Category: North Carolina Bankruptcy Cases

Bankr. M.D.N.C.: In re Macy- Reaffirmation Is Voluntary for Both Debtor and Creditor

Summary:

Following receipt of an Reaffirmation Agreement from World Omni, the Macys completed and signed the statutorily prescribed form and both returned the documents to World Omni and filed a copy with the bankruptcy court.

The bankruptcy court sua sponte held that the filing of the Reaffirmation “absent a signature of an authorized representative” of World Omni was improper and of no binding effect, despite that it may be necessary for a debtor to establish that the requirements of 11 U.S.C. § 521(a)(2) were met, since only partially executed “creates uncertainty with the vital and powerful discharge injuction….” The court did allow, however, that debtor’s counsel can file a certificate of service reflecting compliance with the requirements of 11 U.S.C.… 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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Bankr. E.D.N.C.: In re Hutton- Perfection of Judgment Lien against Motor Vehicle Following Levy

Summary:

Mr. Hutton’s vehicles were seized in a levy by the Onslow County Sheriff’s Department in executing on a judgment obtained by Principis. After filing bankruptcy, Mr. Hutton sought turnover of the vehicle and asserted that the possessory lien held by Principii had not been perfected by recordation with the North Carolina DMV.

In narrowly construing and distinguishing several decisions from the North Carolina Supreme Court and Court of Appeals, the bankruptcy court rejected the argument by Principis that recordation is required to perfect a lien under N.C.G.S. § 20-58 only if there is a “security interest” as defined in N.C.G.S.… Read More

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Bankr. E.D.N.C.: In re Green – Determination of Noncontingent and Liquidated Debts for Eligibility under 11 U.S.C. § 109(e)

Summary:

In determining whether Mr. Green was eligible, under 11 U.S.C. § 109(e), to be a Chapter 13 debtor due to debt limitations, the bankruptcy court reviewed several types of claims to determine whether each was “noncontingent” or “liquidated”.

While determination of whether a debt is “noncontingent” or “liquidated” is a question of law, See In re Goralnick, 81 B.R. 570, 571 (9th Cir. BAP 1987) the amount of a debt is a question of fact. “[A] debt is noncontingent if all of the events necessary to give rise to liability for it take place prior to the filing of the petition.” In re Sappah, No.… Read More

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Bankr. E.D.N.C.: In re Taylor- Private Citizens Enforcing Federal Statutes Not Exempt from the Automatic Stay as Governmental Units

Summary:

In a case involving a hog farm and related claims of environmental pollution, Sound Rivers, Inc.’s and Waterkeeper Alliance, Inc. sought an order confirming that the automatic stay does not apply or, in the alternative, for relief from the automatic stay in order to continue their lawsuit filed in the federal district Court. The Movants contended that the automatic stay does not apply with respect to the district court lawsuit under the governmental regulatory exclusion to the stay at § 362(b)(4), which provides that the automatic stay does not preclude the continuation of an action “by a governmental unit…to enforce such governmental unit’s … police and regulatory power….” While admittedly not “governmental units in the most narrow and traditional definition,” the Movants argue that private citizens bringing compliance suits pursuant to a government unit’s “police power” may constitute “governmental units” for purposes of §362(b)(4) if the law giving rise to the action are for the “public safety and welfare,” See Universal Life Church, Inc. Read More

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Bankr. E.D.N.C.: In re Regenhardt- Homestead Exemption for Adjacent Property

Summary:

Mr. and Mrs. Regenhardt sought to claim their residence and the adjacent property as fully exempt under the available homestead exemption, with the Trustee asserting that the adjacent property was not part of the homestead and only partially exempt using their wildcard.

In reviewing the case law from the district, specifically In re Stox, No. 10-08123-8-RDD, 2011 WL 5902882, at *6 (Bankr. E.D.N.C. May 27, 2011) and In re Rogers, No. 16-02884-5-JNC, 2016 WL 5794707, at *4 (Bankr. E.D.N.C. Oct. 3, 2016), the bankruptcy court reiterated that the controlling facts in determining whether adjacent property was part of the homestead “was the actual use of the subject properties through and as of the petition date, not a past simultaneous acquisition in one deed.” Based on testimony from Mr.… Read More

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W.D.N.C.: Deal v. Trinity Hope Associates, LLC- Default Judgment under FDCPA

 

Summary:

Default Judgment was entered in favor of Ms. Deal for violations of the FDCPA by Trinity Hope Associates, which failed to respond to the Complaint.

Commentary:

The only aspect that is interesting is that this is a 10-page opinion finding default, where the defendant did not answer.

For a copy of the opinion, please see:

Deal v. Trinity Hope Associates, LLC- Default Judgment under FDCPA Read More

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