The Fourth Circuit Court of Appeals held that "the Code plainly provides" that a debtor does not have to actually claim an exemption in order to use Code section 522(f) to avoid a judicial lien that impairs the exemption.
Real Property was owned by Walter Davis and his wife, Shelvia Davis, as tenants by the entireties. Deed of Trust listed "Walter Davis, A Married Man" as the grantor, but Shelvia Davis was both present at the closing and had signed and/or initialed several of the documents.
The Court of Appeals held that while Wachovia had failed to provide timely notice of the hearing on a Motion for Summary Judgment, the Davis's, who appeared pro se, had proper notice of the motion itself and being present at the hearing had not
Following Smith v. Mixon, 788 F.2d 229, 232 (4th Cir. 1986), the 4th Circuit ruled that knowledge, for purposes of the good faith defense under § 550(b)(1) to a fraudulent conveyance claim, "does not mean ‘constructive notice.’" Nor, however, does this actual notice standard, therefore, require actual knowledge of the transfer’s voidability.
Edward C. Boltz is a partner at the Law Offices of John T. Orcutt, P.C., where he has managed the firm’s office in Durham, North Carolina since 1998, representing clients in not only Chapter 13 and Chapter 7 bankruptcies, but also in related consumer rights litigation, including fighting abusive mortgage practices.Mr.
Edward C. Boltz is a partner at the Law Offices of John T. Orcutt, P.C., where he has managed the firm’s office in Durham, North Carolina since 1998, representing clients in not only Chapter 13 and Chapter 7 bankruptcies, but also in related consumer rights litigation, including fighting abusive mortgage practices.Mr.