October 23, 2013 4th Circuit published opinions

In Re Jose Alfredo Pineda Alvarez (Alvarez v HSBC Bank USA and Grigsby)

Alvarez filed for bankruptcy. He and his wife moved to strip off HSBC’s second mortgage off the family home owned by Alvarez and his wife as tenants by the entireties. The bankruptcy court denied their motion and the district court affirmed. The panel affirmed. Noting this was an issue of first impression at the court of appeals level, the panel adopted the rule that when one spouse in a tenancy by the entireties files for bankruptcy, a valueless lien cannot be stripped off the real property. It reasoned that this is the appropriate rule because only the filing spouse’s interests in the property are in the bankruptcy estate, the filing does not terminate the tenancy, the motion to strip off the mortgage does not bring the other spouse’s interest into the estate and the approved pan is not binding on the creditors of the other spouse.

Colon Health Centers of America, LLC v Hazel

Centers filed for a Virginia certificate of need to open a specialized colon cancer screening facility. After objections were field in that proceeding, Centers field suit alleging the certificate of need program violated the commerce clause and the 14th Amendment. The district court dismissed the case for failure to state a claim. The panel, with one ember adding a concurrence, affirmed in part and reversed in part. It reversed as to the commerce clause claim holding that a factual determination must be made as to whether in state incumbents are suing the objection and fact finding process to thwart out of state applicants through a lengthened and more expensive process and whether the purported local benefit is sufficient to outweigh the burden on interstate commerce. The panel emphasized the factual finding must focus on the discriminatory effects of the program to determine if the program discriminates against out of state applicants or not. The panel affirmed as to the 14th Amendment holding there was a rational basis for exempting nuclear cardiac imaging form the program, a rational basis  for the program itself and the purported right to earn an honest living has been rejected by the United States Supreme Court. The concurrence argued that the program was nothing but protectionism and as such unconstitutional.

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