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.

You can narrow your search by judge and/or year below.  You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.

Honorable Mary Grace Diehl

Order denying Plaintiff’s Motion for Attorney’s Fees. Prepetition, Plaintiff received a Florida foreclosure judgment against Defendant which included an award of attorney’s fees under the governing security agreement. Defendant filed a voluntary Chapter 7 case, and Plaintiff successfully obtained a nondischargeability judgment against Defendant. Plaintiff later filed a Motion for Attorney’s Fees, seeking a further award of attorney’s fees for the litigation of the nondischargeability proceeding. The Court noted that this motion was untimely, filed 29 days after entry of judgement, in excess of the 14 day window prescribed by Fed. R. Civ. P. 54(d)(2)(B)(i), but proceeded to consider the motion anyway.
As to whether Plaintiff was entitled to contractual attorney’s fees, the Court held that Florida law governed the enforceability of contractual post-judgment awards for additional attorney’s fees, and found that under Florida law the security agreement merged into the foreclosure judgement absent a specific provision for post-judgment attorney’s fees within the agreement. The Court next turned to statutory post-judgment attorney’s fees under a Florida statute that provided for fees incurred in connection with execution on the judgment. The Court held that litigating a complaint to determine dischargeability is a matter of bankruptcy law, existing independently of execution of the original foreclosure judgment, and thus is not a basis for statutory attorney’s fees under Florida law.

Order denying confirmation of Debtor’s Chapter 13 plan. Debtor’s previous case was dismissed for failure to comply with his own confirmed plan. That plan directed Debtor to auction a “Lake House” to pay judgment creditor Dwayne Richardson’s (“Creditor”) secured claim.  In his second case, Debtor filed a plan that proposed to “pay” the secured claim of Creditor by surrendering the Lake House—only one of the properties encumbered by Creditor’s judgment lien. The plan proposed to judicially value the Lake House and pay any deficiency in monthly installments. Debtor repeatedly fell behind on his pre-confirmation plan payments and did not reliably keep Richardson’s collateral insured. Richardson filed several objections noting insurance deficiencies and Debtor’s failure to disclose several pieces of property.
After a trial, the Court denied confirmation on two grounds: First, good faith based in part on Debtor’s failure to maintain insurance (the Lake House was uninsured as of the trial date) and lack of disclosure in the case. Second, the Court held that a plan cannot propose to give an objecting secured creditor only some of his collateral. This result is the same whether the plan couches the treatment as a “partial surrender” or as a “payment.” The surrender provision of Section 1325(a)(5) requires surrender of all property securing the secured creditor’s claim, and the word “payment” as used in the bankruptcy code does not contemplate a transfer of real property to an objecting judgment creditor.

Order overruling Debtor’s objection to claim of Wells Fargo Bank, N.A. Debtor objected to Wells Fargo’s secured proof of claim based on a mortgage loan, asserting that she did not owe it a debt. At the hearing on the objection, Debtor asserted that the endorsements on the note to Wells Fargo were invalid and that the assignment of Debtor’s security deed was by fraudulent “robo-signing.” The Court overruled Debtor’s objection for three reasons. First, because Debtor failed to produce adequate evidence to overcome Wells Fargo’s sworn proof of claim’s prima facie evidence of the validity and amount of its claim. Second, because Debtor entered into a loan modification with Wells Fargo which the court held estopped Debtor from denying that Wells Fargo received an assignment of her mortgage loan. Third, because under Georgia law Debtor lacked standing to challenge the assignment as a nonparty to the assignment agreement.

Order granting Motion for Relief from Stay of Moe's Franchisor, LLC.  Moe's sought relief from stay because Debtors cannot assume or assign their franchise agreement with Moe's pursuant to 11 U.S.C. § 365(c)(1), which states, "The trustee may not assume or assign any exeuctory contract ... if (1)(A) aplicable law excuses a party, other than the debtor, to such contract or lease from accepting performance from or rendering performance to an entity other than the debtor...; and (B) such party does not consent to such assumption or assignment[.]"  A circuit split exists as to whether 11 U.S.C. § 365(c)(1) prohibits a debtor in possession from assuming an executory contract if applicable law would excuse the contract counterparty from accepting performance from someone other than the debtor; however, the 11th Circuit's stance on this issue is determined by In re James Cable Partners, L.P., 27 F.3d 534 (11th Cir. 1994), which states that the restriction of § 365(c)(1) does apply to debtors in possession.  Debtors argument that James Cable's application of § 365(c)(1) is dicta is incorrect.   Because Debtor could not assume the executory contract, cause existed to grant Moe's relief from the automatic stay.

Honorable W. H. Drake Jr.

Deferring ruling on putative landlord's motion to compel rejection or assumption of lease and granting in part landlord's motion for relief from the automatic stay regarding premises used by chapter 11 debtors to operate senior long-term care facilities.

The Court denied Defendant's Motion for Partial Summary Judgment, finding that the liberal pleading standards of Rule 8, incorporated into the Bankruptcy Code, do not require that the Plaintiff specifically reference the applicable state law. The Court also found that statutes of limitations are procedureal, and  the applicable law concerning statute of limitations is that of the forum state, which is in this case Georgia. The Court reserved judgment as to what laws govern the substance of the fraudulent transfer claims, as classification of a fraudulent transfer claim as one resounding in tort or contract may require the Court to examine the facts of the case, and the rules regarding choice-of-law under both are factual inquiries that should not be undertaken until the conclusion of discovery.

The Court sustained the debtor's objection to a creditor's claim as having been filed after the claims bar date and denied the Chapter 13 Trustee's motion to dismiss the case or modify the debtor's confirmed plan to increase the plan payments, finding that the debtor did not have an increase in income.

Honorable Barbara Ellis-Monro

IRS assessed income tax liability on Debtor in excess of $200,000 after certain partnership losses allocated to Debtor were disallowed. The Court determined Debtor had not willfully attempted to evade or defeat the tax, and therefore the tax debt was dischargeable. Although Debtor maintained an affluent lifestyle after the assessment, he made significant payments on the assessment through both voluntary and involuntary transfers and he took no action to remove his assets from the reach of the IRS.

Honorable Paul W. Bonapfel

In an earlier opinion on the Trustee's motion for partial summary judgment on his objections to a proof of claim, the Court reserved ruling on certain issues to permit the claimant to supplement the record to show a dispute of material fact.  Court concludes that the claimant's Supplemental Brief does not establish any such dispute and grants Trustee's motion on those issues.
This Supplemental Memorandum Opinion and Order has not been prepared for publication and is not intended for publication.

Funds distributed under a Chapter 13 plan to the holder of a subordinate security deed, but not claimed, remain property of the creditor.  The later conversion of the case to Chapter 7 and "strip-off" of the lien do not affect the rights of the creditor to the unclaimed funds.  Debtor's application for disbursement of the funds to her is denied.    This Order has not been prepared for publication and is not intended for publication.                               

 

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