Summary:
Rodgers had filed a complaint for claims arising from a real estate dispute. The Bankruptcy Court granted a judgment on the pleadings as to two defendants, but, in light of Sterns v. Marshall, the District Court returned the matter to the Bankruptcy Court for a determination of whether the issues raised were “core” or “non-core” and the basis for jurisdiction. (See: http://ncbankruptcyexpert.com/?p=1137) The Bankruptcy Court then found that the claims were “non-core” pursuant to 28 U.S.C. § 157, but that it did have jurisdiction under § 157(c)(1).
On this second appeal, the District Court agreed with the Bankruptcy Court both that the claims were non-core, but that jurisdiction was property as the claims were “related to” the bankruptcy as they “could have any conceivable effect on the bankruptcy estate.” See Morrison v. Western Builders of Amarillo. Inc. (In re Morrison), 555 F.3d 473, 479 (5th Cir.2009)
Rodgers, relying on Austin v. Wilder, 26 N.C. App. 229, 215 S.E.2d 794 (1975), argued that the filing by the Defendants of a Lis Pendens, after acknowledging that no contract existed, constituted an abuse of process. The District Court, reaching the underlying claim for abuse of process for the first time, found that in North Carolina this tort has two requirements:
(1) an ulterior motive, ''where the prior action was initiated to achieve a collateral purpose not within the normal scope of the process used;" and
(2) an act, "where the defendant committed some wilful act whereby he sought to use the existence of the proceeding to gain advantage of the plaintiff in respect to some collateral matter."
Vodrey v. Golden, 864 F.2d 28, 30 (4th Cir. 1988) (internal citations omitted).
The District Court then proceeded to distinguish this case from Austin, finding that here the Plaintiff had not plead nor shown how the actions by the Defendants were undertaken to obtain an advantage in a collateral matter.
The assertion, on appeal, of infliction of emotional distress, failed under North Carolina requirements for either intentional or negligent infliction of emotional distress.
Lastly, the claim of Fraudulent Practices by attorneys pursuant to N.C.G.S. § 84-13, failed because Rodgers claims all parties, including himself, were aware that there was no valid contract on which to base the Lis Pendens.
For a copy of the opinion, please see:
Rodgers v. Preferred Carolinas Realty - Stern v. Marshall; Abuse of Process, Fraudulent Practices by Attorneys.pdf
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