Tag: amendment

Bankr. E.D.N.C.: In re Sorge- Amendment to Complaint; Embezzlement

Summary:

Federal Insurance Company, together with other plaintiffs, sought to amend its complaint, which already asserted that the debt owed by Mr. Sorge was nondischargable under 11 U.S.C. § 523(a)(2), to add a claim of embezzlement and to revive a previously dismissed claim of breach of fiduciary duty, both nondischargable under § 523(a)(4). As “[l]eave to amend should be freely given when justice so requires, but may be denied if undue prejudice would result or if the amendment is futile,” Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003), the bankruptcy court previously held that, given the lack of surprise and sufficient remaining time for discovery, there was no undue prejudice.… Read More

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W.D.N.C.: Cooper v. Crow- Procedures for Amendment to Exemptions Governed by State Law

Summary:

Ms. Crow filed a Chapter 13 bankruptcy, but after a creditor raised issue with her exceeding the §109(g) debt limits, converted to Chapter 7. Eight months after the initial filing of her voluntary bankruptcy petition, Ms. Crow sought to amend her schedules to claim an exemption in an individual retirement account (IRA) that had been omitted from her original petition, but would otherwise indisputably have been exempt. The Trustee opposed this amendment, arguing that Ms. Crow failed to show the change in circumstances required for modifications of exemptions by N.C.G.S. § 1C-1603(g). The bankruptcy court found that the omission was inadvertent due to the complexity of the case (which involved Ms.… Read More

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Bankr. E.D.N.C.: Angell v. Open Ground Farm- Amendment of Complaint

Summary:

Trustee brought an adversary proceeding seeking to avoid two payments to Open Grounds Farm allegedly made by the debtor for land rent owed by the debtor’s president, James H. Winslow. Defendants answered and the Trustee sought leave to amend his complaint in two regards.

The first was to correct a misstated date in the complaint, which was an obvious and harmless error, to which the Defendant did not oppose correction.

The second amendment sought by the Trustee was to include of additional payments potential subject to avoidance under 11 U.S.C. § 548, which were identified following discovery. The court found that the amendment was not sought as a product of bad faith or undue delay and that the Defendant was on notice that such payments were susceptible to avoidance as preferences and accordingly allowed this amendment.… Read More

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Bankr. M.D.N.C.: Livingstone College v. DeBerry- Failure to Specifically Cite Statutory Basis for Claim and Amendment of Complaint

Summary:

On remand from the district court, the issue was whether the complaint filed by Livingstone College, Inc. (“Livingstone”) properly states a claim for relief under 11 U.S.C. § 523 of the Bankruptcy Code for nondischargability of a debt owed by Joseph Maurice DeBerry (“DeBerry”) and Golden Student Housing, LLC (“GSH”) (together, the “Defendants”), and, if it does not, whether Livingstone’s complaint may be amended under the applicable rules.

The Complaint alleged that after Livingstone had entered into a lease, negotiated by DeBerry, with GSH, that DeBerry substituted pages from the executed lease before delivering it to GSH to sign. In the Complaint, Livingstone sought eight specific forms of relief, including a jury trial, a declaratory judgment, actual, punitive and treble damages, and “such other and further relief as to the Court may deem proper.” Livingstone did not, however, request that the debt be declared nondischargeable.… Read More

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Bankr. M.D.N.C.: DeCoro USA v. Ricci- Amendment of Complaint

Summary:

Decor sought to rejoin Decofin, L.L.C. as a party, after it had been voluntarily dismissed by DeCoro earlier, and to add additional claims to its Complaint based upon alleged fraud and breach of a settlement agreement by the Defendant (“Ricci”) and Decofin that occurred subsequent to the commencement of this adversary proceeding. DeCoro also sought to present new claims to pierce the corporate veil and impose liability on Ricci.

The standard generally used in deciding whether to grant leave to supplement is the same standard for deciding whether to grant or deny leave to amend, which is that leave should be freely given.… Read More

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Bankr. M.D.N.C.: Burns v. Dennis-Lambert Investments, L.P.- Amendment to Complaint and Relation Back for Statute of Limitation Purposes

Summary:

Trustee sought leave to amend a Complaint, which originally alleged fraudulent conveyances under 11 U.S.C. §§ 544 and 548 and N.C.G.S. § 39.23.4 and unjust enrichment, to add a claim for preferential transfers under 11 U.S.C. § 547. The Defendants, having already answered the Complaint, objected.

Leave to amend should be denied, therefore, “only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would  be futile.” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.… Read More

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