Bankruptcy « South Carolina Lawyers Weekly

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Bankruptcy – Lien-Stripping Approved in Chapter 20 Cases

By S.C. Lawyers Weekly staff
Published: May 15,2013

Branigan v. TD Bank NA In a “Chapter 20” bankruptcy case – a Chapter 13 bankruptcy filed within four years of a Chapter 7 discharge – there is no per se rule barring lien-stripping, and the 4th Circuit affirms an order stripping off liens secured by collateral with no value to support them in this suit involving debtors’ residences

Bankruptcy – Chapter 9 – Confirmed Plan – Amendment – Substitute Buyer – Settlement Agreement — Appeals

By S.C. Lawyers Weekly staff
Published: April 29,2013

In re Barnwell County Hospital While chapter 9 incorporates much of chapter 11 through 11 U.S.C. § 901, it does not incorporate § 1127(b), which deals with modifications of chapter 11 plans after confirmation.

Bankruptcy – Motion to Dismiss – Bad Faith – Mortgages – Foreclosure

By S.C. Lawyers Weekly staff
Published: April 29,2013

In re Johnson This is the debtor’s fifth bankruptcy filing in six years, he admitted to using the bankruptcy filings to prevent the foreclosure sale of his home, he has failed to file the paperwork required in this case as well as in two previously dismissed cases, he has made no mortgage payments since 2007, and he has no regular source of income to fund a plan.

Bankruptcy – Trustee’s Adversary Proceeding — Equitable Subrogation – Agency

By S.C. Lawyers Weekly staff
Published: April 24,2013

Campbell v. Taylor (In re French Quarter Group, LLC Although the plaintiff-trustee cites documents suggesting that defendant Brian Taylor may have been an agent of defendant Regency Holdings Group, LLC, he does not refer to any documents clearly showing Brian Taylor was an agent of defendant Spinnaker Development Corp.

Bankruptcy – Lien Priority – Real Property – Mortgages – ‘All Obligations’

By S.C. Lawyers Weekly staff
Published: April 10,2013

Davis v. SCBT, N.A. Where the debtor’s 2005 and 2008 mortgages in favor of the defendant-bank secure, respectively, future advances and “all obligations Mortgagor owes to Lender, which now exist or may later arise …”, the mortgages provided constructive notice that they secured debts such as a 2007 note from the debtor to the bank.

Bankruptcy Medicare — Participating Supplier – Overpayments – Recoupment vs. Setoff – First Impression

By S.C. Lawyers Weekly staff
Published: April 1,2013

Fischbach v. Centers for Medicare & Medicaid Services Considering the Medicare system of estimated payments and later account reconciliations, the court determines that, when a physician has been overpaid by Medicare, the government’s withholding of payment for subsequent services is recoupment rather than setoff. Therefore, the withholding of payment is permitted under the Bankruptcy Code.

Bankruptcy – Dismissal – Delay – Feasibility – Bad Faith

By S.C. Lawyers Weekly staff
Published: March 18,2013

In re Strickland Where (1) the debtor has twice filed amended plans less than seven days before a confirmation hearing; (2) the debtor waited until the day of the first confirmation hearing – over five months into the case – to file motions to value collateral that must be valued in order for the debtor’s proposed plan to be confirmable; (3) the first motion to value failed to list one of the debtor’s judgment lien holders, thereby necessitating an amended motion to value; (4) more than eight months into this case, the most recent proposed plan clearly cannot be confirmed because it uses values less than those to which the debtor and creditor Horry County State Bank have agreed; and (5) valuations are still in question because judgment lien holders may object to the valuation of their security interests at zero, dismissal is appropriate under 11 U.S.C. § 1208(c)(1) for unreasonable delay

Bankruptcy – Payment to Surety Not ‘Preference’

By S.C. Lawyers Weekly staff
Published: March 15,2013

In re: ESA Environmental Specialists Inc. A $1.375 million transfer by debtor, an environmental engineering firm, to a Miller Act surety within 90 days of debtor’s bankruptcy filing was not an avoidable preference under 11 U.S.C. § 547(b) because it was a transfer for new value, and the 4th Circuit affirms summary judgment for the insurance company in this suit filed by the bankruptcy trustee.

Bankruptcy – Automatic Stay – Debtor’s Guarantor – Sole Member

By S.C. Lawyers Weekly staff
Published: March 14,2013

CresCom Bank v. Terry Even though the defendant-guarantor is the sole member of the defendant-debtor, the circumstances are not unusual enough to convince this court to stay proceedings against the guarantor.

Bankruptcy – Exemptions – Homestead & Wildcard – Fire Insurance Proceeds – Unclean Hands

By S.C. Lawyers Weekly staff
Published: March 6,2013

In re Riley In the debtor’s third bankruptcy in seven years, he failed to adequately account for $349,438.74 in fire insurance proceeds, and he failed to accurately disclose his assets.