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By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: In re Cowstone, L.L.C.- Contempt for Violation of Consent Order

Summary: The Debtor and Nicholas Stratas, the sole manager of the Debtor, agreed to a Consent Order, to allow and cooperate with Paragon in its foreclosure against real property owned by the Debtor. Despite this agreement, Stratas filed a motion to set aside the subsequent foreclosure proceeding because the Substitute Trustee mumbled and was rude at the Foreclosure Hearing, depriving him of the opportunity (preserved in the earlier Consent Order) to bid at the foreclosure.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: In re Clayton Professional Center, L.L.C.- Dismissal or Conversion of Chapter 11 Case

Summary: The Debtor filed a voluntary Chapter 11 case, but PNC Bank, the largest unsecured creditor, moved to dismiss the bankruptcy. The Debtor moved to convert to Chapter 7. The Bankruptcy Administrator supported dismissal. The Bankruptcy Court first found that und 11 U.S.C. § 1124(b)(4) there were sufficient grounds to convert of dismiss the case.
By Ed Boltz, 19 June, 2012

N.C. Supreme Court: Charlotte-Mecklenburg Hospital Authority v. Talford- Standard for Establishing Medical Debts

Summary: Mr. Talford received medical treatment at the Charlotte-Mecklenburg Hospital (“CMH”), but was unable to pay the asserted $14,419.57 bill.
By Ed Boltz, 19 June, 2012

Bankr. M.D.N.C.: Burns v. Dennis-Lambert Investments, L.P.- Amendment to Complaint and Relation Back for Statute of Limitation Purposes

Summary: Trustee sought leave to amend a Complaint, which originally alleged fraudulent conveyances under 11 U.S.C. §§ 544 and 548 and N.C.G.S. § 39.23.4 and unjust enrichment, to add a claim for preferential transfers under 11 U.S.C. § 547. The Defendants, having already answered the Complaint, objected. Leave to amend should be denied, therefore, “only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would  be futile.” Edwards v.
By Ed Boltz, 19 June, 2012

Bankr. W.D.N.C.: In re Alvarez- Accuracy of Schedules and Non-Filing Spouse

Summary: The Debtor filed Chapter 7 and was the subject of a random audit. The audit determined that the Debtor had understated her Current Monthly Income by $4,572. In response, the Debtor filed multiple amendments variously showing net monthly income of $589.92 (original), $4,272.71 (first amendment), $2,446.71 (second amendment), or -$179.29 (third amendment). The Bankruptcy Administrator moved to dismiss based on the schedules being a “moving target”.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: Alexieff- Bankruptcy following Expiration of 10-Day Upset Period does not Stay Foreclosure

Summary: The Debtor filed his 3rd bankruptcy within 12 -months four days after the upset period in the foreclosure had expired.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: Alexander- Avoidance of Judgment Lien against Debtor and Non-Debtor Spouse in Tenants by the Entireties Property

Summary: Medical Creditor obtained a judgment against the Debtor and Non-Filing Spouse, with such lien attaching to the property that the Debtor and the Non-filing Spouse own as Tenants by the Entireties. After filing Chapter 7, the Debtor sought to avoid, pursuant to 11 U.S.C.
By Ed Boltz, 1 June, 2012

4th Circuit: Delebreau v. Bayview Loan Servicing- Acceleration Date of Mortgage

Summary: Following foreclosure and bankruptcy, the Debtors raised claims against Bayview under the West Virginia Consumer Credit and Protection Act. The statute of limitations provides that: With respect to violations arising from other consumer credit sales or consumer loans, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement. W. Va.
By Ed Boltz, 16 May, 2012

E.D.N.C.: Ferguson v. Mammoth Grading, Inc.- Whether Post-Petition Claim of Liens Violated § 362

Summary: In two opinions,  In re Harrelson Utilities, Inc. , No. 09-0281S-8-ATS (E.D.N.C. Bankr. July 3D, 2009) and  In re Mammoth Grading, Inc., No. 0901286-8-ATS (E.D.N.C. Bankr. Aug. 24, 2009),  bankruptcy court  held that a subcontractor's lien rights did not constitute "an interest in property" under the  exception in 11 U.S.C.
By Ed Boltz, 16 May, 2012

E.D.N.C.: In re Gregory- Marital Adjustment under § 707(b)

Summary: The Debtor excluded from her CMI her non-filing husband's monthly payments of $166.00 for his student loans and $1,628.00 related to  their former residence, including renovation costs..  This resulted in a negative disposable monthly income.  The Bankruptcy Administrator argued that since the non-filing spouse was spending money on expenses and renovations of joint property, such payments were benefitting the Debtor and should be included in CMI. First the Bankruptcy Court and then, on appeal, the District Court agreed with the Debtor, finding that

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