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.

Summary: The Chapter 11 plan, confirmed in 2001,  provided that the liability of the guarantors was capped at the amount of the Recapitalized Debt.  The creditor, originally Wachovia, however, argued that this provision was impermissible and should not be given effect now. The bankruptcy court found that this argument was fallacious.  First, the terms of the confirmation order had been fully negotiated by a sophisticated creditor with an experienced attorney from a large law firm. That aside, pursuant to both A.H. Robins Company, Inc. v Mabey, 880 F.

Summary: The Debtor was filed in an involuntary Chapter 7 bankruptcy, which was eventually dismissed.  The bankruptcy court, later affirmed by the district court, awarded the Debtor $24,678.41 in attorneys’ fees and costs. After the award was affirmed, however, BB&T a creditor, asserted that as a judgment creditor it was entitled to the money.  The bankruptcy court found to the contrary, holding that while a "judgment creditor acquires a lien on the judgment debtor’s real estate by docketing.

Summary: Debtor was first found by a civil court to be the slayer of Michelle Young, his wife.  He later filed a Chapter 7 bankruptcy, claiming 401k accounts as exempt.  While the bankruptcy was pending, he was convicted of the first degree murder of Ms.  Young. First the Court found that the Debtor was, pursuant to N.C.G.S. § 31A-3 (3)(a) and (b), as slayer to both the civil adjudication and the criminal conviction.  As such, he did own the 401k accounts as "[n]o person should be permitted to profit from his own wrong", Prudential Ins. Co v.

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The Debtors executed an adjustable rate mortgage note on May 5, 2006, and received several disclosures, including a Truth in Lending Disclosure Statement, a Notice of Right to Cancel, a Variable Rate Mortgage Program Disclosure, a HUD-1 Settlement Statement and a First Payment Letter.

Summary: Following shortly after the opinion by Judge Leonard in In re White (See:  http://ncbankruptcyexpert.com/?p=686), Judge Doub similarly held here that the attorney for the mortgage servicer had made no showing that the filing of Notice of Mortgage Payment Change required the assistance of an attorney. For a copy of the opinion, please see: