The Court considered cross motions for summary judgment from the Plaintiffs, City of Winston-Salem and Forsyth County, and the Defendant, Northwest Child Development Centers, Inc. The dispute prompting the adversary proceeding involved the Defendant’s use of real property conveyed to it by the Plaintiffs for a certain use, i.e., for “not-for-profit child day care and related purposes.” The property’s deed included this use restriction and provided the Plaintiffs the opportunity to reclaim the property in the event of a non-conforming use. The Plaintiffs filed the adversary proceeding after the Defendant ceased operation of its daycare facility at that location and limited its use of the property to storage of childcare equipment and technology.
     The Court considered the range of permissible uses granted in the deed and whether storage of childcare equipment and technology was included in the definition of “not-for-profit child day care and related purposes.” With guidance from North Carolina caselaw and through application of traditional tools of interpretation, the Court determined the use restriction to be unambiguous and that the Defendant’s use of the property for storage was not within the scope of “related purposes.” The Defendant’s use of the property as a storage location for its sole remaining childcare facility, which was located in a different county, was at best a tangential or incidental connection to “not-for-profit child day care” and was not a sufficiently “related purpose” to satisfy the deed’s use restriction.
     Moreover, even if the phrase “related purposes” was ambiguous and the circumstances surrounding the transaction favored the Defendant’s view of the parties’ intention, the Court could not adopt a construction that places the parties’ intention in direct conflict with a fixed rule of law, specifically N.C. Gen. Stat. § 160A-279(a), which required that the Plaintiffs attach conditions to the deed to assure the property was used for a public purpose. Because use of the property for storage was not a public use for purposes of § 160A-279(a), the Court could not adopt the Defendant’s interpretation of the use restriction.
     Accordingly, the Court found there were no material facts in dispute and the Plaintiffs were entitled to judgment as a matter of law.

 
     Creditors filed a joint motion requesting a stay of further proceedings in the bankruptcy case, pursuant to Federal Bankruptcy Rule 8007, until a determination is made on the appeal of the order sustaining an objection to the Creditors’ claims and denying the Creditors’ motion to allow late-filed claims. In that underlying order, the Court had determined that the factors necessary to a finding of excusable neglect, see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), did not weigh in favor of the Creditors. Critically, the Court found that the Creditors failed to provide a valid explanation for why the claims were filed late and why the delay was not entirely within the Creditors’ control, which numerous courts, including the Fourth Circuit Court of Appeals, have found to be the most critical factor in determining excusable neglect.
     To determine whether the Creditors’ request for a stay pending appeal was warranted, the Court employed the traditional four-factor test set forth by the Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009). Although a balancing approach is applied to the factors, the first two factors—likelihood of success on the merits and irreparable injury absent a stay—are the most important in assessing the motion.
     The Court found the Creditors fell well short of the required “strong showing” of likelihood of success on appeal. In the motion for stay pending appeal, the Creditors did not offer any clear answer for why the claims were filed five days after the bar deadline and did not attempt to demonstrate that the delay was outside of their control. The single, out-of-circuit case relied upon by the Creditors for the argument that excusable neglect can still be found where no reason for the delay is proffered runs directly contrary to Fourth Circuit jurisprudence and emerging excusable neglect caselaw. The Court also found the Creditors’ asserted irreparable injury —lost time and costs associated with pursuing disgorgement actions — fails to satisfy the second factor because the Fourth Circuit has emphasized that irreparable injury must be more than monetary loss. Regarding the third factor, the Court found that further delaying plan payments to creditors, which were the product of extensive negotiations, would constitute substantial harm if the stay were granted. On the final factor, the Court found that the public interest in the issuance of a stay was minimal or non-existent and, in any event, tilted more toward denial of the Creditors’ motion.
     Having found that all four factors weighed against the Creditors, the Court denied the motion for stay pending appeal.
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* The U.S. District Court for the Middle District of North Carolina affirmed the underlying decision sustaining the objection to claims and denying the Creditors' motion to allow late-filed claims. See AAEB5 Fund 17, LLC v. Welington (In re Wellington), No. 1:21CV74, 2021 U.S. Dist. LEXIS 172956, 2021 WL 4147776 (M.D.N.C. Sept. 13, 2021)

Plaintiff filed a complaint containing three claims for relief: (1) violation of the discharge injunction, (2) violation of the automatic stay, and (3) violation of Bankruptcy Rule 3002.1(c). Defendant CitiMortgage Inc., a former holder/servicer of Plaintiff’s mortgage, requested dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted on all three causes of action. The Plaintiff alleged that the Defendant violated the § 524(i) discharge injunction with misapplication of payments and an inflated account payoff balance. Following In re Williams, 612 B.R. 682 (Bankr. M.D.N.C. 2020), the Court determined that the Plaintiff’s allegations that CitiMortgage transferred Plaintiff’s mortgage account with an inflated balance due to misapplied payments is sufficient to constitute an act to collect for the purposes of withstanding a motion to dismiss under Rule 12(b)(6). The Court also found that the Plaintiff plausibly pled the elements required for violation of the automatic stay under § 362(k) and for violation of Bankruptcy Rule 3002.1(c).
 

 
     The Plaintiff-Trustee requested that the Court issue an order (1) requiring the Defendant insurance company to turn over a Microsoft Word Document compiled by the Defendant’s employee, (2) allowing the Plaintiff to reopen the deposition of said employee, and (3) awarding reasonable costs and attorney’s fees to Plaintiff pursuant to Federal Bankruptcy Rule 7037(a)(5).
     The Court first found the Defendant did not waive any privilege or work product claims simply through the presence of the Word Document at the employee’s deposition. Looking to Federal Rule of Evidence 612, the Court found the Plaintiff did not meet his burden of establishing that the employee used the Word Document to refresh his memory at, or in advance of, the deposition.
     Second, the Court found that the Defendant did not waive its claims of privilege and work product by its delayed inclusion of the Word Document on a supplemental privilege log. The Court stated that there was no indication of an unjustified delay, inexcusable conduct, or bad faith to warrant a waiver of any privilege or work product claims.
     Third, the Court rejected the Plaintiff’s assertion that the entirety of the Word Document contained discoverable communications within the tripartite relationship. The Court found that attorney-client privilege protected the Defendant’s communications with its in-house counsel, as well as outside counsel retained solely to represent the Defendant, but that the privilege does not extend to circumstances where the Defendant’s counsel was joined in conversations by the state-court attorneys retained to defend the insured. Accordingly, the Court ordered turnover of the portion of the Word Document that was unprotected by privilege or work product claims and allowed the Plaintiff to reopen the employee’s deposition.
     Lastly, the Court found the circumstances prompting the Plaintiff to file the motion supported the awarding of reasonable expenses under Rule 7037(a)(5).