The Court granted, in part, Defendant's motion for parial summary judgment regarding Plantiff's interests to a settlement between Defendant and the company issuing the insurance policy. Specfically, the Court concluded that the New York Standard mortgage clause within the insurance policy created a separate contract between the mortgagee and the issuing company. As such, the Plaintiffs did not have any interest in that contract because they were not parties to that separate contract. Thus, the Plaintiffs were not entitled to any proceeds of the settlement between tose parties to the contract and they did not have an interest in any claim if the settlement failed. The Court also held that, because the Plaintiffs' attorneys' efforts did not produce the settlement and because the New York Standard mortgage clause acts as a pre-appropriation of the settlement proceeds, the attorneys were not entitled to a lien against the settlement proceeds.
NOT INTENDED FOR PUBLICATION
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Opinions
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Honorable James R. Sacca
Honorable Barbara Ellis-Monro, Chief Judge
Plaintiff sought reconsideration of an order in which the Court found lack of jurisdiction over a number of Plaintiff’s claims. The Court found no basis to reconsider the order under Rule 59, because Plaintiff raised arguments already considered and addressed by the Court prior to entry of the order. The Court found no basis to grant relief under Rule 60 because Plaintiff failed to show mistake or extraordinary circumstances justifying relief, but instead attempted to conflate personal jurisdiction with subject matter jurisdiction and attempted to rely on maxims of equity.
NOT FOR PUBLICATION
Plaintiff filed a complaint to recover property from Defendant. Defendant did not file an answer, but filed a letter pro se in the main bankruptcy case after the time to answer had passed. Plaintiff requested entry of default. The Court found the letter was sufficient to constitute an answer in that it was a pro se pleading and it responded to key allegations in the complaint. The fact that it was filed late did not justify entry of default where it was filed prior to the request for entry of default and Plaintiff was not prejudiced from seeking other dispositive relief by the denial of entry of default.
NOT INTENDED FOR PUBLICATION
Plaintiff filed a complaint seeking a determination as to dischargeability of amounts it paid out on cashier’s checks obtained by Defendant. Defendant filed a motion to dismiss, construed as a motion for judgment on the pleadings, and Plaintiff filed a motion for summary judgment. Plaintiff alleged the cashier’s checks were used to purchase foreclosure property in the name of Defendant’s business and that Defendant fraudulently reported the cashier’s checks lost or stolen. Plaintiff refunded the cashier’s checks to Defendant and was required to pay out a second time when they were properly presented for payment. Defendant claimed she gave the checks to a third party who purchased the foreclosure property, and the third party told Defendant she lost the checks. Based on the foregoing, the Court found that Plaintiff’s complaint stated claims for relief for fraud under 11 U.S.C. § 523(a)(2) and for willful and malicious injury under § 523(a)(6). The Court further found that an issue of fact had been established as to the falsity of Plaintiff’s representation that the checks were lost or stolen and as to Plaintiff’s intent. Therefore, the Court denied both the motion for judgment on the pleadings and the motion for summary judgment.
NOT INTENDED FOR PUBLICATION
Debtor sought to recuse the Judge assigned to his case under 28 U.S.C. §§144, 455(a), the due process clauses and the equal protection clause of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. As grounds, Debtor’s complaints generally fell into four categories: (i) dissatisfaction with the amount of notice provided or the way notice was provided; (ii) dissatisfaction with the outcome of a hearing on restoration of water service; (iii) dissatisfaction with the Court’s orders in the adversary proceeding; and (iv) dissatisfaction with the Court’s orders in the Main Case and a separate adversary proceeding. The Court determined recusal was not warranted because Debtor received adequate notice under Rule 9006; the court’s actions during the hearing on restoration of water service were within normal judicial functions; and despite Debtor’s subjective disagreement with the orders, they would not lead an objective observer to doubt the judge’s impartiality.
NOT FOR PUBLICATION
The Court granted the U.S. Trustee's motion for default judgment.
After a creditor obtained a judgment against her, the Debtor transferred 1.8 acres of real property to a friend for $1. The Debtor continued to live at the property, which was valued at approximately $40,000. The Debtor filed a petitin under Chapter 13 and did not disclose this transfer. That case was dismissed. The Debtor filed a subsequent case a month later. On motion of the Chapter 13 Trustee, the case was converted to Chapter 7. After conversion, the Debtor refused to attend her 341 meeting, prompting the Court to order the U.S. Marshal to apprehend her and bring her before the Court.
Based on these facts, the U.S. Trustee filed a complaint seeking the denial of the Debtor's discharge pursuant to section 727(a)(2). The Debtor did not file a response, so the U.S. Trustee filed a motion for default judgment. As the facts were taken as admitted, the Court entered default judgment.
The Court granted the U.S. Trustee's motion for default judgment.
The Debtor failed to turn over his 2013 tax refund after repeated requests from the Chapter 7 Trustee and even two orders of the Court. The Debtor received his discharge on February 4, 2014, but the case remained open as the Trustee continued to investigate the possibility of assets. Based on the Debtor's continued refusal to turn over the tax refund, the U.S. Trustee filed a complaint seeking to revoke the discharge due to the Debtor's refusal to comply with court orders, citing section 727(d)(3).
The Debtor did not file a response, so the Trustee moved for default judgment. Based on the fact that the Debtor had failed to abide by two orders of the Court, the Court granted the U.S. Trustee's motion.
The Court granted the Plaintiff’s Motion for Default Judgment in an adversary proceeding concerning the nondischargeability of debt pursuant to § 523(a)(2). In the Complaint, the Plaintiff, the Georgia Department of Human Services, alleged the Debtor received $9,867.00 in food stamps she was ineligible to receive because her employed spouse resided with her. The Debtor had the responsibility to report the employed spouse was living in the house. First, the Court held the Plaintiff could not obtain relief under § 523(a)(2)(B) because the Plaintiff did not provide the Court with the allegedly false written statement. Subsequently, the Court held the debt was excepted from discharge under § 523(a)(2)(A) because the Plaintiff proved the four necessary elements. First, the Plaintiff proved the Debtor created a false pretense to receive the food stamps. Second, the Plaintiff proved it relied on the statement by providing food stamps to the Debtor. Third, the Plaintiff proved the reliance was justifiable because of the lack of evidence showing the reliance was unjustifiable. Finally, the Plaintiff suffered a loss of $9,867.00.
Order denying movant's motion to enforce the automatic stay. Court held that once a judgment creditor obtains a default judgment against an employer/garnishee, the independent liability of such garnishee is established irrespective of OCGA 18-4-91's provisions allowing modification of such liabilty. Thus, the filing of a bankruptcy case by the the debtor/employee does not stay any action to collect solely from the employer/garnishee on its independent liability.
Honorable Lisa Ritchey Craig
The court granted the defendant's motion to quash service because the summons was not timely served in accordance with Rule 4(m) of the Federal Rules of Civil Procedure, but gave the plaintiff thirty days to obtain and serve an alias summons.