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.

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.

Conversion, Published Yes

Motion to dismiss (Rule 12(b)(6)) denied in part, granted in part.  Denied as to objection to claim, breach of contract, breach of duty of good faith and fair dealing, and alternative claims in defense and recoupment.  Granted as to breach of fiduciary duty, constructive fraud, violation of N.C. Gen. Stat. Section 75-1.1, fraud, negligent misrepresentation, and violation of N.C. Gen. Stat. Section 75-50 et seq.

UCC & other State Law Issues, Published Yes

Trustee's motion to sell free and clear of liens under section 363(f) granted.

363(f) Sales, Published No

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.

Discovery, Published No

Trustee's motion to except asset from abandonment upon closing of case denied.

Abandonment, Published No

Court disapproved of reaffirmation agreement, as Debtors failed to rebut presumption of undue hardship under 11 U.S.C. § 524(m)

Reaffirmation, Published No
In re Greco (Case No. 12-51497) 03/21/2014
(Judge Catharine R. Aron)

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.”

 

Claims, Published No

Determination that filing a proof of claim does not constitute unfair debt collection under the NCCAA.

UCC & other State Law Issues, Published No

Service upon corporation insufficient under Bankruptcy Rules 4003, 7004, and 9014.

Service, Published No

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.

Fees/Compensation, Published No

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