Summary:
Prior to the filing by Circuit City of a Chapter 11 bankruptcy, Gentry commenced a class action lawsuit against Circuit City, but the class certification was pending at the time the bankruptcy was commenced. (Three other Named Claimants/Appellants were similarly situated with undecided class certifications.) The Named Claimants then filed Proof of Claim on behalf of themselves and "all those similarly situated." Circuit City and the Trustee objected to these claims on the basis that the Named Claimants had failed to seek authorization from the court under Rules
By Ed Boltz, 31 January, 2012
Summary:
Providence Dane sued Boosahda in state court for $22,000.00 on a credit card debt assigned to Providence Dane from Chase and First USA. Boosahda counterclaimed for violations of TILA. After testifying at trial that he did not have any recollection of using or having a Chase or Fist USA credit card, Providence Dane attempted to have a paralegal testify that Providence Dane had obtained credit card statements showing Boosahda was liable for this debt, but such testimony was excluded as hearsay and the complaint of Providence Dane was dismissed. Boosahda’s TILA clai
By Ed Boltz, 30 January, 2012
Summary:
Smithville Crossings’ Chapter 11 plan was confirmed wherein the Richardsons, the Debtor’s sole equity owners, agreed to grant a lien to creditor Rialto of unencumbered real estate, if the Richardsons were able to retain their ownership in Smithville Crossings. The plan provided that the Richardsons would pay $10,000 to purchase that ownership interest and invited competing bids. The highest bidder, however,  was neither the Richardsons nor Rialto, but a subsidiary of Rialto.
The bankruptcy court held that such an equity auction following confirmation was permitte
By Ed Boltz, 30 January, 2012
Summary:
After Wells Fargo commenced foreclosure, the Debtor filed an action against Wells Fargo first in North Carolina Superior Court, which was then removed to the Middle District Court. (This series of events actually occurred twice.) When the Debtor eventually filed bankruptcy in the Eastern District, venue in her case against Wells Fargo was transferred.
Following a Motion to dismiss the Debtor’s complaint, the Debtor sought to voluntarily dismiss her Chapter 13 case, requesting that the Complaint against Wells Fargo then be remanded to either the Eastern District Co
By Ed Boltz, 30 January, 2012
Summary:
The Male Debtor executed a promissory note in favor of Option One Mortgage, the predecessor to Wells Fargo, and at the same time both Debtors executed a Deed of Trust. Subsequently, the Male Debtor defaulted on the note and the property was sold at foreclosure. A Substitute Trustee’s Deed was then recorded, conveying the property to Wells Fargo.
Later, the Clerk of Court was informed that the Notice of Sale had not been included in the foreclosure file and Clerk set aside the foreclosure sale. Wells Fargo then transferred the property to Male Debtor (but not to t
By Ed Boltz, 30 January, 2012
Summary:
The Debtor filed Chapter 13 in 2009, subsequently converting to Chapter 7 on May 9, 2011. This conversion was one day prior to a hearing to determine the status of the claim of the Debtor’s ex-wife, Ms. Day.
Ms. Day argued that the conversion was only done in an attempt to avoid paying her claim through the Debtor’s Chapter 13 plan, which otherwise only required $21.50 to complete.  Additionally, Ms. Day alleged that the Debtor self-reported environmental hazards on their property, in an effort to reduce the value. Accordingly, Ms. Day sought to have the Debt
By Ed Boltz, 30 January, 2012
Abstract:
Outside of bankruptcy, the right of a secured creditor to "credit bid" allows the secured creditor to compete with cash bids in foreclosure to assure that the secured creditor’s collateral is not sold for less than the secured creditor thinks it is worth.
By Ed Boltz, 30 January, 2012
Abstract:
This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, "prophetic" and "participatory." Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles.
By Ed Boltz, 30 January, 2012
Abstract:
By Ed Boltz, 30 January, 2012
Summary:
In foreclosing on a Deed of Trust, the Trustee was paid costs and expenses consisting of a commission, pursuant to N.C.G.S. § 45-21.15(a), of 5% of the highest bid and Trustee's attorneys fees of 15% of the outstanding promissory note on which behalf he was acting. This resulted in third lien-holder receiving only partial payment and the fourth lien-holder receiving nothing. The third lien-holder filed a motion with the Clerk of Superior Court arguing that under N.C.G.S.