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By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: In re Mead- Violation of Discharge

Summary: The Debtor had, after purchasing a 3rd parties interest in an Illinois home, been given title to the home by his then fiance, Ms. Ward, subject to an agreement that he would reconvey the real property to her in the event he pre-deceased her or their relationship ended. So, of course, their relationship ended and he declined to reconvey the property to her. Ms. Ward then commenced a lawsuit in Illinois against the Debtor seeking reconveyance of the property and damages for breach of contract. The Debtor filed Chapter 7, during which Ms.
By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: In re McClam- Consent Order In Prior Case is Not Res Judicata in Subsequent Bankruptcy

Summary: In the Debtor’s first Chapter 13 case, the Debtor and his homeowner’s association entered into a consent order denying the homeowner’s motion for relief, subject to the Debtor complying with specific conditions. Failure to comply would result in the lifting of the automatic stay. The Debtor’s bankruptcy was shortly thereafter dismissed and the Debtor refiled. The homeowner’s association contended that the consent order in the previous case was res judicata and it was thereby entitled to relief from the automatic stay in the second case.
By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: In Mansfield-High Commuting Costs are not a Special Circumstance for 707(b)(2)

Summary: The Debtor, following some corrective amendments, had $731.36 of disposable income showing on Form B22. Because of a long commute in a pick-up truck with poor mileage, the Debtor claimed $612.00 a month of additional transportation expenses as a special circumstance under 11 U.S.C. § 707(b)(2)(B)(i).
By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: In re Goodman- Setoff of Social Security Funds

Summary: In December 2010, the Social Security Administration the Debtor of an alleged overpayment of SSI benefits, seeking repayment of $11,585. In March 2011, the Debtor received a "Notice of Award" for Social Security Disability ("SSD") benefits of $1,001.00 beginning March 2011. Also in March 2011, the Debtor was notified of SSA's decision that she was entitled to receive a monthly payment of $674.00 and retroactive SSI benefits from May 2010 through March 2011 totaling $7,414.00.
By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: Carter v. B-Line, L.L.C.- Solicitation of Reaffirmations is not Debt Collection

Summary: B-Line purchased a charge account that the Debtors originally had with Kay Jewelers, which had been listed as a creditor on Schedule F of the Debtors’ petition, with a balance owing of $860.61. Following the filing of the Debtors’ bankruptcy, B-Line solicited a reaffirmation from the Debtors, including a warning/threat that “If the Jewelry purchased under this secured account have been destroyed, gifted or transferred, or sold, [B-Line] may have a non-dischargeability cause of action against you/your client(s) under 11 U.S.C.
By Ed Boltz, 20 June, 2012

Bankr. E.D.N.C.: In Bowden- Ride-Through following Reaffirmation without Attorney Certification

Summary: Debtor filed a reaffirmation agreement with Ally for a vehicle with the bankruptcy court, despite showing that her monthly income minus monthly expenses resulted in a negative net income, indicating a presumption of undue hardship. The reaffirmation stated that the Debtor intended to adjust her expenses to afford the car payments. The Debtor’s attorney did not complete the certification in the reaffirmation that there was no undue hardship. Due to the absence of the attorney certification, the bankruptcy court set the reaffirmation for hearing.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: In re TP, Inc.- Modification of Consent Order Terminating the Automatic Stay

Summary: The Court had previously entered a Consent Order that allowed Bank of America to proceed with foreclosure against some of the property of the estate and also appointed a Chapter 11 Trustee. TP subsequently filed a Motion to Set Aside or Modify the Consent Order allowing foreclosure.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: In re Taproot Systems, Inc.- Joint Client Privilege

Summary: Three venture capital firms (“the Movants”) provided secured debt financing to Taproot and owned a controlling interest in Taproot. In December of 2009, Taproot entered into a contract to sell its assets to Neusoft, with The Hina Group (“THG”) acting as a broker. In May 2010, THG brought suit against Taproot and the Movants, seeking to recover the unpaid broker fees. Taproot was represented by both Wyrick Robbins and Sheppard Mullin and the Movants were represented by DLA Piper.
By Ed Boltz, 19 June, 2012

Bankr. W.D.N.C.: In re Sweetenburg- Automatic Stay and Residential Rental Property

Summary: The Debtor leased a town home from Brett Mestel for $1,395/month, with a term running from August 2009 until September 2011 and month-to-month thereafter. In February 2012, Mestel commenced an eviction action after the Debtor fell behind in rent payments. Summary Ejectment was granted on April 16, 2012, and the ten-day appeal period ran on April 27, 2012. The Debtor filed Chapter 13 bankruptcy on April 30, 2012. Thereafter, the Mecklenburg Sheriff served the Debtor with a Writ of Possession, requiring her to vacate prior to May 9, 2012.
By Ed Boltz, 19 June, 2012

Bankr. E.D.N.C.: Sparkman v. American Residential Services, L.L.C.- Inchoate and Hypothetical Mechanic’s Lien does not Equate with a Security Interest for 11 U.S.C. § 547(b)(5).

Summary: American Residential Services, L.L.C (“American”) received $186,419.35 from the Debtor in the 90-days preceding its bankruptcy and the Trustee sought to avoid such payments as a preference under 11 U.S.C. § 547. The parties agreed that the Trustee had met his burden regarding the first four requirements of § 547(b), but that he had failed to show that American had received more than it would have under Chapter 7, as American “could and would have filed appropriate claims of lien ...

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