Husband and Wife Debtors were guarantors of a business loan and pledged Deeds of Trust as collateral securing the loans.
The Debtors filed Chapter 7 and asserted that by requiring the Wife ot join in the guaranty, the Creditor had violated the Equal Credit Opportunity Act ("ECOA") and the Deed of Trust should be void.
Creditor brought a Motion to dismiss arguing that:
1. The Debtors did not have standing under ECOA since as guarantors, they ere not "applicants" under the statute.
The bankruptcy court held that despite the excision in BAPCPA of "substantial" from the abuse provision of 707(b)(3), that the factors laid out by the 4th Circuit in Green v. Staples, 934 F.2d 568 (4th Cir. 1991) were still good law.
The Debtor brought a Motion for Turnover of a boat used to haul construction material, that had been seized by the North Carolina Department of Revenue. The NCDOR objected on procedural grounds that an Adversary Proceeding was required.
The Bankruptcy Court rejected this, holding that the "relationship between §§363, 542(a), and 1303 gives chapter 13 debtors the right to demand turnover" since, pursuant to 11 U.S.C.
The Debtor was in an automobile accident and had not maintained liability insurance. Judgment was entered in state court for negligence, but after filing Chapter 13 the Plaintiff brought a non-dischargeability action alleging that the failure to maintain liability insurance cause a willful or malicious injury.
The Debtor argued that the failure to raise either willfulness or malice in the state court action precluded later raising them in the bankruptcy.
Relying on Brown v. Felsen, 442 U.S. 127, 135, 99 S.Ct.
In both of these cases a Chapter 13 Debtor brought an action to avoid a security interest under 11 USC § 544. The Court held that the rights and powers of a chapter 13 debtor are set out in § 1303 of the Code as follows:
1. Baldwin.PDF
2.
After December 1, 2010, Federal Rule of Civil Procedure 8 (c) no longer required that "discharge in bankruptcy" be plead as an affirmative defense because the Rules Committee felt that the language of 11 U.S.C.
This note discusses the circuit split that is found regarding whether the FDCPA applies to communications from a debt collector to a debtor's attorney between the Third, Fourth, Seventh and Tenth Circuits.
