Tag: consumer debt

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

Summary:

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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4th Circuit: Boosahda v. Providence Dane, LLC- Whether a debt is a “consumer debt” under the FDCPA

Summary:

Providence Dane sued Boosahda in state court for $22,000.00 on a credit card debt assigned to Providence Dane from Chase and First USA.  Boosahda counterclaimed for violations of TILA.  After testifying at trial that he did not have any recollection of using or having a Chase or Fist USA credit card, Providence Dane attempted to have a paralegal testify that Providence Dane had obtained  credit card statements showing Boosahda was liable for this debt, but such testimony was excluded as hearsay and the complaint of Providence Dane was dismissed.  Boosahda’s TILA claims were rejected by the jury.

Subsequently, Boosahda commenced a FDCPA claim against Providence Dane, who was granted  summary judgment as Boosahda failed to establish that these credit card debts (which he continued to insist he had no recollection of using) were not “consumer debts” as required by the FDCPA.… Read More

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