Author: Ed Boltz
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.

N.C. Business Court: Bass v. NC Dept. of Revenue- Statute of Limitations for Tax Refund

Summary:

Mr. Bass filed his 2012 federal tax return electronically, but unintentionally failed to file his state return. In July 2016, the North Carolina Department of Revenue (“NCDOR”) sent Mr. Bass a Notice of Intent to Assess for Failure to File North Carolina Return (“the Notice”) and then Mr. Bass filed his 2012 return on August 4, 2016, contending a refund was due. The NCDOR denied the refund, as the return was beyond the 3-year statute of limitations. Mr. Bass sought review with the Office of Administrative Hearings (“OAH”) and after it ruled in his favor, holding that while N.C.G.S. § 105-241.8(a) provides as 3 year limit on seeking a refund, N.C.G.S.… Read More

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Law Review: Levitin, Lin, & Wachter- Mortgage Risk Premia During the Housing Bubble

Abstract:

How did mortgage risk pricing for securitized loans change during the lead-up to the 2008 financial crisis? Using a database from a major American bank that serves as trustee for private-label securitized loans, this paper shows that the decline in underwriting standards was accompanied by a decline in credit spreads on mortgages, after adjusting for loan/borrower characteristics. Observable information, including FICO and LTV, became less influential on mortgage risk pricing over time during the housing bubble. As the volume of mortgages expanded and lending terms eased during the bubble, the increase in risk failed to be reflected in higher risk premiums.… Read More

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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.… Read More

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Bankr. E.D.N.C.: In re Stockwell- Dismissal of 3rd and 4th Bankruptcy for Bad Faith under §707(a)

Summary:

Between March 7, 2017, and November 28, 2017, Mr. Stockwell filed first a Chapter 13 and then three Chapter 7 cases, with the fourth case being filed while the third was still pending. (The dismissal of the third case had been set aside as it had been automatically dismissed due to the failure to file documents under 11 U.S.C. § 521(I) while the Bankruptcy Administrator’s motion to dismiss with prejudice.) Mr. Stockwell’s cases were filed with the apparent intent of holding off a foreclosure by Ocwen, as it was the only creditor listed in any of his cases. (That failure to disclose other creditors and to file complete schedules had caused the dismissal of the first and second cases.)

The bankruptcy court consolidated the motions to dismiss the third and fourth cases, ultimately finding that both should be dismissed under 11 U.S.C.… Read More

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E.D.N.C.: Summitbridge v. Faison- No Unsecured Claim for Attorneys Fees for Under Secured Creditor

Summary:

In a Chapter 11 case, Summitbridge held a secured (but under secured) claim, which was satisfied, pursuant to the confirmation order, by tender of the collateral. Summitbridge then filed an additional unsecured, nonpriority claim for it attorneys fees, pursuant to its promissory note, in the amount of 15% of the outstanding indebtness, totaling more than $300,000. The bankruptcy court disallowed this unsecured claim.

In affirming, the district court recognized the line of cases that “reasoned that claims for post-petition attorneys’ fees are contingent, unliquidated claims which are not precluded by Section 502 and are thus allowable. See In re 804 Congress, L.L.C. Read More

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Bankr.  M.D.N.C.: In re Young- Denial of DischargeBankr.  M.D.N.C.: In re Young- Denial of Discharge

Summary:

In their Chapter 7, the Youngs agreed, in a court approved settlement,  to allow the sale of their residence, splitting the net proceeds  equally with the Trustee and were to keep “only those furnishings necessary to furnish their new residence”, with the remainder of their personal property  to be auctioned.  After initially identifying the property they were to retain with the Trustee’s auctioneer, the Young sold all of their additional property with a different auction company, using the funds to pay for moving costs.  It appears that the proceeds from the sale of the personal property amounted to $937.50.  The Trustee and Bankruptcy Administrator then sought denial of the Youngs’ discharge pursuant to 11 U.S.C.… Read More

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Law Review: Cain- The Bankruptcy of Refusing to Hire Persons Who Have Filed Bankruptcy

Abstract:

In 1978, Congress made it illegal for government employers to deny employment to, terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. In 1984, Congress extended this prohibition to private employers by making it illegal for such employers to terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. Under the law as it currently exists, private employers can refuse to hire a person who has filed bankruptcy solely because that person has filed for bankruptcy. Meanwhile, employers have substantially increased their use of credit history checks as a pre-employment screening device.… Read More

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Bankr. E.D.N.C.: In re Redding – Substantial and Unanticipated Change In Circumstances for Modification of Chapter 11

Summary:

Ms. Redding’s Chapter 11 plan was confirmed providing that she was to have six months in which to market and sell her principal residence and was required to make adequate protection payments on the mortgage claim of $1,000.00 per month during that time. After failing to do either, Ms. Redding filed a motion to modify, asserting that the a possible increase in the value of the real property, due to potential grants to ameliorate flooding problems.

The bankruptcy court found that the standard for modification of a Chapter 11 plan was same the “substantial and unanticipated circumstances” standard in Chapter 13.… Read More

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Bankr. E.D.N.C.: In re Gonyo- Marital Adjustments to CMI

Summary:

The Bankruptcy Administrator sought dismissal of Mrs. Gonyo’s Chapter 7 arguing that she improperly excluded several of her non-filing husband’s expenses as “marital adjustments” from her Current Monthly and also failed to include both the couple’s tax refund and her husband’s incentive pay in that calculation.

In reaching the later conclusion, the bankruptcy court defined “income” as “a gain or recurrent benefit . . . that derives from capital or labor.” In re Sanchez, No. 06-40865, 2006 WL 2038616, at *2 (Bankr. W.D. Mo. 2006) and that her husband’s incentive pay received during the preceding six calendar months was included in CMI.… Read More

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Bankr. E.D.N.C.: Ohnmacht v. Commercial Credit Group, Inc. – Subject Matter Jurisdiction to Determine Non-Bankruptcy Causes of Action Related to Discharge Violation

Summary:

The Ohnmachts, having completed their Chapter 11 plan and received a discharge, sent a demand letter to Commercial Credit Group demanding that the judgment against them be cancelled. When CCG declined, they re-opened their bankruptcy and brought an adversary proceeding asserting breach of contract, violation of N.C. Gen. Stat. § 1-239 and § 75-1.1 et seq, intentional and negligent infliction of emotional distress, negligence and seeking relief under the Federal Declaratory Judgment Act (“FDJA”), 28 U.S.C. § 2201(a). They also included in a Motion for Contempt and Sanctions for alleged violation of provisions the preference judgment, the plan, confirmation order, and the discharge injunction.… Read More

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