Order dismissing case filed during 180-day bar period with prejudice.
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Lena M. James
Objection to fee application of Debtors' counsel in individual Chapter 11 case overruled; interim compensation pursuant to Section 331 may be paid from property of the estate and is not required to be paid from non-exempt funds. Court will not wihhold authorization for disbursement of the interim compensation until confirmation of the plan.
Trustee's Objection to Debtor's Exemption of whole life insurance policy sustained.
The Court dismissed a pro se Chapter 11 Debtor's case where the Debtor filed the petition without counsel and failed to obtain counsel before the hearing on the Bankruptcy Administrator's Motion to Dismiss.
The Court overruled the Debtor's objection to claim. The Debtor executed a Confession of Judgment in favor of the Creditor, but the Confession of Judgment was not recorded pre-petition. While failure to record the Confession of Judgment rendered it unenforceable as a judgment under North Carolina law, the Creditor was still entitled to assert a general unsecured claim against the bankruptcy estate by filing a proof of claim to determine the Debtor's liability. The fact that the Confession of Judgment was not recorded does not affect the amount of the liability confessed therein.
The Court denied the Debtor's motion to impose automatic stay pursuant to Section 362(c)(4); there had not been a substantial change in the financial or personal affairs of the Debtor since the dismissal of the next most previous case, or any other reaon, to determine that the Chapter 13 case of the Debtor would be concluded with a confirmed plan that would be fully performed.
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.
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.
Determination that filing a proof of claim does not constitute unfair debt collection under the NCCAA.
Benjamin A. Kahn
Order denying motion to vacate order disallowing claim for improper service.