Tag: Summary Judgment

Bankr. E.D.N.C.: Mouhtadi v. Sheikh- Failure to Respond to Discovery and Summary Judgment

Summary:

After initially filing Chapter 13, Mr. Sheikh converted to Chapter 7 and Mssrs. Mouhtadi and Khalioui commenced an adversary proceeding asserting claims of common-law fraud, violations of the North Carolina Unfair and Deceptive Trade Practices Act (the “UDTPA”), N.C. Gen. Stat.
§§ 75-1.1 to 75-145, and eeking a determination that the debts related to the case were excepted from discharge pursuant to 11 U.S.C. §§ 523(a)(2) or (a)(4). Mr. Shaikh filed an answer to the complaint, but then failed to respond to numerous discovery requests, including admissions. When Mr. Shaikh still failed to comply with discovery following the entry of an order to compel, Mouhtadi and Khalioui moved for summary judgment.… Read More

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Bankr. M.D.N.C.: In re Washabaugh- Revocation of Discharge

Summary:

Before filing a voluntary Chapter 7 bankruptcy, Ms. Washabaugh was employed by Wake Forest Baptist Health/N.C. Baptist Hospital, where she made personal purchases using her employer’s credit card without reimbursement, also using that credit card and gift cards to make purchases from her own Thirty-One handbag business for gifts for volunteers and other employees. Ms. Washabaugh was terminated for these purchases, with the hospital filing an employee dishonesty claim with National Union Fire Insurance for $1,009,347.00. When Ms. Washabaugh filed her bankruptcy, she did list the hospital as a creditor, but only for minor medical bills, disclosing neither the potential claim related to the purchases nor her pending criminal prosecution.… Read More

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4th Circuit: Burwick v. Pilkerton- Admissions trump Interrogatories

Summary:

Ms. Burwick denied certain allegations in her answers to Interrogatories but her response to a set of Admissions, sent pursuant to Rule 36, with similar questions was fourteen (14) days late. As such, those admissions were deemed, pursuant to Rule 36 ((b), “conclusively established,” despite any contradiction in the Interrogatories and summary judgment was granted to Pilkerton as there were no genuine disputes of material fact.

Commentary:

The opinion notes that Burwick did move to withdraw her untimely admissions, but the district court did not seem to address this in granting summary judgment. Rule 36(b) does allow for the withdrawal or amendment of admissions, but not necessarily an after-the-fact extension.… Read More

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Bankr. M.D.N.C.: In re Canuto- Sua Sponte Summary Judgment Denying Strip-Off based on Fixture Filing

Summary:

The Debtors sought to strip-off the lien held by PSNC Energy for a HVAC unit as wholly unsecured based on the value of the real property. Without any answer by PSNC, the Court sua sponte held that based on the record, consisting primarily of the Proof of Claim filed by PSNC, that A UCC-1 fixture filing had been recorded within 20 days of installation of the HVAC unit and was, pursuant to N.C.G.S. § 25-9-334(d), entitled to a first priority, perfected purchase money security interest in the HVAC.

For a copy of the opinion, please see:

Canuto- Sua Sponte Summary Judgment Denying Strip-Off based on Fixture Filing Read More

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Bankr. E.D.N.C.: In re Skubic- No Summary Judgment on Denial of Discharge

Summary:

In a case involving multiple corporations and transfers back and forth from the Debtors’ household bank accounts and corporate accounts, the Trustee and a major creditor sought a denial of discharge against the debtors under 11 U.S.C. § 727.

After reviewing and finding that the Debtors displayed several of the “badges of fraud”, see West v. Abdelaziz (In re Abdelaziz), 2012 Bankr. LEXIS 591, at *7-8 (Bankr. M.D.N.C. Feb. 1, 2012), the bankruptcy court nonetheless found that the Debtors also displayed several of the mitigating  “badges of a desperate but well-intended debtor”, including:

(1) Evidence showing that the multiple corporations were established for legitimate purposes;
(2) Attempted negotiations prior to bankruptcy with creditors;
(3) Repayment of transfers from corporate accounts, particularly from liquidation of the individual Debtors’ personal property;
(4) Preferential payments were not evidence of an intent to hinder, delay or defraud other creditors;
(5) The Debtors lack of financial sophistication; and
(6) That the Debtors might, even though in one joint bankruptcy as husband and wife, not both share the culpability.… Read More

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Bankr. E.D.N.C.: Angell v. Montague Farms- Evidence of Insolvency and Reasonably Equivalent Value

Summary:

As evidence of the insolvency of the Debtor in support of a long-running preference action, the Trustee sought to introduce Affidavits from his paralegal, from the Director of Financial Services of one of the Debtor’s largest creditors, from the Examiner appointed in the case and from himself. The bankruptcy court found that there were numerous foundational and authentification issues with these Affidavits that would need to be addressed and was sufficient to deny the Trustee’s motion for summary judgment as to the Debtor’s insolvency at the time of the transfers in question.

Further, based on questions regarding whether the Debtor received any benefit from these transfers, arising from inconsistencies in the deposition testimony of James Winslow, the owner of the Debtor, the court held that there was a genuine issue of material fact with respect to whether the Debtor received less than a reasonably equivalent value.… Read More

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Bankr. E.D.N.C.: Angell v. Bacchus- Genuine Issue of Material Fact and Fraudulent Conveyance

Summary:

Pursuant to 11 U.S.C. § 548, the Chapter 7 Trustee sought to recover transfers made for the benefit of Bacchus within two years of the bankruptcy filing, arguing that the transfer were a fraudulent conveyance. Bacchus disputed the allegations that the Debtor received less that the reasonably equivalent value, as the payments were for an obligation owed by the debtor to Bacchus’ deceased father for the purchase of grain, which had been stored on the debtor’s property. The Trustee contended that the sales price for the grain should have been fixed as of the date of death of the Bacchus’ father rather than the time of sale.… Read More

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Bankr. M.D.N.C.: In re Chesson- Summary Judgment on 11 U.S.C. § 523(a)(2)(B)

Summary:

This Adversary Proceeding was brought to determine whether a debt was nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). Plaintiff sought Summary Judgment, but the bankruptcy court held that there was an insufficient showing, when evidence was considered in the most favorable light for the Debtor, both that the Debtor had the intent to deceive when he signed the affidavit referred to in the complaint and that the Plaintiff’s reliance upon the affidavit was reasonable.

For a copy of the opinion, please see:

Chesson- Summary Judgment on 11 U.S.C. § 523(a)(2)(B).pdf Read More

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