- 11 U.S.C.
In re Aulicino
Dec
02
2008
Ruling
Tenancy by the entireties interest in property prevented trustee from claiming interest.
Procedural posture
Debtor filed a petition under chapter 7 of the Bankruptcy Code, and movant, the debtor's former spouse, filed a motion for relief from the automatic stay that was imposed when the debtor declared bankruptcy. The chapter 7 trustee opposed the motion, claiming that he had an interest under 11 U.S.C.S. § 544(a)(3) in a house the debtor and her former spouse owned as tenants by the entireties that trumped the former spouse's interest.
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- 11 U.S.C.
In re Sickels
Nov
20
2008
Ruling
Objection to recission of reaffirmation agreement on grounds of mutual mistake overruled.
Procedural posture
When debtors, a married couple who had filed a chapter 7, attempted to rescind a reaffirmation agreement that they had executed with a credit union that held an unrecorded mortgage on their residence, on the ground of mutual mistake, the credit union objected. At issue, inter alia, was whether the statutory period for rescission under 11 U.S.C.S. § 524(c) had expired.
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- 11 U.S.C.
Barnhills Buffets Inc. v. SCS Gen. Contrs. Inc. (In re Barnhills Buffets Inc.)
Nov
19
2008
Ruling
Contractor's equitable lien against debtor's leasehold interest in properties terminated on petition date.
Procedural posture
Defendant, a secured creditor of a chapter 7 debtor, and cross-defendant, a company that was alleged to be the debtor's alter ego, filed motions for summary judgment in defendant and counterplaintiff contractor's action, alleging that it had equitable liens against the leasehold interests of the debtor and the fee interests of the lessors, and that the company should be held jointly and severally liable with the debtor on the contractor's claims.
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- 11 U.S.C.
Argent Mortg. Co. LLC v. Drown (In re Bunn)
Sep
30
2008
Ruling
Mortgage with sufficient property identification to create constructive notice under state law was not avoidable.
Procedural posture
Defendant mortgage creditor appealed from an order of the bankruptcy court for the Southern District of Ohio, that held that the plaintiff, the chapter 7 trustee, could avoid the debtor's mortgage under 11 U.S.C.S. § 544(a)(3), because the face of the mortgage contained a street address and a parcel number, but did not contain a legal description of the debtor's residential property.
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- 11 U.S.C.
Noland v. Wells Fargo Bank (In re Williams)
Sep
29
2008
Ruling
Bank's failure to record assignment of mortgage was not grounds for avoidance.
Procedural posture
Debtors filed a petition under chapter 7 of the Bankruptcy Code, and plaintiff trustee was appointed to represent the bankruptcy estate. The trustee filed an adversary proceeding against defendants, a mortgage company and a bank, seeking a judgment avoiding a mortgage lien the bank held on the debtors' property, pursuant to 11 U.S.C.S. § 544(a)(3), disallowance of the bank's claim against the estate. The bank filed a motion to dismiss.
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:
- 11 U.S.C.
Ridings at Brandywine Assocs. LP v. Citizens Bank
Aug
29
2008
Ruling
Debtor who filed after mortgage was recorded could not avoid the mortgage as a bona fide purchaser for value.
Procedural posture
Plaintiff chapter 11 debtor filed an adversary proceeding against defendant bank, seeking a judgment declaring that a mortgage the debtor gave the bank before the debtor declared bankruptcy was null and void under 21 Pa. Stat. Ann. § 444, and reclassifying the mortgage as an unsecured claim, and that it could avoid the bank's mortgage under 11 U.S.C.S. § 544(a)(3). The bankruptcy court dismissed the action, and the debtor appealed.
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- 11 U.S.C.
Boling v. Boling (In re Boling)
Jul
24
2008
Ruling
Usurious and unenforceable loan extended but not recorded prior to petition date was deemed perfected and could not be avoided.
Procedural posture
Defendants, debtors in two separate chapter 7 filings, sought a determination that a loan from plaintiff lender was usurious and unenforceable under Fla. Stat. ch. 687. The lender sought, in two separate adversary proceedings, a determination that any debt due to him was not dischargeable, and sought a modification of the automatic stay to obtain nunc pro tunc recording of his mortgages. The trustee sought to avoid the loan obligation.
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:
- 11 U.S.C.
Riley v. Sullivan (In re Sullivan)
May
09
2008
Ruling
Mortgage that remained unrecorded on petition date could be avoided.
Procedural posture
Plaintiff trustee filed an adversary proceeding against defendants, a chapter 7 debtor and a mortgagee, seeking a judgment determining the extent of defendants' interests in real property. The U.S. Bankruptcy Court for the District of Massachusetts found that the trustee could avoid a mortgage the debtor gave the mortgagee, pursuant to 11 U.S.C.S. § 544(a), that the mortgage became part of the debtor's bankruptcy estate. The debtor appealed.
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Judge or Jurisdiction information not available
- 11 U.S.C.
Burden v. Branch Banking & Trust Co. (In re Potter)
Mar
05
2008
Ruling
Improperly recorded mortgage avoided as not providing notice to trustee as bona fide purchaser.
Procedural posture
Defendant debtors filed for relief under chapter 13 of the Bankruptcy Code. Plaintiff trustee filed an adversary proceeding to avoid a mortgage lien held by defendant creditor, pursuant to 11 U.S.C.S. § 544(a). The trustee and the creditor filed motions for summary judgment.
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- 11 U.S.C.
Accredited Home Lenders Inc. v. Lauver (In re Lauver)
Jul
24
2007
Ruling
Erroneous recording of mortgage satisfaction did not release mortgage that was listed on debtor's schedules.
Procedural posture
Plaintiff creditor sought to have stricken from the record a mortgage satisfaction piece indicating that a mortgage that defendant chapter 7 debtors granted it was satisfied.
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