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.
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
Mr. Hurlburt sought to cram down the claim of a seller-financed purchase money deed to the value of his principal residence. While this would have been impermissible under 11 U.S.C. § 1322(b)(2), because the note was due, Mr. Hurlburt argued that 11 U.S.C. § 1322(c)(2) allowed such treatment even though Witt v. United Companies Lending Corp., 113 F.3d 508 (4th Cir. 1997) interpreted that section to allow only modification of the payment and not cram down. As this was a seller-financed purchase money deed, the anti-deficiency provisions of N.C.G.S. § 45-21.28, limited the lien-holder to only collect against the collateral.… Read More
Following foreclosure and bankruptcy, the Debtors raised claims against Bayview under the West Virginia Consumer Credit and Protection Act. The statute of limitations provides that:
With respect to violations arising from other consumer credit sales or consumer loans, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement. W. Va. Code § 46A-5-101(1) (emphasis added).
The sole issue in this case was whether the “the due date of the last scheduled payment of the
agreement” was the loan acceleration date or the loan maturity date.… Read More