objected to the Foley’s claimed exemption.
The bankruptcy court started from the position that exemptions are to be liberally construed in favor of the debtor, see Elmwood v. Elmwood, 295 N.C. 168, 185, 244 S.E.2d 668, 678 (1978) (citing Goodwin v.… Read More

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

Bankr. E.D.N.C.: In re Faison- Denial of Confirmation for Infeasibility


Mr. Faison filed a voluntary Chapter 11 bankruptcy seeking, among other things, to continue to develop real property against which Summit Bridge held several claims. Summit Bridge objected to confirmation of Mr. Faison’s (third) plan of reorganization based on infeasibility at it was a “visionary scheme” that was “based on speculation, hope and desire, and has no demonstrable objective fact or facts as its foundation.”

While stating that it believed Mr. Faison could ultimately propose a feasible plan, the bankruptcy court found the current plan infeasible. This was in part due to a failure to treat each parcel of property in the proposed development as unique and of differing values, high degree of speculation as to both the values of the lots and the costs of expenses, etc.… Read More

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

Bankr. M.D.N.C.: Daniel v. Jones Family Holdings – § 548 Avoidance of Foreclosure for Less than Reasonably Equivalent Value


Mr. Daniel, together with the Chapter 13 Trustee subsequently added as a necessary Plaintiff, sought to avoid a pre-petition foreclosure by his homeowner’s association of his residence (in which the upset period had elapsed prior to filing of the bankruptcy) pursuant to 11 U.S.C. § 548(a)(1), as it had occurred within two years prior to the filing of the bankruptcy, had made the Debtor insolvent and provided less than “reasonably equivalent value” in exchange for the transfer. Jones Family Holdings (“JFH”), the highest bidder and purchaser of the property, moved to dismiss for failing to adequately state a claim, as it is a good faith, third party purchaser protected by state law, and that the Rooker-Feldman doctrine, res judicata, and collateral estoppel prevent the Daniel from bringing a claim.… Read More

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

Bankr. M.D.N.C.: Lanik v. Smith (In re Cox Motor Express) – Valuation for Determination of Insolvency


The Trustee sought to recover a transfer made by the Debtor to James Smith, the principal of the Debtor, pursuant to 11 U.S.C. §§ 547 and 550(a). At issue was whether the Debtor was insolvent at the time of the transfer. The Trustee argued that based on the Debtor’s tax returns and the presumption of insolvency during the 90 days preceding the filing of bankruptcy, that the Debtor was insolvent, whereas Smith asserted that based on the scheduled value of assets and amount of liabilities, the Debtor was solvent.

Pursuant to 11 U.S.C. § 101(32)(A), insolvency is defined as a “financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation….” Following In re Heilig-Meyers Co. Read More

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