As the  FDCPA is concerned âwith the substance of the transaction as opposed to the formâ, the 4th Circuit held that even assuming that the original 2004 debt was a commercial loan, the later 2006 debt, used to satisfy the original obligation, was a consumer loan as it concerned the Plaintiff's personal finances, his personal residence, and was taken out in his own name.
This case may also have value in determining whether a debtor "debts are primarily consumer debts" under 11 U.S.C.
By Ed Boltz, 7 November, 2011
11 U.S.C. § 507(a)(4) places as the 4th priority "allowed unsecured claims, but only to the extent of $10,950 for each individual . . . earned within 180 days before the date of the filing of the petition. . . for (A) wages, salaries, or commissions, including vacation, severance, and sick leave pay earned by an individual." 11 U.S.C.
By Ed Boltz, 7 November, 2011
The Fourth Circuit Court of Appeals held that "the Code plainly provides" that a debtor does not have to actually claim an exemption in order to use Code section 522(f) to avoid a judicial lien that impairs the exemption.
By Ed Boltz, 7 November, 2011
Real Property was owned by Walter Davis and his wife, Shelvia Davis, as tenants by the entireties. Deed of Trust listed "Walter Davis, A Married Man" as the grantor, but Shelvia Davis was both present at the closing and had signed and/or initialed several of the documents.
The Court of Appeals held that while Wachovia had failed to provide timely notice of the hearing on a Motion for Summary Judgment, the Davis's, who appeared pro se, had proper notice of the motion itself and being present at the hearing had not show any evidence of prejudice in not receivi
By Ed Boltz, 7 November, 2011
Following Smith v. Mixon, 788 F.2d 229, 232 (4th Cir. 1986), the 4th Circuit ruled that knowledge, for purposes of the good faith defense under § 550(b)(1) to a fraudulent conveyance claim, "does not mean âconstructive notice.â"  Nor, however, does this actual notice standard, therefore, require actual knowledge of the transferâs voidability.
By Ed Boltz, 7 November, 2011
Edward C. Boltz is a partner at the Law Offices of John T. Orcutt, P.C., where he has managed the firmâs office in Durham, North Carolina since 1998, representing clients in not only Chapter 13 and Chapter 7 bankruptcies, but also in related consumer rights litigation, including fighting abusive mortgage practices.Mr. Boltz received his B.A. |