Opinions

 

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.

In re Jolly 02/27/2017 02/27/2017
(Judge Benjamin A. Kahn)

Debtor claimed an exemption in a retirement annuity pursuant to N.C. Gen. Stat. § 1C-1601(a)(9).  Trustee objected to this exemption because it did not meet the requirements provided for in that subsection.  Debtor contended that even though the annuity did not meet the standards of an individual retirement plan under the Internal Revenue Code, it should be held as exempt because it is a plan treated in the same manner as an individual retirement plan.  The Court sustained Trustee's objection, finding that the Debtor's annuity was not sufficiently similar to an individual retirement plan to entitle the Debtor to an exemption in this property.

Exemptions, Published No

Memorandum Order denying Plaintiffs' motion for summary judgment seeking an exception to discharge under Sections 523(a)(2), (a)(4), and (a)(6) and an award of punitive damages pursuant to N.C.G.S. Section 1D.  A defendant's liability under relevant non-bankruptcy law must first be established in order to proceed with an adversary proceeding in a dischargeability context.  Because Plaintiffs failed to establish liability on an underlying debt, the Court denied summary judgment.

Discharge/Dischargeability, Published No

Judgment and Memorandum Opinion: (1) denying Plaintiff's Motion for Sanctions for discovery violations under Federal Rule of Civil Procedure 37; (2) declining to sanction Defendant and Defendant's counsel under Federal Rule of Bankruptcy Procedure 9011 sua sponte; and (3) finding insolvency and awarding a judgment of $97,600 in favor of Plaintiff against Defendant for preferential transfers under 11 U.S.C. § 547(b).

Preferences, Published No
In re Carter (16-50723) 01/20/2017
(Judge Lena M. James)

Debtor caused a vehicular collision while driving under the influence, killing the victim. At the time of the accident, two insurance policies covered the Debtor, and neither policy was fully able to settle with the decedent's estate. A lawsuit resulted in a judgment in favor of the estate, upon which the estate was unable to collect. The estate and the decedent's wife then filed an involuntary petition, placing the Debtor into Chapter 7 bankruptcy. An order for relief was entered, and special counsel was appointed to pursue potential first party claims against the insurer relating to their conduct in representing the Debtor prepetition. One of the insurance carriers moved to dismiss the case, asserting that the case had been filed in bad faith as an attempt to bring third party claims against the carriers, which is not allowed under North Carolina law. The court determined that, as no adversary proceeding had yet been filed, and as the carrier was not otherwise parties in interest, it lacked standing to make a motion to dismiss. Further, even if the carrier had standing, the types of claims contemplated by the Trustee would have alone been insufficient for a finding of bad faith. Motion denied.

Standing, Published No
In re Griffin 01/04/2017
(Judge Benjamin A. Kahn)

Debtor executed an agreement with a creditor to reaffirm a debt on a 2016 Chevrolet Equinox in the amount of $34,016.49. The vehicle had a retail value according to NADA of $20,550.00. The proposed monthly payments were to be approximately $600.00 of Debtor's combined monthly income of approximately $1,800.00. Debtor's schedules, including the proposed reaffirmation agreement, displayed a negative net monthly income of $337.20. Debtor provided no substantive explanation in support of reaffirmation regarding his ability to stay current on his obligations, aside from essentially "spending less." The requisite certification to be signed by counsel for debtors in support of reaffirmation agreements was signed in the name of counsel with whom Debtor testified he had never spoken. Having serious concerns about the affidavit signed by counsel, the Court ordered Debtor's counsel to appear and show cause as to why the declaration in support of the reaffirmation agreement should not be stricken, the reaffirmation agreement disapproved, and why sanctions should not be imposed for violation of Bankruptcy Rule 9011.

Reaffirmation, Published Yes
In re Daniel (16-80216) 12/09/2016
(Judge Lena M. James)

Prior to filing, the Debtor failed to pay his HOA dues, a foreclosure sale was completed on Debtor's residence, and forced sheriff's eviction was scheduled. The day before the scheduled eviction, the debtor purchased a new vehicle on credit in the morning to avoid a higher interest rate in bankruptcy, and then filed his Chapter 13 case later in the afternoon. Debtor then sought to use a fraudulent transfer adversary proceeding to claw back his house from the purchaser from the completed sale. Debtor was unable to confirm a plan due to bad faith, and the Trustee moved for dismissal for inability to confirm a plan. In granting the Motion, the court ruled that Debtor had abused the provisions, purpose, and spirit of the Bankruptcy Code, and no proposable plan could overcome a lack of eligibility for plan confirmation due to those abuses.

Dismissal, Published No

Debtors sought to reopen their Chapter 13 after completing their plan and receiving their discharge almost three years prior, to challenge the validity of their mortgagor's Deed of Trust. During the case, the Debtors never objected to the mortgagor's proof of claim, the mortgage was paid through the plan, and the Debtors relied on the mortgage to lien strip a junior mortgage. Since the plan was closed, the mortgagor has made several attempts at foreclosure, leading to substantial state and federal litigation and administrative actions. The court ruled that the mortgagor would be prejudiced by reopening the case, that laches applied in precluding the reopening of the case, and that state court was the appropriate forum to address the Debtors' claims. Motion denied.

Reopenings, Published No

The Court denied the Bankruptcy Administrator's request to dismiss case with a permanent bar from refiling.  The Court nevertheless found that section 349 grants authority to bar a refiling for a period exceeding 180 days.  In light of the Debtor's history as a serial filer, her violation of prior orders of the Court, and her submission of false evidence to the Court (forged credit counseling certificate), the Court dismissed the Debtor's case with a one year bar from refiling a Chapter 13 petition.

Dismissal, Published No
In re Lev 12/01/2016
(Judge Benjamin A. Kahn)

Motion by trustee sought turnover of certain severance payments the Debtor had received and was continuing to receive post-petition.  The Debtor received these payments as part of a severance agreement entered into pre-petition.  Debtor argued that the payments received post-petition should not be property of the estate and were akin to wages or salary that could be excluded from the estate pursuant to Section 541(a)(6).  The Court found that the severance payments were property of the estate because they were sufficiently rooted in the pre-petition past and that the services performed to become entitled to these payments had been substantially, if not fully, rendered pre-petition.  Debtor was therefore ordered to turnover any severance proceeds to the trustee.

Property of the Estate, Published No

Debtor sought reconsideration of the order dismissing her Chapter 13 case with prejudice and requested the court to set aside dismissal or amend the order to remove the 180-day bar from refiling. The court found that the Debtor did not satisfy the requirements of Rule 60(b)(6), and did not establish grounds for the Plan to be modified to remove the 180 day bar.  Concerns regarding a mortgage and escrow payment should have been met with a claim objection rather than a decision to cease plan payments. Motion Denied.

Reconsider/Amend, Published No

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