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.

The debtor filed a complaint seeking equitable review of a foreclosure sale conducted against the debtor's residence on the grounds that the foreclosure was inadequate and contained a material irregulairty.  The foreclosure sale resulted in a coveyance of  the debtor's residence to Bayview by credit bid.  The debtor alleged that the foreclosure, initiated and completed by a trustee on behalf of Bayview when Bayview was the holder of the note and deed of trust, was improper because the trustee did not obtain an order from the state court finding that Bayview was the property holder of the note and deed of trust.  Instead, the trustee relied upon a previous order issued to approve of the foreclosure at a time when Bayview's assignor was the holder of the note and deed of trust. The Court found that nothing in N.C. Gen. Stat. 45-21.1 et seq. prevented the assignment of the mortgage post-foreclosure hearing or requires the trustee or new holder of the note and deed of trust to re-initiate the foreclosure hearing upon receipt of the note. The debtor had notice of the original foreclosure initiated by the same trustee throughout the netire process, and the debtor's right to notice of foreclosure was not harmed by the subsequent transfer of the mortgage after the foreclosure hearing and before the foreclosure sale.  The proposed amendment to the complaint was denied as it was futile.

UCC & other State Law Issues, Published No
In re Rose (Case No. 14-51269) 04/06/2016
(Judge Catharine R. Aron)

Court overruled objection to claim on basis that creditor failed to comply with Rule 3001(c)(3)(B).  Court noted that failure to comply with the rule does not constitute sufficient cause to disallow a claim.

Claims, Published No

Decedent Chapter 7 Debtor's wife filed a motion, acting as personal representative of the probate estate, to avoid two judicial liens against the Debtor's real property that were not avoided during the bankruptcy. While courts have allowed lien avoidance nunc pro tunc by personal representatives, here the Debtor transferred the real property to entireties property prior to his death and discharge. Here, the property is now, and has always been, outside the probate estate. Thus, the wife lacks standing to reopen the case, as the property is not within the probate estate, and the judgment creditor has no claim against an asset of the estate or the estate itself. 

Reopenings, Published No

Court denied motion to approve settlement of section 707(a) action, noting that the agreement was not in the interest of any creditors other than the one party to the agreement and observing that a trial on the underlying motion would likely be brief.

Settlement Agreements, Published No

The Chapter 13 Trustee filed a motion to distribute funds held in reserve to a first mortgage holder.  The Trustee had been holding funds due to a mistaken satisfaction of the first mortgage lien.  The motion was denied without prejudice.

Claims, Published No

Claimants in this matter were employees of the Debtor working as salemen.  During the course of the bankruptcy, debtor had sold substantially all of its assets to a purchaser in exchange for a lump payment.  After the closing of the sale, the claimants each filed a proof of claim asserting claims for commissions based on sales made to customers that were in varying levels of completion, but that had not been collected upon by the debtor.  Afterward, claimants filed a joint motion for allowance of administrative expense claims pursuant to 11 U.S.C. § 503(b)(1)(A), 503(b)(1)(A)(i) and 507(b)(2).  This motion alleged that claimants were entitled to an administrative claim for the work they had done and, alternatively, if they were not contractually entitled to this, that they should be compensated under a theory of quantum meruit.  The creditors’ committee and debtor both moved to dismiss this claim.  The Court held that (1) Claimants’ express contracts provided that commissions would be paid when the debtor collected on the sales, debtor did not collect on the sales and so the claimants were not entitled to payment for them; and (2) claimants could not collect on a theory of quantum meruit because there was an express contract that governed the relationship.

Claims, Published No

Court determined secured value of claim, after (1) determining that the claim was in fact secured (security interest was perfected by possession); (2) finding that the security interest could not be avoided under sections 544 and 541; and (3) reducing the claim for secured creditor's failure to rebut presumption that damages to the collateral were the result of his negligence while in possession of the collateral.

UCC & other State Law Issues, Published Yes

Denial of debtor's discharge under sections 727(a)(2)(A) and 727(a)(4)(A).

Discharge/Dischargeability, Published Yes

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.

Summary Judgment, Published No

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. 

Chapter 13 Plans, Published No


Subscribe to Opinions