Tag: Proof of Claim

Bankr. E.D.N.C.: In re Branch- Sanctions for Disclosure of Personal and Medical Information in Proof of Claim

Summary:

Following the disclosure in more than 4,200 Proofs of Claim by Wake Med of personal identifying information, several Debtors sought sanctions for violations of Federal Rule of Bankruptcy Procedure 9037, HIPAA, and 11 U.S.C. §107.

The bankruptcy court held that it was not a “HIPAA compliance tribunal” and might not have jurisdiction to decide such claims. Further, “[t]he case law overwhelmingly holds that there is no private right of action under HIPAA or §107 ”, leaving Rule 9037 as the primary remedy. Where, however, ““it was shown that a creditor flaunted the law with knowledge of its proscriptions, failed to take remedial action once violations were discovered, or acted deliberately as opposed to mistakenly or inadvertently”, Carter v. Read More

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Law Review: Jiménez, Dalié- Dirty Debts Sold Dirt Cheap

Debt Buyer keeps naggin’ at you night and day
Enough to drive you nuts
Pick up the phone, leave me alone
It’s time you made a stand.

Paraphrase of AC/DC- Dirty Deeds Done Dirt Cheap

Abstract:

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence.… Read More

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Bankr. E.D.N.C.: In re Houseman- Jury Trial in Bankruptcy Court

Summary:

The Trustee alleged fraudulent conveyances by the Debtor to his non-filing spouse and sought to recover the transfers. In her answer, Ms. Houseman asserted, and the Trustee disputed, her 7th Amendment right to a jury trial. Her answer did not explicitly raise any counterclaims, but did assert a right of “setoff” or “credit” for funds she contributed, as well as asserting both that the transfers were made in good faith and for value under N.C.G.S. § 39-23.3 and also barred by the statute of limitations.

Starting from In re Stansbury Poplar Place, Inc., 13 F.3d 122 (4th Cir. 1993), the bankruptcy court recognized that parties who had not filed a Proof of Claims were entitled to jury trial when a trustee brought a fraudulent conveyance action.… Read More

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Bankr. E.D.N.C.: In re Mammoth Grading, Inc.- Objection to Assessed Amount of Property Taxes

Summary:

The Debtor had since 1998 complied with the requirements of N.C.G.S. § 105-306 to list for taxes the personal property owned in Wake County. The Debtor was required to file such a disclosure between January 1st and 31st of 2009, but failed to do so, instead filing bankruptcy on February 18, 2009. On September 30, 2009, Wake County subsequently sent the Debtor a notice that it had assessed taxes at a “discovered value” of 125% of the value from the previous year and that the Debtor had, pursuant to N.C.G.S. § 105-312(d), thirty (30) days to contest this value. Neither the Debtor nor the Chapter 7 Trustee challenged this assessment.… Read More

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Bankr. E.D.N.C.: In re Clements- Temporary Allowance of Claim for Voting Purposes

Summary:

The creditor had obtained a judgment against the debtor, with such judgment still being on appeal. The creditor, nonetheless, filed a Proof of Claim in the debtor’s Chapter 11 case, to which the debtor objection.

Read together, 11 U.S.C. § 502(a) and 1126(a) prohibit a claimant from voting on a Chapter 11 plan if the debtor has objected to the claim. Bankruptcy Rule 3018(a), however, allows the bankruptcy court, at its sound discretion, to temporarily allow the claim for purposes of accepting or rejecting the proposed plan. Finding that the Rooker-Feldman doctrine precluded it from reviewing the underlying state court judgment, especially while it is on appeal.… Read More

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Bankr. M.D.N.C.: In re Markey- Burden of Proving Ownership; Deadlines for Filing Proof of Claim and Objection to Discharge/Dischargeability

Summary:

In this case, the bankruptcy court’s retelling of the facts (or allegations of facts) surrounding a failed friendship, a failed car wash and the ownership of a 1968 Ford Mustang could serve as a prospectus for a reality television show.

The issue ultimately revolved around the validity of a replacement title obtained by Morgan from the DMV. The court held that the burden fell on Morgan to establish that the subsequent Title Application was valid. Due to inaccuracies in the agreement and on the title application, the Court found that Morgan failed to carry that burden and accordingly both denied Morgan’s Motion for Relief from Stay to prosecute a state court action and also ordered turnover of the vehicle.… Read More

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Bankr. E.D.N.C.: In re Moses- Withdrawal of Proof of Claim Denied

Summary:

Cashcall sought to withdraw its previously filed proof of claim and the Debtor objected, as such withdrawal would deprive the bankruptcy court of jurisdiction to hear the objection to claim and other matters brought in an Adversary Proceeding.

Applying Bankruptcy Rule 3006, the bankruptcy court held that as the Debtor had filed an Adversary Proceeding, withdrawal of the Proof of Claim would prejudice the Debtor by eliminating any jurisdiction the bankruptcy court had, subjecting the Debtor’s counterclaims to litigation in state court and arbitration. See In re Frank, 322 B.R. 745 (Bankr. M.D.N.C. 2005)

For a copy of the opinion, please see:

Moses- Withdrawal of Proof of Claim Denied.pdf Read More

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Bankr. E.D.N.C.: In re Fifield- Burden of Establishing Proof of Claim Amount

Summary:

The Chapter 13 Debtors owned 26 lots in the Waterside Villages, secured by a Deed of Trust to the Bank of Currituck, which had foreclosed on the properties on July 29, 2009. Waterside Villages filed a Proof of Claim asserting homeowners dues of $77,844.00.

The Debtors objected to the Proof of Claim on basis that they had been denied access to the properties after Wachovia Bank foreclosed on the subdivision developer, preventing the Debtors from marketing the properties. Further, the Debtors alleged that Waterside Villages had done little to maintain the properties during this time, providing no basis for the asserted dues.… Read More

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Bankr. M.D.N.C.: Ivey v. Buchanan- Filing of Proof of Claim subjects creditors to Final Judgment from the Bankruptcy Court for Fraudulent Transfer Claims

Summary:

Under the test formulated by the Supreme Court in Stern v. Marshall the court may enter final judgment in a core proceeding where “the action at issue stems from the bankruptcy itself or would
necessarily be resolved in the claims allowance process.” Stern, 131 S. Ct. at 2618. Where a defendant has filed a proof of claim, a fraudulent transfer action brought under either section 548 or
section 544 becomes a part of the process of allowance and disallowance of claims. See Langenkamp v. Culp, 498 U.S. 42, 44 (1990).

For a copy of the opinion, please see:

Ivey v. Read More

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