Category: Eastern District

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

Tagged with: ,

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

Tagged with: , ,

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

Tagged with: ,

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

Tagged with: , ,

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

Tagged with: , , ,

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

Tagged with: , , , , ,

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

Tagged with: , ,

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

Tagged with:

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

Tagged with: ,

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

Tagged with: , ,
Top