TP, Inc. v. Bank of America, N.A. (In re TP, Inc.)
486 B.R. 698
Bankr. E.D.N.C.2013Background
- Bankruptcy court denied motion to reconsider the Sept. 26, 2012 order regarding arbitration and stay related to BOA arbitration rights and UDTPA claim; trustee sought reconsideration under Fed. Rules 60(b) and 59(e) and bankruptcy equivalents.
- Trustee argues BOA waived arbitration by delay; TP’s state-court counterclaims and subsequent adversary proceedings are substantially similar; calendar timing allegedly erodes waiver.
- Court previously held UDTPA claim arises from contract-related matters and is subject to arbitration under a broad arbitration clause; the dispute concerns core vs non-core status and whether arbitration should govern the UDTPA claim.
- Hearing held in Raleigh on Dec. 6, 2012; the court denied reconsideration, reaffirming its Sept. 26, 2012 ruling and its arbitration/referral framework.
- The decision discusses the standards for reconsideration (intervening law, new evidence, clear error/injustice) and emphasizes reconsideration is an extraordinary remedy; the motion is denied.
- The court cites rules 7054, 9023, 9024 and Fed.R.Civ.P. 60(b) and 59(e) to support its denial of the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of arbitration rights by delay | TP argues BOA’s long delay constitutes waiver | BOA did not waive; delay does not amount to prejudice | Denied; no waiver found on record |
| Arbitrability of UDTPA under NC law | UDTPA relates to contract; arbitration clause covers it | UDTPA claims can be arbitrated if related to contract | Arbitrable; UDTPA claim fell within contract-related scope |
| Core vs non-core and arbitration referral | Non-core UDTPA should be arbitrated and referred | Arbitration policy governs non-core claims; refer to district court | UDTPA arbitratable; referred/arbitration appropriate |
Key Cases Cited
- Wachovia Bank v. Schmidt, 445 F.3d 762 (4th Cir. 2006) (arbitration clause scope covers disputes related to contract)
- Ellen v. A.C. Schultes of Maryland, Inc., 172 N.C.App. 317 (2005) (UDTPA claim excluded when not derived from contract terms in arbitration clause)
- Rodgers Builders, Inc. v. McQueen, 331 S.E.2d 726 (N.C. 1985) (scope of arbitration clause depends on relation to contract)