Bankr. E.D.N.C.: Nationwide Recovery Judgment v. Tyndall- Pleading Standards for Allegations of Fraud Ed Boltz Thu, 03/07/2024 - 16:52 Summary: National Judgment Recovery ("NJR")  brought an action to determine  that the $93,159.71  fraudulent conveyance judgment against Tyndall,  as a "net winner"  in the ZeekRewards  pyramid scheme case,  was nondischargeable under  11 U.S.C. § 523(a)(2)(A) as actual fraud. After permitting NJR to amend its original complaint to avoid a motion to dismiss,  the bankruptcy court found that the amended complaint finding did adequately allege "actual fraud."  Following NJR v. Sheppard,  the bankruptcy court  held that was not,  however,  sufficient as NJR failed to :allergy facts that would show [Tyndall] fraud with the requisite fraudulent intent."  Neither the amended complaint  nor the underlying judgment  (attached)  sufficiently alleged that  Tyndall "helped create the Ponzi scheme or materially furthered and aided its advancement."   Nor was the "impossibly high"  rate of return alone a sufficient badge of fraud. This contrasts with NJR v. Reefe,  where the defendant was shown to have clearly "built the base for her part of the pyramid... using knowingly fraudulent means." Commentary: This case is certainly useful  for people that end up filing their own bankruptcies  in the wake of fraudulent conveyance actions against them by Trustees  in other cases,  since here  Tyndall had at least one badge of fraud  with the related  stink of a Ponzi scheme.  Most other cases are far more innocently cases where someone accepted funds from a soon-to-be debtor.   Chapter 7 Trustees might be mindful of this in negotiating settlements of these potential actions and Chapter 13 Trustees,  when making demands that Debtors fund  plans to compensate creditors  for transfers should also  factor this into any Best Interest of the Creditors analysis. It would also be interesting to hear from any of the dozens of North Carolina attorneys involved in  the underlying Zeekerewards case,  why it was handled as a federal receivership  rather than as an involuntary bankruptcy case.  Whether there remains any real discussion in the NCBA Bankruptcy Section community is perhaps the real impediment to such conversion.   To read a copy of the transcript, please see: Blog comments Attachment Document njr_1st_complaint_attachment_compressed_2.pdf (828.19 KB) Document nationwide_judgment_recovery_v._tyndall.pdf (176.3 KB) Category North Carolina Bankruptcy Cases Eastern District

Whether planning for the near or distant future, you want to be ready. Long-term disability insurance can help you be ready if you are ever physically or mentally impaired and unable to take care of yourself alone. Long-term disability insurance is sometimes offered through employers. However, people may also buy it on their own. This insurance may help cover some of the income you miss out on while you cannot work for a long period of time. You might be injured, sick, or otherwise incapacitated. Since this is an insurance policy, you are covered as long as your situation meets the criteria established in your policy. You might be wondering if this kind of insurance is even necessary. While most do not plan on becoming disabled, it is still possible. This insurance might help you cover daily living costs, medical expenses, and more. It is up to you whether long-term disability insurance is worth it, and our legal team can help you understand your policy. Contact Young, Marr, Mallis & Associates and ask our disability attorneys for a free case evaluation to get started by calling (215) 515-2954. What is Long-Term Disability Insurance? Long-term disability insurance is insurance you buy yourself or is provided through an employer that covers you in the event you cannot work for an extended period due to an injury or disability. This type of insurance might seem somewhat similar to other forms of assistance for people with injuries, like Workers’ Compensation or Social Security Disability Insurance (SSDI). The main difference is that long-term disability insurance is not something you have to apply for. It is your insurance that should cover you if you become disabled. Long-term disability insurance may cover you regardless of how you become incapacitated or disabled. Perhaps you were injured at work, injured while on vacation, or developed a cognitive or memory disorder or condition. Under a long-term disability insurance policy, you may be covered under these circumstances and others. Our Pennsylvania disability attorneys can help you make sure your policy pays you all the compensation you are entitled to. Long-term disability insurance acts in much the same as other disability insurance policies or programs. Claimants may receive benefits and coverage that make up for a portion of the income they lose while they cannot work. As the name implies, this coverage is designed for those with long-term disabilities or conditions that make working difficult or impossible. Knowing Whether You Need Long-Term Disability Insurance Like most insurance policies, many people deeply consider the pros and cons of a long-term disability insurance policy before signing up for one. Perhaps one of the most common concerns people have is how much an insurance policy like this might cost. While prices may vary, the benefits are often worthwhile. First, ask yourself if you have been injured or work in a field prone to accidents and injuries. If you are at a higher risk of becoming injured and possibly disabled, you should consider getting long-term disability insurance if it is not already offered through your employer. This is often important for people who work as independent contractors in somewhat dangerous jobs. You should also consider possible illnesses. Are you sick or at risk of becoming sick? Does your illness prevent you from working? Is your illness a long-term or permanent condition? While some illnesses are sudden, others develop and become worse over time. For example, a person might develop cancer and, after years of treatment, find themselves unable to continue working. Are you getting older and finding it harder and harder to care for yourself? Many people use this kind of insurance because they have gotten older and can no longer care for themselves without help. Long-term disability insurance can help you pay for at-home nursing care or other services that help you survive and retain some independence. What Does Long-Term Disability Insurance Cover? Coverage from your long-term disability insurance depends on your policy’s specific terms and conditions. How much of your lost income is made up through insurance may vary based on the nature of your policy and what kind of coverage you selected. It is not unusual for insurance companies to offer varying levels of coverage for different prices. Generally, cheaper insurance policies tend to offer less coverage. If you are unsure what kind of compensation your long-term disability insurance offers, talk to your lawyer. This is a good idea for a couple of reasons. First, you should review your policy with an attorney to fully understand the terms and conditions. Knowing this information can help you maximize the payout from your insurance policy. Second, you should review your policy with an attorney to make sure you are not cheated when you file a claim if you ever become disabled. Insurance companies are not exactly known for being easy to deal with or even totally honest all the time. Many people have horror stories of being lied to and duped by insurance companies, so they do not have to cover anything. To make a long story short, get an attorney so you understand your policy and are prepared if you need to take legal action to get the coverage you are entitled to. Deciding Whether Long-Term Disability Insurance is Worth the Money Whether long-term disability insurance is worth it is entirely up to you. Many people have no other options when they cannot care for themselves like they used to. People might not have close family or friends who can help. If you have few family members or close friends who can help you if you are injured and unable to work for a long time, having insurance might be incredibly important. Going without long-term disability insurance might mean exhausting your savings while you recover. If you are not expected to recover, your savings might only last so long until you have no resources left. Contact Our Disability Attorneys for Assistance with Insurance Decisions and Claims Contact Young, Marr, Mallis & Associates and ask our Springfield, PA disability attorneys for a free case evaluation to get started by calling (215) 515-2954.

If you are applying for disability, you might wonder what you can do with the money you get from SSDI payments or other benefits. People often want to know how to use their benefits to save for the future and financially thrive. While the government does not totally control what people do with the money they receive from SSDI or other disability benefits, there are sometimes restrictions. Generally, people on disability may put their money into savings and investment accounts. However, there are some distinctions between SSDI and SSI. The type of benefits you receive might influence how you plan financially. While SSDI recipients face few restrictions, SSI recipients are more limited in what they can do with the money. Another issue is what to do while you wait for your benefits to kick in. There is often a waiting period of several months where people go without income. A disability lawyer can help you make plans to survive while waiting. Speak to our disability attorneys at Young, Marr, Mallis & Associates by calling (215) 515-2954 and get a free evaluation of your case. Can You Have a Savings Account While on Disability? It is possible to have a savings account while you receive disability benefits. Suppose your weekly disability benefits leave you with a little extra. In that case, you can put it into a savings account and build a financial safety net for yourself in case you encounter unexpected expenses in the future. However, the nature of your disability benefits might play a role in what kind of savings you can have. Generally, SSDI benefits are based solely on your work history and disability status. As such, you can save the money you receive through SSDI as you see fit. If you receive SSI benefits, however, the situation is different. SSI benefits are often based on your current financial resources. If you build up a large savings, your SSI benefits might be in jeopardy because you have sufficient financial resources to care for yourself. If you already have a savings account or want to start one with the money you get from your disability benefits, talk to a lawyer. Our disability lawyers can determine how much you can save based on the nature of your disability and what type of benefits you receive. Often, recipients of disability benefits are encouraged to save so they do not have to live from check to check. Financial Planning for Long-Term Disability Many disability recipients are allowed to save their money. The next logical question is, how do I save? Budgeting and saving are tricky situations in general, including for people who work and do not receive any form of disability benefits. Generally, once a person receives their disability payment, it is their money to do with as they wish. Ideally, recipients should be using the money to cover things like medical bills and pay for daily living costs. However, if you want to blow all the money on things you do not need, that is your choice. Many people invest some of the money they get from disability benefits. Again, how you may invest depends on what kind of benefits you receive and the type of investment account you want to open. You are also allowed to plan for fun things like vacations. The fact that you support yourself with SSDI benefits does not mean you are not allowed to enjoy your life. If your income from disability benefits is not enough to support yourself, talk to a lawyer. There might be ways you can increase the amount of money you get each week. Alternatively, there might be other forms of assistance that are better than your current benefits or may be combined with your current benefits. An experienced lawyer can help you. Can You Invest While on Disability or Long-Term Disability? Generally, yes. You are allowed to invest the money you get from disability benefits. However, not all investment accounts allow you to do so. SSDI benefits are not based on your current financial resources. Whether you are already wealthy or struggling financially, you may receive SSDI benefits based on your average weekly income. There is no set rule that prohibits people who receive SSDI benefits from investing that money and preparing for retirement. There might be restrictions on whether you can invest in certain investment accounts, like a Roth IRA. According to the IRS, money must be considered income to be invested in a Roth IRA account. The IRS does not consider money derived from disability to be income. As such, you might not be able to invest it in a Roth IRA or other types of investment accounts. Talk to your lawyer about financial planning to determine the best way to invest your money. What to Do for Income While Waiting for Disability? A major concern among people waiting for their first disability check is what to do for money in the meantime. There may be a 5-month waiting period before you get your first check. People waiting for disability might not have the financial resources to survive for that long without any income. Do you have current savings? If your savings can last until your disability benefits begin coming in, you might be fine. Once you begin receiving disability benefits, you can replenish your savings account over time. Do you have family or friends who can help? Many people rely on friends or family for assistance while waiting for their first disability check. This might involve a small loan from a family member or moving in with a friend until you are more financially stable. Are there other forms of public assistance you qualify for that you can use while waiting for disability benefits? Many people make ends meet by using food stamps to help pay for groceries. Your state might also offer various short-term benefits. Talk to Our Disability Attorneys for Support and Assistance Speak to our Pennsylvania disability attorneys at Young, Marr, Mallis & Associates by calling (215) 515-2954 and get a free evaluation of your case.

N.C. Bus. Ct." Live Oak v. Mafic- Claims Objections in State Receivership Ed Boltz Mon, 03/04/2024 - 18:17 Summary: Following the appointment of a Receiver under the North Carolina Commercial Receivership Act,  N.C.G.S. §   507.20 et seq.,  to conduct an orderly liquidation process of Mafic, the Receiver objected to several proofs of claims. The North Carolina Business Court turned to Bankruptcy Code  for guidance regarding the burden of proof necessary to determine the reasonableness or validity of a claim accepted or rejected by a Receiver. Commentary: It will be interesting to watch as the North Carolina state courts,  particularly  the business court,  develop a set of practices and a corpus of law interpreting and applying  the NCCRA  to see whether this leads  to more cases of business liquidation being handled in this manner than under the Bankruptcy Code.  Whether those developments might  lead to a relaxation of, as Chapter 11 attorneys often bemoan in their less guarded moments,  how they feel bankruptcy in North Carolina can often be overly punctilious and draconian is an open question.  Further,   a growing comfort with state court receiverships might lead creditors on the consumer side  to also turn there for an effective means of judgment collection. To read a copy of the transcript, please see: Blog comments Attachment Document live_oak_banking_v._mafic.pdf (141.29 KB) Category NC Courts NC Business Court

Dealing with insurance companies is almost universally a frustrating experience. Some might call it a necessary evil. While most regard insurance companies as difficult, many are surprised to learn how far these companies will go to avoid paying claimants. Insurance companies often conduct surveillance of people who file claims to try and find some reason or excuse to deny the claim. For injured claimants who only want the financial help they have been promised, this might feel like a major violation of privacy. Insurance companies might hire private investigators, obtain video footage and photos, or even contact your friends and family and ask them about you. In long-term disability claims, insurance companies might continue their surveillance efforts even after a claim has been approved to continue looking for excuses to cut your benefits short. Surveillance does not occur in all cases. Usually, insurance companies might monitor claimants’ activities if the claim is very large or fraud is suspected. While surveillance is generally legal, you should contact an attorney if you think your rights have been violated. Contact Young, Marr, Mallis & Associates by calling (215) 515-2954 and ask our disability lawyers for a free review of your claim. How an Insurance Company Might Conduct Surveillance of Insurance Claimants How an insurance company might conduct surveillance of a claimant varies from case to case. Sometimes, surveillance is minimal, and the claimant might not even notice they are being monitored. In other cases, the surveillance is far more extensive and lasts much longer. People sometimes notice they are being watched. Our disability lawyers can help you if you believe you are be monitored by an insurance company. A common surveillance strategy among insurance companies is to send out private investigators. An insurance company might hire a private investigator, although many larger companies have their own teams of investigators they can dispatch. The investigator might tail the claimant for a while and make notes about their activities. Often, they are looking for anything that can grab onto that shows the claimant might not be as injured as they claim. Another strategy is to obtain photos and videos of you. These might come from the private investigators sent by the insurance company or other sources. For example, if the insurance company knows you have a gym membership, they might send the investigator to the gym to take pictures of you working out. They might even ask the gym for access to security camera footage. Another possibility is that an insurance company investigator might contact people who know you, like your friends, family, and neighbors. They might get calls from the insurance company asking about your condition. Not everyone is open about their injuries or disabilities, and someone close to you might accidentally say the wrong thing and hurt your chances of getting your claim approved. You might be offering up all the information the insurance company wants without realizing it. Insurance companies often check social media accounts for information they can use to deny a claim. Avoid posting anything online while your claim is pending, and make your accounts private. Surveillance From Insurance Companies for Long-Term Disability Claims Insurance companies often want to look into people filing claims for long-term disability benefits, as these types of claims can be very expensive for insurance companies. People who claim long-term disability benefits receive payments over extended periods of time. Many live on these benefits for years, and some rely on them indefinitely. As such, insurance companies are more likely to conduct surveillance in the hopes that they do not have to pay. Surveillance might occur before and after your claims are approved. Before your claim is approved, surveillance might be aimed at finding evidence of fraud. Surveillance that continues after your claim is approved might be aimed at finding evidence of fraud or excuses to reduce payments or terminate benefits. If the insurance companies believe you have recovered, they might try to end your benefits. Home visits are possible when someone is receiving long-term disability payments. While these are standard practices among insurance companies, you should still think of them as surveillance. When the insurance representative enters your home, they are looking for anything they can use to reduce your payments or terminate your benefits. If they see signs that you have recovered and lead an active life, they will absolutely report it to the insurance company. Why Do Insurance Companies Surveil People? Insurance companies might conduct surveillance of claimants for the same reason they do almost anything: to save money. If they can deny you, they save money. As mentioned, one of the biggest concerns among insurance companies is fraud. Insurance fraud is common, and insurance companies are constantly looking for potential deception. Certain kinds of claims tend to raise red flags for insurance companies and might be more likely to be monitored or surveilled. Common cases involving surveillance include but are not limited to, subjective symptoms, chronic conditions, and very large payouts. If you have a subjective claim, like emotional damages or psychological distress, or your claim is unusually large, the insurance company will likely send someone to conduct surveillance. You should speak to an attorney about how to protect yourself. Many people who file honest, good-faith claims are denied because insurance companies misinterpret their observations during surveillance. You should make all social media private. Insurance companies will likely check your online presence. Even something as simple as a picture of you and friends out to lunch might make the insurance company think you are not as injured as you claim. Keep close friends and family members informed about your condition. If the insurance company contacts them, you do not want them to inadvertently say the wrong thing because they do not know about it. Follow your doctor’s orders. Ignoring medical advice does not necessarily indicate fraud, but it might look bad. To the insurance company, a person who is truly hurt would follow their doctor’s advice to the letter. Finally, talk to an attorney if you believe an investigator has crossed a line. While surveillance is not always illegal, it might become illegal very quickly. For example, if an investigator enters your property without your knowledge or consent, they are trespassing. It does not matter if the insurance company sent them to collect evidence of fraud. They cannot break the law to get what they want. Call Our Disability Attorneys to Discuss Your Insurance Claims Contact Young, Marr, Mallis & Associates by calling (215) 515-2954 and ask our Pennsylvania disability lawyers for a free review of your claim.

Bankr. W.D.N.C.: In re Kennedy- Reasonable Mortgage Attorney Fee's in Chapter 11 Ed Boltz Sun, 03/03/2024 - 20:35 Summary: Wilmington Savings, a mortgage creditor of the Debtors, seeks to recover its attorney's fees and expenses pursuant to 11 U.S.C. § 506(b) and Rule 2016(a). Fed. R. Bankr. P Rule 2016(a). In total, Wilmington Savings seeks $70,529.00 in fees and $1,558.85 in expenses. These sums represent work performed by Wilmington Savings' counsel in this protracted Chapter 11 case and in pursuing a state court collection action against a non-debtor guarantor.  The Kennedys dispute this,  but applying the Johnson Factors the bankruptcy court allowed nearly all of the requested fees,  with the primary exception being the disallowance of "Fees on Fees"  for preparing and defending the fee application itself,  extending the Supreme Court decision in BakerBotts to likely preclude such attorneys fees not only under §330(b)  but also §506(d). Commentary: Unfortunately for the Kennedys,  since this case was a Chapter 11, rather than Chapter 13,  the disclosure requirements and deadlines of Rule 3002.1 did not apply.  Further, as a commercial  rather than home mortgage,  the parallel (and stronger) protections NCGS 45-91 also did not apply.  Whether those disclosure requirements and timelines could have been incorporated into the Chapter 11 plan is untested. For a copy of the opinion, please see:   Blog comments Blog tags appeal Attachment Document in_re_kennedy.pdf (351.95 KB) Document kennedy_wilmington_fee_application-compressed.pdf (1016.41 KB) Category Western District Federal Cases

Disability benefits vary based on how long your disability is expected to last and whether you are totally or only partially disabled. Because disabilities can be very subjective, many people are unsure whether their condition is considered permanent and total. To determine whether your condition qualifies as a permanent and total disability, we must look at guidelines established by the Social Security Administration (SSA). The status of your disability is often evaluated against a five-question test regarding your ability to work and the nature of your diagnosis. If you are diagnosed with a medical condition on the SSA’s list of disabilities and cannot work at all, your condition might be considered permanent and total. If your condition is not on the list of conditions that the SSA considers disabilities, do not worry. We can work to prove that your medical condition is a disability, even if it is not on the current approved list. To help prove this, we need details about your medical condition and history, as well as information about your ability to work. Call Young, Marr, Mallis & Associates at (215) 515-2954 to get a free, private evaluation of your case from our disability lawyers. Determining Whether Your Disability is Permanent and Total for Disability Benefits Determining whether someone’s medical condition qualifies as a disability for SSDI or other benefits is not a simple task. Medical conditions and disabilities tend to be somewhat subjective. What might be totally disabling for some might only be partially disabling for others. So, how does the SSA define what a disability is? The SSA uses a five-question test to help evaluate the disability status of people applying for disability benefits. First, are you currently working? If you answer yes, there is a strong chance you are not considered disabled by the SSA. If you are considered disabled, you are unlikely to be considered totally disabled if you can work. Second, is your condition severe? To be considered permanently and totally disabled, you usually need a severe medical condition that prevents you from working. To answer this question, our disability attorneys need to explain how your medical condition inhibits your ability to work. This might involve significant pain, mobility issues, cognitive impairments, and other severe conditions that prevent you from working. Third, is your condition included in the SSA’s list of disabling conditions? If it is, you might have an easier time getting benefits. The SSA already assumes that conditions on this list are disabling. Even If your condition is not on the list, you might not be automatically precluded from benefits. Your condition might still be considered severe, but we must show some proof. Fourth, can you do work you were able to do before the condition arose? If you are still able to do the work you could do before you became injured, the SSA might not consider you disabled. Even if you can still do some work but not to the same extent as before your injuries, you might not be considered totally disabled, only partially. Fifth and finally, can you do other kinds of work? If you can do any other kind of work, you might not be deemed totally disabled. If you cannot work at all, you might qualify for permanent and total disability benefits. What if My Condition is Not on the SSA’s List of Disabilities? As discussed before, the SSA maintains a list of medical conditions and diagnoses considered disabilities for the purpose of getting disability benefits, like SSDI. If your condition is already on the list, we might have an easier time getting benefits, as the SSA already considers it disabling. If your condition is not on the list, you might still be eligible for benefits, but we might have to take extra steps to prove that your condition is severe and prevents you from working. We have to consider your diagnosis from a doctor and your ability to work to determine if your condition should be considered permanent and total. Even if your condition prevents you from doing any work, but your doctor says that it will eventually heal, you might not be eligible for permanent and total benefits. Instead, you might qualify for temporary total incapacity benefits. Why is it Important to Know Whether My Disability is Total and Permanent or Not? There are different levels of benefits based on a person’s condition and ability to work. People whose conditions are considered total and permanent disabilities may be eligible for the highest level of benefits offered through SSDI. Benefits for permanent and total disabilities last indefinitely, whereas disabilities that are temporary or still allow you to work to a lesser extent must terminate at some point. Many people find themselves on the line between what is considered permanent and temporary. An initial diagnosis might indicate that your injuries will eventually heal and that you are not permanently incapacitated from working. Later, your condition might change, and your disabilities might never fully recover, and you might never work again. What Do I Need to Prove My Disability is Total and Permanent? We need information about your medical and work histories when preparing your case. Medical information should come from the doctors treating your condition. We might need copies of your official medical records and letters from your doctors explaining your diagnosis. This is especially important if your medical condition is not on the list of approved conditions by the SSA. Next, we need information about your work history. To qualify for SSDI benefits, you need a history of working and paying into the Social Security system. What kind of work were you doing before, and for how long? Can you still work in some capacity? If you cannot work at all, we need to be prepared to explain this. Call Our Disability Attorneys for Help Today Call Young, Marr, Mallis & Associates at (215) 515-2954 to get a free, private evaluation of your case from our Allentown, PA disability lawyers.

Law Review: Rapoport, Nancy- Am I My Colleagues’ Keeper When It Comes to Disclosing Connections? Ed Boltz Fri, 03/01/2024 - 22:06 Abstract:In late 2023, news stories picked up stories about a lawsuit alleging that Bankruptcy Judge David Jones of the United States Bankruptcy Court for the Southern District of Texas had been hearing cases in which his live-in romantic partner was appearing as counsel. The Fifth Circuit began disciplinary proceedings, and Judge Jones resigned from the bench. The scandal has affected more than just these two people: it implicates law firms, and potentially implicates other lawyers or judges who might have known more than they were saying. This article explores who had a duty to disclose this particular “connection,” and under what authority. Commentary:  While this paper on the ethical obligations of the parties involved exclusively in Chapter 11 cases,  unnoticed and perhaps more interesting to the consumer bankruptcy attorney is  that Judge Jones said: that he would have had a recusal obligation for cases involving Freeman’s firm only if they had been married and had communal property. Judge Jones owns the home in Houston which   he and Freeman reside in, and pays utilities and other expenses on the home. Had  either he or Ms.  Freeman  filed their own consumer bankruptcy it seems almost certain that any bankruptcy judge would have concluded this was a single "economic  unit"  and imputed  at least some portion of all parties' incomes towards the amount required to be paid to creditors.  11 U.S.C § 101 (10A)(B)(i).  That such a basic (albeit often flawed) understanding and imposition  in consumer cases did not inform the judge's own reflections regarding appropriate behavior add to the disappointment about the choices made here,  especially as consumers in cases where they geese served in a sauce not good enough for the judicial gander  seems unnoticed at all levels and unlikely to see any review or remedy. To read a copy of the transcript, please see: Blog comments Attachment Document am_i_my_colleagues_keeper_when_it_comes_to_disclosing_connections.pdf (1018.47 KB) Category Law Reviews & Studies

Bankr. W.D.N.C.: In re BK Racing- Ed Boltz Thu, 02/29/2024 - 22:16 Summary: The Chapter 11 debtor,  through  its manager,  Smith,  brought several actions against insiders and "persons closely allied with those insiders"  for recovery of  prepetition transfers.  During discovery against O'Haro,  which was "plagued by unsubstantiated 'narrative' defenses",  over the course of the case Smith filed two Motions to Compel against O'Haro.  During her first deposition,  O'Haro  invoked her Fifth Amendmnet right against self-incrimination,  as a criminal investigation related to this business was underway.   In response,  a third Motion to Compel was filed,    with the bankruptcy court eventually finding in May of 2022 that while her invocation of the Fifth Amendment was understandable and that no inferences were drawn against her,  since O'Haro had by now been released from any subpoena in the criminal investigation,  her continued discovery delays and  failures justified the imposition of sanctions,  ordering that O'Haro pay costs and attorneys fees and be subject to a second deposition.   During that second deposition,  which was conducted by Zoom at the office of Devine, the former owner of the debtor, O'Haro  not only persisted in refusing to respond to questions,  but appears to have had off-camera assistance from Devine.  At the hearing on the third Motion to Compel,  Smith sought as a further and ultimate sanction that a default judgment be entered against O'Haro.  The bankruptcy court,  finding that O'Haro's lack of answers and coaching from Devine  justified the "discovery death sentence" and entered a default judgment against  O'Haro. Commentary: At the risk that a comparison  might perturb some with protective sensibilities for anyone in their "tribe",  this case is not dissimilar from the sanction against Alex Jones for his discovery malfeasance.   To read a copy of the transcript, please see: Blog comments Attachment Document in_re_bk_racing.pdf (572.22 KB) Category North Carolina Bankruptcy Cases Western District

Bankr. W.D.N.C.: In re Aldrich Pump Ed Boltz Wed, 02/28/2024 - 20:28 Summary: The bankruptcy court denied a motion to dismiss two  chapter 11 cases,  which had employed  the infamous 'Texas Two Step"  to address (avoid?  skirt?) liability for asbestos mass torts claims,  holding that : The lack of “financial distress” does not divest the court of subject matter jurisdiction, and There is no violation of the Bankruptcy Clause of the Constitution when the debtor has no “financial distress.” Finding “no provisions in the Bankruptcy Code evidencing a congressional intent to impose a jurisdictional insolvency or ‘financial distress’ requirement to file bankruptcy”,  the  constitutional challenges were “not challenges to the Court’s subject matter jurisdiction.” Commentary: Leaving the Chapter 11 commentary to others more well versed there,   but solvent debtors (particularly in states with  terrible homestead exemptions like North Carolina) are not at all uncommon in Chapter 13 cases.  And while certainly most of those are facing "financial distress",  whether being cash poor despite having non-liquid assets,  facing foreclosure, to provide for an orderly and controlled payment of debts or for a host of other reasons and tools available only in bankruptcy. To read a copy of the transcript, please see: Blog comments Attachment Document in_re_aldrich_pump_compressed.pdf (529.28 KB) Category North Carolina Bankruptcy Cases Western District