Chapter 20 debtor did not propose his Chapter 13 plan in good faith when the practical effect of the plan would be to delay payments to the debtor's unsecured creditors for up to six and a half years.
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Catharine R. Aron
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.
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
Denial of debtor's discharge under sections 727(a)(2)(A) and 727(a)(4)(A).
Plaintiff filed a motion for summary judgment regarding an alleged fraudulent transfer regarding a check written to the Debtor. In resolving whether the Debtor had an interest in the check, donative intent presents a genuine issue of material fact, to be determined by a trier of fact. Accordingly, summary judgment is denied.