Summary:
The bankruptcy court in this opinion begins by distinguishing between the judicial notice that a court may take of pleadings and proceedings in other courts and judicial estoppel. The bankruptcy court held that while a court cannot take judicial notice of the truth of facts alleged in those pleadings, it can nonetheless take judicial notice that such allegations were made. From the fact that such allegations had been made, the bankruptcy court then turned to determine whether such allegations judicially estopped a party in later proceedings.
By Ed Boltz, 2 August, 2016
Summary:
Ferguson obtained a judgment in 2008 against the Robert Dean, who, with his then wife, Lisa Dean, subsequently filed a Chapter 7 bankruptcy in 2010. Believing that the real property was held as Tenants by the Entireties, the judgment lien was not avoided and the Deans received a discharge. Subsequently, the Deans divorced with Mr. Dean transferring his interest in the real property to Lisa and her new husband. When Lisa sought to refinance the real property in 2015, the judgment lien was discovered.
By Ed Boltz, 25 November, 2015
Summary:
Uncontested evidence showed that the Debtor had failed to disclose the transfer of real property to her brother 15 days prior to the filing of her bankruptcy as well as the omission of ownership interests in an investment club and several bank accounts. While it was determined in a separate action that the transfer of the real property was subject to a pre-existing lien and had no equity, the Bankruptcy Administrator nonetheless sought denial of the Debtor’s discharge under both 11 U.S.C.
By Ed Boltz, 25 November, 2015
Summary:
The Debtors sought to strip-off the lien held by PSNC Energy for a HVAC unit as wholly unsecured based on the value of the real property. Without any answer by PSNC, the Court sua sponte held that based on the record, consisting primarily of the Proof of Claim filed by PSNC, that A UCC-1 fixture filing had been recorded within 20 days of installation of the HVAC unit and was, pursuant to N.C.G.S.
By Ed Boltz, 24 November, 2015
Summary:
The Court held that Harris v. Viegelahn, 575 U.S. ___, 135 S. Ct. 1829, 191 L.E. 2d 783 (2015) did not prevent a Chapter 13 trustee from paying administrative expenses funds held by the following conversion of the case to Chapter 7 pursuant to 11 U.S.C. § 1326(a)(2) and Bankruptcy Rule of Federal Procedure Rule 1019.
Commentary:
Attached to the application for fees was an affidavit from the debtor stating that she understood that the funds on hand could be returned to her but that she nonetheless wanted those funds sent to the her attorney.
By Ed Boltz, 17 November, 2015
Summary:
Ms. Novara deposited a check from her mother for $10,000 into her child's custodial account twenty-seven (27) days prior to filing Chapter 7 bankruptcy. The Trustee sought to set this aside as a fraudulent conveyance and sought summary judgment.
To prevail on a motion for summary judgment premised on a fraudulent transfer, pursuant to 11 U.S.C.
By Ed Boltz, 28 January, 2015
Summary:
Debtor’s Chapter 13 plan was confirmed cramming down the claim of Greater Piedmont Credit Union against mobile home and land, prior to the filing of the Proof of Claim by GPCU showing that title to the mobile home had been cancelled, affixing it to the real property.
By Ed Boltz, 28 January, 2015
Summary:
After the filing of a Chapter 13 bankruptcy, Mr. Nevils received a lump-sum Worker’s Compensation award of $235,000. Over the Trustee’s objection, the bankruptcy court previously allowed Mr. Nevils’ exemption of the proceeds, without ruling at that time on whether such constituted disposable income. The Trustee, supported by the Bankruptcy Administrator, then brought a motion to modify, arguing that even though exempt, the award constituted a substantial and unanticipated change in circumstances and should be considered in calculating Mr.
By Ed Boltz, 12 August, 2014
Summary:
Despite being provided with evidence in the form of cancelled checks and insurance policies showing that they were not delinquent in their mortgage payments, Citimortgage commenced foreclosure against the Nances. After refinancing their house, the Nances brought suit against Citimortgage alleging, among other causes of action, unfair and deceptive trade practices, negligent and/or intentional infliction of emotional distress, defamation and negligent and/or intentional damage to credit report. Citimortgage moved to dismiss.
As to the unfair and deceptive trade pr
By Ed Boltz, 5 August, 2014
Summary:
Corporate Debtor Abbington Partners, filed a Chapter 7 bankruptcy without representation by counsel. It had previously a bankruptcy in Massachusetts, which had been dismissed for lack of attorney representation. Reiterating that “[i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel.” In re Tamojira, Inc., 20 F. App’x 133, 133-34 (4th Cir.