Tag: nondischargeable

E.D.N.C.: Baum v.  Baum- Date of Separation and New Debts for Nondischargeability under §523(a)(15)

Summary:
On appeal from the bankruptcy court decision in Baum v.  Baum, the district court reviewed whether debts between separated spouse are discharged under 11 U.S.C. §523(a)(15), which  provides, that a debtor shall not be discharged from a debt:

(15) not of the kind described in paragraph (5) [dealing with alimony, maintenance and child support] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;

First, the district court agreed with the bankruptcy court that while the parties were “informally” separated, sleeping in different rooms, at the time the debts were incurred, under North Carolina law separation requires a “cessation of cohabitation.”  Secondly, the district court also held that §523(a)(15) requires the creation of new debts. … Read More

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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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Bankr. E.D.N.C.: Baum v. Baum- Discharge under § 523(a)(15) for Debts In Connection with Divorce Decree

Summary:

During a period of financial distress and shortly before their divorce, Doreen Baum made repeated unauthorized withdrawals from the Martin Baum’s IRAs, and did not pay the mortgage on the couple’s beach house, using the funds for the support and maintenance of the family. When the Baums divorced, the parties entered into an consent orders for Alimony and Equitable Distribution. While aware of the unauthorized withdrawals, Martin Baum believed any claims he had for fraud were preserved, whereas Doreen Baum believe these consent orders resolved all issues, including for the unauthorized withdrawals.

Doreen Baum filed Chapter 7 and Martin Baum brought an Adversary Proceeding seeking to both have the bankruptcy court determine that Doreen Baum was indebted to him for compensatory and punitive damages resulting from fraud and to have such declared nondischargable.… Read More

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Bankr. M.D.N.C.: In re Gilley- Dischargablity of SEC Settlements under 11 U.S.C. § 523(a)(19)

Summary:

The SEC filed a complaint against the Debtor and two other individuals in 2005 alleging they had engaged in a $60 million Ponzi scheme, specifically alleging that the Debtor unlawfully sold unregistered securities, was not registered as a broker-dealer when selling certain billboards, and failed to disclose material information to investors. In 2006, the Debtor and the SEC filed a consent judgment wherein the Debtor agreed to, among other terms, disgorge nearly $2 million. In 2008, the district court imposed a $5,000 civil penalty against the Debtor as his “violations were not particularly reprehensible or egregious.”

After filing bankruptcy, the Debtor brought an adversary proceeding seeking a determination that the $2 million was dischargeable, as he had neither admitted nor denied the allegations of fraud made by the SEC.… Read More

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