Tag: refile

Bankr. E.D.N.C.: In re Stockwell- Dismissal of 3rd and 4th Bankruptcy for Bad Faith under §707(a)

Summary:

Between March 7, 2017, and November 28, 2017, Mr. Stockwell filed first a Chapter 13 and then three Chapter 7 cases, with the fourth case being filed while the third was still pending. (The dismissal of the third case had been set aside as it had been automatically dismissed due to the failure to file documents under 11 U.S.C. § 521(I) while the Bankruptcy Administrator’s motion to dismiss with prejudice.) Mr. Stockwell’s cases were filed with the apparent intent of holding off a foreclosure by Ocwen, as it was the only creditor listed in any of his cases. (That failure to disclose other creditors and to file complete schedules had caused the dismissal of the first and second cases.)

The bankruptcy court consolidated the motions to dismiss the third and fourth cases, ultimately finding that both should be dismissed under 11 U.S.C.… Read More

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Bankr. E.D.N.C.: Alexieff- Bankruptcy following Expiration of 10-Day Upset Period does not Stay Foreclosure

Summary:

The Debtor filed his 3rd bankruptcy within 12 -months four days after the upset period in the foreclosure had expired. Following a long line of unanimous cases, the bankruptcy court held that the expiration of the upset period extinguished the Debtor’s ownership in the property and the foreclosure was not stayed by this bankruptcy filing.

Debtor was pro se in both this and the previous filing.

For a copy of the opinion, please see:

Alexieff- Bankruptcy following Expiration of 10-Day Upset Period does not Stay Foreclosure.pdf Read More

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Law Review: Miller, Lance and Miller, Michelle- Repeat Filers Under BAPCPA: A Legal And Economic Analysis

Abstract:

On April 20, 2005, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). BAPCPA was hailed by some as a sensible overhaul of the bankruptcy code aimed towards decreasing repeat bankruptcy filing rates. In this article, the authors  consider specific changes that BAPCPA made to the Bankruptcy Code. Some of these changes were specifically targeted at the congressional view that repeat bankruptcy filings are largely the result of strategic and irresponsible behavior. This article considers whether, in actuality, BAPCPA decreased repeat filings. The authors’ statistics show that while BAPCPA did increase the time between filings, it did not change the rate of repeat filings.… Read More

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Bankr. EDNC: In re Brown- In rem Relief from Automatic Stay

Summary:

Following a foreclosure, appeal of the foreclosure to the North Carolin Court of Appeals (which was dismissed for failure by the homeowner to comply with deadlines), an unconsummated foreclosure bid by the homeowner’s daughter, and two civil suits in state court, the Debtor eventually filed Chapter 13 (twice).  Not surprisingly, Wells Fargo had lost patience with the Debtor and sought not only relief from the automatic stay as to the Debtor, but also in rem relief against the real property itself under 11 U.S.C. § 362(d)(4).  Relief from stay was granted as to the Debtor.

Regarding the in rem relief, the Court found that § 362(d)(4) required that the Debtor’s actions in “filing of the petition [were] part of a scheme to delay, hinder, and defraud creditors” (Emphasis added) “that involved … multiple bankruptcy filings affecting such real property.”  (Emphasis again added.)  The Court then recognized that while some courts have used the traditional elements of fraud, others have held that fraud “embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain advantage over another .… Read More

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