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, 24 January, 2012
Summary:
Creditors filed an involuntary Chapter 7 bankruptcy for SilverDeer. On the motion of SilverDeer, the bankruptcy court dismissed the involuntary bankruptcy finding that the pursuant to 11 U.S.C. § 303(b)(1), the claims of the creditors were subject to a bona fide dispute. Subsequently, the bankruptcy court awarded Howard Jacobson, the manager/member of SilverDeer, his attorney fees and costs incurred defending SilverDeer, pursuant to 11 U.S.C.
By Ed Boltz, 24 January, 2012
Summary:
Following a determination of the appropriate interest rate to pay on a secured claim, the creditor filed a Motion for Reconsideration under Rule 59(e). The reconsideration of an order, the moving party must show:
- An intervening change in controlling law;
- New evidence not available at trial; or
- A clear error of law or prevent manifest injustice.
By Ed Boltz, 24 January, 2012
Summary:
The Debtors’ home was damaged by Hurricane Irene while they were in Chapter 13. Their insurance issued a check for damages in the amount of $9,052.93 to the house and a second check for $1,376.54 for personal property, both payable jointly to the Debtors and Chase, the mortgage servicer.
The Debtors followed the instructions on Chase’s website for insurance checks in the amount less than $20,000.00, endorsing the check and forwarding it to Chase, believing that since they were current on their Chapter 13 payments, Chase would expeditiously return the money to them
By Ed Boltz, 9 January, 2012
Summary:
Property Agreement provided that the Debtor would be primarily liable for the mortgage debt and "[t]o the extent of any obligation contained herein is discharged in bankruptcy and the non-bankrupt party is held liable for said debt, the non-bankrupt party shall have the right to petition a court of competent jurisdiction for spousal support in an amount sufficient to cover any amounts so discharged."Â The Debtor, of course, filed Chapter 13 and disputed whether this created a domestic support obligation under 11 U.S.C.
By Ed Boltz, 9 January, 2012
Summary:
Ocwen filed a Motion for Relief from Stay. At the hearing, the Debtor testified she was under a loan modification with Ocwen and provided copies of the loan modification agreement and bank account statements showing that payments under the loan modification had been made. Ocwen provided absolutely no evidence to support its position that the Debtor was in default.
In addition to denying the Motion for Relief from Stay, sua sponte, the Bankruptcy Court has ordered Ocwen to show cause why it should not be sanctioned pursuant to Rule 9011(c)(1)(B) for filing
By Ed Boltz, 19 December, 2011
Summary:
The Chapter 11 Plan for LLM provided that for the eventual reamortization of two notes, partially based on cash flow. Ten years later when it came to recapitalize the notes, LLM and the note holder disagreed by nearly $5 million on the amount.
Each party presented evidence from their separate accountants. The note holder's accountant, however, included hypothetical figures into her calculation for "demonstrative purposes" and the court found there was no factual basis for these asserted amounts.
By Ed Boltz, 19 December, 2011
Summary:
The Debtor's mother signed the Debtor's signature on 11 student loans. After filing bankruptcy, the Debtor objected to the validity of the claims.
The Court began by reiterating that under 11 U.S.C. § 502(b0, ‘[claims that are unenforceable against the debtor or against property of the debtor . . . are simply not allowable for purposes of a right to share in a distribution of the debtor's assets." In re Easthaven Marina Group, LLC, No. 08-05453-8-JRL (Bankr. E.D.N.C. May 7, 2009) (Leonard, J) (quoting 4 Collier on Bankruptcy (15th ed.