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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Honorable Wendy L. Hagenau, Chief Judge

Order on plaintiff’s motion for summary judgment.  Plaintiff, a licensed psychologist, moved for summary judgment that fees awarded to her by the state court in connection with custody and visitation rights of the debtor’s children, as well attorneys’ fees, were non-dischargeable domestic support obligations.  The Court concluded the court-ordered fees related to custody and visitation were in the nature of support.  As such, the court-ordered fees were non-dischargeable under Section 523(a)(5).  The Court denied the motion as to plaintiff’s attorneys’ fees incurred in contempt proceedings in the state court and in the adversary proceeding.

Order denying defendants’ motion to dismiss for failure to state a claim. Debtor filed an adversary proceeding arguing defendants’ post-petition actions with respect to property the debtor allegedly subleased violated the automatic stay.  The motion to dismiss was replete with factual disputes, including the nature of the debtor’s interest in the premises.  Taking the allegations in the complaint as true, the Court concluded the defendants’ actions after learning of the bankruptcy filing constituted acts to obtain property from the estate, and to exercise control over property of the estate, even if the premises were not property of the estate. Thus, the Complaint sufficiently alleged the defendants violated the automatic stay.

Order on debtor’s motion to dismiss complaint.  Plaintiff filed its complaint objecting to the dischargeability of debts under Section 523(a)(2)(A), as being obtained by false representations or fraud; under Section 523(a)(2)(C), as luxury goods or services obtained within 90 days of the bankruptcy filing; and under Section 523(a)(14A) as an otherwise non-dischargeable payment to a taxing authority.  Debtor moved to dismiss the complaint for failure to state a claim for relief.  The Court concluded the complaint failed to plead sufficient facts to state a claim for relief under Section 523(a)(2)(C), but the plaintiff would be given an opportunity to amend the complaint to include the requisite factual allegations.  With respect to the Section 523(a)(2)(A) claims, plaintiff stated a claim for actual fraud; however, the Court dismissed the false representation claims that were brought under the “implied representations” theory.  Lastly, the Court denied the motion to dismiss as to the Section 523(a)(14A) claim, because the complaint provided sufficient information regarding the specific charge at issue.           

Order on Objection to Claim, based upon a consent judgment, alleged breaches of a lease agreement, and alleged conversion by the Debtor of funds owed under the lease agreement.  The Court concluded the consent judgment was not subject to attack in the bankruptcy court and did not bar a claim for damages incurred after the lawsuit was filed, but before the judgment was entered.  The Court also ruled the lease was not wholly unenforceable, and any ambiguities could be resolved through application of the Georgia rules of contract construction.  The Court then calculated the amount of damages owed, including damages related to lost profits.   

Order denying Motion to Reconsider Dismissal:  Debtor filed a Chapter 13 Plan, seeking to redeem property sold at a tax sale over the course of a 36-month Chapter 13 Plan.  The Plan was confirmed over the objection of the tax deed holder.  Debtor's case was dismissed for failure to make plan payments, and Debtor filed a Motion to Reconsider Dismissal.  The tax deed holder objected, arguing that Debtor's right to redeem the property expired when the case was dismissed and that reinstating the case would be prejudicial to creditor's state law rights.  Motion to Reconsider denied because Debtor failed to state cause to reconsider under Bankruptcy Rules 9023 or 9024.

Order granting Defendant’s Motion to Dismiss. Debtor filed an adversary proceeding alleging that Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 by filing a stale Proof of Claim. After the Court dismissed Debtor’s Chapter 13 bankruptcy proceeding, Defendant moved to dismiss the adversary proceeding. The Court concluded that it should not retain jurisdiction over the proceedings. When the underlying bankruptcy case was dismissed, the Court had discretion to retain jurisdiction over the adversary proceeding that was a non-core matter, arguably “related to” the bankruptcy proceeding. The Court evaluated the three factors of the Smith test when deciding whether to exercise its discretionary jurisdiction: (1) judicial economy; (2) fairness and convenience to the litigants; (3) the degree of difficulty of the related legal issues involved. In light of the facts that Debtor had not indicated opposition to the Motion to Dismiss, the parties had not engaged in discovery, no interlocutory orders had been entered, and the case had not been set for trial, the Court found the first two factors weighed heavily against retaining jurisdiction and therefore dismissed the case.

Honorable Paul W. Bonapfel

Order conditioning dismissal of adversary proceeding on payment of attorney's fees of defendant

Issue preclusion does not apply to earlier decision because debtor did not have full and fair opportunity to litigate in prior proceeding and decision lacked finding of intent to deceive necessary for 523(a)(2) claim; 523(a)(4) claim dismissed because no factual or legal basis.

Honorable James R. Sacca

The Court granted in part and denied in part the U.S. Trustee’s motion to compel. During discovery, the Defendant invoked her Fifth Amendment privilege against self-incrimination to certain questions regarding an answer she provided in her Statement of Financial Affairs. In his motion to compel, the U.S. Trustee argued: (1) the Defendant was unable to claim the privilege because she failed to show that answering the questions created any real danger of incrimination, and (2) even if a real danger of incrimination existed, the Defendant waived her right to invoke the privilege by voluntarily revealing incriminating facts related to the questions. The Court concluded the Defendant had a right to invoke the Fifth Amendment privilege against self-incrimination because answering the questions could lead to a real possibility of criminal liability. In addition, she did not waive her right to invoke the privilege because answering the questions could further incriminate her and allowing her to invoke the privilege would not distort the U.S. Trustee's view of the facts. The Court did compel the Defendant to answer questions she previously refused to answer on relevancy grounds.

Honorable W. H. Drake Jr.

The Court granted the Chapter 7 Trustee's motion to disallow exemption, finding that the Debtor's "wildcard" exemption exceeded the amount provided under the Georgia Code, $600, because the Debtor retained no unused portion of the "homestead" exemption to supplment it.