Tag: relief from automatic stay

Bankr. E.D.N.C.: In re Taylor- Private Citizens Enforcing Federal Statutes Not Exempt from the Automatic Stay as Governmental Units

Summary:

In a case involving a hog farm and related claims of environmental pollution, Sound Rivers, Inc.’s and Waterkeeper Alliance, Inc. sought an order confirming that the automatic stay does not apply or, in the alternative, for relief from the automatic stay in order to continue their lawsuit filed in the federal district Court. The Movants contended that the automatic stay does not apply with respect to the district court lawsuit under the governmental regulatory exclusion to the stay at § 362(b)(4), which provides that the automatic stay does not preclude the continuation of an action “by a governmental unit…to enforce such governmental unit’s … police and regulatory power….” While admittedly not “governmental units in the most narrow and traditional definition,” the Movants argue that private citizens bringing compliance suits pursuant to a government unit’s “police power” may constitute “governmental units” for purposes of §362(b)(4) if the law giving rise to the action are for the “public safety and welfare,” See Universal Life Church, Inc. Read More

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E.D.N.C. and Bankr. E.D.N.C: Jones v. Jones – Characterization and Relief from Stay regarding Equitable Distribution

Summary:

Bankruptcy Court Characterization of Equitable Distribution Awards

Cheryl Jones brought motions against the Debtor, her ex-husband, Sean Jones, seeking relief from the stay and for determination of Domestic Support Obligation, with the primary question being whether the family court’s Equitable Distribution Order award of $116,182 from the debtor’s 401(k) plan and $63,736 from the debtor’s retirement account were in the nature of a domestic support obligation, pursuant to §§ 101(14A) and 523(a)(5), or, as argued by the debtor, were property distributions within the scope of §523(a)(15). If the former, the obligation would be nondischargeable, but the latter would be discharged in a Chapter 13 case, pursuant to § 1328(a).… Read More

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Bankr. E.D.N.C.: In re Amerson- Violation of the Automatic Stay; Termination of Automatic Stay in an Individual Chapter 11

Summary:

Despite having received notice of the bankruptcy filing and notice of the proof of claims deadline well before the expiration of the deadline and approximately thirteen months prior to confirmation of the Amerson’s Second Amended Plan, Flanders, who was represented by counsel during much toe the Chapter 11 proceeding, did not take any action in the bankruptcy proceeding to request relief from the automatic stay or to file a proof of claim. Despite that knowledge, Flanders made direct, post-petition threats to Amerson, including asserting multiple causes of action against Amerson.

As this was a Chapter 11 filed by individuals, the discharge was not entered at the time of confirmation, and Amerson did not request an early discharge.… Read More

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Bankr. E.D.N.C.: In re Stephenson- Relief from Stay for Trial Court to Enter Final Judgment

Summary:

Camp Flintlock, Inc. filed an emergency Motion for Relief from Stay after the Debtors filed Chapter 7 one day prior to a state court hearing to enter a final judgment for damages, a permanent injunction against the Debtors, and a final order for contempt and discovery sanctions, in a case that had lasted for four years.

The bankruptcy court found that sufficient cause existed to the lift the automatic stay and allow the trial court “the largely ministerial task” of entering final judgment as it had expended substantial time and energy to bring these matters to a conclusion, and it was a day away from doing so.… Read More

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Bankr. E.D.N.C.: In re Carroll- Evidence of Default necessary for Motion for Relief From Stay

Summary: Vericrest sought relief from the automatic stay and the Chapter 7 Trustee objected.  In the present case, the note contains two allonges purporting to transfer the Note by indorsement.  The first purports to transfer the Note from Flagstar Bank, F.S.B.  To LSF7 Bermuda NPL V Trust.  The second allonge is blank indorsement from Bermuda Trust.

To prevail on a Motion for Relief from Stay where there is no issue as to the sufficiency of equity to adequately protect it interests, the moving party must  show “[t]he [d]ebtor owes a debt to it, that it possesses a valid security interest securing the debt, and that the collateral securing the debt is declining in value while the [d]ebtor has failed to provide [the creditor] with adequate protection of its interest” to establish a prima facie case it is entitled to relief for lack of adequate protection. Read More

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4th Circuit: Lee v. Anasti- Standard for Relief From Stay; Collateral Estoppel; and Debtor’s Standing to Pursue § 544 Avoidance Action

Summary:

In a property dispute between a sister, Ms.  Lee, and her brother, Mr.  Anasti, over real estate in South Carolina, Ms.  Lee sought to assert superior title to Mr.  Anasti though adverse possession.  This matter was first commenced in South Carolina state court, but when Ms.  Lee filed Chapter 7, later converting to Chapter 13,  and brought an adversary proceeding asserting both adverse possession and seeking to avoid any interest Mr.  Anasti had pursuant to 11 U.S.C. § 544.

The bankruptcy court issued two separate orders, consolidated in this appeal, first, lifting the automatic stay and second, dismissing the adversary proceeding on the basis that Ms. … Read More

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