Tag: subject matter jurisdiction

Bankr. E.D.N.C.: Ohnmacht v. Commercial Credit Group, Inc. – Subject Matter Jurisdiction to Determine Non-Bankruptcy Causes of Action Related to Discharge Violation

Summary:

The Ohnmachts, having completed their Chapter 11 plan and received a discharge, sent a demand letter to Commercial Credit Group demanding that the judgment against them be cancelled. When CCG declined, they re-opened their bankruptcy and brought an adversary proceeding asserting breach of contract, violation of N.C. Gen. Stat. § 1-239 and § 75-1.1 et seq, intentional and negligent infliction of emotional distress, negligence and seeking relief under the Federal Declaratory Judgment Act (“FDJA”), 28 U.S.C. § 2201(a). They also included in a Motion for Contempt and Sanctions for alleged violation of provisions the preference judgment, the plan, confirmation order, and the discharge injunction.… Read More

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Bankr. E.D.N.C.: Kozek v. Murphy- Bankruptcy Court Authority to Determine Personal Injury Tort Claim

Summary:

Following the filing of Ms. Murphy’s Chapter 7 bankruptcy, her ex-husband, Mr. Kozek, brought an adversary proceeding against her for malicious prosecution, seeking both monetary damages and a determination that any such award was nondischargeable pursuant to 11 U.S.C. § 523(a)(6). After a bench trial, to which both parties explicitly consented, the bankruptcy court found Ms. Murphy liable to Mr. Kozek in the amount of $8,274.94, which was nondischargeable. While the written judgment was pending, Ms. Murphy brought a Motion to Dismiss, alleging that the bankruptcy court lacked subject matter jurisdiction pursuant to 28 U.S.C. § 157(b)(5) to decide the malicious prosecution claim, as a personal injury tort.… Read More

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4th Cir.: Stephens v. HSBC Mortgage- Ripeness to Preclude Foreclosure

Summary:

Stephens fell delinquent on her mortgage with HSBC and, prior to HSBC taking any action, sought a declaratory judgment that her mortgage contract was void ab initio, as it contained a waiver of her appraisement rights under South Carolina Code § 29-3-680. (South Carolina Code § 29-3-680 provides that: In any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked, whether he has theretofore appeared in the action or not, may within thirty days after the sale of the mortgaged property apply by verified petition to the clerk of court in which the decree or order of sale was taken for an order of appraisal.)

Affirming the district court and following Horvath v.… Read More

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Bankr. E.D.N.C.: Mitchell v. Keesee- Permissive Abstention

Summary:

Prior to her bankruptcy, Ms. Mitchell and the defendant, Mr. Keesee, were involved in divorce litigation in the District Court for New Hanover County, North Carolina, wherein they agreed to an equitable distribution of their property which provided that Ms. Mitchell transfered her interest in specific property to Mr. Keesee, who agreed to pay Ms. Mitchell $750,000 from any future sale of that property. Following filing her Chapter 11 bankruptcy, Ms. Mitchell brought an adversary proceeding against Mr. Keesee alleging he failed to make payment to her following the sale of a portion of the property and also purchased the mortgage note securing the property, in an attempt to preclude her from obtaining any proceeds and unjustly enriching himself.… Read More

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