Modified security interests, how much notice required?
In 1993, the Fourth Circuit decided Piedmont Trust Bank v. Linkous, 990 F.2d 160 (4th Cir. 1993), which addressed the notice required to a secured creditor when confirmation of a bankruptcy plan requires a valuation under 11 USC 506(a) of the bankruptcy code. In this case, Piedmont owned a security interest in a mobile home and a vehicle and was due balances of roughly $18,000.00 on the mobile home and $4,000.00 on the vehicle. The Chapter 13 plan proposed by Linkous treated only $6,000 of the mobile home loan as secured and $1,000.00 of the car loan as secured. The Plan treated the remaining balances as unsecured. Piedmont was given a summary of the Chapter 13 plan but was not otherwise notified of the ‘506(a) valuation. The Chapter 13 Plan was confirmed and two weeks later Piedmont filed its claims which treated the full balance of the claims as secured.…Read More
Fiduciary Obligation of Debtor’s Business Nondischargeable as to Debtor
In re Hernandez; Case No. 07-11413-RGM; March 3rd, 2008 The simple non-delivery of funds does not necessarily equate to embezzlement, larceny, or a willful and malicious injury. However, where there is an applicable trust agreement with a corporate entity, the obligations of which are guaranteed by the debtor who is also an officer and person in control of the corporation’s operations in which the defalcation occurred, the debtor’s obligation under the guarantee agreement is not dischargeable under 11 USC § 523(a)(4).
Reaffirmation Agreement Failure and Creditor Identity
In re Rodriguez; Case No. 07-13577-RGM; March 3rd, 2008 This matter was before the court on a proposed reaffirmation agreement under §524 that was not fully completed. Therefore the court determined that the reaffirmation was not effective. This case also pointed to an interesting issue of the juridical person who is the creditor. The court noted that the reaffirmation identifies “Branch Banking & Trust Company or one of its affiliates (hereafter collectively BB&T)” and then the reaffirmation was signed by Pretice Faircloth, who identified himself as “Asst. Vice President” under the name “BB&T Bankruptcy,” which the court notes does not appear to be a juridic entity and there is nothing else to indicate that Mr. Faircloth is authorized to enter into a reaffirmation agreement on behalf of the specific creditor to whom the debtor is indebted.
Informal Proof of Claim From Claim Filed in Debtors Parent Company’s Bankruptcy
In re Rowe Furniture; Case No. 06-11143-SSM; March 4th, 2008 This matter was before the court on the motion by Riverside Claims, LLC (“Riverside”) to allow a total of thirteen claims it filed after the claims bar date as amendments of claims that were timely-filed in the related case of the debtor’s parent holding company. Riverside had filed claims in the parent companies case, but after the claims bar date for this case had run, and on the last day to object to the claims in the parent companies case, the parent company objected to the claims on the grounds that liability for those claims lie with the Debtor in this case. Upon realizing its error, Riverside re-filed its claims in the present case and brought this motion to have them allowed as amendments to claims filed in the case of the parent company. Except in Chapter 11 cases—in which…Read More
Failure of Credit Bureau to Accurately Identify Source of Information is an Injury-In-Fact
Clark et al. V. TransUnion, LLC, EDVA-Richmond, December 9, 2016, 3:15-cv-391 The Fair Credit Reporting Act requires consumer reporting agencies to “clearly and accurately” disclose to consumers “the sources of information” in their credit files. 15 U.S.C. Section 1681g(a)(2). In this case, the defendant, TransUnion, provided a credit filed that listed two civil judgments. The credit report listed the sources of the judgments as “Henrico District Court” and “Virginia Federal Court.” One of the judgments was entered against the Plaintiff in November of 2008, but was appealed and ultimately dismissed. TransUnion purportedly failed to conduct a “timely and reasonable re investigation” and continued to report the judgment as unpaid. In addition, Clark contends that the source of the information, the judgments, was actually LexisNexis, a fact that was not disclosed on the credit report. TransUnion filed a motion to dismiss for failure to state a claim and that the Plaintiff…Read More
Student Loan Collection Letter Violates FDCPA
Bieber, ex al v. Pioneer Credit Recovery, Inc. (EDVA Case No. 1:16-cv-804, January 11, 2017) This was a class action that stemmed out of a collection letter sent by Pioneer alleging various allegations of false representations, false implications, and that Pioneer used unfair and unconscionable means to collect a debt, all violations under the Fair Debt Collection Practices Act, 15 U.S.C. 1692e et seq. The Court first tackled the issue of whether or not the Plaintiff has standing to sue under Article III, an issue recently addressed by the Supreme Court in Spokeo, Inc. V. Robbins. To that end, the Court noted that a plaintiff cannot allege a bare procedural violation, divorced from any actual harm, and satisfy the injury-in-fact requirement of Article III. However, the Court pointed out that the Supreme Court also held that “the violation of a procedural right granted by statute can be sufficient in some…Read More
Credit bureau fails to correct report after mortgage settlement
Burke v. Experian Information Solutions, Inc., 1:10-CV-1064 AJT/TRJ, 2011 WL 1085874, at *4 (E.D. Va. Mar. 18, 2011) Mr. Burke had sued his mortgage servicer, Litton Loan Services, and reached a settlement whereby the servicer agreed to “delete the trade line” on Mr. Burke’s credit report. Later, when Mr. Burke obtained a copy of his credit report, he found that information relating to his mortgage remained on his credit report. Mr. Burke sent a dispute to Experian stating that the entry should not be on the credit report and invited Experian to call him. Mr. Burke was unable to provide additional information due to a confidentiality clause in the settlement agreement with Litton Loan. Experian sent the dispute to Litton Loan, who incorrectly confirmed that the loan should remain. Experian conducted no investigation and simply reported back what was reported to it by Litton. Mr. Burke again disputed the reporting…Read More
State law defamation preempted except in the case of malice or willful intent to injure
Ross v. FDIC, 625 F.3d 808 (4th Cir 2010) The Plaintiff’s ex-husband originally took out a mortgage loan, though ultimately quit-claimed his interest to his Plaintiff prior to their marriage. At some point after the two were married,the relationship soured and the Plaintiff obtained a protective order against her ex-husband. As part of the divorce, the Plaintiff obtained an order naming her as the property’s owner, though her ex-husband retained sole responsibility for the loan. Ross contacted Washington Mutual (the original servicer) about this arrangement and confirmed that she still received the mortgage statements and the 1098 tax deduction forms. WaMu mistakenly listed Ross’s name on the mortgage. Eventually, the loan went into default and WaMu reported negative information to the credit reporting agencies on the mistaken belief that Ross was responsible for the loan. Ross contacted the reporting agencies and WaMu about the inaccurate reporting, but made the payments…Read More
Damages under the Fair Credit Reporting Act include economic damages as well as damages for humiliation and mental distress
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009) Ms. Robinson had her identity stolen and the thief opened up fraudulent accounts in her name and under Ms. Robinson’s social security number. Shortly after discovering that she had been a victim, Ms. Robinson filed a police report, called the Federal Trade Commission hotline and opened a case, and spent the next five months trying to correct the mistakes on her credit report. Equifax mistakenly placed Robinson’s address and social security number on three credit files established by the identify thief, each of which contained derogatory credit accounts. Consequently, Equifax sent various creditors requesting Ms. Robinson’s credit report her actual credit file along with one of the identity thief’s files. Because of these errors, Mrs. Robinson’s credit problems persisted and she had difficulties obtaining any type of credit for three years. During this time period, each time Equifax…Read More
Authorized user of credit card gets negative info deleted
Johnson v. MBNA Am.Bank, NA, 357 F.3d 426 (4th Cir. 2004) This case involved Linda Johnson, who sued MBNA for violations of the Fair Credit Reporting Act for failing to conduct a reasonable investigation of Johnson’s dispute concerning an MBNA account appearing on her credit report. At issue was a Mastercard account opened in 1987. It is undisputed that Johnson’s ex-husband was one of the applicants. MBNA claims that Johnson was a co-applicant with her ex-husband (“Slater”) while Johnson maintains that she was merely an authorized user. Slater filed for bankruptcy and MBNA removed his name from the account. MBNA contacted Johnson and informed her that she was responsible for the $17,000.00 balance. After being informed of this, Johnson attempted to set up a reduced payment plan. She obtained her credit report from the three credit reporting agencies and filed disputes with each one. The credit bureaus sent automated…Read More