Abstract:

Households often rely on professionals with specialized knowledge to make important financial decisions. In many cases, the professional’s financial interests are at odds with those of the client. We explore this problem in the context of personal bankruptcy. OLS, fixed effects, and IV estimates all show that attorneys play a central role in determining whether households file under Chapter 7 or Chapter 13 of the bankruptcy code.

Summary:

Sun Trust sued to collect on deficiencies following a foreclosure in North Carolina.  The Debtors raised defenses challenging the validity of the debt and the default.  The Court of Appeals held that the determination of a valid debt and default at the foreclosure hearing was res judicata.    While the Debtors  could not have raised these equitable defenses in the hearing under N.C.G.S. §  45-21.16, they could have raised such  defenses in a proceeding to enjoin the foreclosure under N.C.G.S.

Summary:

Debtor was the beneficiary of two Spendthrift Trusts.  The Spendthrift Trusts, which were governed by Pennsylvania law, protected both the income and corpus/principal of the trusts for the beneficiaries.  As such,  11 U.S.C. § 541(c)(2)  provides that "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title" and the trusts were outside the reach of the bankruptcy estate.

Abstract: This Article considers the Supreme Court’s decision in Stern v. Marshall, which limited the power of a bankruptcy judge to decide a common law claim. Stern is best understood as a combination of three arguments drawn from the Court’s prior Article III cases. The first is an argument from history — the past division of labor between the Article III judiciary and non-Article III adjudicators. The second is an argument from expertise — the appropriate selection of disputes that benefit from a specialized non-Article III forum.

Abstract: Congress regularly makes judgment calls of constitutional dimension. One important example of the interaction between the constitutional analysis of the Court and that of Congress involves disputes over the broad grant of jurisdiction exercised by untenured bankruptcy judges. The legislative history preceding the Supreme Court’s decisions in Northern Pipeline Co. v. Marathon Pipe Line Co. and Stern v. Marshall suggest that Congress’s constitutional interpretation is different in kind from that of the Supreme Court.

Abstract: This paper discusses the possible meaning and effect of the Supreme Court's recent decision in Stern v. Marshall, in which the Court held that the bankruptcy courts' statutory authority to enter final judgments on certain counterclaims against creditors violates Article III of the Constitution. It was prepared by the authors as a report to the fall 2011 annual meeting of the National Bankruptcy Conference. The Stern decision is enigmatic.

Summary: Real property was titled as "Margaret D.  Smith and D.  Reed and wife, Judy C.  Reed Joint Tenants with rights of survivorship."  Only Ms.  Reed signed the Deed of Trust and mortgage note with Countrywide.  After Ms.  Smith died and the mortgage was in default, Countrywide sought reformation of the Deed of Trust. The Court of Appeal held that originally Ms.  Smith owned a one-half interest in the property with the Reeds as Joint Tenants with the rights of survivorship.  The Reeds owned their one-half interest as tenants b

Summary: Plaintiff brought a complaint against Defendant for monies allegedly owed on a credit card.  Defendant answered and raised counterclaims, to which Plaintiff failed to reply.  Consequently,  default was entered on the counterclaims with $4,500.00 in actual damages, plus $17,912.11 in costs, including attorneys’ fees.  Defendant appealed, questioning, among other things, the reasonableness of the attorney’s fees. The Court of Appeal  held that the standard for reviewing an award of attorneys’ fees was that "the record must contain findings of

Summary: The pro se Debtor attacked a foreclosure on several fronts, first appealing the Clerk of Court authorization of the foreclosure to the Superior Court and then to the Court of Appeals.  The Debtor did not file a motion to stay the foreclosure pending the appeal and the property was sold at auction. The Court of Appeals held that the foreclosure auction mooted the subsequent appeal, leaving nothing to be heard. For a copy of the opinion, please see:

Summary: Plaintiff Harris did not disclose any ownership interest in T-WOL, which had been incorporated in 2000,  when he filed bankruptcy in 2001.  Following suit in 2009, the Defendants moved for summary judgment arguing that Plaintiff Harris should be judicially estopped from asserting ownership in T-WOL. The purpose of judicial estoppel is "to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment."  Whitacre P’Ship v.  Biosignia Inc., 358 N.C.