Fourth Circuit Note: The Fourth Circuit has issued no bankruptcy appellate decisions in August 2012 other than per curiam opinions affirming the district court without discussion (see first entry). Tyler v. Ownit Mortg. Loan Trust, 474 F. App x 893 (4th Cir. Aug. 2, 2012) The Fourth Circuit affirmed, per curiam, the U.S. District Court for the Eastern District of Virginia s decision affirming the Bankruptcy Court s order that the Chapter 7 Trustee could not avoid a conveyance made via a pre petition foreclosure sale. The District Court s opinion, available at 460 B.R. 458 (E.D. Va. 2011), reasoned that even if the original deed of trust pursuant to which the foreclosure was conducted was improperly acknowledged, it was valid between the parties. Thus, the foreclosure deed transferred title to the buyer at the foreclosure sale, and the Trustee could not avoid the transfer as a hypothetical lien creditor pursuant to 11 U.S.C. 544(a), because the hypothetical lien could not attach to property to which the Debtor did not have title as of the petition date. Gorman v. Birts, Civil Action No. 1:12cv427 (LMB/TCB), 2012 U.S. Dist. LEXIS 107811 (E.D. Va. Aug. 1, 2012) The U.S. District Court for the Eastern District of Virginia reversed the decision of the Bankruptcy Court confirming a Chapter 13 Debtor s Plan over the Chapter 13 Trustee s objection. The Trustee objected to the Debtor paying her student loan payments outside the plan and argued that these payments constituted unfair discrimination under 11 U.S.C. 1322(b)(1). The District Court agreed with the Bankruptcy Court that the unfair discrimination standard applied to long term payments. The court also approved of the Bankruptcy Court s multi factor test, based on two tests used in the Eighth Circuit and the Western District of New York, for determining whether the discrimination was unfair. The test considered (1) whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; and (4) the difference between what the creditors discriminated against will receive as the plan is proposed, and the amount they would receive if there was no separate classification. The District Court nevertheless found that the Bankruptcy Court s application of the test was clearly erroneous. The court found that the non dischargeability of student loan debt alone was insufficient to provide a reasonable basis for the discrimination, despite strong policy considerations favoring student loan debt. The District Court reasoned that debt was not entitled to priority and found that there were no other considerations, such as a necessity to pay the debt in order to retain income to fund a plan or the possibility of loan forgiveness, to justify the discriminatory treatment. Applying the second factor, the court found that the Debtor was able to complete a plan paying the student loans pro rata and that such a plan would be more favorable to her than converting to a Chapter 7 liquidation. Considering the third factor, the court found that the Debtor s failure to contribute her entire disposable income to the Plan was evidence of bad faith. Finally, the distribution to other unsecured creditors would more than double if the student loans were included in the plan. Even though the actual dollar amount was relatively small, the District Court found that the proportional difference weighted against confirmation. Based on these factors, the District Court found the discrimination unfair and reversed the Bankruptcy Court.
Alexander Props., L.L.C. v. Patapsco Bank, F. Supp. 2d, Civil No. JKB 11 3056, 2012 WL 3195144 (D. Md. Aug. 6, 2012) The U.S. District Court for the District of Maryland affirmed the Bankruptcy Court s rejection of a Chapter 11 Debtor s disclosure statement. The Debtor owned a strip mall that secured a loan made by a Bank to the Debtor s affiliate. The loan was also secured by a guaranty from the Debtor and various individuals and a depository account belonging to the Debtor s Affiliate held by the Bank. The Affiliate defaulted on the loan, and the Bank obtained confessed judgments against the Debtor and the other guarantors. Prior to the Debtor s petition, the Bank offset the amount owed on the loan against the remaining amounts in the depository account. The Debtor claimed, as part of its disclosure, that the Bankruptcy Court could order a reversal of the setoff and vacate the confessed judgments against the guarantors. The Bankruptcy Court and District Court rejected this argument. First, the depository account was property of the Affiliate, a non debtor. Second, 11 U.S.C. 553 explicitly preserves the right to setoff and the Debtor made no argument that any exception was applicable. The court rejected the Debtor s argument that reversal of the setoff was necessary to preserve its right under 11 U.S.C. 1123(a)(5)(G) to cure defaults. Third, the court found no basis to exercise its equitable power to deny setoff because the setoff was completed pre petition and the Debtor presented no compelling circumstances to justify denial of setoff. Finally, the court found no authority to affect the rights of non debtors by vacating the confessed judgments of guarantors where such interference was not necessary to prevent indirect liability to the Debtor or necessary to confirmation of the plan. Houey v. Carolina First Bank, B.R., Civil No. 1:11cv225, 2012 WL 3278795 (W.D.N.C. Aug. 10, 2012) Homeowners brought a pro se action against a Bank to prevent foreclosure of their home and subsequently filed a Chapter 13 case. The U.S. District Court for the Western District of North Carolina, presiding over the action against the Bank, held that the automatic stay did not prevent continuation of actions by the Debtors where the defendant Bank did not assert counterclaims but did present defenses that, if successful, would result in the loss of an allegedly valuable claim asserted by the Debtors. The District Court granted the Bank s motion to dismiss ten counts of the complaint including fraud, RICO, and infliction of emotional distress claims. As to the remaining eight counts, including statutory claims such as violation of the Fair Credit Reporting Act and several North Carolina statutes, the court noted uncertainty as to whether the Debtors or the Chapter 13 Trustee had standing to bring such claims. The court directed that a copy of the order be provided to the Chapter 13 Trustee to respond with his position on standing and whether he would pursue the claims. The court denied the Debtors motions for injunctive relief as moot because the Bank had already completed a foreclosure sale and because the Debtors had failed to appeal a state court order authorizing the foreclosure sale. The Debtors daughter attempted to intervene based on a quitclaim deed executed to her after the state court order authorizing foreclosure but before the foreclosure sale. The court held that the daughter had no right to intervene because the deed
transferred no right in the property to her and that permissive intervention would be futile and prejudicial due to delay. Nawroz v. Wells Fargo Advisors, LLC, Civil No. 1:12 cv 216, 2012 WL 3522660 (E.D. Va. Aug. 12, 2012). The U.S. District Court for the Eastern District of Virginia affirmed the Bankruptcy Court s decision that a Bank s claim against Debtor was non dischargeable based on the willful and malicious injury provision of 11 U.S.C. 523(a)(6). The Bank mistakenly doubled the Debtor s account balance. The Debtor subsequently transferred funds to another bank and wrote a check that would not have cleared but for the erroneous addition of funds. The Bank obtained a default judgment against the Debtor and sought to have the debt declared non dischargeable. The Bankruptcy Court found that the facts were sufficient to show that the Debtor knowingly exercised dominion over property not belonging to her, and thus acted willfully and maliciously. The District Court held that the Bankruptcy Court s credibility determinations were not clearly erroneous and that the Bankruptcy Court properly applied the standards for non dischargeability set forth by the Fourth Circuit in First Nat l Bank of Md. v. Stanley (In re Stanley), 66 F.3d 664 (4th Cir. 1995). Nat l Capital Mgmt., LLC v. Gammage Lewis, No. 5:10 CV 468 F, 2012 WL 3561785 (E.D.N.C. Aug. 14, 2012). The U.S. District Court for the Eastern District of North Carolina affirmed the Bankruptcy Court s decision that a Creditor s second lien on a Chapter 13 Debtor s car was invalid pursuant to 11 U.S.C. 506(d). The Creditor filed a proof of claim in the case, and the Trustee filed an objection because Creditor failed to attach documentation showing it had duly perfected its security interest in the car. The Creditor failed to respond and the claim was disallowed as a secured claim and allowed as a general unsecured claim. No distributions were made on unsecured claims, and the Debtor was granted a discharge. The Creditor subsequently repossessed the car. The Creditor argued that the disallowance of its claim as a secured claim was insufficient to invalidate the lien without some additional affirmative action. The District Court held that pursuant to 11 U.S.C. 506(d), the Creditor s lien was void because it secured a claim that was not an allowed secured claim. The District Court further held that no additional action was necessary because pursuant to Rule 7001(2), the claim objection process was sufficient because it gave clear notice of the intent to invalidate the lien. Beckhart v. Nationwide Trustee Servs., Inc., No. 7:11 CV 231 D, 2012 WL 3648105 (E.D.N.C. Aug. 21, 2012). The U.S. District Court for the Eastern District of North Carolina affirmed the Bankruptcy Court s grant of summary judgment to the defendants, a mortgage company and the trustee under deed of trust, on a Chapter 11 Debtors complaint to invalidate Deed of Trust. Only one of Debtors, the husband, signed the underlying Note for mortgage loan. The Deed of Trust incorrectly identified
both husband and wife as signatories on the Note and failed to include the date of the Note despite listing a blank for the date. Debtors argued that these errors made the Deed of Trust invalid because it failed to sufficiently identify the debt that it secured. The Bankruptcy Court disagreed and the District Court affirmed, finding that the Deed of Trust contained numerous references sufficient to identify the Note including, the amount of the loan, the identity of the lender, the schedule of payments, and two identifying loan numbers. Westfield Ins. Co. v. Cazon, LLC, Civil Action No. 2:12 cv 00585, 2012 WL 3637396 (S.D. W.Va. Aug. 22, 2012) The U.S. District Court for the Southern District of West Virginia found that the automatic stay prevented an Insurer s declaratory judgment action to continue against a Chapter 7 Debtor who was seeking third party recovery under policies issued by the Insurer. The Insurer issued policies to various Insureds who were sued by the Debtor for claims arising out of the lease of restaurant space. The Insurer brought a declaratory judgment action against the Debtor and its Insureds seeking, inter alia, a declaration of no coverage and dismissal from the Debtors actions against the Insureds. The District Court dismissed the Insurer s claim against the Debtor pursuant to the automatic stay, finding that it was clearly an action against the debtor that arose pre petition. The claims against the Insureds were not dismissed because the stay only applied to actions against a debtor. While the Debtor was a third party beneficiary of the Insureds policies, the Debtor was not the real party defendant pursuant to the exception established in A.H. Robbins v. Piccinin, 788 F.2d 944 (4th Cir. 1986). Blackburn Pre Owned Auto, LLC v. Johns (In re See), Civil Action No. 2:10 cv 01066, 2012 WL 3637390 (S.D. W.Va. Aug. 22, 2012). On appeal by a Creditor auto dealer, the U.S. District Court for the Southern District of West Virginia affirmed the decision of the Bankruptcy Court awarding summary judgment to a Chapter 7 Trustee on the Trustee s claim that the Creditor s perfection of a security interest in and receipt of payments for the Debtor s automobile were avoidable preferences. The Bankruptcy Court awarded summary judgment to the Trustee and then vacated the order, stating that it would hold a hearing on a subsequent motion after notice. After the car was destroyed in a fire, the Trustee filed a second motion for summary judgment concerning the preference and addressing issues as to the insurance proceeds, and the Creditor failed to respond. The District Court rejected the Creditor s argument that the transfers were in the ordinary course of business. The court held that the parties had no sustained business relationship and a single consumer transaction was not in the ordinary course of business for the purposes of 11 U.S.C. 547(c)(2). Further, the District Court held that the Bankruptcy Court did not err by failing to hold a hearing on a second summary judgment motion, despite its statement that it would hold such a hearing when vacating the first summary judgment motion by the Trustee. The District Court found no rule requiring such a hearing, especially in light of the Creditor s failure to respond to the summary judgment motion.
Submitted by: Andrew K. Rudiger Kaufman & Canoles, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510 1665 T (757) 624.3120 F (757) 624.3169 akrudiger@kaufcan.com