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By Ed Boltz, 18 April, 2012

Bankr. E.D.N.C.: In re Dickerson- Settlement of Civil Lawsuit by Trustee

Summary: Dickerson filed Chapter 7 pro se, initially failing to disclose and exempt a pending lawsuit against Bell Partners for personal injuries and pecuniary losses.  The Debtor eventually claimed the lawsuit as fully exempt, but the Trustee objected to the exemption of an pecuniary losses Dickerson, the Trustee and Bell Partners subsequently agreed, both on the telephone and in emails, to settle the lawsuit for $15,000, consisting of $10,000 in exempt personal injury proceeds and $5,000 for pecuniary losses, that would be available for the bankruptcy estate.  Di
By Ed Boltz, 18 April, 2012

Bankr. W.D.N.C.: In re Waterson- Exemption of IRA Funds Following Equitable Distribution

Summary:

The Debtor sought approval of the settlement of an Equitable Distribution, conducted in Maine, that would have allowed her to transfer funds into exempt IRAs, arguing that an Equitable Distribution  rights are not property rights and therefore not an asset of the bankruptcy estate.  The Trustee objected.

By Ed Boltz, 18 April, 2012

4th Circuit: Rawlinson on v. Rudlow- FDCPA Applies to Secured Debts and Collection Against Third Parties

Summary: Rudlow, the attorney for WFS, brought a replevin action against Rawlinson and her nephew, for a vehicle which the nephew owned, subject to a lien held by WFS.  Rawlinson was not a party to the note, but Rudlow believed Rawlinson either had possession of the vehicle or knew its location, since her nephew lived with her.  Rawlinson brought a FDCPA claim in response. The 4th Circuit began by holding that, just as, following Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373, 375-76 (4th Cir.
By Ed Boltz, 18 April, 2012

N.C. Court of Appeals: Finch v. Campus Habitat- No Attorneys’ Fees without Five Days Notice of Intent to Seek Attorneys’ Fees

 Summary:

Finch leased a room from Campus Habitat and asserted that Campus Habitat breached their lease, causing her to move out.  Campus Habitat responded and counterclaimed, receiving judgment for damages and, pursuant to the lease, attorneys’ fees.

By Ed Boltz, 18 April, 2012

N.C. Court of Appeals: In re Pugh- Arbitration Cannot Be Ordered in Foreclosure Proceeding

Summary: At the foreclosure hearing before the New Hanover County Clerk of Court, the Pughes filed an Election of Arbitration.  The Clerk of Court did not act on this, instead finding that the Substitute Trustee had meet the six statutory requirements to proceed with foreclosure.  The Pughes appealed to Superior Court, where the judge again found that the requirements for foreclosure had been met and declined to rule on the request for arbitration. The Court of Appeals affirmed, finding that both the Clerk of Court and, on appeal, the Superior Court had scope only
By Ed Boltz, 17 April, 2012

Bankr. W.D.N.C.: In re Woodend, L.L.C.- Dismissal of Chapter 11 for Bad Faith

Summary: Deertrack Investors, L.L.C.
By Ed Boltz, 17 April, 2012

Bankr. W.D.N.C.: Latigo Investments v. Watkins- Substantial Certainty of Harm under 11 U.S.C. § 523(a)(6)

Summary: Watkins provided a letter to Latigo Investments and the other plaintiffs, that he owned RDS Diversity Capital Corp ("RDS"), which had obtained $30 million in financing from Waddell and Reed, Inc., for the purchase of an ownership interest in MB2, a NASCAR team.   RDS had never, in fact, been organized, did not have the ability to close the financing with Waddell and Reed, and had no ability to obtain other financing. Accordingly, the bankruptcy court found that Watkins had acted "with substantial certainty that harm would re
By Ed Boltz, 17 April, 2012

Bankr. M.D.N.C.: Dark v. Thomas- Iqbal/Twombley Pleading under 11 U.S.C. § 523(a)(2)(A) regarding whether money was "Obtained" through Fraud

Summary: Dark brought an adversary proceeding seeking to have the debt of Thomas declared nondischargable pursuant to 11 U.S.C. § 523(a)(2).  Thomas moved to dismiss pursuant to Rule 12(b)(6), arguing that "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal,  129 S.Ct. 1937, 1949,  (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
By Ed Boltz, 17 April, 2012

Bankr. E.D.N.C.: In re Shaw- No Cause to Reopen a Bankruptcy to allow Objection to Discharge

Summary:

Prior to the Debtor’s discharge, the Tortoretes  were granted two extensions of time for the purpose of reviewing documents provided in connection with the Rule 2004 Examination of Cornerstone and to consider filing a complaint objecting to discharge.   When no objection was filed, the Debtor was granted a discharge.  Nearly one year later, the Tortoretes sought to reopen the Debtor’s case to o

By Ed Boltz, 17 April, 2012

E.D.N.C.: Kiddco v. Callaway- Avoidance of Preferential Payment to Subcontractor

Summary: Jacobsen Construction entered into a contract with Kiddco to perform subcontract work on a project at Wake Technical Community College.  On May 7, 2004, Kiddco submitted an invoice to Jacobsen for $90,625.27 for grading work at the site and on June 2, 2004, submitted a second invoice for another $102,366.70.   On June 10, 2004, Jacobsen paid Kiddco $35,000 and then on June 29, 2004, Jacobsen paid another $55,625.27.   On September 24, 2004, Jacobsen filed Chapter 7, and the Trustee ultimately sought to avoid all of the payments to Kiddco as p

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