E.D.N.C.: In re Hurlburt- Anti-Deficiency Mortgage Statute does not Circumvent Anti-Modification Provisions

Summary:

After direct appeal to the 4th Circuit was declined, the district court affirmed the opinion of the bankruptcy court in Hurlburt that the anti-deficiency statute of N.C.G.S. § 45-21.28 does not allow debtors to circumvent the anti-modification provisions of 11 U.S.C. § 1322(b)(2) and (c)(2), with Witt v. United Companies Lending Corp. (In Re Witt), 113 F.3d 508 (4th Cir. 1997) controlling.

Commentary:

The district court did explicitly draw attention to the fact that in neither Witt nor Nobelman v. American Savings Bank, 508 U.S. 324 (1994), did those courts address mortgages where anti-deficiency statutes would have precluded an unsecured claim, thereby limiting the mortgage claim to the value of the collateral. This and the substantial criticism of Witt notwithstanding, the district court was bound by that decision.

This is, one suspects, just the second step in an attempt to have the 4th Circuit revisit or narrow Witt and failing that, seek certiori from the Supreme Court to finally address this issue.

For a copy of the opinion, please see:

Hurlburt- Anti-Deficiency Mortgage Statute does not Circumvent Anti-Modification Provisions

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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