Order granting Plaintiff’s motion for partial summary judgment and denying Defendant’s motion to dismiss; denial of discharge under § 727(a)(2) and (a)(4)
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Debtor brought a multi-count complaint against its lender, and the lender moved to dismiss for failure to state a claim. The court granted the lender’s motion except for the objection to claim count because lender conceded it needed to amend its claim to reflect the application of proceeds from sale. Debtor sought a determination that lender was liable for negligence and equitable disallowance or reduction in claim because it released requested draw funds without requiring documentation provided for in the agreements between the parties. The court considered the lender’s affirmative defenses within the context of the motion to dismiss because the application of such defenses were apparent from the face of the complaint. After applying several states’ laws to the Debtor’s claim, the Court determined that lender did not have liability to Debtor based upon the requested draws since Debtor made such request and there was no allegation of lender’s knowledge of the scheme by certain of Debtor’s agents acting in their designated capacity.
John Domjancic, a party to a settlement with the estate, filed a timely objection to the Court’s Order authorizing the retention and employment of IP Investments Group, LLC (“IPI”). Mr. Domjancic did not object to the engagement of IPI’s services but to the terms of IPI’s employment, specifically the commission structure outlined in the IPI Engagement Letter. The Court declined to approve the terms of IPI’s commission structure under Section 328(a) since doing so would possibly limit the Court’s ability to independently assess the application of such commission fees and since the IPI’s commission structure may conflict with the Approved Settlement Agreement. Thus, the Court granted the Chapter 7 Trustee the authority to employ IPI as the Trustee’s patent broker under 11 U.S.C. § 327(a) but made no ruling as to the distribution terms of the Approved Settlement Agreement.
Defendant Cynthia Vinson filed an answer, pro se, on behalf of herself and purportedly on behalf of Defendant Medical Development Group, LLC. Plaintiff moved for default judgment, asserting that Defendant Medical Development Group, LLC was in technical default because Ms. Vinson cannot answer or act on behalf of Defendant Medical Development Group, LLC as such action would constitute the unauthorized practice of law. However, given the general policy and preference for judgments to be determined on the merits, the Court gave Defendant Medical Development Group, LLC leave to file a proper answer and denied Plaintiff’s motion for default judgment without prejudice.
Order granting Chapter 7 trustee's complaint to avoid debtor's transfer of interest in real property under section 548; concluding that the debtor had an interest in the real property at the time she executed a quitclaim deed to the defendant because the deed that conveyed the property interest to the debtor was delivered and accepted and, therefore, met the requirements of a valid deed under Georgia law.
Order denying defendants' motion for summary judgment because genuine issues of material fact remained as to whether the transfer of substantially all of the debtor's assets in satisfaction of a debt owed to an insider was made with actual fraudulent intent and whether the debtor received reasonably equivalent value in exchange for the assets, thus precluding the Chapter 7 Trustee/Plaintiff from asserting that the transfer was constructively fraudulent.
Honorable Barbara Ellis-Monro, Chief Judge
Debtor’s proposed Chapter 13 plan provided for surrender of collateral that was not in Debtor’s possession and could not be delivered by Debtor to the creditor. The Court held that the term surrender does not always require immediate physical delivery of property, but a good faith effort to locate and turnover the property is sufficient. Surrender of property does not eliminate a creditor’s state law rights so that if the underlying contract and/or state law provide a right to a deficiency claim then the creditor retains that claim.
NOT INTENDED FOR PUBLICATION
Plaintiff alleged that Bank of America did not own the loan documents securing an interest in Plaintiff’s home. The Court held that here is no cause of action to contest a claim of “robo-signing” under Georgia law. Further, Plaintiff must be a party to any assignments that occurred between Bank of America and any previous entities that controlled the documents to have standing to challenge the validity of said assignments.
A defendant in a student loan dischargeability case sought dismissal for failure to state a claim or, in the alternative, summary judgment. The Court excluded an affidavit attached to the motion and declined to treat the motion as one for summary judgment because it did not comply with BLR 7056-1(a)(1). The court dismissed the defendant from the adversary proceeding because the plaintiff failed to allege the defendant held any debt owed by the plaintiff.
Brandywine Townhouses, Inc.
Debtor objected to secured creditor�s Proof of Claim on grounds that prepayment penalty, late fees, and other charges were unreasonable. Because all penalties, fees, and charges were contracted for and legal under state law, they are allowed pursuant to 11 U.S.C. � 502. Charging both default interest and late fees, however, is unreasonable and thus the late fees are allowed only as an unsecured claim pursuant to � 502 and the Eleventh Circuit�s decision in In re Welzel.
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