Category: North Carolina Bankruptcy Cases

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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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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E.D.N.C.: Spoor v. Barth- Denial of Sanctions and Vexatious Multiplication of Litigation

Summary:

Mr. Barth commenced an adversary proceeding seeking a declaratory judgment that various state court actions by Mr. Spoor could have been brought by the bankruptcy trustee, who had previously signed a release of such actions, and that Mr. Spoor should be required to dismiss those actions. The bankruptcy court instead dismissed Mr. Barth’s adversary proceeding on the grounds that such relief was prohibited by the Anti-Injunction Act, 28 U.S.C. § 2283. The bankruptcy court declined, however, to award the sanctions sought by Mr. Spoor pursuant to North Carolina Rule of Civil Procedure 11, 28 U.S.C. § 1927, 11 U.S.C. § 105, and Bankruptcy Rule 9011, against Mr.… Read More

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Bankr. E.D.N.C.: In re Spirakis – Subrogation of Creditors Rights to Third Party Payee

Summary:

Through a complicated series of transactions and guarantees, Georgia Spiliotis sought to subrogate to the rights of Bank of North Carolina against the debtors, Nicolas & Mary Spirakis.

The bankruptcy court first differentiated between conventional subrogation, “is founded upon the
agreement of the parties.” Joyner v. Reflector Co., 176 N.C. 274, 276, 97 S.E. 44, 46 (1918), and legal subrogation which “is an equitable remedy applied as a “means to substitute, to put one
person in the place of another; and is usually exercised where one person has become liable for, or
has been compelled to pay money for, another.” Vaughan v.… Read More

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W.D.N.C.: Morgen v.  Student Loan Finance Corporation- Forum Selection ClauseW.D.N.C.: Morgen v.  Student Loan Finance Corporation- Forum Selection Clause

Summary:

Ms.  Morgen brought suit alleging violations of the Fair Credit Reporting Act and Student Loan Finance (“SLF”) moved for a change of venue to South Dakota based on a forum selection clause in the contract.
Ms.  Morgen’s initial objection that the loan applications and promissory notes proffered by SLF  had no affidavits from record keepers   denied as the court held that such would be precluded as evidence in a consideration of a motion for summary judgment, but, in part because “there is no plausible contention that these documents are inauthentic,”  allowed them for determination of venue.

In evaluating the forum selection clause,   the  court  first determined  whether it was  mandatory or permissive, with only mandatory forum selection being binding. … Read More

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E.D.N.C.: In re Clark- In Rem Relief; Stay Pending Appeal

Summary:

The bankruptcy court granted the Motion for in rem relief sought by Wells Fargo pursuant to 11 U.S.C. § 362(d)(4), as to Mr. Clark and his wife, further barring Mr. Clark from filing any bankruptcy in the Eastern District of North Carolina for one year.

In denying the Mr. Clark’s motion for stay pending appeal and for a writ of supersedes, the district denied such finding the Mr. Clark had not made a clear showing that he had a likelihood of success in the appeal and agreeing with the bankruptcy court that Mr. Clark would not suffer irreparable harm in the absence of a stay, as he had been in default on the mortgage for 4.5 years.… Read More

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Bankr. E.D.N.C.: Mouhtadi v. Sheikh- Failure to Respond to Discovery and Summary Judgment

Summary:

After initially filing Chapter 13, Mr. Sheikh converted to Chapter 7 and Mssrs. Mouhtadi and Khalioui commenced an adversary proceeding asserting claims of common-law fraud, violations of the North Carolina Unfair and Deceptive Trade Practices Act (the “UDTPA”), N.C. Gen. Stat.
§§ 75-1.1 to 75-145, and eeking a determination that the debts related to the case were excepted from discharge pursuant to 11 U.S.C. §§ 523(a)(2) or (a)(4). Mr. Shaikh filed an answer to the complaint, but then failed to respond to numerous discovery requests, including admissions. When Mr. Shaikh still failed to comply with discovery following the entry of an order to compel, Mouhtadi and Khalioui moved for summary judgment.… Read More

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