Summary: The Debtor was a North Carolina corporation, wholly owned by DeCoro Limited (“Ltd.”), a Hong Kong limited liability company, which shipped furniture manufactured in China to the United States. The the furniture sales in the United States were procured by the Debtor. In 2008 or 2009, the IRS began an examination to determine whether the Debtor or Ltd. were liable for taxes in the United States. The determination hinged on whether the Debtor was a “dependent agent” of Ltd., in which case Ltd.
By Ed Boltz, 20 June, 2012
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, 16 May, 2012
Sun Trust sued to collect on deficiencies following a foreclosure in North Carolina. The Debtors raised defenses challenging the validity of the debt and the default. The Court of Appeals held that the determination of a valid debt and default at the foreclosure hearing was res judicata. While the Debtors could not have raised these equitable defenses in the hearing under N.C.G.S. § 45-21.16, they could have raised such defenses in a proceeding to enjoin the foreclosure under N.C.G.S.
By Ed Boltz, 15 November, 2011
Canovali-Relief from Chapter 11 Confirmation Order under Rule 60(b)Summary: The Debtors had a two mortgage against their home, initially valued in the amount of $1,068,000.00, with Bank of America, a first with a balance of $988,000.00 and second with a balance of $368,000.00. The Debtors proposed a Chapter 11 plan that recognized that there were two notes and Deeds of Trust, but that both such claims would be paid as a single clai
By Ed Boltz, 7 November, 2011
The Debtor was in an automobile accident and had not maintained liability insurance. Judgment was entered in state court for negligence, but after filing Chapter 13 the Plaintiff brought a non-dischargeability action alleging that the failure to maintain liability insurance cause a willful or malicious injury. The Debtor argued that the failure to raise either willfulness or malice in the state court action precluded later raising them in the bankruptcy. Relying on Brown v. Felsen, 442 U.S. 127, 135, 99 S.Ct.