In Re Beach
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 08-40013-JDP
Decision Date: 2/25/2011
Chapter 7
Full Text HERE
Debtors entered into a mortgage agreement with Bank of America. Upon non payment of the mortgage, Bank of America proceeded with a non-judicial foreclosure. Debtors filed a state court claim asserting the bank violated the Truth in Lending Act (TILA) and Idaho Consumer Protection Act and received a temporary restraining order staying the banks foreclosure actions. The case was removed to federal district court and referred to the Bankruptcy Court. At the time of removal, Debtors filed for chapter 7 relief. The Bank subsequently moved to dismiss due to debtor’s lack of personal jurisdiction and failure to state a claim for relief under Fed. R. Civ. P. 12(b)(1) and (b)(6).
The Court accepted the allegations of the complaint as true according to precedent that allegations are to be taken as sufficient on their face. The Court concluded that the Debtors did not plead sufficient facts to allow the Court to find a plausible claim and Debtor’s ICPA claim was dismissed. The Court held the Banks non-judicial foreclosure is an “action to collect a debt” and that the statute of limitations began to run at the time of the non-judicial foreclosure. Further, because Debtor’s raised the TILA claim as a defense to Banks debt collection action the TILA 1 year statute of limitations does not apply and the allegations were found timely. The Court concluded that both Debtors and Trustee have prudential standing to make a TILA claim against the bank.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Monday, March 21, 2011
Friday, March 11, 2011
Civil Rule 60(b)(1) evaluated and no “excusable neglect” found because Debtor delayed for 7 months without explanation
In re Aeschbacker
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 09-40713-JDP
Decision Date: 2/15/2011
Chapter 7
Full Text HERE
Debtor filed a chapter 7 petition and did not list any interest in a Ford Escape. Debtor’s SOFA indicated a recent transfer of this vehicle to her mother and that Debtor’s mother paid off the auto loan and was now the sole owner. Debtor further indicated that she was in possession of the Escape, but that it was held for her mother. Trustee conducted a vehicle title search and found Debtor’s name listed on the Escape and commenced an adversary proceeding against Debtor’s mother to recover the vehicle. Debtor’s mother did not answer or respond to the motion. January 2010, a default judgment was entered directing the turn over of the Escape.
Debtor filed amended schedules claiming to be the co-owner of the Escape along with her mother and further claimed the vehicle as exempt. Trustee objected the exemption and neither Debtor nor her attorney responded. Subsequently the Court entered an order sustaining Trustee’s objection to the claim of exemption on February 2010.
December 2010, Debtor filed a Motion to Set Aside Default Judgment based on Civil Rule 60(b)(1) where a court may set aside an order for excusable neglect. The Trustee opposed this motion. In deciding whether a party has demonstrated excusable neglect the court employed factors listed in Pioneer: 1) the danger of prejudice to the debtor; 2) the length of delay and its potential impact on judicial proceedings; 3) the reason for the delay; and 4) whether the movant acted in food faith.
The Court found the first factor to weigh in favor of the Debtor because if the motion was denied the Escape would be sold and its proceeds distributed to creditors. The second factor weighed against the Debtor as the Court found as significant a seven month delay resulting from Debtor’s and counsel’s inaction. The Third factor also weighed against Debtor because the Debtor and counsel had no adequate explanation for the delay. The final factor the court gave Debtor and her attorney the benefit of the doubt that the delay was not a result of bad faith conduct. As a result of these Pioneer factors the court found for the Trustee and denied Debtor’s motion to set aside.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 09-40713-JDP
Decision Date: 2/15/2011
Chapter 7
Full Text HERE
Debtor filed a chapter 7 petition and did not list any interest in a Ford Escape. Debtor’s SOFA indicated a recent transfer of this vehicle to her mother and that Debtor’s mother paid off the auto loan and was now the sole owner. Debtor further indicated that she was in possession of the Escape, but that it was held for her mother. Trustee conducted a vehicle title search and found Debtor’s name listed on the Escape and commenced an adversary proceeding against Debtor’s mother to recover the vehicle. Debtor’s mother did not answer or respond to the motion. January 2010, a default judgment was entered directing the turn over of the Escape.
Debtor filed amended schedules claiming to be the co-owner of the Escape along with her mother and further claimed the vehicle as exempt. Trustee objected the exemption and neither Debtor nor her attorney responded. Subsequently the Court entered an order sustaining Trustee’s objection to the claim of exemption on February 2010.
December 2010, Debtor filed a Motion to Set Aside Default Judgment based on Civil Rule 60(b)(1) where a court may set aside an order for excusable neglect. The Trustee opposed this motion. In deciding whether a party has demonstrated excusable neglect the court employed factors listed in Pioneer: 1) the danger of prejudice to the debtor; 2) the length of delay and its potential impact on judicial proceedings; 3) the reason for the delay; and 4) whether the movant acted in food faith.
The Court found the first factor to weigh in favor of the Debtor because if the motion was denied the Escape would be sold and its proceeds distributed to creditors. The second factor weighed against the Debtor as the Court found as significant a seven month delay resulting from Debtor’s and counsel’s inaction. The Third factor also weighed against Debtor because the Debtor and counsel had no adequate explanation for the delay. The final factor the court gave Debtor and her attorney the benefit of the doubt that the delay was not a result of bad faith conduct. As a result of these Pioneer factors the court found for the Trustee and denied Debtor’s motion to set aside.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
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