Order denying motion to intervene pursuant to Rule 2018. The Court concluded that law firm had failed to show that its attorney's lien attached to real property serving as collateral for bank loan. Therefore, law firm had not shown entitlement to intervene in bank's motion for relief from stay.
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Opinions
Effective January 1, 2017, Orders in the United States Bankruptcy Court for the Northern District of Georgia designated by the Court as "opinions" will be transmitted to the Government Publishing Office (GPO) and made available to the public at no cost. To view these opinions, click HERE to be transferred to GPO site.
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Order in adversary proceeding seeking to avoid transfer as fraudulent. After conducting a trial on the merits, the Court concluded that the Trustee had failed to prove that the transfer at issue was fraudulent pursuant to Section 548 of the Bankruptcy Code and the fraudulent conveyance provisions of the Georgia Code.
Honorable Barbara Ellis-Monro, Chief Judge
Plaintiff alleged that the water department violated the automatic stay by sending Plaintiff an invoice for water service post-petition and sought damages under §362(k) for same. The Court first reviewed all evidentiary objections, made findings of facts and closed the evidentiary record. The Court concluded that Defendants did not violate the automatic stay when they sent a bankruptcy package to Plaintiff after being notified of the filing of the case because the final bill included in the package served an informational purpose and the documentation in the package was sufficient to inform the recipient that Defendant was not attempting to collect a debt. As a result sending the three documents did not amount to an attempt to collect a debt. The Court also reviewed Plaintiff’s claim of damages and noted that although Plaintiff alleged that receiving the package caused him emotional distress, he was unable to extricate the emotional and physical impact of receiving the letter from other ongoing medical conditions.
NOT FOR PUBLICATION
The Court set an evidentiary hearing to determine if Plaintiff had standing to prosecute alleged claims either in Plaintiff’s individual capacity or as an owner of an entity owned in part by Defendant. The Court determined that Plaintiff did not have an ownership interest in an entity owned in part by Defendant and as a result did not have standing to pursue any claims as an owner. Although Plaintiff asserted claims individually, the claims had already been resolved against Plaintiff by a Tennessee state court, and as such this Court did not have jurisdiction to consider any such claims. In addition, Plaintiff failed to prosecute the proceeding. Accordingly, the Court granted both motions to dismiss.
NOT FOR PUBLICATION
Honorable James R. Sacca
The Court denied the Debtor's objections and allowed two claims filed by the creditor, one arising from the purchase of a vehicle and the second from a renewal of a debt consolidation loan. The Court allowed the first claim because the vehicle was not unlawfully repossessed but rather picked up by a towing company after being abandoned, and because the Georgia Court of Appeals decision, Suntrust Ban v. Venable, 299 Ga. 655, 791 S.E.2d 5 (2016), did not apply to the fact of this case. Venale involved a sale transaction whereas the underlying transaction here was only a finance transaction. The Court also allowed the second claim because the Debtor had two loans, the original and renewal, rather than one as alleged in the objection.
NOT INTENDED FOR PUBLICATION
The Court granted the Debtor's motion to hold the creditor in contempt for knowingly violating the automatic stay, awarding damages under section 362(k)(1). The Court concluded that the creditor knowingly violated the automatic stay of section 362(a) when it failed to take any steps to revoke a default judgment issued by the state court, despite the creditor having received notice of the bankruptcy. Because default judgment was actually entered against the Debtor, the case here was materially distinguishable from Alle Cassetty Cos. v. Wren, 502 B.R. 609 (N.D. Ga. 2013), as the Court discussed.
NOT INTENDED FOR PUBLICATION
On the creditor's request, the Court confirmed the automatic stay of section 362(a) was terminated pursuant to section 362(c)(3). The Debtor filed a second bankruptcy case a week after the first bankruptcy was dismissed and the Debtor did not seek an order extending the automatic stay within thirty days. The Court followed the cases interpreting the language "with respect to the debtor" in section 362(c)(3) as terminating the automatic stay as to the debtor, his property, and the property of the estate. The Court determined such an interpretation is more practical and better serves the purpose of section 362(c)(3).
NOT INTENDED FOR PUBLICATION
Honorable Mary Grace Diehl (Recall)
Order finding Debtors’ tax liabilities non-dischargeable under § 523(a)(1)(C). Plaintiff-Debtors initiated an adversary proceeding seeking an order declaring their tax obligations for taxable years 2004-2007 dischargeable. The IRS argued that the debt was non-dischargeable because Debtors had willfully attempted to evade or defeat their taxes for the years in question. After a two-day trial, the Court agreed with the IRS, finding that there was enough evidence indicating willful evasion to render the debt non-dischargeable.
Honorable Paul M. Baisier
Order denying motion of Plaintiff-Debtor for entry of default judgment and granting motion of Defendant Ocwen to dismiss amended complaint. Debtor filed complaint against mortgage loan servicer Ocwen regarding attempted foreclosure and against HOA on other various grounds. Court first determined Debtor had failed to certify proper service of complaint and summons, and no default had been entered. Court also found Ocwen had responded through its motion to dismiss. Court next analyzed Ocwen’s motion concluding that amended complaint did not contain sufficient factual allegations to raise a claim to relief for fraud above speculative level regarding right of Ocwen to foreclose under F.R.C.P. 12(b)(6), applicable through F.R.B.P. 7012(b), and F.R.C.P. 9(b), applicable through F.R.B.P. 7009. In addition, Court found Debtor bound by res judicata since these claims had previously been asserted in prior district court litigation and dismissed. Debtor also lacked standing to contest assignment of security deed.
Order granting motion of Debtor-Defendant for summary judgment, but allowing Plantiffs thirty days to file amended complaint. Plaintiffs seek determination that debt arising from unpaid loans is excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and (a)(6). On examination under F.R.C.P. 12(b)(6), applicable through F.R.B.P. 7012(b), and F.R.C.P. 9(b), applicable through F.R.B.P. 7009, Court concluded that Plaintiffs’ allegations did not contain sufficient factual basis to make plausible claims to support inference that, if proven, Debtor had either requisite fraudulent intent under Section 523(a)(2)(A) or intent to commit willful and malicious injury under Section 523(a)(6) in executing notes creating indebtedness Debtor failed to repay.