Summary:
The standard for a stay pending appeal requires a showing of all of the following:
(1) That the movant is likely to succeed on the merits;
(2) That the movant is likely to suffer irreparable harm in the absence of the injunction;
(3) That the balance of equities tips in his favor; and
(4) That the injunction is in the public interest.
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) vacated on other grounds, 130 S. Ct. 2371 (2010).
By Ed Boltz, 25 March, 2013
Summary:
The Debtor had filed four case within nine months. The first was dismissed for failure to obtain credit counseling, although no schedules had been filed either nor had the Debtor attended the Ā§341 Meeting of Creditors. The second case was dismissed for failure to file schedules, attend the Ā§341 Meeting of Creditors, or make any payments. The third case was voluntarily dismissed following partial payment of the filing fee and filing of schedules, but still without attendance at the Ā§341 Meeting of Creditors or any plan payment.
By Ed Boltz, 25 March, 2013
Summary:
In a āDirt for Debtā Plan, the Chapter 11 Debtorās proposed to surrender real property to Gateway. The Bankruptcy Court held that the proper basis for valuation for such tender was the fair market value standard, where Gateway had urged a liquidation value.
On appeal, the District Court held that while 11 U.S.C. Ā§ 506(a)(1) mandates use of the fair market or āreplacementā value where the Debtor intends to retain the collateral for its own use, the same is not true where the Debtor intends to surrender the property.
By Ed Boltz, 25 March, 2013
Summary:
The Bankruptcy Court, subsequently affirmed by the District Court, determined that the two liens held by Bank of America against real property were void pursuant to 11 U.S.C. Ā§ 544(a)(1) because of inaccurate property descriptions. See Meade v. Bank of America (In re Meade), 2011 Bankr. LEXIS 4631, 2011 WL 5909398 (Bankr. E.D.N.C. July 29, 2011), and Bank of America v. Meade,Bank of Am. v. Meade, 2012 U.S. Dist. LEXIS 96071 (E.D.N.C. July 9, 2012).
By Ed Boltz, 25 March, 2013
Summary:
Rodgers had filed a complaint for claims arising from a real estate dispute. The Bankruptcy Court granted a judgment on the pleadings as to two defendants, but, in light of Sterns v. Marshall, the District Court returned the matter to the Bankruptcy Court for a determination of whether the issues raised were ācoreā or ānon-coreā and the basis for jurisdiction. (See: http://ncbankruptcyexpert.com/?p=1137) The Bankruptcy Court then found that the claims were ānon-coreā pursuant to 28 U.S.C.
By Ed Boltz, 21 March, 2013
Summary:
United Marketing Solutions (UMS) obtained a judgment against the Fowlers for $106,076.82. Subsequently, Rees Associates obtained a judgment against UMS for $172,194.94. Rees then initiated garnishment proceeding against the Fowlers, but then entered into a Settlement and Release with the Fowlers which called for the Fowlers to pay Rees āthe sum of $ ___ upon execution of this Agreement in full and complete satisfaction of the Garnishment.
By Ed Boltz, 21 March, 2013
Summary:
Following conversion from Chapter 13, the Debtor sought to redeem a motor vehicle based on the NADA trade-in value from the commencement of the bankruptcy case. Finding that BAPCPA amendments in 2005 to 11 U.S.C. Ā§ 506(a)(2) abrogated the previous rule as stated in In re Murray, No. 00-10603, slip op. at 5-6 (Bankr. M.D.N.C.
By Ed Boltz, 21 March, 2013
Summary:
After the Gatelys had filed Chapter 13 bankruptcy and provided written notice, Holly Hills Hospital sent the Debtors ten (10) billing statements and also threatening telephone calls for several weeks. As Mrs. Gately suffers from mental health issues (for which she had presumably received treatment from Holly Hills Hospital), these letters and telephone calls āinformed the debtors that bankruptcy was futileā and caused Mrs.
By Ed Boltz, 21 March, 2013
Summary:
Following City of Perth Amboy v. Custom Distrib. Serv., Inc. (In re Custom Distrib. Serv., Inc.), 224 F.3d 235, 243-44 (3d Cir. 2000), the bankruptcy court held that a Debtor must āmust have properly requested [a] tax refund ... in order for [a bankruptcy] court to have the jurisdiction to determine and order the payment of such refund.ā The Debtor applied for a tentative carry back adjustment to the IRS pursuant to 26 U.S.C. Ā§ 6411, by completing Form 1139.
By Ed Boltz, 21 March, 2013
Summary:
Debtor brought an Adversary Proceeding against Defendants alleging unpaid invoices a little more than two months after its Chapter 11 plan was confirmed. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction.
Pursuant to 28 U.S.C. Ā§Ā§ 1334(b) and 157(a) a matter āis within the jurisdiction of [a Bankruptcy] Court if it is āarising under,ā āarising in,ā or ārelated toā the corresponding bankruptcy case.ā Citing to In re Celotex Corp., 124 F.3d 619, 625 (4thCir. 1997) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rdCir.