The Court denied the Chapter 7 debtor's request for a finding that section 109(h)(4) excused his compliance with the post-petition financial management course requirement. The Court scheduled a hearing to consider whether debtor, who alleged that he had attempted suicide the year prior and that this adult son had taken over his finances, was "incapacitated" within the meaning of the statute. Because the debtor failed to appear for the hearing, however, the Court could not make a finding that the Debtor was "impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities."
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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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The Court granted summary judgment in favor of the Defendant, finding that the plaintiff could not establish a prima facie case for nondischargeability under Section 523 of the Code because she could not demonstrate an enforceable debt under Georgia state law and could not establish a prima facie case for general nondischargeability under Section 727 of the Code because the complaint was brought after the deadline for objecting to discharge.
Debtor filed an adversary proceeding to contest the validity of a pre-petition foreclosure. Debtor served the summons and complaint by mail on the law firm that represented the Defendant, an insured depository institution, in her underlying Chapter 7 case. Defendant sought dismissal of the proceeding based on Debtor’s failure to comply with Federal Rule of Bankruptcy Procedure 7004(h)’s requirement of service by first class mail on an officer of the institution. The Court found that the exception under that Rule which allows for service on an attorney in cases where the attorney has appeared did not apply when the appearance was in the main bankruptcy case only. Because service was not properly made on Defendant, the Court found it lacked personal jurisdiction over it, and dismissed the complaint.
The Court granted the Chapter 7 trustee's request for a preliminary injunction, prohibiting defendants from making further transfers of properties (or proceeds therefrom) subject to the litigation.
Honorable Wendy L. Hagenau
Order after trial on dischargeability. Plaintiff brought action seeking determination that money owed to her under a Loan Agreement and Promissory Note were non-dischargeable under Sections 523(a)(2)(A), (B), or (a)(6). Defendant argued he had no legal obligation to repay the loan, because the obligation to repay was conditional. The Court found the provision limiting the right to repayment too ambiguous to be enforceable, thus Plaintiff had a claim under the agreement. The interest rate, however, was usurious and therefore Plaintiff’s only claim was for the principal amount owed. The claim for principal was dischargeable as there were no misrepresentations made by the Debtor; any reliance on the part of Plaintiff was not justifiable; the loan agreement was not a writing for purposes of Section 523(a)(2)(B), as it said nothing about the Debtor’s financial condition; and there was no evidence of willful or malicious intent on the part of the Debtor.
Order on Debtor’s Motion to Redeem. Respondents argued Debtor’s Motion to Redeem was untimely under either Section 521(a)(2) or Section 521(a)(6). The Court held that neither Section 521(a)(2) nor Section 521(a)(6) extinguishes a debtor’s right to redeem, as redemption is governed by Section 722, which does not place a time limit on the act of redemption. The Court further concluded to the extent the time periods in Sections 521(a)(2) and 521(a)(6) are relevant, Debtor complied with Section 521(a)(2) by filing a statement of her intent to reaffirm, notwithstanding the fact Respondents refused to reaffirm the debt, and Debtor’s Motion to Redeem was timely under Section 521(a)(6) and Fed. R. Bankr. P. 9006. The Court then fixed the value of the collateral by starting with the retail value and reducing that value based upon the condition of the vehicle.
Honorable Barbara Ellis-Monro, Chief Judge
In an action to determine dischargeability of a debt under § 523(a)(2)(B), Plaintiff failed to show it was entitled to judgment as a matter of law based on collateral estoppel. Plaintiff relied on a prior decision of the Georgia Office of State Administrative Hearings that found Defendant liable for an overpayment of food stamps due to an intentional violation of the Food Stamp Program regulations. However, Plaintiff failed to show that the prior decision made a finding of fraud based on a written statement of Defendant’s or her husband’s financial condition or that such a finding was required for the prior decision. Therefore the Court found the elements of collateral estoppel were not satisfied and denied Plaintiff’s motion for summary judgment.
By prior order, the Court held that Defendant had an easement allowing use of Plaintiff’s airport property. By the current order, the Court determined that, based on the language of the express easement, Defendant’s easement was limited to use of the runways and taxiways for purposes of taxiing, take off, and landing an aircraft. The Court found both parties liable for trespass for interfering with the other’s enjoyment of property rights. Defendant trespassed against Plaintiff by entering the airport property for purposes other than those allowed by his easement. Plaintiff trespassed against Defendant by preventing Defendant from using his easement. The Court further found that the same conduct by the parties did not rise to the level of nuisance, as their actions resulted in direct rather than indirect interference with property rights. Furthermore, Defendant did not tortuously interfere with Plaintiff’s business as there was no evidence that Plaintiff had a business relationship with any of the airport’s customers and there was no evidence any customers ceased doing business with Plaintiff or failed to enter into a business relationship with Plaintiff as a result of Defendant’s actions. The Court granted both parties an injunction with the effect of allowing Defendant full use of his easement without exceeding the scope of his easement. The Court further awarded both parties nominal damages of $100 and awarded Defendant compensatory damages of $500. The Court declined to award punitive damages or attorney fees due to the parties’ shared responsibility for the actions giving rise to the litigation and the prolonged nature of the litigation.
Honorable Paul W. Bonapfel
Trustee's motion for summary judgment with regard to proof of claim is denied with regard to claims for employment bonus and wrongful termination. Trustee raises alternative defenses to liability on note and stock purchase agreement. Trustee is entitled to summary judgment based on statute of limitations defense, but court permits claimant additional time to supplement record with regard to alternative defenses and will defer grant of summary judgment so that all defenses can be ruled on Trustee's motion for summary judgment with regard to equity interests is granted except for certain options that may give rise to a right of recovery depending on outcome of wrongful termination claim.
Credit card debt is not excepted from discharge under section 523(a)(2) because creditor failed to prove that debtor did not intend to pay the debt; parties are directed to brief the legal question of whether a debt is excepted from discharge under 523(a)2) when the debtor intends to pay a debt but knows that she will not pay it in accordance with its terms.
NOT INTENDED FOR PUBLICATION