Trustee and Perdue Bioenergy filed cross-motions for summary judgment on the Trustee's preference action, Perdue's 11 U.S.C. 546(e) defense, and Perdue's 11 U.S.C. 547(c) defenses. Summary judgment was granted on the Trustee's preference action and denied on Perdue's 11 U.S.C. 547(c) defenses. Perdue's 11 U.S.C. 546(e) defense will be determined according to a further court order.
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Catharine R. Aron
The parties filed cross-motions for summary judgment seeking to determine their respective ownership interests in two companies, ownership over patents, certain contractual rights, and the viability of the chapter 7 trustee's avoidance power under 11 U.S.C. 548. Summary judgment granted in part when there was no genuine dispute as to a party's ownership interest; conflicting evidence was denied under North Carolina's parol evidence rule. All remaining motions raised factual disputes not appropriate for summary judgment.
Debtors submitted a plan for confirmation that modified a mortgage creditor's interest rate. Under § 1322(c)(2), a debtor may modify the payment of a claim for a debt secured by the debtor's principal residence when payments will come due during the life of the plan. The Fourth Circuit in Witt determined that § 1322(c)(2) only allows for the modification of the payment of the claim and not the claim itself. The definition of a claim is broadly construed to include a mortgage creditor's interest rate. Because the debtors proposed to modify the mortgage creditor's interest rate, and therefore its claim, the plan could not be confirmed.
Motion to impose the automatic stay denied when the debtor did not overcome the presumption that he filed his petition in bad faith. The debtor filed three petitions within a single year. The debtor's timing and motive in filing the three petitions, the effect of his petitions on the most significant creditor, the reasons his prevoius cases were dismissed, the likelihood that he will have steady income, and the objections of interested parties all weigh against imposing the automatic stay. Additionally, the nature of the debtor's debt, a note on which he is not liable, also counsels against imposing the stay.
Motion to Quash and Motion for Protective Order both denied because defendants did not have standing to quash subpoenas issued to their banks.
Creditor's complaint obecting to dischargeability of overpayment of public assistance benefits granted in part pursuant to § 523(a)(2)(B).
Debtors' motion for sanctions for violating the automatic stay was granted when a creditor sent a second billing notice to the debtors. Creditor had notice of the debtors' bankruptcy and was informed of its stay violation after the first billing notice was sent to the debtors.
Lena M. James
Pennsylvania Higher Education Assistance Agency d/b/a FedLoan Servicing ("PHEAA") filed motion to dismiss the complaint or alternatively to dismiss PHEAA from the adversary proceeding. PHEAA was dismissed from the adversary proceeding as it is a servicer, not an owner, of the Plaintiff's student loans.
Two counts of the complaint, seeking determination of nondischargeability of debt pursuant to sections 523(a)(2)(A) and 523(a)(6), were untimely filed and dismissed.
Debtor objected to attorney's fees and expenses included in the claim of an oversecured creditor. Objection overruled under §506(b).