Category: North Carolina District Court Cases

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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E.D.N.C.: Mungo-Craig v. Navient Solutions- Student Loan Servicer not a Debt Collector

Summary:

Ms. Mungo-Craig brought suit against Navient, first in state court and then after removal in federal district court, alleging violations of the FDCPA and North Carolina Debt Collection Act. The district court denied her motion to remand, finding that it did have federal question jurisdiction to hear claims brought under the FDCPA and supplemental jurisdiction for the other state law claims, as they arose from the same common nucleus of facts. It then granted the Motion to Dismiss brought by Navient finding that Ms. Mungo-Craig had not alleged sufficient facts and could not, in fact, show that Navient, as there was no showing that it had commenced servicing of the student loans after to default, was a “debt collector” under the FDCPA.… Read More

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M.D.N.C.: Brown v. Western Sky- Forum Selection and Tribal Exhaustion

Summary:

Plaintiffs brought a class action against various payday lenders for violations of North Carolina law forbidding high interest rate loans either through by telephone or internet. The loan agreements all included forum selection clauses granting almost exclusive jurisdiction to the Cheyenne River Sioux Tribe (“CRST”), upon which the Defendants sought dismissal of the action, arguing that the district either lack of jurisdiction to hear the matter or, alternatively, that the CRST should make the initial determination regarding the enforcement of the forum selection clause.

Beginning from Atl. Marine Const. Co. v. U.S. Dist. Court for the W. Dist. of Texas, 571 U.S.… Read More

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M.D.N.C.: Nance v. Citimortgage- Causes of Action following Illegal Foreclosure

Summary:

Despite being provided with evidence in the form of cancelled checks and insurance policies showing that they were not delinquent in their mortgage payments, Citimortgage commenced foreclosure against the Nances.  After refinancing their house, the Nances brought suit against Citimortgage alleging, among other causes of action,  unfair and deceptive trade practices, negligent and/or intentional infliction of emotional distress, defamation and negligent and/or intentional damage to credit report.  Citimortgage moved to dismiss.

As to the unfair and deceptive trade practices claim, the district court restated the requirements to state a claim as:

(1) the obligation owed must be a debt;

(2) the one owning the obligation must be a consumer;

(3) the one trying to collect the obligation must be a debt collector;

(4) an unfair or deceptive act;

(5) in or affecting commerce; and

(6) proximately causing injury.… Read More

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E.D.N.C.: Fritz v. Duke Energy- FCRA Does Not Preempt State Debt Collection Protections

Summary:

Fritz closed his account with Duke Energy when he moved, but was one week late in paying the final bill, so it was referred to a debt collector. He did pay the balance to Duke Energy, who applied the amount to the balance on his new utility bill. The debt collector was not informed of the payment and two months later, reported Fritz as delinquent to the three major credit bureaus, resulting in a 77 point decline in his credit score. Fritz brought suit against Duke Energy (as well as the debt collector under other bases) under N.C.G.S. § 75-54, alleging that Duke Energy had falsely represented to the debt collector the status of the debt.… Read More

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W.D.N.C.: In re Meabon- Frivolous Appeal; Failure to Disclose Assets

Summary:

Prior to filing bankruptcy, the Meabons first consulted with an attorney who informed them that they would need to disclose, as an asset in his bankruptcy schedules, Richard Meabon’s interest in a trust. As a result of the first attorney’s advice, the Meabons chose to file with another attorney, to whom they did not disclose the existence of the trust. After filing Chapter 7 without disclosure of the trust either in their petition or at the §341 Meeting of Creditors, the deadline to object to discharge passed on June 1, 2010. On June 2nd or 3rd, the first attorney notified the second, who, over the objection of the Meabons, alerted the Chapter 7 Trustee, who ultimately obtained the revocation of their discharge.… Read More

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W.D.N.C.: Legal Newsline v. Garlock Sealing Technology- Requirements for Confidentiality in Sealing of Pleadings and Hearings

Summary:

In the bankruptcy of Garlock Sealing Technology, allegations were raised that national counsel for mesothelioma victims had engaged in fraud, deceit, and other activities prohibited by the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, in settling their clients’ claims. After the bankruptcy judge ordered the hearing closed, Legal Newsline filed an emergency motion to keep the hearing at which these issues were raised open to the media and the public.

Following Media General Operations, Inc. v. Buchanan, 417 F.3d 424, 431 (4th Cir. 2005), the district court held that sealing the hearing and documents “shifted the presumption that favors open courts to a presumption favoring the closure of proceedings based on confidentiality designations by counsel, improvidently shifting the burden to the public and the press to disprove the contours of a need to seal which has also not been described.” In restricting public access to a hearing or documents, a court is required to “state the reasons for its decision to seal supported by specific findings, and the reasons for rejecting alternatives to sealing to provide this court with sufficient information for meaningful appellate review.” Media General Operations, Inc.… Read More

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E.D.N.C.: Homeward Residential v. First Bank- Failure to Cancel Equity Line

Summary:

In February of 2006, the Coopers granted a Deed of Trust for a home equity line to First Bank. Later, in December of 2006, the Coopers refinanced their home with a Deed of Trust, currently held by Homeward, paying of the equity line to First Bank. The closing attorney at that time requested that First Bank terminate the home equity line, but First Bank instead allowed the Coopers to draw an additional $87,598 before they ultimately filed Chapter 13. Homeward brought an adversary proceeding to have its lien determined to hold seniority over First Bank.

Pursuant to N.C.G.S. § 45-82.2, upon the request of an authorized party to terminate an equity line of credit, the lender shall terminate the borrower’s ability to obtain further advances and, after payment of the account in full, record a satisfaction.… Read More

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E.D.N.C.: Owens v. Dixie Motors- FCRA, Improperly Obtaining Credit Report; Emotional Distress; Direct and Vicarious Liability; Pre-emption

Summary:

Nina Owens purchased an automobile from Dixie Motors in 2007, providing information including her home address, date of birth, social security number, phone number, insurance agent, insurance company, employment information, monthly mortgage payment. Ashley Owens, the daughter of Nina Owens, considered purchasing a vehicle from Dixie Motors in 2011, supplying similar credit information and personal identifiers. The credit application by Ashley Owens was declined, but at the same time Janet Pierce, the finance manager for Dixie Motors, completed an credit application in the name of Nina Owens. (It was disputed whether Nina Owens was aware and approved of the credit application or not.) Pierce subsequently inadvertently sent sensitive credit information and personal identifiers for both Nina and Ashley Owens when she included credit applications in a letter to Antwand Cherry, a.k.a.… Read More

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W.D.N.C.: In re Jenkins- Adjournment of §341 Meeting of Creditors

Summary:

The first §341 Meeting of Creditors was conducted on May 14, 2012, but not concluded. The Trustee and Bankruptcy Administrator were granted an extension of time to file an objection to Jenkins’ discharge until “sixty (60) days after the meeting of creditors pursuant to 11 U.S.C. § 341 has been adjourned.” After finding Jenkins in contempt for failing to respond to email requests to set a new date, a second creditors meeting was eventually held on July 19, 2012, but was not concluded, only adjourned, without objection. On September 26, 2012, or 69 days later, the Trustee and B.A. brought suit seeking denial of Jenkins’ discharge, to which Jenkins objected as untimely.… Read More

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