Tag: avoidance

Bankr. E.D.N.C.: McInnis v. Phillips- Determination of Whether Debts are Primarily Consumer; Creditor Does Not Have Standing to Bring Avoidance Actions


In determining whether 11 U.S.C. § 707(b) was applicable, the bankruptcy court held that despite the debtors having thirteen consumer debts totaling $296,775.43 and eight business debts totaling $294,595.56, “[b]ecause of how easily a mortgage can skew the claims in favor of consumer debt” the debt secured by real property should be excluded from this consideration. In re Jones, 2009 WL 102442, *1 (Bankr. E.D.N.C. Jan. 12, 2009) (citing In re Booth, 858 F.2d 1051, 1054 (5th Cir. 1998)). After this adjustment, the debtors had primarily non-consumer debts and 11 U.S.C. § 707(b) did not apply.

Additionally, the bankruptcy court held that only a Trustee and not a creditor had authority to bring avoidance actions under 11 U.S.C.… Read More

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Bankr.  E.D.N.C.: In re Powers- Avoidance of Judicial Lien in Jointly Owned Property


Mr.  Powers is the owner of a 50% undivided interest in his home, which has a total value of $292,000.00.   Bank of America holds a Deed of Trust against the entire property with a mortgage balance of $180,972.92.  Mr.  Powers also had three judgment liens against his interest, held, in order of seniority, by John Deere for $14,952.50, Evergreen for $4,617.48, and Farrar for $29,346.44.  Upon filing of a Chapter 13 bankruptcy, Mr.  Powers sought to avoid all three judgment liens as impairing his homestead exemption of $35,000.00.

11 U.S.C. §  522(f)(2)(A) sets forth the following methodology for determining the extent to which a judicial lien impairs an exemption:

[A] lien shall be considered to impair an exemption to the extent that the sum of –

(i) the lien;

(ii) all other liens on the property; and

(iii) the amount of the exemption that the debtor could claim if there were no liens on the property;

exceeds the value that the debtor’s interest in the property would have in the absence of any liens.… Read More

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Bankr. E.D.N.C.: Sparkman v. American Residential Services, L.L.C.- Inchoate and Hypothetical Mechanic’s Lien does not Equate with a Security Interest for 11 U.S.C. § 547(b)(5).


American Residential Services, L.L.C (“American”) received $186,419.35 from the Debtor in the 90-days preceding its bankruptcy and the Trustee sought to avoid such payments as a preference under 11 U.S.C. § 547. The parties agreed that the Trustee had met his burden regarding the first four requirements of § 547(b), but that he had failed to show that American had received more than it would have under Chapter 7, as American “could and would have filed appropriate claims of lien … and been paid in full in the hypothetical Chapter 7.”

First the Bankruptcy Court held that the amount of assets of the estate would result in a dividend to unsecured creditors of significantly less than 100%.… Read More

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4th Circuit: Sun Trust v. Northen- Neither Actual Knowledge nor Constructive Knowledge based on the Stand of a “Competent Title Examiner” is relevant in Avoidance of Mortgage under 11 U.S.C. § 544(a)(3)


The Debtors pledged two properties to Sun Trust as collateral for a Deed of Trust.  The Deed of Trust when recorded, however, was only indexed with the Orange Register of Deeds under the Parcel Identifier Number (“PIN”)  for Parcel II and not Parcel I.  (Orange County, unlike the other 99 counties in North Carolina, which index under a grantor/grantee system based on Deed Book and Page, give every parcel of real property a unique PIN.  This PIN is used as the basis for indexing all recorded documents related to that property.)

After the Debtors were involuntarily filed in a Chapter 7 bankruptcy, the Trustee avoided the Deed of Trust held by as to Parcel I.… Read More

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4th Circuit: Lee v. Anasti- Standard for Relief From Stay; Collateral Estoppel; and Debtor’s Standing to Pursue § 544 Avoidance Action


In a property dispute between a sister, Ms.  Lee, and her brother, Mr.  Anasti, over real estate in South Carolina, Ms.  Lee sought to assert superior title to Mr.  Anasti though adverse possession.  This matter was first commenced in South Carolina state court, but when Ms.  Lee filed Chapter 7, later converting to Chapter 13,  and brought an adversary proceeding asserting both adverse possession and seeking to avoid any interest Mr.  Anasti had pursuant to 11 U.S.C. § 544.

The bankruptcy court issued two separate orders, consolidated in this appeal, first, lifting the automatic stay and second, dismissing the adversary proceeding on the basis that Ms. … Read More

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