Month: September 2017

N.C. Court of Appeals: In re Ackah- Remedy for Statutorily Defective Notice of Foreclosure Does Not Include Overturning Sale

Summary:

Reserve Homeowners Association commenced a foreclosure against residential rental property owned by Ms. Ackah for unpaid homeowner’s association dues. Notice of the sale was left at the property and notices sent (and returned unclaimed) to other family members. Ultimately, the property was purchased by the Jones Family Holdings a the sale. Finding that Ms. Ackah did not receive actual notice of the foreclosure , the superior court accordingly set aside the sale.

The majority of opinion of the Court of Appeals held that N.C.G.S. § 1A-1, Rule 4 did require the HOA to use “due diligence” in effectuating service. Since the HOA knew or had reason to know that Ms.… Read More

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Bankr.  W.D.N.C.: In re Leviner- Characterization of Claim as Domestic Support Obligation

Summary:

After nearly 35 years of marriage,  Thomas Leviner and Kathy Leviner divorced and negotiated a Settlement where the parties prior marital residence was retained jointly for their children to inherit,  but with Mr.  Leviner to make the mortgage payments and Ms.  Leviner to retain the property during her lifetime (unless she remarried.)  Mr.  Leviner was also pay alimony of $300 a week until Ms.  Leviner turned 67 years old.  In 2015, after refinancing the house, Mr.  Leviner sought to offset the mortgage payments from the alimony being paid.  This was rejected by Ms.  Leviner, through her domestic attorney, and Mr.  … Read More

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Bankr. E.D.N.C.: In re Alomia – Denial of Motion to Incur Debt

Summary:

The bankruptcy court denied Mr. Alomia’s motion to incur student loan debt to attend the Texas Southern University in Houston, Texas as he was delinquent on his plan, which was not yet confirmed.

Commentary:

While delinquency on plan payments would indicate that a debtor would be unable to presently carry a greater debt burden, federal student loans as sought here would not become repayable for 6 months following the borrower’s completion of school, so it is not clear how these loans would impair his ability to perform under the plan.

Further, Mr. Alomia appears to have relocated to Houston and one might suspect that the recent Hurricane Harvey may have impeded is ability to both make his most recent plan payment and also participate in the confirmation of his plan.… Read More

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Bankr.  W.D.N.C.: In re Grand Dakota Partners, L.L.C.- Transfer of VenueBankr.  W.D.N.C.: In re Grand Dakota Partners, L.L.C.- Transfer of Venue

Summary:
Grand Dakota Partners (“GDP”) and Grand Dakota Hospitality (“GDH”) filed a Chapter 11 bankruptcy in the Western District of North Carolina, largely because its owners and management were located in Charlotte.  The hotel, bar and restaurant operated by GDP and GDH are located in Dickinson, North Dakota.
Venue in North Carolina was proper under 28 U.S.C. § 1408, as Charlotte was the “principal palce of business” for the corporations, since that is where the “decision makers are located”.  See The Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010).  That notwithstanding, the bankruptcy court then determined whether transfer of venue under 28 U.S.C.… Read More

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Bankr. W.D.N.C.: In re Mergentime- Transferred Social Security Benefits

Summary:

Ms. Mergentime received $62,417.80 as a lump sum payment for retroactive Social Security benefits, approximately 4 months after filing her Chapter 7 bankruptcy. She had not disclosed those potential funds in her petition. Pursuant to her equitable distribution agreement, she paid half of those funds to her ex-husband. The Trustee sought to recovery those transferred funds and to deny Ms. Mergentime’s discharge, arguing that even though those funds would have been fully protected, the transfer to her ex-husband changed the nature of those funds such that they were no longer protected.

The bankruptcy court rejected this argument as the Social Security benefits were not, pursuant to 42 U.S.C.… Read More

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4th Circuit: Jones v. College of Southern Maryland- Only Chapter 7 Trustee Has Standing in Non-exempt Personal Injury Case

Summary:

Ms. Jones brought suit against the College of Southern Maryland under the Family and Medical Leave Act and subsequently filed a Chapter 7 bankruptcy petition, eventually listing the lawsuit as an asset in her schedules. The Trustee then settled the lawsuit with the College of Southern Maryland for $75,000, with $25,000 to the attorney, as she was the only party having standing to pursue the claim. Ms. Jones objected to this settlement.

The Court of Appeal affirmed that the Trustee was the sole party with standing to prosecute and settle the claim.

Commentary:

This would not be an issue in North Carolina, unlike Maryland, where personal injury claims, even for non-bodily injuries, also unlike the federal exemption, such as the FMLA, would be fully exempt.… Read More

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