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By Ed Boltz, 26 March, 2013

N.C. Court of Appeals: Inland Harbors HOA v. St. Joseph's Marina (Inland Harbor III)- Reformation of Deed of Trust

Summary: Following Hice v. Hi-Mil, Inc., 301 N.C.
By Ed Boltz, 25 March, 2013

Law Review: Gotberg, Brook- What Should We Do With Bankruptcy Judges?: A Strategic Approach

Abstract: The Supreme Court’s ruling in Stern v. Marshall has signaled a need to alter the bankruptcy court’s jurisdictional structure. In Stern, the Supreme Court ruled that bankruptcy judges, who lack the life tenure and salary protection of Article III, cannot issue final rulings in bankruptcy proceedings previously believed to be within their core jurisdiction.
By Ed Boltz, 25 March, 2013

Law Review: LoPucki, Lynn- House Swaps: A Strategic Bankruptcy Solution To the Foreclosure Crisis

Abstract: Since the price peak in 2006, home values have fallen more than 30%, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes.
By Ed Boltz, 25 March, 2013

Bankr. W.D.N.C.: In re Hatten- Res Judicata Affect of Confirmation Order as to Creditor Standing

Summary: Following a Motion for Relief from Stay filed by ASC, the Debtor argued that ASC was not a a “party in interest” and lacked standing as there was neither an endorsement on the note nor an allonge affixed and presented in support of the Motion. \ Avoiding this issue, the Bankruptcy Court held “that a confirmed Chapter 13 plan, which represents a new contractual agreement between debtors and their creditors, is res judicata on the issue of a creditor’s rights as a party in interest with standing to seek relief from the stay.” In re Jeter, No.
By Ed Boltz, 25 March, 2013

Bankr. W.D.N.C.: In re Jennings- Denial of Conversion from Chapter 7 to Chapter 13

Summary: In addition to a misstatement regarding their residency in the Western District of North Carolina, the Debtors failed to disclose in their Chapter 7 petition that they had transferred real property to their daughter within one year of their bankruptcy filing. Upon discovery by the Trustee (and likely facing avoidance of the transfer) the Debtors sought to convert to Chapter 13, amending their petition to include the transfer and also including additional income from the Female Debtor. Beginning from Marrama v.
By Ed Boltz, 25 March, 2013

4th Circuit: McCauley v. Home Loan Investment Bank- Home Owner’s Loan Act Preemption of State Law; Pleading Fraud Allegation

Summary: McCauley raised state law claims against Home Loan Investment Bank (“Home Loan”) for unconscionability and fraud, due to multiple factors, including a hurried closing, the inducement by inflated appraisal, the disparity between the size of the loan and the value of the home, and an “exploding” ARM. Home Loan moved to dismiss on the basis that the Home Owner’s Loan Act (“HOLA”) and related regulations at 12 C.F.R.
By Ed Boltz, 25 March, 2013

Bankr. E.D.N.C.: In re Burcam Capital II, L.L.C.- Motion for Stay Pending Appeal

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

Bankr. M.D.N.C.: In re Carpenter- Dismissal following Multiple Refilings

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 §341 Meeting of Creditors. The second case was dismissed for failure to file schedules, attend the §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 §341 Meeting of Creditors or any plan payment.
By Ed Boltz, 25 March, 2013

E.D.N.C.: Gateway Bank & Trust v. Clarendon Holdings- Valuation for Surrendered Property in Dirt for Debt Plans

Summary: In a “Dirt for Debt” Plan, the Chapter 11 Debtor’s 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. § 506(a)(1) mandates use of the fair market or “replacement” 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

Bankr. E.D.N.C.: In re Meade- No Collateral Attack Allowed due to Failure to Obtain a Stay Pending Appeal

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. § 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).

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