Tag: Reconsideration

E.D.N.C.: Myrick v.  Equifax- Duty to Investigate Credit Report Dispute and Bankruptcy Discharge

Summary:
Mr.  Myrick brought suit against Equifax under the FCRA for willfully failing to verify the discharge of a debt in his Chapter 7 bankruptcy.   In light of Daughterty v.  Ocwen Loan Servicing, the district court reconsidered its previous grant of summary judgment and instead found that Equifax had in its possession “records that would have enabled it to confirm the status of the … account through an identified source, i.e., PACER.”   Instead, there was a factual issue of “whether Equifax conducted a reasonable investigation by limiting its efforts to confirming the disputed information” with the creditor and not checking PACER or elsewhere.… Read More

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Bankr. E.D.N.C.: In re Price – True Lease or Disguised PMSI; Rule 60(b) Reconsideration

Summary:

On March 23, 2017, the bankruptcy lifted the automatic stay for Peak Leasing with regard to one of four trailers Mr. Price had obtain from Peak and took under advisement whether the remaining claims were “true leases” or disguised PMSIs. To determine such the bankruptcy court applied the UCC “Bright-Line” Test, which provides as follows:

A transaction in the form of a lease creates a security interest if the consideration that the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease and is not subject to termination by the lessee, and:

(1) The original term of the lease is equal to or greater than the remaining economic life of the goods;

(2) The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods;

(3) The lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement; or

(4) The lessee has an option to become the owner of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement.… Read More

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Bankr. E.D.N.C.: In re Tosh- Reconsideration of Conversion

Summary:

The Debtor’s Chapter 11 case was converted to Chapter 7, following a hearing, at which neither the Debtor nor Debtor’s counsel attended, based on testimony presented by the bankruptcy administrator elaborated on the basis of her motion to convert, that despite being granted generous opportunities for amendment, inaccuracies and confusion continued to plague the debtor’s monthly operating reports. Subsequently, the Debtor filed a Motion to Reconsider based on excusable neglect.

Based on the testimony of the debtor and his wife showing that the issues and inaccuracies plaguing his monthly operating reporting have been corrected and would be accurate in the future, as well as the Debtor’s counsel having taken responsibility for the absence of both at the first hearing, the Court rescinded the conversion of the case.… Read More

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Bankr. E.D.N.C.: In re Smithville Crossings, L.L.C.- Motion for Reconsideration under Rule 59(e)

Summary:

Following a determination of the appropriate interest rate to pay on a secured claim, the creditor filed a Motion for Reconsideration under Rule 59(e).  The reconsideration of an order, the moving party must show:

  1. An intervening change in controlling law;
  2. New evidence not available at trial; or
  3. A clear error of law or prevent manifest injustice.

In essence finding that the secured creditor was merely seeking to relitigate the issue, the Court denied the Motion for Reconsideration, finding (again) that its previous ruling was  supported by competent evidence, was not manifestly unjust, and the Debtor had made a prima facie showing that its reorganization was feasible.… Read More

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