In implementing the Chapter 7 means test, a debtor may not deduct secured debt payments on collateral the debtor does not intend to retain.
The NCMB offers a database of opinions for the years 2000 onward, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.
Catharine R. Aron
Because Defendant reasonably believed that its attorney was a properly-licensed attorney and that its communications with him were privileged, the attorney-client relation existed at the time of the communications at issue. All the elements of the attorney-client privilege were present with respect to the communications and Defendant was within its rights in refusing to respond to Plaintiff’s inquiries about them.
Debtors filed an objection to Creditor's deficiency claim pursuant to N.C. Gen. Stat. § 45-21.36, contending that Creditor's bid at the foreclosure sale of the property at issue had been substantially less than the property's true value. The Court overruled the objection, finding by the greater weight of the evidence that the bid had not been substantially less than the property's true value. The Court noted that its decision was consistent with North Carolina precedent, under which a guideline has been established that “a bid that was twenty percent less than the appraised value of the property was ‘substantially less’ than the property's true value.”
Based on Debtor's failure to make direct monthly payments to Mortgagee, Mortgagee brought a motion to dismiss. Trustee objected and sought denial of the motion, arguing that Mortgagee instead should have filed a motion for relief from stay. Trustee further contended that Mortgagee filed the motion to dismiss in order to avoid having to pay the filing fee for a motion for relief from stay. Meanwhile, Trustee filed a motion in which she sought to include the mortgage payments in the plan. The Court found that Mortgagee properly had filed the motion to dismiss, because Debtor's failure to pay Mortgagee constituted material default by Debtor with respect to a term of the confirmed plan--cause for dismissal under 11 U.S.C. 1307. Accordingly, the Court also found that attorney for Mortgagee was entitled to attorney's fees for bringing the motion to dismiss.
The Court denied confirmation of the debtor's proposed plan on the grounds that a lienholder's rights may not be modified with respect to a non-debtor's interest in a property held in tenancy by the entirety.
The Court denied the Trustee's motion, pursuant to 11 U.S.C. §363(f)(4), for private sale of realty and to transfer liens to proceeds of sale. The Court found that because the applicable statute of limitations prevented the Trustee from bringing an adversary proceeding to avoid the lien, the Trustee could not show that the lien was "in bona fide dispute." Moreover, the Trustee's motion was procedurally inadequate.
The Court granted defendant's motion to dismiss, finding that plaintiff's claim that defendant failed to substantially comply with N.C. Gen. Stat. § 161-22(h) was not facially plausible.
Lena M. James
The Court overruled the Debtor's objection to claim. The Debtor executed a Confession of Judgment in favor of the Creditor, but the Confession of Judgment was not recorded pre-petition. While failure to record the Confession of Judgment rendered it unenforceable as a judgment under North Carolina law, the Creditor was still entitled to assert a general unsecured claim against the bankruptcy estate by filing a proof of claim to determine the Debtor's liability. The fact that the Confession of Judgment was not recorded does not affect the amount of the liability confessed therein.
The Court denied the Debtor's motion to impose automatic stay pursuant to Section 362(c)(4); there had not been a substantial change in the financial or personal affairs of the Debtor since the dismissal of the next most previous case, or any other reaon, to determine that the Chapter 13 case of the Debtor would be concluded with a confirmed plan that would be fully performed.
The Court denied the Creditor's motion to convert the Chapter 11 case to Chapter 7 where only two monthly operating reports had been filed and no continuing or substantial loss to the estate had been shown.