Broken Chain of Title and Disallowed Claims

Posted by NCBRC - September 7th, 2015

A debt-buyer was out of luck when he could not establish the chain of title between himself and the original lender. Marx v. DeConne (In re DeConne), No. 15-175 (S.D. N.Y. Sept. 2, 2015). Read More

Debtor Lacks Standing to Bring Adversary Complaint Based on Pre-Petition Claims

Posted by NCBRC - March 23rd, 2015

The debtor’s pre-petition TILA claims were part of his chapter 7 bankruptcy estate and, therefore, only the trustee had standing to bring those claims while the bankruptcy was pending. Bernstein v. Wells Fargo (In re Bernstein), No. 14-65054, Adv. Proc. 14-5306 (Bankr. N.D. Ga. Jan. 2, 2015). Read More

Court Removes Wells Fargo’s Brass Knuckles

Posted by NCBRC - December 17th, 2014

Like a ray of sunshine through a storm of obfuscation and false compliance, the Bankruptcy Court for the Southern District of New York found that Wells Fargo’s administrative freeze on bankruptcy debtors’ accounts violates the automatic stay, and debtors injured by the violation have standing to seek damages. In re Weidenbenner, No. 14-35443, 2014 Bankr. LEXIS 5009 (Bankr. S.D. N.Y. Dec. 12, 2014). Read More

Chapter 13 Debtor May Exercise Trustee’s Avoidance Power

Posted by NCBRC - February 10th, 2014

A chapter 13 debtor may exercise the trustee’s avoidance powers under section 544 if doing so will benefit the bankruptcy estate. In re Aiwohi, 13-90038 (Bankr. Haw. Jan. 31, 2014). Read More

Debtor has Standing to Move to Avoid Statutory Lien

Posted by NCBRC - November 15th, 2013

A debtor has standing under section 522(h) to bring an action to avoid a statutory lien under section 545(2). In In re McCarthy, No. 13-6042 (B.A.P. 8th Cir. Oct. 28, 2013), the debtor filed an adversary proceeding seeking to avoid an attorney fee statutory lien as impairing his homestead exemption under Minnesota law. The bankruptcy court dismissed the proceeding on the basis that, under section 545(2), the debtor “lacks the authority and ability to exercise the strong-arm powers of the trustee to defeat a statutory lien.” The BAP found that, while section 545 does provide that the “trustee may avoid the fixing of a statutory lien on property of the debtor,” the bankruptcy court’s inquiry should not have stopped there. Section 522(h), in conjunction with section 522(g)(1), provides an avenue for the debtor to avoid a lien that is avoidable by the trustee under section 545. Under these sections the BAP set forth five requirements that must be met to allow a debtor to avoid a statutory lien: “(1) the debtor’s transfer of property must have been involuntary; [§ 522(g)(1)(A)] (2) the debtor must not have concealed the property [§ 522(g)(1)(B)]; (3) the trustee must not have attempted to avoid the transfer [§ 522(h)(2)]; (4) the debtor must seek to exercise an avoidance power enumerated under § 522(h); and (5) the transferred property must be such that it could have been exempted if the trustee had avoided the transfer under the provisions of § 522(g) [§ 522(h)(1)].” Finding that section 522 gives the debtor the power to avoid the statutory lien, despite section 545’s limitation to the trustee, the court reversed and remanded to allow the bankruptcy court to address the merits of the debtor’s lien avoidance action.

McCarthy opinion

Creditor Lacks Standing to Move for Dismissal under 707(b)

Posted by NCBRC - September 16th, 2013

In In re Gandy, No. 11-30369 (Bankr. E.D. Tenn. July 12, 2013), the court found that a creditor had no standing under section 707(b) to seek dismissal of a chapter 7 petition, after conversion from chapter 13, where debtor’s petition documents showed him to be below-median. Read More

Debtor Has Standing to Pursue Pre-Petition Employment Discrimination Case

Posted by NCBRC - May 22nd, 2013

The Fourth Circuit confirmed the chapter 13 debtor’s standing to pursue a pre-petition cause of action against his former employer. Wilson v. Dollar General Corp., No. 12-1573 (4th Cir. May 17, 2013). Read More

U.S. Bank Fails to Establish Standing to Seek Relief from Stay to Foreclose

Posted by NCBRC - February 12th, 2013

The Bankruptcy Court for the Southern District of New York denied U.S. Bank’s motion for relief from stay on the basis that U.S. Bank had failed to show that it had standing to obtain such relief. In re Idicula, No. 12-12120 (Bankr. S.D. N.Y. Jan. 10, 2013). Read More

Debtor Has Standing to Argue Failure to Comply with Terms of PSA

Posted by NCBRC - December 20th, 2012

A Michigan state court found that a debtor may oppose foreclosure on the basis that the assignment of the mortgage to the foreclosing party was in violation of the Pooling and Service Agreement and, therefore, ineffective. HSBC Bank, USA v. Young, No. 11-693 (Cir. Ct. Mich. Oct. 16, 2012). HSBC conducted a foreclosure by advertisement and bought the property at the foreclosure sale. When it moved the court for possession of the property the debtor challenged the legitimacy of the foreclosure on the basis that the assignment of the note and mortgage from Wells Fargo to HSBC took place after the note was in default in violation of the terms of the PSA. Read More

MERS Survives Challenge to its Business Model

Posted by NCBRC - April 4th, 2012

The Eastern District of New York found that the Bankruptcy Court overstepped its jurisdictional bounds when it entered an advisory opinion that MERS, as “nominee,” had no power to assign mortgages. In re Agard, No. 11-1826 (E.D. N.Y. March 28, 2012). Read More

Tag Archive: Standing