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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

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

Service, Published No
In re Casey (Case No. 12-50074) 02/19/2014
(Judge Catharine R. Aron)

The Court denied confirmation of the debtor's proposed plan on the grounds that a lienholder's rights may not be modified with respect to a non-debtor's interest in a property held in tenancy by the entirety.

Chapter 13 Plans, Published No

The Court denied the Trustee's motion, pursuant to 11 U.S.C. §363(f)(4), for private sale of realty and to transfer liens to proceeds of sale. The Court found that because the applicable statute of limitations prevented the Trustee from bringing an adversary proceeding to avoid the lien, the Trustee could not show that the lien was "in bona fide dispute." Moreover, the Trustee's motion was procedurally inadequate. 

Strong Arm Powers, Published Yes

The Court granted defendant's motion to dismiss, finding that plaintiff's claim that defendant failed to substantially comply with N.C. Gen. Stat. § 161-22(h) was not facially plausible.  

Lien Avoidance, Published Yes

The Court granted in part and denied in part defendants' motion to dismiss the adversary proceeding.  In denying certain counts of the motion to dismiss, the Court relied on the doctrines of res judicata and judicially estoppel.

UCC & other State Law Issues, Published No

Court granted defendant's motion for summary judgment on plaintiff's claims for fraud, slander, and unfair and deceptive trade practices. Moreover, court held the plaintiff was judicially estopped from bringing the action.

Summary Judgment, Published No
In re Gore (Case No. 12-81724) 09/23/2013
(Judge Catharine R. Aron)

Court denied Debtor's objection to the claim of Horton Hills Homeowners Association. 

Claims, Published Yes

Debtor sought to avoid a judicial lien.  The Court referred to North Carolina law to determine whether to classify the mobile home as real or personal property.  Afterwards, the Court determined applicable exemptions and determined that the Debtor was entitled to partially avoid the judgment lien.

Lien Avoidance, Published No

After determining that the individuals are eligible to be Debtors pursuant to 11 U.S.C. 109(g) and adopting the casual connection approach, the Court granted the Debtors' Motion to Extend the Automatic Stay.

Eligibility, Published No


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