Mr. Burgess, who had previously been the president of the mortgage lender that originated the loan at question in this case, sought to avoid the mortgage, challenging the chain of assignments, on the basis that an unauthorized party endorsed the note, that eventually lead to Citimortgage foreclosing on his residence and asserting claims in his Chapter 11 case.
In ruling on the Motion to Dismiss filed by Citimortgage, the bankruptcy court first addressed questions of whether the Rooker-Feldman doctrine deprived it of jurisdiction, particularly in light of recent opinions by the North Carolina Supreme Court in In re Lucks, — N.C.… Read More
Petri originally had a mortgage with Luxury Mortgage Corp., but subsequently Bank of America (“BOA”) commenced foreclosure proceedings. Appealing the order allowing foreclosure, Petri argued that BOA was not the true holder of the note authorized to foreclose. The Superior Court found that the original note had been transferred to BOA and further held that it was a valid debt, that Petri was in default, that BOA had a right to foreclose under the note, and that all proper parties had received notice, thereby meeting the requirements of N.C.G.S. § 45-21.16 and allowing the foreclosure to proceed. Petri then filed a separate complaint seeking to enjoin the foreclosure and asserting, among other causes of action, various UDTPA violations by BOA in failing to comply with a federal consent judgment.… Read More
Prior to the Stephenson’s bankruptcy filing, Camp Flintlock filed an action in state court against
asserting claims of fraud, constructive fraud, conversion, and unfair trade practices. The bankruptcy court granted a motion for relief from stay to allow entry of a judgment reflecting the previously rendered jury verdict, but reserved the enforcement of any monetary judgment. Subsequently, judgment was entered against the Stephenson for $635,685.00 and Camp Flintlock brought an adversary proceeding seeking to revoke their discharge and a determination that the judgment was nondischargeable. Judge Leonard dismissed the claims for relief under 11 U.S.C. §§ 727(a)(4) and 523(a)(4), but not as to 11 U.S.C.… Read More
Plaintiff in a non-dischargability action sought summary judgment based on judgment entered by Judge Jolly on August 17, 2009. The Debtors/Defendants, however, produced the entire state court file, showing both that Judge Stephens had dismissed the action on May 19, 2009, and that there was nothing showing the Debtors/Defendants received notice of the litigation pending before Judge Jolly.
Finding that the Debtors/Defendants had not had “an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” Metropolitan Health Corporation v. Scott (In re Scott), Adv. Pro. No. 10-00101-8-JRL (Bankr. E.D.N.C. June 6, 2011) (Leonard, J.) (quoting Restatement (Second) of Judgments § 28 (1982)), the Court held that the Debtors/Defendants were not precluded from litigating the matter and collateral estoppel did not apply.… Read More