Tag: appeal

M.D.N.C.: In re Washabaugh- Denial of Interlocutory Appeal

Summary:

Following the re-opening of Ms. Washabaugh’s Chapter 7, the Bankruptcy Administrator sought revocation of her discharge. Ms. ’s motion to dismiss that complaint, alleging that the Bankruptcy Administrator lacked standing for such action, was denied by the bankruptcy court and Ms. Washabaugh sought leave to bring an interlocutory appeal to the district court.

The district court began with 28 U.S.C. § 158, which allows “with leave from the court” appeal of interlocutory orders based on the following factors:

(1) the appeal involves a controlling question of pure law, the resolution of which will completely determine the outcome of the litigation;
(2) as to which there is a substantial ground for difference of opinion between courts; and
(3) the resolution of the question as a whole would materially advance the termination of the litigation.… Read More

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E.D.N.C.: Engell v. Sheetz – Appeal of Discharge or Dischargeability

Summary:

Mr. Sheetz filed a Chapter 7 bankruptcy on June 1, 2015, listing, among other creditors, Mr. Engell. The last day to oppose a discharge was August 31, 2015. On August 26, 2015, Mr. Engell filed an pleading titled as “Creditor’s Objection to Debtor’s Exemption” (“the objection”), but which, in fact, asserted that judgment held against Mr. Sheetz was nondischargeable due to fraud and unfair and deceptive trade practices. Subsequently, on October 27, 2015, Mr. Engell filed a motion to amend. On December 31, 2015, the bankruptcy court overruled the objection and denied the motion to amend, holding that Mr. Engell had been required to bring an Adversary Proceeding to oppose discharge and the objection was insufficient.… Read More

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N.C. Court of Appeals: In re Foreclosure of Cain- Appeal of Oral Orders and Substitute Trustee Fiduciary Duty to Borrower

Summary:
Ms. Cain granted a Deed of Trust against her home securing a mortgage note to Household Realty Corporation (“HRC”), which was first specially endorsed to Household Bank, but HRC later specially endorsed the not to Beal Bank, which, following Cain’s default, appointed Rogers, Townsend & Thomas (“RTT”) as substitute trustee to commence foreclosure. After the Cumberland County Clerk of Court allowed the foreclosure sale to proceed, Cain appealed to Superior Court and sent a Request for Admissions to RTT. RTT then was relieved as substitute trustee and commenced representing Beal Bank in the foreclosure suit. At that hearing, Cain presented an unfiled motion to dismiss the foreclosure due to a purported failure by RTT to respond to the Request for Admissions.… Read More

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N.C. Court of Appeals: In re Clouse- Requirement for De Novo Foreclosure Hearing

Summary:

On October 21, 1998, the Clouses granted a Deed of Trust against their home originally to Homecomings Financial, later assigned to Deutsche Bank and serviced by GMAC. On June 22, 2012, Turnip Investments, following its suit against the Clouses, purchased the property at a judgment execution sale for $1,000. Subsequently, Deutsche Bank commenced foreclosure against the property and Turnip Investments appealed the foreclosure authorization by the Clerk first to the Superior Court, where Turnip Investments raised no objections to any evidence, and then a further appeal to the Court of Appeals.

There Turnip Investment argued that the Superior Court failed to conduct a proper de novo hearing and had insufficient evidence to show that Deutsche Bank was the holder of the Note.… Read More

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4th Cir.: In re Bane- Failure to Raise Issues from Bankruptcy Court on Appeal from District Court

Summary:

In 2007, Bane’s company, Aequitas-Energy, Inc., purchased fifty acres of land (the Angel Lane Property) in Roanoke County, Virginia, from Bane’s mother, Martha Bane, who was granted at $400,000 mortgage against the property. This mortgage was never recorded and the later mortgage to Community Trust Bank was accordingly superior. Bane, having fallen into default on the Coummunity Trust mortgage and facing foreclosure, had the property transferred into his name and filed bankruptcy in 2010, the day before the foreclosure sale. This first Chapter 7 bankruptcy was dismissed, as Bane had failed to obtain credit counseling. When Community Trust scheduled a second foreclosure sale for January 24, 2011, Bane transferred a 90% interest in the property back to his mother, and filed a second Chapter 7 bankruptcy (after presumably obtaining credit counseling) on January 21, 2011.… Read More

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N.C. Court of Appeals: In re Vogler- Rule 60(b) does not redress errors of law

Summary:

Dorothy Vogler died testate, with her debts exceeding the value of her real and personal property. Chris Vogler, the executor of her estate, initiated a special proceeding for the purpose of obtaining authorization to sell the real estate that Ms. Vogler had owned at the time of her death and to use the proceeds to pay her debts. Such sale was authorized and subsequently confirmed on January 12, 2011, with the Clerk authorizing payment of the costs of the proceeding and the remaining balance on the mortgage owed to Bank of America (“BOA”) on the real property. On January 18, 2011, however, BOA commenced its own foreclosure against the property.… Read More

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N.C. Court of Appeals: In re Wilson- Failure to Enjoin Foreclosure Pending Appeal

Summary:

The pro se Debtor attacked a foreclosure on several fronts, first appealing the Clerk of Court authorization of the foreclosure to the Superior Court and then to the Court of Appeals.  The Debtor did not file a motion to stay the foreclosure pending the appeal and the property was sold at auction.

The Court of Appeals held that the foreclosure auction mooted the subsequent appeal, leaving nothing to be heard.

For a copy of the opinion, please see:

Wilson- Failure to Enjoin Foreclosure Pending Appeal.pdf Read More

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4th Circuit: McDow v. Dudley- Denial of Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) is an Appealable Final Order

Summary:

The Debtors filed a Chapter 13 bankruptcy in 2008.  Following a Motion to convert or dismiss the case filed by the Chapter 13 Trustee, the Debtors voluntarily converted to Chapter 7.  The U.S. Trustee sought dismissal of the case pursuant to 11 U.S.C. § 707(b) asserting that the Debtors had over $2,000.00 of disposable monthly income.  The Debtors asserted that § 707(b) was applicable only in a “case filed by an individual debtor under this chapter” and since their bankruptcy was filed under Chapter 13 it did not apply.  The Bankruptcy Court agreed with the Debtors and denied the motion to dismiss under  § 707(b).… Read More

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Bankr. WDNC: In re Robinson- Denial of Direct Appeal to Circuit Court

Summary:

Following an order denying the Debtor’s motion to dismiss, the Debtor sought certification of his appeal directly to the Court of Appeals, bypassing the District Court, pursuant to 28 U.S.C. § 158(d)(2)(B).  Direct certification is allowed under 28 U.S.C. § 158(d)(2)(A) if the court before which the matter is pending determines:

(i) the . . . order . . . involves a question of law as to which there is no controlling decision of

the court of appeals for the circuit or of the Supreme Court of the United States, or involves a

matter of public importance;

(ii) the .… Read More

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Bankr. MDNC: In re Deluxe Cleaners, Inc.- Stay Pending Appeal

Summary:

Deluxe Cleaners originally filed Chapter 11 in the Eastern District of North Carolina, but venue was shortly thereafter transferred to the Middle District of North Carolina.  A related bankruptcy,  filed by the Parks (who owned Deluxe Cleaners) was filed in the Eastern District of North Carolina.  Thus began a cross-district tangle.

Prior to the filing of either bankruptcy, Deluxe Cleaners and the Parks obtained a judgment against Forrest Investment Group.  As part of the Deluxe Cleaners bankruptcy, assets were sold to Forrest Investment and this judgment was cancelled.  The Trustee in the Deluxe Cleaners bankruptcy sought and obtained a determination by the MDNC court that all of the proceeds of this sale related to the judgment would be assigned to the estate of Deluxe Cleaners. … Read More

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