Dismissing on § 707(b) presumption of abuse; priority of tax liability under § 507(a)(8) is determined by reference to date when liability was assessed, without regard to when tax return was filed.
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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.
Orders designated as Opinions and issued between January 1, 2004 and December 31, 2016 are maintained on this website. Many of these Opinions are not intended for publication and are so designated. Each entry includes the style of the matter, the case number, the date entered on the docket, and a short parenthetical expression of the issue(s) raised. The most recent opinions appear first.
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The Court denied the Debtor's motion to reconsider an order denying his motion to reconsider the dismissal of his Chapter 13 case. Although the case was originally dismissed for failure to pay the filing fee and the Debtor had corrected the deficiency, the Chapter 13 trustee opposed reinstatement of the case, and the Court agreed that the Debtor had no reasonable likelihood of proposing a confirmable plan and that reinstating the case would simply result in undue delay and unfair prejudice to the Debtor's secured creditor.
A Chapter 7 Debtor filed an adversary proceeding against lender Wells Fargo Bank N.A. seeking to prevent a foreclosure on various state and federal law theories. Lender sought dismissal of the case on several grounds, including (i) insufficient service of process, (ii) lack of standing, and (iii) failure to state a claim upon which relief may be granted. Lender’s service of process argument centered on Debtor’s failure to utilize the method of service of process on an insured depository institution under Federal Rule of Bankruptcy Procedure 7004(h). The Court rejected this argument, noting that while Rule 7004 provides one method of service on such institutions, the Rule also incorporates certain personal service methods under Federal Rule of Civil Procedure 4, and found that service under that Rule was valid. The Court agreed with Lender’s second argument, however, and found that as a Chapter 7 Debtor, Debtor lacked standing to bring the complaint. The fact that Debtor had already been granted a discharge and that his case would soon be closed did not affect this result, because the closure of the case would deprive the court of related-to jurisdiction over his pre-petition claims.
A Defendant corporation was in technical default because the only pleadings purportedly filed by it were filed by a non-attorney. Noting that corporations cannot act pro se, the Court provided additional time for it to respond through counsel. After it failed to do so, Plaintiff sought default judgment. The Court found that the complaint alleged sufficient facts to warrant entry of default judgment against the Defendant as to several counts. These included various fraud and theft offenses both as specific acts as well as Georgia Racketeer Influenced and Corrupt Organizations (“Georgia RICO”) predicate offenses. However, the Court found that default judgment on several other State and Federal RICO claims was improper, noting that the each of elements of the respective predicate offenses were not sufficiently alleged.
(Upon a request by the Chapter 7 debtors, the Court found that the creditor had violated the discharge injunction by permitting a collection action pending in state court to be calendared for trial and notice to be sent to the Debtors of a hearing date. The Court directed the creditor to cause the immediate dismissal of the action and to file an affidavit evidencing the dismissal).
After lender Wells Fargo Bank N.A. received relief from stay and prevailed on Debtor’s motion to reimpose the stay in Debtor’s bankruptcy case, Debtor filed an adversary proceeding against the lender seeking to prevent a foreclosure on various state and federal law theories. In the adversary proceeding, Debtor filed a Motion for a Temporary Restraining Order to stop the lender from conducting a foreclosure sale until Debtor’s claims were resolved. The Court denied the Motion, noting first that it was not properly served or verified, but also that it failed to satisfy the temporary restraining order standard. It found that none of the claims Debtor alleged had a substantial likelihood of success on the merits. The Court also considered the fact that Debtor’s motion was essentially a third attempt to impose the automatic stay against the lender after the lender had twice demonstrated entitlement to stay relief in the main bankruptcy case.
NOT INTENDED FOR PUBLICATION
(The Court overruled creditor's objection to confirmation, finding the appropriate rate of interest to be 5.0% and finding the Debtor's proposed plan feasible under its terms).
Honorable Barbara Ellis-Monro, Chief Judge
Debtors and other third parties mediated a dispute involving certain claims against the estate. After approval of the settlement agreement, Debtors sought to avoid signing Detailed Releases that were part of the order approving the settlement and that Debtors had previously agreed to sign. The Debtors filed a motion to reconsider the approval of the settlement agreement. The Court denied the motion because vacating the settlement agreement would be prejudicial to other parties who had relied on the order approving the settlement, the motion was untimely, and there were no extraordinary circumstances that warranted vacating the settlement agreement.
Trustee filed a Complaint to avoid and recover certain funds for the benefit of Debtor’s estate. Defendant filed a Motion to Dismiss arguing that Trustee had not adequately pled causes of action to avoid transfers under an intentional fraud claim or constructive fraud claim. The Court held that to plead intentional fraud, a plaintiff must meet the heightened pleading requirements of Fed.R.Civ.P. 9(b). In complying with Rule 9(b), a plaintiff may plead fraudulent intent generally by pleading one or more of the badges of fraud to meet the required element of intent. The Court further held, that to plead constructive fraud, only the requirements of Fed.R.Civ. 8(a) must be met. A plaintiff does not need to specifically allege facts in a complaint to prove that a debtor received less than reasonably equivalent value when pleading constructive fraud
Honorable Wendy L. Hagenau
Order issuing proposed findings of fact and conclusions of law on Debtor’s claim for surplus under the UCC and abstaining from Debtor’s fraud claims related to a prepetition secured transaction. The Court previously ruled the Debtor had a potential claim for damages under the UCC because Defendant failed to follow the notice provisions of the UCC when he disposed of the collateral. The Court now holds the claims for surplus and for fraud are non-core matters. As to the claim for surplus, the Court entered proposed findings of fact and conclusions of law as to the value of the car, the claims for attorneys’ fees by both parties, and claims for additional damages by both parties. As to the claims of fraud, the Court abstained from hearing them under 28 U.S.C. § 1334.