All Opinions by All Judges

 

Docket Date
Judge
Description
Case(s)
PDF
11.06.2014 MHM

Freeman v. Cavin (In re Donald Kyle Cavin and Tonia Mann Cavin)

Denying Motion to Dismiss; Defendant did not properly show lack of due process

BK 12-60927, AP 12-5668, Doc. #107
11.06.2014 MHM

Coons v. White (In re Sheri Lynn White)

Denying Motion for Default Judgment; Plaintiff failed to state prima facie claim for relief

BK 14-55512, AP 14-5193, Doc. #12
10.31.2014 WLH

Moyer v. Geer (In re Geer)

Order after trial on objection to discharge under Sections 727(a)(2) and (a)(4). Plaintiff argued, inter alia, the Debtor concealed assets through the use of a corporate form and through the creation of trusts. The Plaintiff argued the Debtor was the alter-ego of the trusts and corporation, such that all of their transactions should be viewed and disclosed as the Debtor’s transactions. The Court rejected Plaintiff’s contentions on the facts and the law, noting that reverse veil piercing has been rejected by the Georgia Supreme Court. The Court also discussed the continuing concealment doctrine. The Court found that the transfers of the Debtor, or the corporation or trusts, were not made with the requisite intent to hinder, delay or defraud, and any “false oaths” were immaterial or not made knowingly or with intent to deceive. The Court granted Debtor’s discharge.

BK 12-73864, AP 13-5155, Doc. #58
10.30.2014 BEM

In re John Thomas Rice and Sheila Avery Rice

Denying Motion to Dismiss; filing a petition via a power of attorney/ ratification of a forged petition; representation of case law under Rule 9011

BK 14-58002, Doc. #83
10.21.2014 MGD

Johnson Family Trust v. The Marietta City Gramling St. Land Trust

Johnson Family Trust filed separate motions seeking to hold the purported trustee for the debtor-trust in contempt of court for failure to comply with a subpoena and seeking sanctions against the trustee and the debtor-trust for filing a frivolous bankruptcy petition. The Court found that contempt was not warranted because the case was dismissed before compliance was required, rendering compliance with the subpoena moot . The Court also found that imposing sanctions on the debtor and the trustee was not warranted, as the evidence presented by Johnson Family Trust—specifically, conduct that did not occur before the court—was not sufficient to prove that either party had knowledge that the filing was frivolous.

NOT INTENDED FOR PUBLICATION

BK 14-56519, Doc. #28
10.14.2014 WLH

Polke v. Frederick, et. al. (In re Polke)

Order on Defendant’s motion to reconsider the Court’s Order that Debtor was entitled to a claim of damages under the Georgia Commercial Code. Debtor filed an adversary proceeding seeking turnover of a vehicle and damages for violation of the automatic stay. The vehicle was sold prepetition. The Court found the transaction between the Debtor and the Defendant was neither a sale nor a pawn, but a secured transaction governed by the UCC. The Court found the Debtor’s interest terminated with the sale of the vehicle; thus, the vehicle was not subject to turnover and no stay violation occurred. However, Defendant did not follow the UCC provisions related to disposal of collateral. Consequently, the Court ruled the Debtor had a potential claim for damages under the UCC.

BK 14-66844, AP 14-5277, Doc. #28
10.07.2014 PWB

In re Macon; Macon v. U.S. Dept. of Education

Order denying Defendant's motion for summary judgment that student loan debt is excepted from discharge under 523(a)(8). Disputes of material fact with respect to prongs 2 and 3 of the Brunner test preclude entry of summary judgment. The Debtor's failure to participate in an income contingent repayment program, standing alone, does not demonstrate a lack of good faith.

NOT INTENDED FOR PUBLICATION

BK 12-42846, AP 13-4014, Doc. #20
10.07.2014 BEM

Herbert C. Broadfoot, II, as Chapter 7 Trustee for International BioChemical Industries, Inc., f/d/b/a BioShield Technologies, Inc., vs. Jamestown Management Corporation, as Managing Agent for Cologne Investors, Inc. & Irving Walter Graebner

The Chapter 7 Trustee objected to Lessor’s proof of claim, which asserted a secured claim in excess of $3 million for unpaid rent that had accrued and been reduced to judgment prepetition. The Trustee argued the claim should be disallowed under § 502(d) because the judgment lien was avoidable. The Court rejected this argument because the Lessor voluntarily abandoned any lien rights it held. The Trustee also contended that the claim should be limited by the cap in § 502(b)(6), which applies when a claim results from termination of a lease. The Lessor contended that the cap does not apply because its lease was never terminated under state law. The Court concluded that a lease is “terminated” for purposes of § 502(b)(6) when it terminates under applicable law or when the debtor breaches the lease and abandons the property to the landlord. Under this definition, termination of the lease at issue occurred when the Lessor obtained a writ of possession; therefore the rent cap applied to the claim.

NOT INTENDED FOR PUBLICATION

BK 04-92814, Doc. #186
09.30.2014 MHM

Southside, LLC v. SunTrust Bank (In re Southside, LLC)

Order Granting Objection to Claim; creditor’s claim for pre-petition attorneys’ fees denied for failure to comply with O.C.G.A. § 13-1-11); entered September 30, 2014

INTENDED FOR PUBLICATION

12-79847-MHM, Doc. No. 203
09.25.2014 MHM

Gordon v. Harman et al. (In re Harman)

Order granting in part Defendants’ motion for judgment on the pleadings; discussing Chapter 7 Trustee’s standing to raise claims on behalf of third-party creditors; FRCP 12(c) standards); entered September 25, 2014

INTENDED FOR PUBLICATION

AP No. 13-5211, Doc. No. 102
09.11.2014 BEM

In re: Tonja Denise Russell

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

BK 13-66201, Doc. #35
09.11.2014 MHM

McAfee v. Harman (In re Harman)

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)

INTENDED FOR PUBLICATION

AP No. 11-5534, Doc. No. 145
09.09.2014 MGD

Citrus Tower Boulevard Imaging Center, LLC v. Key Equipment Finance, Inc. (In re Citrus Tower Boulevard Imaging Center, LLC)

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.

NOT INTENDED FOR PUBLICATION

BK 11-70284, AP 14-5105, Doc. #23
08.28.2014 MGD

In re: Citrus Tower Boulevard Imaging Center, LLC v. Franklin B. Trell et al.

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.

BK 11-70284, AP 14-5142, Doc. #35
08.28.2014 MGD

In re: Matthews

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.

BK 10-96519, Doc. #193
08.28.2014 BEM

Shanks v. Sallie Mae

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.

BK 14-52925, AP 14-5189, Doc. #10
08.19.2014 BEM

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.

NOT INTENDED FOR PUBLICATION

BK 13-75582, Doc. #117
08.15.2014 WHD

In re: Howell v. Trawick

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.

BK 11-14191, AP 13-1006, Doc. #30
08.11.2014 BEM

In re: Rohrig Investments, et al

"Order denying confirmation of competing plans for six Debtors; the Debtors' plan a reorganization, and the Creditor's plan a liquidation."

NOT INTENDED FOR PUBLICATION

BK 13-53483, Doc. #856
08.11.2014 WHD

In re: Howell v. Fulford

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.

BK 11-12755, AP 13-1043, Doc. 37
08.06.2014 WHD

In re: Frank B Flanders, Jr.

Court granted a creditor's Motion to Reopen Case for the purpose of filing an adversary proceeding seeking declaratory relief as to the treatment of a prepetition lien the creditor held on certain real property of the Debtor sold either during the pendency of the case or through the Chapter 11 plan, finding that the reopening of a case is typically a ministerial function and that, although the Court finds a preliminary assessment of the merits of the underlying substance an inviting inquiry, such inquiry is inappropriate on a Motion to Reopen and that the Court may find the requisite cause upon finding that a bona fide question needs answering, which the Court is in the best position to determine.

BK 11-10364, Doc. #284
08.06.2014 MGD

In re: Adeluola v. Community & Southern Bank

Plaintiff’s wrongful eviction action was dismissed on two occasions: once by court order and once by Plaintiff’s motion for voluntary dismissal. In its motion to dismiss, Defendant asserted that the second dismissal of the Plaintiff’s wrongful eviction action resulted in a dismissal with prejudice by operation of Rule 41(a)(1)(B). This is commonly referred to as the “two dismissal rule.” The Court found that the two dismissal rule asserted by the Defendant is not implicated when one dismissal is by Plaintiff’s motion and the other by court order. Thus, the Court concluded that the second dismissal by Plaintiff’s motion was not an adjudication on the merits under Rule 41(a)(1) and denied Defendant’s motion to dismiss.

BK 12-56011, AP 14-5161, Doc. #6
08.04.2014 MGD

In re: Stokes

Debtor, who is authorized to practice law and is a member of the Georgia Bar, filed an Appearance of Counsel in his own Chapter 11 case. 11 U.S.C. § 327(a) provides that only disinterested persons, as defined by 11 U.S.C. § 101(14), are permitted to be employed as professional persons in Chapter 11 cases. The Court concluded that because the Debtor is clearly not a disinterested person in his own Chapter 11 case, he cannot meet the requirements to be employed under 11 U.S.C. § 327(a) and thus is not permitted to serve as counsel or co-counsel in this case.

BK 12-66287, Doc. #71
08.04.2014 MGD

In re Stokes

Debtor, who is authorized to practice law and is a member of the Georgia Bar, filed an Appearance of Counsel in his own Chapter 11 case. 11 U.S.C. § 327(a) provides that only disinterested persons, as defined by 11 U.S.C. § 101(14), are permitted to be employed as professional persons in Chapter 11 cases. The Court concluded that because the Debtor is clearly not a disinterested person in his own Chapter 11 case, he cannot meet the requirements to be employed under 11 U.S.C. § 327(a) and thus is not permitted to serve as counsel or co-counsel in this case.

BK 12-66287, Doc. #71
08.01.2014 MGD

In re: Georgia United Credit Union v. Ortiz

Plaintiff filed a complaint to determine that a debt owed to it was nondischargeable pursuant to either 11 U.S.C. §§ 523(a)(2)(A) or (a)(6) or § 523(a)(2)(C). Plaintiff’s complaint failed to plead sufficient facts to state a plausible claim under § 523(a)(2)(A). Further, the Court concluded that Plaintiff’s complaint failed to allege the statutory elements necessary to avail itself of the presumption of nondischargeability in§ 523(a)(2)(C)(i)(I). The Court thus denied the Plaintiff’s motion for default judgment.

BK 13-43620, AP 14-4014, Doc. #7
07.30.2014 BEM

Parks v. Bank of America

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.

NOT INTENDED FOR PUBLICATION

BK 12-77687, AP 13-5413, Doc. #31
07.17.2014 WHD

In re: Howell v. Brown

Court granted the Chapter 7 Trustee's Motion for Summary Judgment, avoiding a preferential transfer of a security interest in an automobile received by the Defendant in violation of 11 U.S.C. § 547(b); however, the Court denied Trustee's request for attorney's fees, finding that the record failed to support a showing of bad faith, stubborn litigiousness, or unnecessary trouble and expense on the part of the Defendant.

BK 12-11215, AP 13-1057, Doc. #20
07.16.2014 WHD

In re: Dan L. Dunson

Court determined the value, pursuant to section 506(a), of various residential real properties for purposes of confirmation of related debtors' Chapter 11 plan of reorganization.

BK 13-10604, Doc. 660
07.14.2014 MHM

Guven Fine Jewelry, Inc. v. Hope (In re Angelica Sebastian Hope)

(Order denying Hope's Motion for Judgment on the Pleadings; pleading 11 U.S.C. §§ 523(a)(2); collateral estoppel does not preclude bankruptcy court from exercising exclusive jurisdiction to determine nondischargeability under 11 U.S.C. §§ 523(a)(2)); signed July 11, 2014, entered July 14, 2014 (Doc. No. 15).

NOT INTENDED FOR PUBLICATION

BK 13-69704, AP 13-5422, Doc. #15
07.14.2014 MHM

Still v. Storey (In re Miranda Ann Storey)

(Order granting Motion to Dismiss and denying Motion to Strike; pleading recovery of money/property under FRBP 7001(1), objection to discharge under 11 U.S.C. §§ 727(c), and nondischargeability under 11 U.S.C. §§ 523(a)(1), (a)(2), (a)(4), and (a)(14)); signed July 11, 2014, entered July 14, 2014 (Doc. No. 13).

NOT INTENDED FOR PUBLICATION

BK 13-75469, AP 14-5125, Doc. #13
07.14.2014 JRS

Gurta v. DeLong (In re DeLong)

Following trial, the Court concluded that: (1) the Debtor would not be denied a discharge under 11 U.S.C. §727(a)(4)(A) for committing a false oath because she had no fraudulent intent when misstating facts related to receiving certain settlement proceeds; (2) the Debtor’s debt to her landlord would not be deemed nondischargeable under 11 U.S.C. §523(a)(2)(A) because, although she broke a promise to pay her rent arrearage out of her settlement proceeds, she intended to pay him when she made the promise and thus had no fraudulent intent; (3) the landlord failed to carry his burden in proving that the Debtor caused certain willful or malicious damage to his property pursuant to 11 U.S.C. §523(a)(6); and (4) the Debtor was not entitled to a grant of attorneys’ fees under 11 U.S.C. §523(d) because the landlord had a reasonable basis for his claims.

BK 13-68500, AP 14-5004, Doc. #12
07.08.2014 WHD

In re: Sand-Stone v. Camp

Court denied Plaintiff's Motion for Summary Judgment and granted Defendant's Cross-Motion for Summary Judgment, finding that judicial estoppel not appropriate to preclude the Court from considering relevant facts hereto unknown to the Plaintiff and that, in light thereof, the Plaintiff otherwise failed to demonstrate any genuine issue of material fact, which would overcome the Defendant's Cross-Motion for Summary Judgment.

BK 13-10797, AP 13-1029, Doc. #24
07.01.2014 MGD

Wells Fargo Bank, N.A. v. Farmery

Defendant’s motion to dismiss for failure to state a claim under 11 U.S.C. § 523(a)(2)(A) was denied. Plaintiff’s amended complaint provided facts beyond mere conclusory statements and with sufficient particularity to put Defendant on notice as to the acts or omissions that Plaintiff bases its nondischargeability claim. Thus, the Court was able to make a reasonable inference that Defendant plausibly misrepresented his financial situation through omissions and concealment.

BK 13-71735, AP 13-5450, Doc. #21
06.20.2014 BEM

Comcast Cable Communications Management, LLC, Movant v. Blair B. Chintella, Respondent

Movant filed its Motion for Relief to pursue 28 U.S.C. § 1927 sanctions against Debtor in district court. The Court found that the sanctions provided for by § 1927 are of a pecuniary nature and as such not covered by the exception to the automatic stay found in 11 U.S.C. § 362(b)(4).

NOT INTENDED FOR PUBLICATION

BK 13-73481, Doc. #44
06.19.2014 WLH

Kerr v. H.E. Butt Grocery Co. (In re Continental Case Co., LLC)

Order on Defendant’s motion to dismiss adversary proceeding seeking turnover under Section 542 of amounts owed on open account. The Court found the action did not qualify as a core proceeding to turn over property of the estate under Section 542 because it was unclear whether the debt at issue was undisputed and therefore subject to turnover. The underlying transactions occurred prepetition and Defendant had not filed a proof of claim or otherwise participated in the bankruptcy case. Thus, the adversary proceeding was a non-core proceeding within the Bankruptcy Court’s “related to” jurisdiction.

BK 13-67727, AP 13-5455 Doc. #12
06.19.2014 WLH

Kerr v. Supermarket Parts Warehouse, Inc. (In re Continental Case Co., LLC)

Order denying Defendant’s motion to dismiss adversary proceeding and granting Plaintiff’s motion for leave to file an amended complaint. The complaint sought turnover under Section 542 of amounts owed on open account. The debt at issue was clearly disputed based on Debtor’s schedules and Defendant’s proof of claim filed in the bankruptcy case. The Court found that although the adversary proceeding was not an action to turn over property of the estate under Section 542, the matter was a core proceeding “arising under” the bankruptcy code, because the Court must adjudicate Plaintiff’s claim in order to rule on Defendant’s proof of claim.

BK 13-67727, AP 13-5442, Doc. #16
06.16.2014 WLH

Bryant v. Archibald (In re Bryant)

Order dismissing Debtor’s complaint for declaratory relief based on prior state court actions and prepetition business dealings with the Defendants. Under the Rooker-Feldman doctrine, the Court does not have subject matter jurisdiction to overrule the state court decisions. As to jurisdiction over the remaining issues, those claims were at most “related to” the bankruptcy case, and to the extent “related to” jurisdiction may exist, the Court found that permissive abstention under 28 U.S.C. § 1334(c) was warranted.

BK 13-75554, AP 14-5049, Doc. #16
06.16.2014 MGD

Cooper v. Generation Mortgage Co.

Debtor executed a home equity security deed in favor of Lenox Financial Mortgage, LLC, who transferred the interest to Defendant. Plaintiff, the Chapter 7 Trustee, filed the adversary proceeding seeking to recover from Defendant either its interest in the property or the value of that interest under 11 U.S.C. § 550. Defendant filed a motion to dismiss pursuant to Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. The Court determined that it did have jurisdiction, despite the fact that the Trustee had abandoned the property subject to Defendant’s security interest. Similarly, abandonment of the property did not affect Plaintiff’s ability to state a claim for relief. The Court denied the motion to dismiss.

BK 08-43724, AP 14-4003, Doc. #16
06.10.2014 WLH

Briggs v. United States (IRS)

Order on Defendant’s Motion for Summary Judgment addressing the dischargeability of tax debt related to a late-filed, post-assessment income tax return. The Court rejected the IRS’s argument that the debt arose from the IRS assessment of tax liability, rather than the Debtor’s return filed after the assessment, and was therefore nondischargeable under § 523(a)(1)(B)(i) as one for which a required return was not filed or given. The Court further concluded neither the definition of “return” under § 523(a)(19), which requires satisfaction of the “applicable nonbankruptcy law (including applicable filing requirements),” nor the “honest and reasonable” prong of the Beard test includes consideration of the timeliness of the filing.

BK 13-56378, AP 13-5247, Doc. #12
06.09.2014 WHD

In re: Laosebikan v. Rupenthal, et. al.

Court sua sponte dismissed the Plaintiff's case for failure to state a claim, finding no basis for relief and that the allegations were patently frivolous.

BK 14-10417, AP 14-1024, Doc. #22
06.03.2014 WLH

Moyer v. Geer (In re Geer)

Order on subject matter jurisdiction of the bankruptcy court to enter a money judgment on behalf of a creditor objecting to the debtor’s discharge pursuant to 11 U.S.C. § 727(a)(2)(A) and (B), (a)(4)(A) and (D). The Court found that subject matter jurisdiction was lacking because the plaintiff’s claim had no relevance to the Section 727 causes of action. The Court then found that in the event “related to” jurisdiction did exist, bifurcation of the issues was appropriate. If the plaintiff prevailed on the objection to discharge, the Court would sua sponte lift the stay to allow the related litigation on damages to continue.

AP 13-5155, Doc. No. 43
05.29.2014 PWB

Aerofund Financial, Inc. v. Terry (In re Terry)

(Order (1) denying motion to amend complaint to add defendant; and (2) abstaining under 28 U.S.C. 1334(c)(1) from hearing any nonbankruptcy, state law claims the Plaintiff has against the proposed added defendant. Court concluded that plaintiff’s claims against proposed defendant were strictly nonbankruptcy claims and the proposed defendant was not a necessary party for the dischargeability litigation.)

NOT INTENDED FOR PUBLICATION

BK 13-51414, AP 13-5126, Doc. No. 33
05.29.2014 WLH

Hot Shot Kids, Inc. v. Pervis (In re Pervis)

Order after trial on dischargeability. Following the failure of the parties’ business venture within the child and teen talent industry, the Plaintiffs brought an action alleging numerous causes of action and asserting that liability for such actions was nondischargeable under 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). In finding the Defendant liable for fraud, conversion, and usurpation of corporate opportunities, the Court ruled the discovery doctrine tolled the statute of limitations as to a portion of the claim, and also held a non-compete provision in the parties’ shareholder agreement unenforceable. All of the claims were found to be nondischargeable. Lastly, the Court held that a partial award of attorneys’ fees was appropriate while punitive damages were not recoverable.

AP 10-9061, Doc. No. 128
05.28.2014 JRS

In re: Nicholas James Kuwik and Tatjana Krause

The Court concluded that, for purposes of determining the Debtors’ applicable commitment period for their Chapter 13 plan under 11 U.S.C. §1325(b)(4), the average monthly income of the self-employed husband is defined as gross receipts before deducting business expenses, not net income after deducting expenses; thus the Debtors’ applicable commitment period is five years, not three.

BK 13-77137, Doc. #45
05.23.2014 MGD

In re McFashion

Debtor moved to reconsider the dismissal order and appealed the dismissal order prior to the disposition of the motion to reconsider. The Court supplemented the original dismissal order and denied the motion to reconsider based upon Debtor’s failure to meet her burden of proof as to the feasibility of her proposed plan as required by section 1325(a)(6). The Court relied upon Debtor’s testimony at two separate hearings to make its ruling. Debtor was seeking to treat two mortgages the matured prepetition through her plan and the evidence regarding her ability to make and sustain the increased plan payments was insufficient to satisfy the feasibility confirmation requirement. Under Rule 8002(b), the Court retained jurisdiction despite Debtor’s notice of appeal since the pending motion to reconsider had not been ruled on prior to Debtor filing an appeal.

bk 13-74255, Doc. #54
05.21.2014 MGD

Anderson v. Patel

The Chapter 7 Trustee obtained judgments against the principals of the Debtor. Subsequently, the Trustee sought to collect on those judgments by filing a separate adversary proceeding seeking to avoid transfers made by the judgment debtors to non-debtor third parties, asserting that F.R.B.P. 7069 provided the procedural mechanism for the action. Noting that the Court’s subject matter jurisdiction over the proceeding was questionable, the Court analyzed the twelve factors relevant to discretionary abstention. The Court concluded that abstention was appropriate where the Trustee asserted purely state law causes of action that did not affect the administration of the bankruptcy estate.

BK 09-68613, AP 14-5093, Doc. #33
05.21.2014 BEM

Valerie Elaine Fanning, Movant v. River Walk Farms Homeowners Association, Inc., Respondent

Debtor's confirmed Chapter 13 plan treated creditor's claim as secured. Debtor sought to surrender the property securing creditor's claim post=confirmation, reclassifying the claim as unsecured. The Court found that post-confirmation modification to recassify a deficiency claim would not be equitable to creditors and that Congress did not intend for post-confirmation valuation of collateral.

NOT INTENDED FOR PUBLICATION

BK 12-69268, Doc. 51
05.07.2014 BEM

Re: Lexington on the Green, LLC, d/b/a Lexington on the Green Apartments vs. Tyrone Shanks

Order Denying Motion to Set Aside Judgment. The Court denied Debtor's Motion to Set Aside a Georgia Magistrate Court Judgment, because the Magistrate Court had both subject matter and personal jurisdiction to adjudicate the eviction proceeding, and the bankruptcy court had no jurisdiction to exercise appellate review of a state court order.

NOT INTENDED FOR PUBLICATION

BK 14-52925, Doc. #43
05.02.2014 BEM

Brandywine Townhouses, Inc., Movant v. United States Trustee, Respondent

Proposed Debtor's counsel filed an application to employ but did not disclose payment of fees by a third party related to Debtor. After United States Trustee objected to the application, counsel amended the application to include the source of the funds. An unintentional omission of a relationship formed by payment of retainer by a third party does not create a de facto adverse interest and immediate disqualification of proposed counsel.

NOT INTENDED FOR PUBLICATION

BK 13-75582, Doc. #77
05.01.2014 BEM

Eric Cortez Wade, Movant v. Cheryl Cunningham, Respondent

Order sustaining Debtor's objection to priority unsecured claim filed by former spouse. The Court held that the language used in the state court divorce settlement decree demonstrates that the debt owed to former spouse was in the nature of a property settlement rather than in the nature of alimony, maintenance or support.

NOT INTENDED FOR PUBLICATION

BK 13-67411, Doc. #83
04.30.2014 WHD

In re Vaughn

Court overruled the Chapter 13 Trustee's Objection to confirmation of the Debtors' Chapter 13 Plan, given that the Chapter 13 Trustee failed to carry his burden proving that the Debtors' residential exemption in accordance with Official Code of Georgia Annotated (O.C.G.A.) section 44-13-100(a)(1) was improper, finding that the debtors use of the property contingent to their residence was consistent with its being a part of the residence.

NOT INTENDED FOR PUBLICATION

BK 13-13062, Doc. #24
04.28.2014 WLH

In re Nicholas Joseph Burroughs

Order dismissing Debtor’s Chapter 13 case with a 180-day bar to refiling on creditor’s motion to dismiss with prejudice. Following a hearing on the motion, the Court found sufficient cause to dismiss with prejudice as to refiling pursuant to Sections 109(g), 349(a), and 105. Debtor’s prior three Chapter 13 cases were unsuccessful. The current and the prior Chapter 13 cases demonstrated a pattern of failure to prosecute. Additionally, the current case was filed with no bankruptcy purpose.

BK 14-50559, Doc; #52
04.25.2014 MGD

Johnson Family Trust v. The Marietta City Gramling St. Land Trust

The Court retained jurisdiction over this dismissed case for a period of 30 days to allow Movant to file a motion regarding the alleged conduct of the Debtor and its purported Trustee, citing 11 U.S.C. § 349; e.g., Iannini v. Winnecour, 487 B.R. 434, 439-40 (W.D. Pa. 2012).

BK 14-56519, Doc. #18
04.19.2014 PWB

Modares v. Modares (In Re: Modares)

(Order granting plaintiff’s motion for summary judgment and concluding that debtor’s divorce-related debts are excepted from chapter 7 discharge pursuant to 523(a)(5) and (a)(15))

NOT INTENDED FOR PUBLICATION

BK 08-75220, AP 08-6610, Doc. No. 18
04.11.2014 WLH

In re Merritt Maynard Ambrose

Order granting Debtor’s Motion to Reopen his chapter 7 case to allow the Trustee to administer a claim held by the Debtor that was omitted from his original schedules. The Defendant objected to the Debtor’s Motion to Reopen, arguing that the Debtor’s failure to disclose the lawsuit was in bad faith and the Debtor was unable to prove the claim had any value. The Court found that although the Debtor had not acted in good faith by failing to disclose the pre-petition claim, the case should be reopened. Reopening the case was not prejudicial to the Defendant, there was sufficient evidence that allowing the Trustee to pursue the claim could provide a substantial recovery for the benefit of unsecured creditors, and the Trustee supported reopening the case.

BK 10-77369, Doc. #53
04.11.2014 MGD

Wells Fargo Bank v. Farmery

Defendant’s motion to dismiss for failure to state a section 523(a)(2)(A) dischargeability claim was granted and Plaintiff was given leave to amend. The complaint failed allege sufficient facts to allow the Court to make a reasonable inference that Defendant had made any misrepresentation or material omission to support a false pretenses or false representation claim. The Complaint also failed to allege facts to infer Defendant’s design, artifice, or intent to deceive the Plaintiff under the actual fraud theory. Defendant’s lack of personal income, execution of a Personal Loan Agreement, and petition for relief under Chapter 7 alone are insufficient to support any plausible inference that the Defendant intended to deceive the Plaintiff when incurring the debt.

BK 13-71735, AP 13-5450, Doc. #16
04.03.2014 WLH

In re Northlake Hotels, Inc.

Order granting Debtor’s objection to a post-bar-date claim amendment to add an unsecured claim for attorneys’ fees. The Court rejected the Creditor’s argument that language in the timely-filed proof of claim, which reserved the right to file an unsecured deficiency claim and reserved its right to collect post-petition attorneys’ fees under Section 506(b), provided sufficient notice of Claimant’s right to later amend the claim to add the attorneys’ fees. The claim was not oversecured, so the only right to attorney fees arose under O.C.G.A. § 13-1-11. The Court held that the amendment was not covered by the reservation and equitable reasons justified disallowing the late-filed amendment.

BK 12-80104, Doc. #177
04.03.2014 PWB

Charles Daniel McAllister and Francis Diane McAllister

In joint chapter 13 case, the debtor wife died after confirmation of a zero percent plan and more than 180 days after the filing of the case. The surviving husband received $250,000 in life insurance proceeds and amended his schedules to disclose them and claimed them as exempt. The trustee objected to the exemption and filed a modification of the plan under 11 U.S.C. § 1329 to require the payment of approximately $105,000 into the plan to pay all unsecured claims in full. The debtor filed a modification to pay unsecured creditors $15,000 from the proceeds. Held: 1. The life insurance proceeds are not property of the estate under 11 U.S.C. § 541(a)(5)(C) because the debtor became entitled to them more than 180 days after the filing of the petition. The Court declined to follow the contrary view that all property a chapter 13 debtor receives after confirmation is property of the estate under 11 U.S.C. § 1306(a). The Court therefore did not resolve the Trustee’s contention that the debtor could not exempt them because he was not a dependent of his wife at the time of her death under O.C.G.A. § 44-13-100(a)(11)(C), which permits the exemption of life insurance proceeds arising from the death of a person on whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. 2. Neither the “best interest of creditors” test of 11 U.S.C. § 1325(a)(4) nor the projected disposable income test of 11 U.S.C. § 1325(b) requires the use of the life insurance proceeds to pay creditors. Section 1329 permits modification by a trustee or unsecured creditor to require increased payments in accordance with a debtor’s ability to pay. Nevertheless, a modification proposed by a trustee or unsecured creditor cannot require the debtor to use proceeds of property that is exempt or is not property of the estate to pay claims under Gamble v. Brown (In re Gamble), 168 F.3d 442 (11th Cir. 1999), and Thomas v. Walden (In re Walden), Docket No. 02-6013 (11th Cir. June 13, 2002) (unpublished). (A copy of the unpublished opinion in Walden is in the record at Docket No. 72.) 3. Accordingly, the Trustee’s modification does not meet the requirements of § 1329. 4. Alternatively, if either of the rulings in (1) or (2) are erroneous, the Court, in the exercise of its discretion, does not approve the Trustee’s modification under the circumstances of the case in view of the debtor’s age, his medical condition that precluded substantial employment, and his need for the proceeds for the current and future support of himself and his family. 5. Because the debtor’s modification meets the requirements for modification in § 1329, it is approved.

NOT FOR PUBLICATION

BK 11-40606
04.02.2014 JEM

Shaw v State of Georgia, et al.

An employer’s office manager, who had responsibility for filing returns and causing the employer to pay the Georgia unemployment tax was liable to the Department of Labor for the amount of that tax pursuant to O.C.G.A. 34-8-1167(e). But that debt is not a debt for a “tax required to be collected or withheld and for which the debtor is liable in whatever capacity” within the meaning of 11 U.S.C. § 507(a)(8)(C) and is therefore dischargeable. The Georgia unemployment tax is a direct tax on the employer and the Employment Security Act does not require its collection and forbids charging employees for that tax. Nor was the debt rendered nondischargeable under 11 U.S.C. § 507(a)(8)(D) because that section applies only to employers, and the Debtor was not the employer.

BK 12-58761, AP 12-5353, Doc. #77
04.02.2014 JRS

In re: Kerr v. Roeser et al. (In re Hackney)

The Court denied Bank’s motion for summary judgment in case Chapter 7 Trustee brought against it seeking to recover the value of an allegedly fraudulent transfer. The Trustee had previously obtained a judgment against the Debtor’s daughter for fraudulently transferring the Debtor’s house by selling it to a third party. The trustee then brought an action under 11 U.S.C. §550(a) against the buyers (who settled) and against the Bank that financed the purchase and took an interest in the property via security deed, arguing that he could recover from them as mediate or immediate transferees. The bank raised the “good faith transferee” affirmative defense contained in 11 U.S.C. §550(b), arguing that it took its interest in the property in good faith and without knowledge that the transfer was fraudulent, and it moved for summary judgment. The Court denied summary judgment, concluding that questions of fact remained regarding whether the bank performed a reasonably diligent investigation according to customary practices in the mortgage lending industry and considering the unique facts of this case.

BK 09-79795, AP 13-5056, Doc. #73
04.01.2014 MHM

Gordon v. Harman, et. al. (In re Joseph H. Harman)

Order denying motions to dismiss of Joseph Harman, Linda Harman, et. al.; pleading alter ego, invalidation of a trust, turnover under 11 U.S.C. § 542, transfer avoidance under 11 U.S.C. §§ 544, 548, and 549, and substantive consolidation

FOR PUBLICATION

BK 11-67522, AP 13-5211, Doc. #63
04.01.2014 MHM

Gordon v. Harman, et. al. (In re Joseph H. Harman)

Order denying Shadrix Lane’s Motion to Dismiss; pleading 11 U.S.C. §§ 548(a)(1) and 550; “mere conduit” exception is an affirmative defense inappropriate for the Motion to Dismiss stage

FOR PUBLICATION

BK 11-67522, AP 13-5211, Doc. #62
03.28.2014 MHM

Gordon v. Onewest Bank, FSB (In re Blackmon)

In Chapter 7 Trustee’s avoidance action, closing attorney’s affidavit does not cure lack of unofficial witness on the face of a security deed; motion for summary judgment

FOR PUBLICATION

BK 09-64693, AP 09-6701, Doc. #39
03.27.2014 WHD

(Bouie v. National Payment Relief, LLC (In re Bouie)

Court granted Debtor's motion to strip the lien of National Payment Relief, LLC after an evidentiary hearing, determining that the value of the Debtor's residence failed to exceed the claim of the first priority secured lender.

NOT INTENDED FOR PUBLICATION

BK 13-11684, Doc. #40
03.27.2014 WHD

In re Beam

Court denied the Debtors' Motion to strip the lien of second lien holder as the Debtors' Chapter 13 plan had been confirmed by order of the Court and the lien strip process set forth in In re Tanner, 217 F.3d 1357 (11th Cir. 2000) is not proper post-confirmation, given the res judicata effect of a confirmed chapter 13 plan; and, the Court denied the Debtors' Motion to Strip under a theory applying section 502(j) of the Bankruptcy Code; additionally, the Court denied the Debtors' corresponding request to modify their plan to reflect the proposed post-confirmation lien strip, given the res judicata effect of the confirmed plan.

NOT INTENDED FOR PUBLICATION

BK 10-12184, Doc. #99
03.26.2014 MHM

In re Deldra Dion Ross

“Household” defined for the purposes of waiver of Filing Fee

FOR PUBLICATION

BK 14-50107, Doc. #17
03.18.2014 WHD

In re Synergy Investment Group, LLC

Court sustained creditor-trustee's objection to claim of Talon DN Investments I, LLC, finding that additional language in a note purporting to cross-collateralize Talon's loan with the Debtor with that of another of Talon's loans with a third-party borrower was insufficient, due to the statute of frauds' suretyship provision, to establish a valid third-party pledge or hypothecation agreement, so as to bring the third-party's deficiency within the purview of the Debtor's and Talon's Deed's dragnet clause.

NOT INTENDED FOR PUBLICATION

BK 12-11609, Doc. #81
03.17.2014 REB

Christopher Walston v. PYOD, LLC

In Chapter 13 case, Court overruled objections to claim, finding that creditor had filed sufficient proof of assignment of underlying debt from originating lender. Court also concluded that standard under Federal Rule of Bankruptcy Procedure 3001 according prima facie validity to claim that is in substantial compliance with said Rule takes precedence over asserted state evidence law standard regarding assignment chain of title, which impermissibly heightens creditor's evidentiary burden in connection with such claim. Based on review of authentication and other documentation filed with the claim and Debtor's arguments challenging same, Court concluded Debtor did not rebut presumption of validity. This Order is currently on appeal.

NOT INTENDED FOR PUBLICATION

BK 10-24902, Doc. #38
03.14.2014 JRS

In re: Crystal Kaletta Howard

The Court granted relief from the automatic stay for a title pawn company to repossess two vehicles from the Debtor, which had been pledged as collateral on two loans. Although the Debtor proposed in her Chapter 13 plan to cure her default and arrearage as to the amounts owed, the Court concluded that the title pawn company was not bound by her plan because she had no legal rights in the vehicles at the time she filed her bankruptcy petition, which was after her right of redemption had expired. The vehicles were not property of the Debtor’s estate because her legal title in the vehicles was divested upon expiration of the statutory grace period for her to cure her default and redeem the vehicles under Georgia law, and title to the vehicles automatically transferred to the title pawn company upon expiration of that grace period.

BK 13-65741, Doc. #37
03.11.2014 MGD

In re Matthews

The Court approved the Chapter 7 Trustee’s motion for compromise and settlement over Debtors’ objection. Without determining whether Debtors had standing to object because the settlement was approved despite the issues raised in Debtors’ opposition, the Court found that Trustee had satisfied the Justice Oaks factors and the proposed settlement was reasonable.

BK 10-96519, Doc. #168
03.11.2014 REB

In re: Mark Avery Deal

In Chapter 13 case, Court granted Trustee's motion to dismiss case for various reasons including debtor's pattern of failing to disclose fully and timely information pertaining to increases in income, including that of his spouse whom he married shortly after filing his bankruptcy case, and who played substantial role in contributing to, and management of, their household finances. In addition, Debtor's proposed post-confirmation modification of plan evidenced lack of good faith under 11 U.S.C. Section 1325(a)(3). See also 11 U.S.C. Section 1329(a) & (b)

NOT INTENDED FOR PUBLICATION

BK 10-23553, Doc. #88
03.06.2014 MGD

In re Cherwenka

Debtor sought to exempt an IRA and an annuity under O.C.G.A. § 44-13-100(a)(2.1)(D). A judgment creditor objected to these exemptions and the Chapter 7 Trustee joined in the Annuity objection. The Court overruled the objection to the IRA on the basis that the judgment creditor had failed to establish that Debtor engaged in prohibited transactions under section 4975 of the Internal Revenue Code to disqualify the IRA under section 408 of the Internal Revenue Code. The judgment creditor’s objection to the Annuity was sustained. Interpreting the Georgia exemption statute broadly, the Court inferred that a qualified annuity under section 408(b) of the Internal Revenue Code could be covered by the claimed exemption. Here, however, the contribution amounts and the structure of the Annuity disqualified it under either subsection of 408 of the Internal Revenue Code. Debtor’s argument regarding his subjective intent and the factors enumerated in Silliman v. Cassell, 292 Ga. 464 (2013) were not applicable to Debtor’s claimed exemption.

BK 13-57592, Doc. #133
03.06.2014 REB

Bobby McCarter and Joan McCarter v. Green Tree Servicing, LLC

In Chapter 13 case, Court denied debtors' motion to avoid liens and determine value of security where debtors offered new appraisal and sought retroactive revision of valuation of underlying property serving as collateral that had been fixed fiver years earlier in their confirmed plan. Court found debtors did not present sufficient reasons to outweigh strong interest in finality of confirmation order under 11 U.S.C. Section 1327(a) and treatment of lender's claim therein, and, therefore, debtors could not modify valuation or have claim reclassified at such late date.

NOT INTENDED FOR PUBLICATION

BK 08-23720, Doc. #164
03.05.2014 MHM

In re Pediatrics at Whitlock, P.C.

whether appointment of a patient care ombudsman is needed); March 5, 2014 (Doc. No. 39)

FOR PUBLICATION

BK 14-52367, Doc. #39
03.04.2014 WHD

In re Dennis H. McDowell

Court granted Trustee's Motion to Approve Compromise and Settlement Agreement, despite objections filed by the Bank of North Georgia, finding that the agreement fell within the range of reasonableness pursuant to a review of the relevant factors established in Wallis v. Justice Oaks II, Ltd., 898 F.2d 1544 (11th Cir. 1990).

NOT INTENDED FOR PUBLICATION

BK 11-13519, Doc. #199
03.04.2014 REB

Pamela H. Smith v. Joel Smith

Supplemental Judgment holding division of property by state superior court in post-divorce decree contempt order, upheld on appeal by Georgia Supreme Court, dischargeable under 11 U.S.C. Section 523(a)(5), since 11 U.S.C. Section 1328(a)(2) omits any reference to 11 U.S.C. Section 523(a)(15), and distinction between alimony, maintenance, and support payments and property division remains relevant in cases under Chapter 13, as well as analysis of intent of state court order.

NOT INTENDED FOR PUBLICATION

BK 13-20512, AP 13-2027, Doc
02.25.2014 MHM

Monica M. Tucker v. Keith Deshea Ellis (In re Ellis)

Default judgment; Debt arising from willful theft is nondischargeable under 523(a)(6)).

FOR PUBLICATION

BK 13-65910, AP 13-5377, Doc. #11
02.24.2014 JEM

Allen v. Morrow

Plaintiff sued for a determination that a debt owed by the Debtor and embodied in a state court judgment arose from fraud and was not dischargeable under section 523(a)(6). The issue on Plaintiff’s motion for summary judgment was whether the state court judgment collaterally estopped the Debtor from contesting the fraud claim. The state court judgment was “against Defendants as to all claims asserted by Plaintiff,” which included a fraud count, and awarded damages for breach of contract and punitive damages but no damages for fraud. Held: Collateral estoppel did not apply because the failure to award damages for fraud made it impossible to determine the basis for the punitive damage award. More importantly, a determination of damages is a necessary element to prove fraud in Georgia.

BK 12-74087, AP 12-5662, Doc. #19
02.18.2014 MGD

Gordon v. Wells Fargo Bank

The Chapter 7 Trustee was entitled to a judgment as a matter of law. The Complaint sufficiently alleged facts to avoid an improperly attested deed to secure debt under section 544 of the Bankruptcy Code and U.S. Bank v. Gordon, 709 S.E.2d 258 (Ga. 2011).

BK 08-71494, AP 13-05261, Doc. #16
02.10.2014 JRS

In re Philips

The Court partially granted the Chapter 7 Trustee's Application for Compensation, which was filed after the Debtor converted her case from Chapter 7 to Chapter 13 and before the Chapter 7 Trustee distributed any funds to parties in interest. The Court found that the Chapter 7 Trustee performed substantial services on behalf of the estate (including liquidating $91,062.50 in assets) and concluded that he was entitled to reasonable compensation but that any compensation to the Chapter 7 Trustee could not exceed $7,803.13, which is the amount of the cap on trustee fees under 11 U.S.C. Section 326(a) applied to the total amount of funds the Court authorized him to distribute to parties in interest, including administrative claimants and the successive Chapter 13 Trustee. The Court further looked to Section 326(c)--which caps the total amount payable when multiple trustees serve in the same case--and, despite concluding that Section 326(c) does not necessarily apply when a case is converted from Chapter 7 to 13, nevertheless limited the Chapter 7 Trustee's fee to the amount capped by Section 326(a) minus any commissions the Chapter 13 Trustee earns under Section 326(b).

BK 11-64540, Doc. No. 102
02.10.2014 MGD

Cochran v Douglasville Winair Co.

Chapter 7 Debtor sought to avoid a lien on and claim an exemption in funds paid into the court pursuant to a summons of garnishment. The garnishing creditor objected to Debtor’s claim of exemptions. Funds that had already been disbursed from the clerk of court to the creditor pre-petition were not property of the estate and therefore were not subject to exemption by the Debtor. This would not prevent Debtor from filing an avoidance action and claiming an exemption in funds ultimately returned to the estate. Under Georgia law, Debtor retained a right to file a traverse in the garnishment proceeding as to funds that were still held in the court’s registry when the case was filed, and thus, Debtor retained an exemptible interest in those funds.

BK 13-43242, Doc. #40
02.05.2014 WHD

Howell v. US Foods, Inc.

Court granted Defendant's Motion to Dismiss Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (but provided the Trustee an opportunity to amend), finding that the Trustee failed to sufficiently plead that transfers made prepetition, ostensibly by the Debtor's incorporated business, satisfied all elements of 11 U.S.C. § 547; specifically the Trustee failed to satisfactorily plead that the properties transferred were interests of the Debtor and that the transfers were made for or on account of an antecedent debt of the Debtor.

NOT INTENDED FOR PUBLICATION

BK 11-13160, AP 13-1054, Doc. #10
02.04.2014 WHD

In re Gafford

Court granted the Federal Deposit Insurance Corporation's Motion to modify the 11 U.S.C. § 524 discharge injunction in order for the FDIC to nominally name the Debtor as a defendant in order to proceed against an insurance company in an insurance policy liability matter provided that any judgment obtained against the Debtor shall not be collectible out of any property of the Debtor and shall not be recorded against him.

NOT INTENDED FOR PUBLICATION

BK 11-13490, Doc. #77
02.03.2014 MHM

Kim D. Eger v. Tiffany Pippins Eger (In re Eger)

Subsequent bankruptcy case does not stay an adversary proceeding arising in a prior bankruptcy case in the same court.

FOR PUBLICATION

BK 12-75132, AP 13-5127, Doc. #32
01.27.2014 BEM

12-05553, Woodman v. Carroll

"Order Denying Parties' Cross Motions for Summary Judgment. The Court found that it did not have adequate facts to rule on a section 523(a)(2)(A) and (a)(6) claim, as there were material issues of fact in dispute and the attached documents were not properly authenticated, such that the record did not contain sufficient evidence to support a judgment."

NOT INTENDED FOR PUBLICATION

BK 12-68379, AP 12-5553, Doc #27
01.27.2014 WLH

Tenet South Fulton, Inc. v. Demps (In re Demps)

Order on Cross Motions for Summary Judgment addressing the collateral estoppel effect of an arbitrator’s award of attorney’s fees pursuant to O.C.G.A. § 13-6-11 on a non-dischargeability claim. Plaintiff argued the attorney-fee award was non-dischargeable under 11 U.S.C. § 523(a)(6) and collateral estoppel barred the Debtor from relitigating the arbitrator’s findings of “bad faith” conduct by the Debtor that supported the arbitration award. Debtor contended that collateral estoppel was inapplicable to the adversary proceeding because the elements had not been met, or if the elements were present, the arbitrator’s findings were insufficient to render the debt non-dischargeable. The Court found the award of attorney’s fees was non-dischargeable. Collateral estoppel applied to the arbitration award and the findings in the award demonstrated the Debtor willfully and maliciously injured Plaintiff, thus the debt was excepted from discharge under Section 523(a)(6).

BK 12-75795, AP 13-5014 Doc #36
01.22.2014 MGD

Tierney v. Comfort Inn & Suites of Rome, LLC (In re Bernstein Company, LLC)

The parties disputed who was entitled to keep the deposit paid in connection with a contract to sell real property. Plaintiff filed a motion for summary judgment and Defendant filed a cross motion for summary judgment. Despite Plaintiff’s assertion to the contrary, the Court found that the contractual language was clear and that Defendant’s obligation to transfer a franchise agreement had been waived by Plaintiff. Additionally, Defendant provided sufficient notice of default pursuant to the contract. Thus, Defendant was not in breach of the contract. Plaintiff, on the other hand, had breached the contract by failing to provide evidence of financing. Finally, the deposit, which constituted less than ten percent of the purchase price, was reasonable and enforceable as a liquidated damages provision. Summary judgment was denied as to Plaintiff and the cross motion was granted as to Defendant.

NOT INTENDED FOR PUBLICATION

BK 12-42142, AP 13-4006, Doc 25
01.22.2014 BEM

Pointe Parkway, LLC

Debtor’s proposed treatment of FDIC, as receiver’s, debt constituted a claim which was subject to FIRREA limitations. Because Debtor did not exhaust all remedies under FIRREA, Debtor was barred from seeking any further rights or remedies with respect to the claim. As such, Debtor’s plan is not confirmable.

NOT INTENDED FOR PUBLICATION

BK 13-55084, Doc. #115
01.21.2014 MGD

Miller v. Marietta Winnelson Co., (In re Miller)

Debtor’s Chapter 7 case was filed on January 11, 2010. Debtor received a discharge and his case was closed on April 21, 2010. On November 1, 2013, Debtor’s case was reopened for the purpose of filing a motion to avoid lien. The creditor asserted laches as a defense to the motion to avoid lien. Debtor’s attorney’s error did not prevent his failure to timely file the motion to avoid lien from being an unreasonable delay. The creditor was prejudiced by the late filing because it would have to procure a historical appraisal, conduct discovery, and incur attorney’s fees. However, it was possible for Debtor to cure the prejudice by paying these costs.

NOT INTENDED FOR PUBLICATION

BK 10-60847, Doc 38
01.21.2014 REB

Hamilton State Bank v. CCB2, LLC and Jon R. Gray (In re: CCB2, LLC)

(In Chapter 11 case, Court denied Plaintiff's motion to disqualify counsel for Defendants on grounds of impermissible conflict of interest under Rules 1.7 and 1.9 of the Georgia Rules of Professional Conduct.)

BK 11-23072 , AP 13-2130
01.14.2014 WLH

In re: NEIL C. GORDON, Chapter 7 Trustee for the Estate of Ana Leguen Knight, Plaintiff, v. WELLS FARGO BANK, N.A., as successor to World Savings Bank, FSB, Defendant

Order on Cross Motions for Summary Judgment. The Court held that the security deed to Wells Fargo was avoidable under 11 U.S.C. § 544(a)(3). The instrument was patently defective because the deed lacked an unofficial witness signature. The signatures on the Waiver of Borrower’s Rights and Attorney’s Affidavit are not attestations as to the execution of the deed and are thus insufficient to meet the signature requirement. Further, even if the signatures were attestations to the execution of the deed, they may not be incorporated into the deed to satisfy the missing signature requirement. Therefore, under Georgia law, the Wells Fargo deed did not provide constructive notice to a bona fide purchaser. See O.C.G.A. §§ 44-2-14, 44-16-61.

BK 10-89690, AP 12-5465, Doc #17
01.10.2014 MGD

Anderson v. McCowan et al. (In re McCowan)

The Chapter 7 Trustee’s motion for default judgment as to Defendant Andrew Walcott was denied because there were not sufficient facts to warrant an award of judgment. Trustee sought judgment as to a willful violation of the stay and there were insufficient facts to even make out a violation of the stay, let alone the required intent element. Specifically, the amended complaint did not allege facts specific to conclude or infer that Defendant Walcott had knowledge of the bankruptcy filing. Trustee made a general allegation of a conspiracy but failed to plead any facts, including circumstantial evidence, in support of the allegation. Additionally, the conspiracy allegation was a legal conclusion not entitled to conclusive weight under the applicable Federal Rules and the Supreme Courts’ Iqubal/Twombly pleading standard. The Court also determined that Defendant’s late filed answer, which included a crosslcaim, had no legal effect since the answer itself was procedurally improper and a crossclaim must be asserted in a pleading as provided by Rule 13(g).

NOT INTENDED FOR PUBLICATION

BK 09-85560, AP 12-5416, Doc 81
01.07.2014 MGD

FIA Card Services, N.A. v Arthur Pelchat, Sr. (In re Pelchat)

Plaintiff filed a motion for default judgment with respect to its amended complaint for nondischargeability of a credit card debt under Section 523(a)(2). Plaintiff’s amended complaint did not warrant an award of judgment in its favor because it did not plead sufficient facts to show that the presumption of nondischargeability under Section 523(a)(2)(c) for luxury goods applied. Further, judgment was not warranted under Section 523(a)(2)(A) because Plaintiff did not plead sufficient facts showing intent to deceive or fraud by Defendant.

NOT INTENDED FOR PUBLICATION

BK 11-76869, AP 11-5698, Doc 15
01.07.2014 JRS

Clark v. Scott (In re Scott)

The Court denied Debtor-defendant's motion to dismiss adversary proceeding, in which creditor-plaintiff alleged the Debtor is not entitled to a discharge pursuant to 11 U.S.C. Sections 727(a)(2)(A), 727(a)(2)(B), 727(a)(3), and 727(a)(5), because the plaintiff alleged sufficient facts--namely that the Debtor allegedly transferred certain cars and granted his friend a security interest in his home without satisfactorily explaining what happened to the proceeds of those transactions or producing records in support--to state a claim for transferring or concealing assets with intent to hinder, delay, or defraud a creditor; for concealing, destroying, mutilating, falsifying, or failing to keep or preserve records relating to his financial condition; and for failing to satisfactorily explaining any loss of assets.

BK 13-63865, AP 13-5334, Doc. No. 16
12.24.2013 MGD

Delta Community Credit Union v. Greene (In re Greene)

Plaintiff’s motion for default judgment was granted. Plaintiff’s complaint established that it held a non-dischargeable claim under section 523(a)(2)(A), (a)(2)(B) and (a)(6). In default, the complaint’s factual allegations – except those relating to the amount of damages – are deemed admitted. FED. R. BANKR. P. 7008.

NOT INTENDED FOR PUBLICATION

BK 13-65956, AP 13-5326, Doc. #9
12.20.2013 WHD

Howell v. Fulford

Court denied the Defendant's Motion to Dismiss the Complaint on the grounds that the Chapter 7 Trustee's Complaint for Fraudulent Transfer of Property pled sufficient allegations of actual and constructive fraud, in compliance with Federal Rules of Civil Procedure 8(a) and 9(b), to allege claims of fraudulent transfer under 11 U.S.C. § 548(a)(1)(B) and O.C.G.A. § 18-2-74(a)(2)

NOT INTENDED FOR PUBLICATION

BK 11-12755, AP 13-1043, Doc. #14
12.20.2013 WHD

Albracht v. Hamilton State Bank

Court granted Plaintiff's Motion for Summary Judgment and Denied Defendant's Cross-Motion for Summary Judgment, holding that the Debtor's pledge of an assignment of his tax-deferred annuity, which contained anti-alienation provisions, failed to establish a security interest in the Creditor, because under Georgia's version of the Uniform Commercial Code, for a security interest to attach to collateral, a Debtor must have rights in the collateral sufficient to assign or transfer it, and the Debtor did not have authority to assign his interest to the Creditor because the Georgia Supreme Court held in an analogous context that anti-assignment clauses, or the rights thereunder, should be enforced where such clauses were inserted to protect a party from a "material reduction in value of the contract."

NOT INTENDED FOR PUBLICATION

BK 12-12360, AP 12-1061, Doc. #45
12.20.2013 REB

Rafael Rivera v. HSBC Bank USA, N.A. as Trustee for Certificate Holders (In re: Rafael Rivera)

In Chapter 13 case, Court denied Plaintiff-Debtor's motion to amend order dismissing his complaint, concluding that Debtor failed to establish excusable neglect in filing amended complaint on timely basis when confronted with motion to dismiss.

BK 11-24956, AP 13-2092 Doc. No. 18
12.18.2013 WHD

Brown v. Steel Capital, LLC

Court, finding that the Plaintiff's claims fail to "arise under" the Bankruptcy Code, "arise in" a case under the Bankruptcy Code, and fail to be "related to" a case under the Bankruptcy Code, granted Defendant's Motion for Judgment on the Pleadings requesting dismissal of Plaintiff's adversary proceeding (to the extent that the complaint contained core claims) and submitted its finding of fact and conclusions of law to the District Court and recommended that it grant the Defendant's Motion (to the extent that the complaint contained non-core claims.)

NOT INTENDED FOR PUBLICATION

BK 13-12256, AP 13-1055, Doc. #8
12.12.2013 MGD

Roman v. J.P. Morgan Chase Bank, N.A. (In re Roman)

The Court dismissed Plaintiffs’ claim for violation of the automatic stay and abstained from the remainder of the claims. The Defendants’ filing of a proof of claim was not a violation of the stay because such a filing was expressly provided for in the Bankruptcy Rules and the stay does not operate against actions taken within the bankruptcy court forum. Permissive abstention under 28 U.S.C. § 1334(c)(1) as to the remainder of the claims was appropriate under the 12-factor test used in the 11th Circuit. The Court found, among other things, that the property at issue was not property of the estate because it was foreclosed on prior to the filing of the petition. Thus, issues relating to the foreclosure of that property would not affect the administration of the estate.

NOT INTENDED FOR PUBLICATION

BK 10-44173, AP 13-4028, Doc #8
12.11.2013 JRS

Sherman v. Proyect (In re Proyect)

Following trial, the Court dismissed an ex-husband's complaint against his ex-wife seeking damages and a determination of nondischargeability regarding purported debts relating to a business they operated; the Court concluded that the exception to dischargeability contained in 11 U.S.C. Section 523(a)(15) did not apply because the ex-husband and ex-wife each were responsible for 50% of business debts both before and after their divorce--thus their divorce settlement did not create any new obligations, and thus the relevant debts were not incurred in the course of their divorce. Also, the Court held that the ex-husband violated the automatic stay by withholding a portion of his child support payments and claiming a setoff against the ex-wife's alleged debt to him because Georgia law rarely permits setoffs against child support and because any claims he may have had against her were discharged in her Chapter 7 bankruptcy.

BK 12-81457, AP 13-5121, Doc #21
12.10.2013 JRS

Goodman v. Internal Revenue Service (In re Adams)

The Court denied the Chapter 13 Trustee's objection to the Internal Revenue Service's claim that was filed after the claims bar date because the Internal Revenue Service was not listed as a creditor on the Debtor's bankruptcy petition and thus received no notice of the bankruptcy case or the claims bar date, and fundamental fairness requires that the Service not be deprived of the opportunity to participate in the Debtor's Chapter 13 plan when it had no notice of the bankruptcy filing.

BK 12-58243, Doc #30
11.27.2013 MHM

Annise Latra Mabry v. Arne Duncan et. al. (In re Mabry)

Mootness; Does the Department of Education’s administrative discharge of student loans moot a dischargeability proceeding, where the administrative discharge is subject to review and reinstatement?

BK 12-76810, AP 13-5075, Doc. #28
11.26.2013 REB

(In re: Donald Edward Eller and Jill Thomas Eller), Case No. G13-20614-REB, (Mountain Valley Community Bank v. Donald Edward Eller and Jill Thomas Eller)

(In Chapter 7 case, Court denied motion for summary judgment on complaint asserting cause of action under 11 U.S.C. Section 523(a)(2)(A) finding issues of fact existed regarding Debtors' knowledge and intent in connection with presentment of photocopy of check that Plaintiff bank paid.)

BK 13-20614, AP 13-2111, Doc. No. 17
11.22.2013 MGD

Arlanda James

The Court denied Movant’s emergency motion for order confirming no automatic stay is in effect. Movant was Debtor’s landlord and obtained a judgment for possession prior to the filing of Debtor’s Chapter 13 case. The confirmed plan treated the lease and Movant did not object to confirmation. Debtor did not comply with section 362(l), thus Movant sought affirmation from the Court that the stay did not apply to Movant’s interest in the property. The Court denied the motion because the confirmed plan, of which movant had notice, had res judicata effect and governed movant’s rights despite the fact that the stay was not in effect at confirmation.

NOT INTENDED FOR PUBLICATION

BK 13-65635, Doc #37
11.21.2013 JRS

Goodman v. Credit Union of Georgia (In re Gaines)

The Court granted the Chapter 13 Trustee's motion for summary judgment and denied the Defendant credit union's cross-motion, holding that the Trustee was entitled to avoid a transfer of $3,400 from the Debtor to the Defendant as a preferential transfer pursuant to 11 U.S.C. Section 547 and that the ordinary course of business exception contained in 11 U.S.C. Section 547(c) did not apply because the transfers were in payment of a debt on which the Defendant obtained a nondischargeability judgment in a prior bankruptcy case; the Court concluded that the Debtor did not incur the debt in the ordinary course of her financial affairs because--accordingly to the nondischargeability judgment in the prior case--she did so fraudulently, that the transfers were not made in the ordinary course of her financial affairs, and that the transfers were not made according to ordinary business terms.

BK 12-63357, AP 12-5627, Doc #38
11.18.2013 WLH

Queen v. Bank of America, N.A. (In re Queen)

Order on Complaint filed by the Debtor to enforce the National Mortgage Settlement among the states Attorneys General, the U.S. Government and certain lenders and to set aside a pre-petition foreclosure. There is no private right of enforcement under the National Mortgage Settlement. Abstention pursuant to 28 U.S.C. § 1334(c)(1) was warranted for the remaining state-law issues because the subject property was never part of the estate and the Trustee abandoned the cause of action to the Debtor. The Debtor has received his discharge and the underlying bankruptcy case is closed. Consequently, the final disposition of the adversary proceeding would have no effect on the administration of the underlying bankruptcy case.

BK 13-57784, AP 13-5182, Doc. #12
11.13.2013 WLH

Watts v. MTC Development, LLC, et. al. (In re: Palisades at West Paces Imaging Center, LLC)

Order after trial on Trustee’s complaint seeking to avoid transfers pursuant to 11 U.S.C. § 544 and the Uniform Fraudulent Transfer Act (“UFTA”) as enacted at O.C.G.A. § 18-2-70 et. seq. The Trustee also asked the Court to determine whether principals of the Debtor were “alter egos” of the Debtor and therefore liable for all claims against the Debtor. The Court held the Defendants liable in varying amounts. The opinion analyzes liability under the UFTA, including insolvency and insiders. The opinion also traces funds to the immediate and mediate transferees to determine liability under 11 U.S.C. § 550. Lastly, the Order examines Georgia law on alter ego liability.

BK 09-87600, AP 11-5235, Doc. #64
11.08.2013 MGD

Gibby v. Brenner (In re Gibby)

The Court denied Plaintiff’s motion for summary judgment. Plaintiff filed a complaint to determine nondischargeability of debt under sections 523(a)(2), (4), and (6) and 523(c). Summary judgment was not appropriate because fact issues remained concerning Defendant’s intent in procuring and executing the promissory note at issue.

NOT INTENDED FOR PUBLICATION

BK 10-44460, AP 13-4034, Doc. #18
11.05.2013 MHM

In re Dan Josie Scarborough

Motion to Reopen to seek an order of contempt for violation of the discharge injunction; effect of Ch7 discharge on liens

NOT INTENDED FOR PUBLICATION

BK 11-62565, Doc. #40
11.01.2013 WHD

In re Dey

(Court denied in part and granted in part Debtors' Motion to Reconsider the Court's partial denial of Debtors' Motion to Avoid Lien, finding that the Debtors claimed an improper exemption by claiming an exemption pursuant to Georgia state law as it applied on the date of the conversion of the case rather than the applicable exemption allowed pursuant to state law as of the petition date.)

BK 11-13465 Doc. No. 110
10.30.2013 MHM

Kimberly Russell v. Shannon Parker (In re Parker)

Leave to file an amended complaint

BK 13-59225, AP 13-5230, Doc. #12
10.25.2013 REB

In re: Deward Lamar Allen and Peggy Sue Allen), Case No. G11-24718-REB, (David Keys and Kenneth Lowman v. Deward Lamar Allen and Peggy Sue Allen)

Following trial in Chapter 7 case, Court held that Plaintiffs failed to prove grounds for denial of discharge under 11 U.S.C. Section 727(a)(4)(A) (knowingly making false oath) or 727(a)(5) (failing to explain satisfactorily losses or deficiencies of certain alleged assets). Court further held Plaintiffs did not establish basis for holding that state court judgment awarding damages for breach of reimbursement agreement, made following allegations of Plaintiff former business associates that Debtors misdirected monies of joint business entity, should be excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) in terms of required showing of Debtors' fraudulent intent with respect to same. Court held as well that Plaintiffs did not make case under Section 523(a)(4), since relationship of parties in LLC did not offer basis for finding necessary fiduciary relationship as required under federal standard.

BK 11-24718, AP 12-2047, Doc. #35
10.24.2013 BEM

In re Flyboy Aviation Properties, LLC

Order approving section 363 sale and overruling objections. The Court found that Debtor's property could be sold free and clear of purported easement interests, as one objector had no legal interest in the property, and the second had an express easement limited by its terms to the period when the property was used as an airport. The third objection to sale by a homeowner's association was overruled because it requested the Court review a final state court order, of which the association had notice and was bound, and because its request for a determination of rights did not present a concrete injury reviewable by the Court.

NOT INTENDED FOR PUBLICATION

BK-13-55775, Doc. No. 91
10.24.2013 1966

Anderson v. Patel (In re Diplomat Construction, Inc.)

Defendant’s motion to alter or amend the judgment was denied and the preference judgment against Defendant remained. Rule 9023 of the Federal Rules of Bankruptcy Procedure makes Rule 59 of the Federal Rules of Civil Procedure applicable to this proceeding. Rule 59(e) motions may not be used to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance. Although Defendant seemed to argue that errors of law were made imposing preference liability, the Court rejected Defendant’s characterization that the Court made a finding that he was an employee of Debtor for the purposes of priority claims under section 507(a)(4). In addition to substantive reasons, because Defendant did not raise issues at trial that were raised in this motion, Rule 59(e) did not provide him relief from judgment. Additionally, the motion provided no basis to delay the issuance of the writ.

NOT INTENDED FOR PUBLICATION

BK 09-68613, AP 11-5611, Doc. #32
10.22.2013 MHM

FIA Card Services, N.A. v. Christopher Jay Brumfield (In re Brumfield)

Pleading Standards in a Motion for Default Judgment; dischargeability of credit card debt

BK 12-62797, AP 12-5402, Doc. 7
10.18.2013 JEM

Rackley et al v. Rackley

The Debtor’s former spouse and a guardian ad litem for their child sought determinations of the dischargeability of debts under §§ 523(a)(5), (a)(15), and (a)(6), stemming from Debtor’s frivolous custody battle in state court. Debts owed for attorneys fees in the litigation were not in the nature of support and thus not excepted by 523(a)(5), but were nonetheless nondischargeable under 523(a)(15). The Court held that a guardian ad litem appointed in child custody case was a “legal guardian” under 101(14A), rendering fees awarded by the state court to the guardian ad litem nondischargeable under 523(a)(5).

BK 12-64924, AP 12-5405, Doc. #54
10.11.2013 BEM

Flyboy Aviation Properties, LLC, v. Franck

"Order finding that Defendant's interest in Plaintiff-Debtor's property resulted from an express easement, limited in duration by the use of Debtor's property, and did not result from a purported easement by necessity, prescription, or creation of interest via a draft of homeowners' declarations. Debtor is bound by the express easement, as it had inquiry notice of such claim of right, regardless of the lack of formal recordation."

NOT INTENDED FOR PUBLICATION

AP 13-5111, Doc. No. 47
10.10.2013 CRM

Rosetta Stone Commc'ns, LLC v. Gordon (In re Chambers)

Order granting Defendant’s motion to dismiss. Rosetta Stone filed an adversary proceeding seeking a determination that campaign funds held by the Chapter 7 Trustee could only be distributed to campaign creditors. The trustee filed a motion to dismiss, contending that the campaign funds became property of the estate and, absent a security interest in property of the estate, he was required to distribute estate assets pursuant to the priority order established in section 726 of the Bankruptcy Code. Rosetta Stone argued that by virtue of Georgia campaign finance laws, the campaign funds held by the trustee, while property of the estate, were subject to a constructive trust in favor of campaign creditors. The Court concluded that the subject funds were property of the estate and the trustee was required to distribute assets pursuant to section 726. The Bankruptcy Code promotes equality of distribution and the Court cannot prefer one creditor over another unless specifically directed to do so. The Court found nothing in the Bankruptcy Code or Georgia law to warrant treating Plaintiff’s claim differently than other similarly situated creditors. Accordingly, the Court granted the trustee’s motion to dismiss.

NOT INTENDED FOR PUBLICATION

Adv. No. 13-5063, Doc. No. 20
10.10.2013 MGD

Gordon v. Love (In re Pullen),

The Court denied Defendant’s motion for reconsideration as untimely under Local Rule 9023-1. Defendant’s argument of the applicability of Rule 9006(f) to Rule 9023 was unsuccessful. Additionally, Defendant’s arguments for leniency as a pro se party failed. The Court also denied Defendant’s motion under Rule 9024, which does not apply the 14-day requirement. Defendant’s arguments were seen as re-litigation of the Trustee’s section 363(h) claim. The Court was and remained satisfied that a sale of the Property subject to Defendant’s half-interest has a benefit to the estate that outweighs the detriment to Defendant. Therefore, Defendant’s motion was denied.

NOT INTENDED FOR PUBLICATION

BK 09-61108, AP 11-05620, Doc #59
10.07.2013 WHD

Wallace v. Tigner

(Court denied Plaintiff's Motion for Summary Judgment, finding that the Plaintiff failed to establish as a matter of law that the Chapter 13 Debtor's mortgage obligation under a "Contract of Settlement" and incorporated into the parties' divorce decree was in the nature of "alimony, maintenance, or support so that she was entitled to judgment pursuant to Section 523(a)(5); and finding that the Plaintiff failed to establish as a matter of law that the Chapter 13 Debtor's mortgage obligation was nondischargeable under Section 523(a)(15).)

AP 13-1009, Doc. No. 13
10.03.2013 REB

(In re: Joel Smith), Case No. G13-20512-REB, (Pamela H. Smith v. Joel Smith)

In Chapter 13 case, Court determined whether certain obligations set forth in divorce decree constituted non-dischargeable award of alimony or dischargeable division of property under 11 U.S.C. Section 1328(a)(2), which makes reference to 11 U.S.C. Section 523(a)(5), which in turn refers to domestic support obligations as defined in 11 U.S.C. Section 101(14A). Court made inquiry into evidence of state court's intent regarding nature of each debt at issue by examining overall structure of award and other factors because 11 U.S.C. Section 1328(a)(2) does not incorporate 11 U.S.C. Section 523(a)(15) and its inclusion of property settlement obligations arising in marital dissolution proceedings as coming within an exception to discharge.

BK 13-20512, AP 13-2027, Doc. #21
09.30.2013 PWB

DETENTION MANAGEMENT, LLC and MUNICIPAL CORRECTIONS, LLC, Plaintiffs, v. UMB BANK, NA, : BANKRUPTCY CODE as Successor Indenture Trustee, Defendant.

Adv. Proc. #: 13-5018 - Entered on 9/30/13 - Doc. No. 72 In an indenture trust agreement, the Chapter 11 debtor "pledged and assigned" its real estate to the creditor.  The debtor did not execute a deed to secure debt, and the creditor did not record the indenture trust agreement in the county real estate records.  The debtor asserted that the creditor did not have a lien on the property and that any lien it did have was avoidable under the strong-arm provisions of section 544(a)(3) because the lack of recordation made it unenforceable against a bona fide purchaser.  The Court ruled that the language of the trust agreement created a mortgage lien under Georgia law and that references in a lease and UCC fixture filing, both recorded in the county's real estate records, would put a purchaser on "inquiry notice" and lead to discovery of the mortgage lien.  Hence, the mortgage lien was not avoidable under section 544(a)(3).  

NOT INTENDED FOR PUBLICATION

BK PWB-13-50786, AP PWB-13-5018
09.30.2013 JEM

Giles v. James B. Nutter & Co.

The Debtor in this Chapter 7 case sought to hold the Defendant in civil contempt for alleged violations of the discharge injunction under section 524. The Debtor repeatedly told the Defendant she wanted to continue to make payments and remain in her home. Defendant’s actions in calling the Debtor to remind her missed payments, sending letters to the Debtor reminding her of missed payments, and inspecting the property for occupancy when the payments were in arrears of 31 days or more were not attempts to collect debt from the Debtor as her personal liability. The lender’s intent was to encourage the Debtor to catch up the missed payments and thereby avoid foreclosure, which was consistent with the Debtor’s goal to keep her home. The Court held there is no private right of action under section 524(a)(2).

BK 09-67840, AP 12-5493, Doc. #28
09.27.2013 MGD

Citrus Tower Boulevard Imaging Center, LLC v. Sky Top Enterprises, LLC (In re Citrus Tower Boulevard Imaging Center, LLC )

Chapter 11 Debtor filed a multi-count complaint against Defendant, who moved for summary judgment and asserted both collateral estoppel and Debtor’s failure to make out the following claims as a matter of law: equitable subordination, equitable disallowance, breach of contract, unjust enrichment, equitable return of post-petition payments, and an objection to proof of claim. Defendant was not entitled to preclude litigation of the claims in this action because the state court order on which it relied did not constitute a final judgment for purposes of collateral estoppel. Debtor also created a factual record that demonstrated factual disputes with regard to its claims. The Court could not weigh the credibility of evidence to determine whether there was sufficient inequitable conduct to prevent the Debtor from establishing its equitable claims. Likewise, there were factual disputes regarding interpretation of the lease that made summary judgment inappropriate. Finally, a determination as to which party would prevail in an action enforcing or construing the lease was a prerequisite to triggering the lease’s attorney’s fees provision, thus making any determination regarding Defendant’s proof of claim premature.

NOT INTENDED FOR PUBLICATION

BK 11-70284, AP 12-5346, Doc. 47
09.25.2013 BEM

JTWO, LLC, Plaintiff v. Jonathan Ross St. Hilaire, Defendant

Debt to plaintiff based on a loan to new venture owned by Debtor was dischargeable because Plaintiff did not establish that Debtor intended to deceive Plaintiff as required to establish a claim under 11 U.S.C. § 523(a)(2)(A). In addition, Debtor’s business plan was not a “statement respecting debtor’s or an insider’s financial condition” under 11 U.S.C. § 523(a)(2)(B).

NOT INTENDED FOR PUBLICATION

BK 12-71061, AP 12-5612
09.18.2013 MGD

Santa Ana Unified School District v. Kirk Montgomery (In re Montgomery)

Santa Ana School District’s objection to exemption, motion for summary judgment, and motion to strike were denied. In a related adversary proceeding, the Court determined that certain funds Debtor sought to exempt were not property of the estate and, therefore, not exemptible. The remaining funds in an IRA account were permitted as exempt under section 522.

NOT INTENDED FOR PUBLICATION

BK 11-82598, Doc. 70
09.18.2013 MGD

Gordon v. JPMorgan Chase Bank, N.A. (In re Rainwater)

Chapter 7 Trustee sought to avoid Defendant’s security deed under section 544(a)(3) and Defendant moved for summary judgment. Defendant’s motion for summary judgment was denied because the Trustee created a genuine issue of material fact by submitting into evidence an admissible certified copy of the security deed which called into question the form of the original security deed at the time of recordation. Specifically, the certified copy did not include a visible notary seal, as required by applicable Georgia law. Defendant did not submit any evidence which invalidated the certified copy submitted by the Trustee and thus failed to satisfy its burden of proof that the Trustee could not make his claim as a matter of law. It was inappropriate for the Court to weigh or infer facts regarding the form of the security deed at the summary judgment stage and Defendant’s motion was therefore denied.

NOT INTENDED FOR PUBLICATION

BK 08-71489, AP 09-6711, Doc. 95
09.17.2013 PWB

Andrews v. Adcock

Creditor with unrecorded judgment has rights under Georgia law to perfect the lien of the judgment on nonexempt property that survive the debtor's Chapter 7 bankruptcy case when the trustee does not administer the property. Because the debtor has not exempted the property, the lien is not avoidable under section 522(f).

13-40491 Doc.28
09.13.2013 WLH

NEIL C. GORDON, Chapter 7 Trustee for the Estate of Natonia D. Nesbitt, Plaintiff, v. AMERITRUST MORTGAGE COMPANY, LLC, and BANCMORTGAGE, a Division of National Bank of Commerce, Defendants.

Gordon v. Ameritrust Mortgage Company, LLC (In re Nesbitt); Order on Cross Motions for Summary Judgment. The Court held that the security deed to Ameritrust was avoidable under 11 U.S.C. § 544(a)(3). The instrument was patently defective because the deed lacked an unofficial witness signature. The additional word on the signature block was the notary’s county of residence and not a mark or an illegible signature. Therefore, under Georgia law, the Ameritrust deed did not provide constructive notice to a bona fide purchaser. See O.C.G.A. §§ 44-2-14, 44-14-61.

ADV. PROC. NO. 11-5251
09.10.2013 jrs

Tyler, II v. Banks et al

The Court scheduled the continuation of a trial after concluding that recusal was unwarranted where one defendant's testimony conflicted with information the Court discovered while performing research for another case; the Court concluded that recusal was not appropriate because the information it discovered was obtained in its judicial capacity and thus did not stem from an extrajudicial source.

AP 12-05632, docket number 34
09.09.2013 MGD

Skydive Arizona, Inc. v. Benny Wayne Butler (In re Butler)

Plaintiff’s motion for summary judgment was granted finding that collateral estoppel applied to prevent Chapter 11 Debtor from re-litigating whether his acts constituted a “willful and malicious injury” under section 523(a)(6). Plaintiff had obtained a judgment against the Debtor on claims of cybersquatting, trademark infringement, and false advertising and moved for the nondischargeability of the related debt. In those previous proceedings, a jury necessarily determined the issue of Debtor’s perpetrating a willful and malicious injury. The jury verdict was a final judgment which was not overturned on appeal, and the party against whom collateral estoppel was being asserted was a defendant in the prior proceeding. Accordingly, the debt was nondischargeable under 523(a)(6).

NOT INTENDED FOR PUBLICATION

BK 11-40930, AP 11-4037, Doc. 31
09.06.2013 reb

In re: Tim Anthony Weisheipl

Court sustained objection to claim concluding that claim had been filed out of time under Federal Rule of Bankruptcy Procedure 3002 and must be disallowed under 11 U.S.C. Section 502(b)(9). Court also ruled claimant did not establish basis for applying informal proof of claim theory to assert claim had been timely filed, and further, that claim was not entitled to allowance by virtue of Federal Rule of Bankruptcy Procedure 5005(c) on grounds of mistaken transmission

BK 12-21179 Docket No 53
09.05.2013 BEM

Barbara B. Stalzer v. Amy R. Reynolds

Order Denying Defendant's Motion to Dismiss. Plaintiff set forth specific facts in her complaint that when taken as true, meet the pleading standards set by Iqbal and Twombly and stated a claim upon which relief can be granted under 11 U.S.C. § 727(d).

NOT INTENDED FOR PUBLICATION

AP 13-5137, Doc. 15
09.04.2013 BEM

Plaintiff Gary L. Rainsdon, Trustee, V. Defendant Anestel Corporation, f/k/a Conectl Test Corporation, et al

Order Denying Request for Default Judgment in post judgment proceedings. A request for a default judgment against a garnishee was denied as the request was not accompanied by a motion or memorandum of law as required by Bankruptcy Local Rule 7007-1, and it was not clear that movant had complied with state law in requesting and issuing a garnishment summons with the information required by Georgia statute. The prior Writ of Execution did not constitute a garnishment and could not form the basis for issuance of a default judgment.

NOT INTENDED FOR PUBLICATION

10-00607-Doc15
09.04.2013 REB

In re: Nellie Carter McDonald

Court granted in part and denied in part Defendants' motion to dismiss as converted to motion for summary judgment, concluding that Defendants established absence of fact issue on their entitlement to use statute of limitations defense such that complaint was deemed untimely under 11 U.S.C. Section 546. Court also concluded Trustee did not establish fact issue for trial regarding exercise of due diligence in relation to his right to rely on equitable tolling doctrine. Issue remains pending concerning existence of binding settlement agreement

AP 13-2024, Doc. No. 20
09.04.2013 reb

In re: Nellie Carter McDonald

Court granted in part and denied in part Defendants' motion to dismiss as converted to motion for summary judgment, concluding that Defendants established absence of fact issue on their entitlement to use statute of limitations defense such that complaint was deemed untimely under 11 U.S.C. Section 546. Court also concluded Trustee did not establish fact issue for trial regarding exercise of due diligence in relation to his right to rely on equitable tolling doctrine. Issue remains pending concerning existence of binding settlement agreement

AP 13-2024, Docket No 20
08.30.2013 JEM

In re Hindu Temple and Community Center of Georgia, Inc.

The Court granted the Chapter 11 Trustee’s motion to hold the Debtor’s chairman in civil contempt for deliberately violating the Barton Doctrine. The Respondent had initiated meritless lawsuits in Ohio against the Chapter 11 Trustee, his counsel, and their respective spouses. The Court ordered the Respondent to dismiss that lawsuit with prejudice.

BK 09-82915, Doc. #431
08.26.2013 MGD

Anderson v. Mukesh and Rajesh Patel (In re Diplomat Construction, Inc.)

A joint trial was held on the Chapter 7 Trustee’s fraudulent transfer claims against Debtor’s former principals. Under Georgia’s Uniform Fraudulent Transfer Act and sections 544 and 550 of the Bankruptcy Code, judgment against each Defendant in the amount of $248,000 was entered for transfers made in the four-year period preceding the chapter 11 filing. . The Trustee’s expert established that Debtor was insolvent during the relevant period, and Defendants failed to establish that Debtor had any underlying promissory note or other obligation to pay Defendants in twice monthly payments. Therefore, no reasonably equivalent value was provided by Defendants in exchange for the transfers.

NOT INTENDED FOR PUBLICATION

BK 09-68613, AP 11-5609, AP 11-5610, Doc. 32
08.21.2013 JRS

Speedsportz, LLC et al. v. Lieben (In re Lieben)

The Court found after trial that Debtor fraudulently embezzled money from her live-in-lover's company while working as its bookkeeper and paying her personal expenses with company funds, but the Court found that other funds she obtained from her lover were not the result of fraud, larceny, or embezzlement. The Court concluded that the amounts fraudulently embezzled from the company were nondischargeable pursuant to 11 U.S.C. Sections 523(a)(2)(A) and 523(a)(4), but the Court declined to award punitive damages.

11-05712-Doc31
08.21.2013 JRS

Speedsportz, LLC et al. v. Lieben (In re Lieben)

The Court found after trial that Debtor purchased a car from her live-in-lover's car dealership and paid for it in full, despite his contention that she still owed him money for the car and that his dealership still owned it. The Court concluded that the Debtor's surety owed no liability on the bond she was required to post in order to obtain a Georgia title for the car and that all parties would be enjoined from asserting any further claim to this bond.

12-05615-Doc6
08.21.2013 MGD

In re Cherwenka (RES-GA Gold, LLC v. Cherwenka)

The Court granted Defendant’s Motion to Dismiss under Rule 12(b)(6) because Plaintiff failed to state a claim for relief to be granted. As a creditor, Plaintiff did not have standing to pursue turnover claims involving property of the estate. Once the chapter 7 petition was filed, all of the Debtor’s assets became property of the estate under section 541 of the Bankruptcy Code and the Trustee was charged to pursue any action involving property of the estate.

NOT INTENDED FOR PUBLICATION

BK 13-57592, AP 13-5219, Doc. 12
08.15.2013 WLH

In re: Douglas Anthony Underwood;

Order on Plaintiff’s Motion to Dismiss Defendant’s Counterclaim. The Court granted Plaintiff’s Motion to Dismiss Counterclaim because counterclaim objecting to discharge was untimely and attempt to revoke the discharge was untimely. Equitable tolling does not apply to 11 U.S.C. §727(e)(1).

13-5138 Doc#13
08.14.2013 WHD

Akins v. Akins

(Court denied Defendant's Motion and Combined Brief for Order Authorizing Bankruptcy Rule 2004 Examination, finding, in accordance with the "Pending Proceedings Rule," that once an adversary proceeding has been commenced, Rule 2004 is inappropriate, and in order to examine a party in interest, the discovery provisions of the Federal Rule of Civil Procedure, adopted by the Bankruptcy Rules, are required.)

AP 13-1024 Doc. 8
08.07.2013 mgd

In re Pullen (Gordon v. Love)

Chapter 7 Trustee’s partial motion for summary judgment was granted finding that the undisputed facts make out an actual fraudulent transfer under section 548(a)(1)(A). The transfer at issue was a quitclaim deed transferring Debtor’s half-interest in real property pursuant to Debtor and Defendant’s divorce agreement. Debtor’s sworn testimony was sufficient to establish the requisite fraudulent intent. Defendant’s intent was not relevant. The Court also granted Trustee’s claim to sell the property, including Defendant’s interest, under §363(h). Trustee was permitted to sell the property, which was a single family home used as a rental property without net positive income.

NOT INTENDED FOR PUBLICATION

BK 09-61108, AP 11-5620, Doc. 50
08.06.2013 mgd

Anderson v. Jagdeep Patel (In re Diplomat Construction, Inc. )

A joint trial was held on the Chapter 7 Trustee’s fraudulent transfer and preference claims against purported former principals of Debtor. The Court determined that Debtor received reasonably equivalent value in the form of services provided to Debtor. Therefore, there was no fraudulent transfer liability. Alternatively, Trustee sought to avoid the transfers as preferences. Defendant was found not to be a statutory insider, so the preference period was limited to the 90-day period preceding bankruptcy. Defendant defended the preference action based on the legal theory that he was not a creditor. The Court found, however, that he was paid for his work and services in arrears, and, accordingly, such a payment scheme rendered Defendant a creditor.

NOT INTENDED FOR PUBLICATION

BK 09-68613, AP 11-5611, Doc. 25
08.06.2013 JEM

Pettie, Trustee v. Hamilton

The Court granted the Chapter 7 Trustee’s motion for summary judgment, avoiding preferential transfers made by the Debtor within 90 days of filing his petition and unauthorized postpetition transfers. Defendant could not show that there was a history of late payment from Debtor and therefore could show that the payments were made in the ordinary course of business between the parties under 11 U.S.C. § 547(c)(2)(A).

BK 10-63241, AP 12-5069, Doc. #41
08.02.2013 MGD

In re Mitchell

The Court found automatic stay to not be in effect under § 362(b)(22) and allowed residential lessor to continue its eviction action in the appropriate state court. Debtor did not satisfy the requirements of § 362(l) and, therefore, was not entitled to the 30-day protection § 362(l) provides.

NOT INTENDED FOR PUBLICATION

BK 13-64407, 16
07.29.2013 jrs

German Am. Capital Corp. v. Oxley Dev. Co., LLC (In re Oxley Dev. Co, LLC)

The Court denied Plaintiff's request that Defendants' failure to respond to requests for admissions be deemed conclusive admissions of the matters set forth therein because--pursuant to Fed. R. Bankr. P. 7036, Fed. R. Civ. P. 36(b), and Perez v. Miami-Dade Cnty., 297 F.3d 1255 (11th Cir. 2002)--Defendants submitted and amended their responses to the requests for admissions, and the Court determined that allowing these amended responses would promote a presentation of the merits of the case and would not prejudice the Plaintiff.

12-05568-Doc123
07.26.2013 MGD

Anderson, Jr. v. Kinzer

Chapter 7 Trustee moved to avoid an alleged preferential transfer. Both the Trustee and Creditor filed cross motions for summary judgment. As well, the court considered Creditor’s motion to amend answer filed just before dispositive motions were due, alleging that the Creditor had made a scrivenor’s error. Trustee and Creditor agreed that the first four elements of a preferential transfer were satisfied, but they differed as to fifth element based on Trustee’s assertion that Creditor was not a secured creditor. The Court denied motions for summary judgment because conflicting evidence in the record showed there remained two genuine issues of material fact, making it inappropriate for the Court to grant the motions as it would have required weighing of the credibility of the evidence. The Court did grant Creditor’s motion to amend because it found no substantial reason to deny the motion.

12-5276
07.26.2013 jrs

German Am. Capital Corp. v. Oxley Dev. Co., LLC (In re Oxley Dev. Co, LLC)

The Court recommended that the District Court dismiss Defendants’ counterclaims for conversion, breach of contract, and fraud because (1) conversion claim could not lie where Defendants did not allege sufficient facts indicating that Defendants had title or right of possession to funds escrowed with Plaintiff and Plaintiff did not have any independent, non-contractual duty to release the funds; (2) breach of contract claim was not viable because although the parties’ loan agreement provided that Plaintiff would disburse funds within seven days, Plaintiff’s delayed payment was not a material breach, and the loan agreement precluded Defendants from recovering monetary damages for unreasonable delay and limited their remedies to specific performance, injunctive relieve, and/or declaratory judgment; and (3) fraud claim was unsustainable because Defendants did not allege any specific misrepresentations other than vague allegations that Plaintiff misrepresented its intent to perform under the loan agreement after that contract had already been formed.

12-05568_Doc119
07.26.2013 JRS

German Am. Capital Corp. v. Oxley Dev. Co., LLC (In re Oxley Dev. Co, LLC)

The Court denied Defendants' motion to voluntarily dismiss its counterclaims pursuant to Fed. R. Bankr. P. 7041 and Fed. R. Civ. P. 41 because Plaintiffs had a motion for judgment on the pleadings pending--which was filed several months prior and which had been extensively briefed by both sides--and because allowing Defendants to dismiss their counterclaims at such a late stage of the proceedings would prejudice Plaintiff and likely cause it to suffer unnecessary delays and incur substantial additional costs.

12-05568_Doc118
07.24.2013 WLH

In re: Hot Shot Kids Inc. and Brenda Pauley v. Joy A. Pervis;

Order on Defendant’s Motion for Summary Judgment. Upon the failure of the parties’ business venture within the child and teen talent industry, Plaintiffs brought an action alleging numerous causes of action and that such claims were nondischargable under 11 U.S.C. §523(a)(2)(A),(a) (4), and(a)(6). The Court (1) granted summary judgment to clarify which Plaintiff held which claim, (2) granted summary judgment against individual Plaintiff’s fraud, conversion, and breach of oral contract claims arising outside limitation period where Plaintiff failed to exercise reasonable diligence sufficient to toll limitation period, (3) granted summary judgment on most of the tortious interference claims, (4) granted summary judgment on usurpation of corporate opportunity claims arising after Defendant was no longer an officer because corporate Plaintiff had no “interest or expectancy” therein nor did corporate Plaintiff’s past relationships with talent amount to a “beachhead”, and (5) granted summary judgment that Defendant was not a fiduciary as used in 11 U.S.C. §523(a)(4). As to the remaining claims, the Court (6) denied summary judgment on certain fraud, conversion, and breach of contract claims, (7) denied summary judgment on tortious interference claims not precluded by the stranger doctrine and contingent upon Defendant’s breach of fiduciary duty while an officer, and (8) denied summary judgment on the usurpation of corporate opportunity claims falling within corporate Plaintiff’s line of business while Defendant was an officer.

AP 10-9061
07.22.2013 BEM

In re: O'Brien v. Silver;

Order finding debts owed to former spouse were dischargeable under section 1328. Amounts owed to former spouse were in the nature of a property settlement and not alimony and support under section 523(a)(5) when the terms of the divorce agreement did not tie payment of the obligations to any contingency such as death or remarriage, the terms of the agreement expressly waived alimony payments, and the agreement did not contain language that indicated the payment obligations were in the nature of support rather than an intention to divide marital debts.

13-5081 Doc#9
07.19.2013 WHD

(Howerton v. Howerton),

(Court denied Movant's Motion for Summary Judgment and granted Respondent's Cross-Motion for Summary Judgment, finding that attorney's fees awarded pursuant to Georgia's abusive litigation statute, O.C.G.A.§ 9-15-14, is nondischargeable under 11 U.S.C. § 523(a)(15) where the award was acquired in connection with Respondent's defending against actions seeking to (1) modify child support and (2) set aside the parties' divorce decree.)

12-1055 Docket No. 14
07.11.2013 WHD

(In re Holmes),

(Court imposed the following sanctions on the Debtor's attorney after finding that the Debtor's Attorney (a) aided and abetted the unauthorized practice of law; (b) failed to adequately represent his client in her bankruptcy proceedings; and (c) either intentionally or negligently manipulated the Bankruptcy Code: (1) a six month bar from filing new cases in the United States Bankruptcy Court, Northern District of Georgia; (2) a requirement to complete twelve hours of continuing legal education in the areas of Chapter 13 practice and procedure and Professional Responsibility; and (3) the disgorgement of all fees, received in both this case and the case that preceded it, to be remitted to the Debtor.)

13-10824 Docket No. 35
07.10.2013 PWB

Tyler Alvin Lee Smith and Jennifer Ann Smith:

Court denies application of secured creditor in Chapter 13 case for unclaimed funds because it does not show present entitlement to funds.

07-42139
07.08.2013 JRS

Anderson v. Gavahi (In re Atlanta Rug Gallery, Inc.)

The Court found following trial that Debtor did not receive any value in exchange for a transfer of Persian rugs to its principal that occurred less than two years before its petition date, that this property belonged to the Debtor, and that the Debtor was insolvent either before or immediately following this transfer. The Court concluded that the trustee was entitled to avoid this transfer pursuant to either 11 U.S.C. Section 544(b) or 548(a) and recover it pursuant to 11 U.S.C. Section 550.

12-05081-Doc22
07.08.2013 JRS

Anderson v. Kheiri (In re Atlanta Rug Gallery, Inc.)

The Court found following trial that Debtor did not receive any value in exchange for a transfer of $472,806 to the Defendant that occurred less than two years before its petition date, that these funds were the Debtor's property and not the Defendant's (as he testified at trial), and that the Debtor was insolvent at the time of the transfer. The Court concluded that the trustee was entitled to avoid this transfer pursuant to 11 U.S.C. Section 548(a)(1)(B) and recover it pursuant to 11 U.S.C. Section 550.

12-05076-Doc22
07.03.2013 PWB

Alice Genise Stephens; Stephens v. Guaranteed Auto, Inc.

Creditor repossessed debtor's car prior to the filing of the petition, refused to return it, and sold it. Court awarded actual damages of $1,559, attorney's fees of $4,325, and punitive damages of $17,890. Court observes that creditor who repossesses car prior to bankruptcy filing cannot condition the turnover of the vehicle on the provision of adequate protection, such as proof of insurance, unless the creditor moves promptly for relief in the bankruptcy court.

13-53261; A.P. No. 13-5062
07.03.2013 bem

Silver v. Edelson et al

Order that debts owed to business were dischargeable under section 523(a)(4). While Debtor's actions in terminating his relationship with a former business and partner were not consistent with the business' operating agreement,the actions did not evidence the requisite fraudulent intent necessary under section 523(a)(4). Additionally, there was insufficient evidence presented to support a finding that Debtor's current business was a mere alter-ego of his former business, precluding the imposition of successor liability.

NOT INTENDED FOR PUBLICATION

11-05720
06.26.2013 CRM

Merchants Bank of California, N.A. v. Morales,

Order granting judgment in favor of Defendant. Plaintiff sought a determination that a debt was non-dischargeable pursuant to section 523(a)(4). After holding a trial on the complaint, the Court found that Plaintiff had not proved by a preponderance of the evidence that the Debtor’s actions constituted a defalcation within the meaning of section 523(a)(4). The Court applied the heightened standard announced in the recent Supreme Court decision Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013), and found that the evidence did not establish that Defendant knew of, or consciously disregarded, a substantial and unjustifiable risk that her conduct would violate a fiduciary duty. While Defendant may have exercised poor judgment in trying to help her husband with his business, Defendant’s actions did not rise to the level of intentional wrongdoing, moral turpitude, or scienter required to prove a defalcation.

11-5637 Doc #37
06.26.2013 WHD

(In re King),

(Court sustained the Chapter 13 Trustee's Objection to Confirmation pursuant to Section 1325(b) of the United States Bankruptcy Code, holding that a debtor's calculation of disposable income may not incorporate a deduction for an "ownership expense" in an automobile, unless the automobile is secured by a loan related to the financing of acquisition of said automobile.)

13-10689 Docket No. 37
06.24.2013 MGD

In re Hayden;

Pro se Debtor filed a motion requesting reconsideration of the Court’s order lifting the automatic stay as to Everbank, a servicer of The Bank of New York Mellon. The Court denied the motion, finding that none of the limited circumstances under which reconsideration is appropriate were present in this case. Debtor did not present any mistake or change of law or fact. He merely restated arguments already heard before the Court. Debtor’s arguments as to the propriety of Everbank’s ability to foreclose on Debtor’s property were irrelevant to the Court’s jurisdiction and administration of the estate. The Court was not in the position to be concerned with Debtor’s individual property rights. Everbank also satisfied its burden under 11 U.S.C. § 362(e) to get the automatic stay lifted. The court relied on established caselaw regardin a servicer’s ability to file a proof of claim. Furthermore, Debtor’s objection based on the fact that Everbank did not file a proof of claim is irrelevant because due to its nature as a no-asset case, creditors were ordered not to file proof of claims.

13-57281 Doc#25
06.21.2013 MGD

In re Foster;

Debtor filed objections to a claim filed by Homeward Residential, Inc., which was later transferred to Ocwen Loan Servicing, LLC. Debtor objected on the basis of a payment dispute and on legal grounds that due to a defect in the chain of title, U.S. National Bank Association, for whom Ocwen was servicing the loan, was not the proper security holder. Debtor’s payment dispute was based on an alleged modification of her first mortgage before it was transferred to Ocwen. At an evidentiary hearing, Debtor was unable to provide anything more than her own testimony that a modification had occurred and the statute of frauds applied. Addressing the legal arguments, the Court held that Debtor was judicially estopped from challenging the secured nature of the first mortgage because she had already taken a stance in an earlier proceeding that it was a secured claim so that she could strip the junior lien on the same property. The Court also disagreed with Debtor’s assertion that there was a defect in the chain of title, holding ultimately that Debtor failed to satisfy her burden of presenting evidence to go forward. Transfer of the title was found to be appropriate under the 2007 and current versions of O.C.G.A § 14-5-7.

12-74591 Doc#44
06.18.2013 WHD

(Howell v. Bank of America, N.A.),

(Court denied Defendant's Motion to Dismiss Amended Complaint, finding that under Maryland law the Trust Agreement in question had a valid spendthrift clause, but that the Debtor's control, through "voluntary withdrawals," of a portion of the corpus of the Trust, coupled with the estate's interest in any income received by the Debtor within 180 days of the petition date, resulted in the Trustee appearing to have a plausible claim as to at least some portion of the Trust and its income sufficient to defeat a motion to dismiss for failure to state a claim upon relief can be granted.)

13-1005 Docket No. 31
06.11.2013 MGD

In re Bledsoe;

Debtor in this closed Chapter 7 case filed an emergency petition seeking to stay the discharge order and reopen the case so as to get relief from three creditors: JP Morgan Chase Bank, a Townhome Association, and Debtor’s counsel. Debtor’s challenge as to JP Morgan was inappropriate for the Court as it was a claim involving Debtor’s individual property rights, which should be handled in the proper state court forum. Debtor also sought to add the Townhome Association to her schedule of creditors in an attempt to obtain relief from them for her prepetition debt. The Court denied her the relief while noting that in a no-asset, no-bar date case scheduling does not affect the Court’s ability to grant a discharge.

12-77911 Doc#21
06.05.2013 JRS

Tyler v. Banks (In re Tyler)

The Court held that (1) service to individual defendant at post office box was insufficient, (2) the Court still had constitutional authority to enter a final order in this fraudulent transfer proceeding following the Supreme Court's decision in Stern v. Marshall, (3) Chapter 13 Debtor had standing to bring fraudulent transfer action under Section 548, and (4) Debtor's motion for summary judgment must be denied because questions of fact remained regarding whether Defendants complied with Georgia law when completing foreclosure sale and regarding whether foreclosure sale of Debtor's home was a transfer for less than reasonably equivalent value.

12-05632 Doc#17
06.03.2013 WHD

(Bank of North Georgia v. Dennis McDowell),

(Court denied Plaintiff's Motion for Summary Judgment , which sought denial of discharge pursuant to Sections 523(a)(2)(B), 523(a)(2)(A), and denial of discharge under Section 727(a)(4), determining that questions of fact remained as to all claims and therefore the Plaintiff did not satisfy its burden under the summary judgment standard.)

12-1020
05.23.2013 PWB

International Management Associates, LLC; Perkins v. Champagne

The Plan Trustee sought to recover, as fraudulent transfers under Georgia law, "fictitious profits" Defendants received on their investments in a Ponzi scheme. Defendants asserted that Louisiana law applied and that the applicable limitations period barred the action. The Court concluded that the choice of law rules of the forum state apply and that Georgia law governed the issues under Georgia's choice of law rules.

06-62966; A.P. No. 08-06223
05.23.2013 reb

Kevin Patrick Campbell and Angelica Joanna Campbell

In Chapter 7 case, Court held that Debtors could void wholly unsecured second priority lien on rental property not used as Debtors' residence under 11 U.S.C. Section 506(d) and the authority of McNeal v. GMAC Mortgage LLC (In re McNeal), 477 Fed.Appx. 562 (11th Cir. 2012)

BK 12-23808 Docket No 24
05.23.2013 reb

Kevin Patrick Campbell and Angelica Joanna Campbell

In Chapter 7 case, Court held that Debtors could void wholly unsecured second priority lien on rental property not used as Debtors' residence under 11 U.S.C. Section 506(d) and the authority of McNeal v. GMAC Mortgage LLC (In re McNeal), 477 Fed.Appx. 562 (11th Cir. 2012)

BK 12-23808 Docket No 24
05.21.2013 BEM

Flyboy Aviation Properties, LLC v. Franck

"Order Denying Defendant's Motion to Remand. Removed action would not be remanded to state court, as Chapter 11 debtor's main asset was an airport with a disputed permanent easement, which would affect the value and the outcome of a pending 11 U.S.C. section 363 motion, which would necessarily come before the Court."

13-5111
05.21.2013 MGD

Montz v. Roswell Holdings, LLC, et al.,

Plaintiff was the Chapter 7 Trustee, who had filed a Motion that the Attorney-Client Privilege had been waived as to certain documents and information. This opinion addressed one of the Defendants’, Richard W. Wolfe and SAS-Moran Lake Holding Company, LLC (“the Wolfe parties”), responses. In their response, the Wolfe parties purported to have the ability to intervene in the underlying discovery dispute. The Court held that such an intervention would be inappropriate because it violated the Federal Rule of Bankruptcy Procedure 7024(c) and it was not ripe for review. The proposed intervention simply did not comport with the procedural rule, and because such an intervention was wholly contingent on an event which had not yet occurred, it was not ripe. The Court ordered that the Wolfe parties may not intervene in the pending discovery dispute between the Chapter 7 Trustee and one of the other Defendants, Roswell Holdings, LLC.

12-04069 Doc#76
05.20.2013 WLH

Smyrna Childcare Centers, LLC v. Terald L. Melton

Opinion after trial on complaint seeking judgment for return of a security deposit and nondischargeability of that judgment as incurred through fraud and conversion, pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). Debtor, as owner and operator of lessor, represented to potential lessee that lessee’s $50,000 security deposit would be held in escrow. In fact, the security deposit was deposited into lessor’s operating account, and Debtor used the funds or transferred the funds to related companies and to himself. Court could finally adjudicate both the dischargeability and the amount of the judgment; Stern v. Marshall, 131 S.Ct. 2594 (2011) is inapplicable because determining the amount of the claim is intertwined with the dischargeability determination and by filing the bankruptcy case Debtor consented to adjudication of matters related to dischargeability. Lessee could assert fraud, despite lease which directly contradicted the misrepresentations and which contained merger clause, because lease was rescinded prior to lessee’s discovery of the misrepresentations. Debtor was personally liable for the fraud as arising from his own conduct, in the amount of $50,000 plus interest. Alternatively, Debtor was guilty of conversion in the amount of $48,762.47, the amount that was transferred to Debtor or his family or was used in transactions that were not adequately explained. No punitive damages or attorneys’ fees awarded, but the debt was nondischargeable.

10-6697
05.17.2013 PWB

James Curtis Higgins and Georganna Peal Higgins.

The pro se Creditor contended that, in a pre-petition garnishment action, the garnishment court ordered disbursement of garnished funds to the Debtor unless the Creditor objected. The Creditor further claimed that, upon filing the objection, the garnishment court directed the Creditor to seek relief from the bankruptcy court. The Creditor then filed, in the bankruptcy court, an objection to disbursement of the funds. The Creditor did not seek relief from the automatic stay. The Debtor had not disclosed the garnishment action, did not schedule the garnished funds as an asset, and had not moved to avoid the lien under § 522(f). The Court declined to direct disbursement of the funds in the garnishment court because it is not appropriate for a bankruptcy court to tell another court what to do. The Court ruled that the funds should be deemed to be scheduled so that:(1) they will be abandoned under § 554(c) if the Trustee does not administer them; and (2) the automatic stay will therefore terminate upon closing of the case.

13-55783 Doc#20
05.16.2013 JRS

German American Capital Corp. v. Oxley Development Co. LLC et al.

The Court denied motion to dismiss for lack of subject matter jurisdiction filed by Debtor and related entities in adversary proceeding, in which bank had filed complaint seeking declaratory judgments relating to title on real property owned by Debtor at the time it filed for Chapter 11 protection. The Court held that it had subject matter jurisdiction over this adversary proceeding because the bank's claims were related to the underlying bankruptcy case (because those claims could have conceivably affected property of the estate) at the time the complaint was filed, notwithstanding the fact that the underlying bankruptcy case was later dismissed. The Court also explained why exercising its discretion to retain jurisdiction over this adversary proceeding after dismissing the underlying bankruptcy case was proper.

12-05568 Doc#84
05.14.2013 MGD

Bell v. Covington;

Defendant filed Motion to Dismiss based on pro se Debtor’s failure to comply with the Court’s procedural orders concerning time limitations for service on Defendant. Debtor took actions to remedy the failure but only after the motion had been filed. Although no extension had been sought, the Court, considering Rule 4(m) of the Federal Rules of Civil Procedure, found that no extension of time was warranted. Based on the two-step inquiry to assess a request for an extension of time, the Court found that Debtor had provided no justification to support such an action. Furthermore, dismissal of the case was appropriate because Debtor’s complaint failed to state a claim for which relief could be granted. Dismissal was thus appropriate under the facts.

12-05628 Doc#9
05.13.2013 JEM

Kerr, Trustee v. Roeser

The Court denied a motion to dismiss the chapter 7 Trustee’s complaint seeking to recover property under 11 U.S.C. § 550(a) after avoiding a transfer under §548. The Trustee was not required to plead the absence of an affirmative defense under §550(b) to successfully state a claim for recovery under §550(a).

BK 09-79795, AP 13-5056, Doc. #20
05.09.2013 BEM

Gertilin Edwards v. THR Georgia (In re Edwards)

"Order Denying Debtor's Motion to Extend the Automatic Stay. Extension of the automatic stay was unavailable when the case was the debtor's third individual bankruptcy case, and second pending within the year, and the hearing was not held within the 30-day period stipulated in 11 U.S.C. Section 363(c)(3)(B). Further, Debtor failed to prove the elements necessary for reimposition of the stay under 11 U.S.C. Section 105, as the court could not determine the success of Debtor's pending adversary proceeding challenging wrongful foreclosure, there was no threat of irreparable harm, and the property at issue served no bankruptcy purpose in the chapter 7 estate. Reimposing the stay would be contrary to public policy, as Debtor and her husband had filed seven cases between them to prevent foreclosure of real property, which had been purchased by a third-party prior to the filing of the instant case."

13-54582
05.09.2013 MGD

Vu v. Ankoanda;

Plaintiffs, whose interest in the estate arose from a pre-petition judgment, filed a complaint against Debtor in this Chapter 13 case, asserting objections to discharge and dischargeability and requesting a determination of their lien validity and priority. Plaintiffs asserted five claims as to non-dischargeability. The Court dismissed three of these claims and left the other two open to amend, while noting the inapplicability of a § 523(a)(6) claim in a chapter 13 case.

13-05029 Doc#11
05.06.2013 PWB

EDGAR LEON RHODES, III, Plaintiff, v. United States of America, Defendant

Order denying USA’s motion for summary judgment on the issue of dischargeability of taxes under section 523(a)(1)(B) and rejecting the IRS position that a late-filed tax return does not qualify as a “return” for purpose of clause (i) of this section. The Court concluded that a late-filed tax return may qualify as a “return” for purposes of section 523(a)(1)(B)(i) if it satisfies the four prong test of Beard v. Commissioner, 793 F.2d 139 (6th Cir. 1986).

NOT INTENDED FOR PUBLICATION

AP 11-4074-pwb Document Number 28
04.30.2013 WLH

FIA Card Services NA v. Furaha Quinn

Order denying in part and granting in part pro se Defendant's Motion for Summary Judgment. Plaintiff filed a Complaint to determine the dischargeability pursuant to Section 523(a)(2)(A) of $3,900 in cash advances and $2,399 in retail charges arising from Defendant's use of a credit card prior to filing Chapter 7 bankruptcy. The Court found Plaintiff's implied representation argument was insufficient to meet the Eleventh Circuit Standard required to establish nondischargeability of credit card debt as false pretenses or representations under Section 523(a)(2)(A). Accordingly, the Court granted Summary Judgment on that issue. As to the Section 523(a)(2)(A) actual fraud claim, the Court found material issues of disputed fact existed regarding Defendant's subjective intent in light of the allegations pled in Plaintiff's Complaint and Defendant's Answer thereto. The Court denied summary judgment as to the 523(a)(2)(A) actual fraud claim.

12-5652
04.30.2013 WLH

American Express Centurion Bank v. Novell Laman McGloster

Order on Plaintiff’s Motion for Default Judgment on Complaint to determine the dischargeability of credit card debt on grounds of false pretenses, false representations, or actual fraud under Section 523(a)(2)(A). The Court held that implied representations do not establish false pretenses or representations under 523(a)(2)(A). In considering the allegations of actual fraud, the Court considered the totality of the circumstances. Although Defendant more than doubled its balance by incurring 145 charges over a two and a half month period, such activity constituted a sudden change in Defendant’s spending habits, and some of the charges appeared questionable as necessities, Defendant had a six‐year history with American Express, the Court found no indication the card was used in anticipation of bankruptcy, and Defendant’s bankruptcy schedules contradicted Plaintiff’s assertions that Defendant was unemployed at the time the charges were incurred. In light of Plaintiff’s failure to establish by a preponderance of the evidence that Defendant possessed the subjective intent necessary to establish actual fraud under Section 523(a)(2)(A), and because entry of default judgment is discretionary, the Court denied Plaintiff’s Motion.

12-05664
04.30.2013 WLH

Springleaf Financial Services v. Melvin Randall Warner

Order on Plaintiff's Motion for Default Judgment on Complaint to determine dischargeability of debt pursuant to 11 U.S.C. §523(a)(6). Plaintiff filed a Motion for default judgment arising from a loan made by Plaintiff to Defendant and secured by various items of collateral. The Court held that Plaintiff's failure to move for entry of default created a procedural deficiency. It further held default judgment could not be granted as the allegations in the Complaint were legal conclusions and lacked sufficient detail to establish willful and malicious action under Section 523(a)(6) including the source or content of Plaintiff’s allegations, when, to whom, or why the collateral was transferred, or Defendant's conscious intent to violate the property rights of Plaintiff. Moreover, Plaintiff failed to clarify how Defendant's purported transfer of some but not all of the collateral justified damages in the full amount of the loan.

12-5654
04.30.2013 JEM

In re Thompson

Plaintiffs held a state court judgment against the Debtor, initiated a garnishment proceeding, and the garnishee had paid funds into the state court, all prior the petition date. Plaintiffs never requested the state court to distribute the funds to them. Debtor filed bankruptcy and Plaintiffs sought a declaratory judgment that the funds in the hands of the state court clerk belonged to them Held: the garnishment proceeds, became property of the estate when the Debtor filed his bankruptcy petition, subject to Plaintiff’s lien. But Debtor’s motion to avoid that lien was unopposed, leaving Plaintiffs without a remedy.

BK 13-52212, Doc. #22
04.29.2013 MGD

Montz v. Healthcare Realty & Development, LLC (In re Houser),

Movant asked the Court to reconsider its Order entering Final Judgment against Movant and in favor of the Chapter 7 Trustee. The Court construed the Motion as one under F.R.C.P. 59(e) and 60(b). Movant was not successful under Rule 59(e) because he did not assert any newly-discovered evidence or manifest errors of law or fact. Movant did not prove fraud, as required under Rule 60(b)(3) by clear and convincing evidence. Relief under Rule 60(b)(6) was also unwarranted because Movant failed to demonstrate that circumstances were sufficiently extraordinary to warrant relief.

11-4067 Doc#88
04.26.2013 BEM

In re: Jerry William Douthit;

Order sustaining Debtor’s objection to priority unsecured claim filed by former spouse. The Court found that lump sum alimony owed to former spouse was in the nature of a property settlement rather than in the nature of alimony, maintenance or support.

12-75289 Doc#67
04.26.2013 BEM

JERRY WILLIAM DOUTHIT

"Order sustaining Debtor’s objection to priority unsecured claim filed by former spouse. The Court found that lump sum alimony owed to former spouse was in the nature of a property settlement rather than in the nature of alimony, maintenance or support. "

12-75289
04.17.2013 MGD

Cooper v. Bullock (In re Bullock),

The Court granted the motion to dismiss the Chapter 7 Trustee’s complaint objecting to Debtor’s discharge under 11 U.S.C. 727(a). The Complaint was not timely filed pursuant to F.R.B.P. 4004. Defendant did not waive her time bar defense. The gap period either did not exist or was not a valid basis for allowing the untimely complaint. The equities did not favor equitable tolling of the deadline. Trustee also did not meet its burden to show that Debtor acted with the requisite intent to hinder, delay or defraud a creditor.

10-4111 Doc#114
04.05.2013 MHM

Gordon v. Wells Fargo Bank, NA (In re Ingram);

Liens; Subtopic: defective security deed and inquiry notice.

AP 08-6440 Doc#49
03.29.2013 PWB

C. Brooks Thurmond, III v. Cherie and Jack Parker

Court grants motion to compel Defendants in adversary proceeding to execute Form 4506 to request Internal Revenue Service to furnish copies of returns for relevant years in which amount Defendants paid as rent is at issue.

Adv. Proc. No: 11-5354, Bankruptcy Case No. 09-65148 Doc. No. 60
03.28.2013 MGD

Santa Ana Unified School District v. Montgomery (In re Motgomery),

Plaintiff was a judgment creditor of Debtor and moved for summary judgment as to the nondischargeability of its debt under § 523(a)(2)(A). Debtor had been found liable of concealment under California law and the Court found that the California standard for issue preclusion had been established by Plaintiff. Therefore, Debtor was precluded from relitigating issues relating to the nondischargeability claim. Using the findings of fact from the California state court judgment and the undisputed facts, Plaintiff was entitled to a nondischargeability determination on summary judgment. Additionally, Plaintiff was awarded judgment on its claim for declaratory judgment – seeking judgment that identified funds in Debtor’s exempted IRA accounts were not property of the estate. The California state court had imposed a constructive trust on identified funds with Plaintiff as beneficiary when it found Debtor liable for concealment. Based on the imposition of the constructive trust, § 541 did not extend to Debtor’s interest in the funds because there was no equitable interest in the funds, merely bare legal title.

12-5109 Doc#49
03.28.2013 MGD

In re Malone,

The Court ruled that the chapter 7 Debtor was entitled to “strip off” a wholly unsecured junior lien on real property pursuant to § 506, following the Eleventh Circuit’s unpublished decision in In re McNeal, 477 Fed. Appx. 562 (11th Cir. 2012) (per curium). The Court gave great weight to the McNeal decision, yet identified how the reasoning used in McNeal to determine whether a creditor held an “allowed secured claim” for purposes of § 506(d) contradicted the prescribed analysis inDewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).

12-61289 Doc#43
03.22.2013 BEM

In re Elizabeth Gail Williams

"Order Granting Trustee's Motion to Dismiss Chapter 13 Case. Debtor's "chapter 20" case filed for the sole purpose of stripping a second mortgage lien on which she was current and paying attorneys fees warranted dismissal, as Debtor had previously discharged almost $40,000 in unsecured debt in her chapter 7 case, scheduled only $1,412 in unsecured debt in the instant case, and reported an increase in income of $127 since her previous filing."

12-73567
03.19.2013 WHD

(United Community Bank v. Harper),

(Court denied Plaintiff's Motion to Reconsider, finding that the Court's previous order dismissing Plaintiff's Complaint as untimely under Federal Rules of Bankruptcy Procedure 4007(c) and 9006(b) had not committied manifest error of law in holding that Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988) was not abrogated by the Supreme Court's case of Kontrick v. Ryan, 540 U.S. 443 (2004) and the District Court's opinion in Choi v. Promax Investments, LLC 2012 U.S.Dist Lexis 183453 (N.D.Ga. 2012); and finding that the Court had not committed manifest error of law or fact in finding that the Plaintiff failed to qualify for equitable relief, in the event that Byrd was not good law.)

12-1080 Docket No. 24
03.19.2013 WHD

(United Community Bank v. Harper),

(Court denied Plaintiff's Motion to Reconsider, finding that the Court's previous order dismissing Plaintiff's Complaint as untimely under Federal Rules of Bankruptcy Procedure 4007(c) and 9006(b) had not committied manifest error of law in holding that Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988) was not abrogated by the Supreme Court's case of Kontrick v. Ryan, 540 U.S. 443 (2004) and the District Court's opinion in Choi v. Promax Investments, LLC 2012 U.S.Dist Lexis 183453 (N.D.Ga. 2012); and finding that the Court had not committed manifest error of law or fact in finding that the Plaintiff failed to qualify for equitable relief, in the event that Byrd was not good law.)

12-1080 Docket No. 24
03.18.2013 MHM

Mercedes-Benz Financial Services v. Corner Lot, Inc. (In re Lyons)

(Topic: Automatic Stay; Subtopic: Creditor may file adversary proceeding against third party to obtain relief for violation of the automatic stay)

12-5574 Doc. No. 23
03.13.2013 WLH

Barbara K. Francis v. Scorpion Group, LLC

Opinion on motions related to rights of Debtor and purchaser at tax sale. Chapter 13 Debtor filed bankruptcy after tax sale purchaser of Debtor’s rental property served Debtor with Notice of Foreclosure of Equity of Redemption but prior to expiration of Debtor’s statutory right to redeem. In lieu of redeeming within 60 days after expiration of the redemption period pursuant to 11 U.S.C. §108(b), Debtor filed a plan on the petition date while still within the original redemption period and proposed to pay the tax sale purchaser the redemption price in full over the applicable commitment period with additional interest. Tax sale purchaser sought relief from the automatic stay, and the debtor sought to determine the amount of claim and to pay the purchaser. The Court held (1) Debtor’s right to redeem under O.C.G.A. § 48-4-40 et sec was property of the estate, (2) tax sale purchaser held a claim under 11 U.S.C. § 101 because Debtor’s underlying obligation was enforceable against Debtor’s property and tax sale purchaser’s right was translatable into monetary terms as established by the redemption price, (3) Debtor could modify the claim of tax sale purchaser under 11 U.S.C. §1322(b) notwithstanding 11 U.S.C. §§108(b) or 1322(c) because §108(b) does not limit other rights afforded to Chapter 13 debtors by the Bankruptcy Code and §1322(c) is inapplicable to rental property, and (4) since the time for Debtor to pay the redemption price under 11 U.S.C. §108(b) had expired, Debtor could only pay the redemption price pursuant to a confirmed plan.

12-73183 Doc#95
03.13.2013 PWB

Vincent P. Phillips

Court dismisses third involuntary petition against individual, enjoins petitioning creditors from filing future involuntary petitions against alleged debtor, grants prospective in rem relief from stay with regard to condominium unit, and retains jurisdiction to permit investigation by U.S. Attorney and U.S. Trustee.

13-50120 Doc#8
03.07.2013 MGD

Federal National Mortgage Association v. Asar Rameses El (In re Asar Rameses El),

The Court ruled that Fannie Mae was entitled to relief from the automatic stay. This matter was remanded from District Court upon Debtor’s appeal of an Order granting Fannie Mae relief from the automatic stay relating to certain real property. Fannie Mae, by assignment of a 2006 security deed, held a senior interest to the interest purportedly conveyed to Debtor in 2010. Fannie Mae foreclosed on its interest prior to the petition date thereby extinguishing all junior interests. Debtor, therefore, did not have a secured interest in the property. Debtor also did not have a possessory interest in the property, as Debtor did not reside there. To the extent that Debtor claimed wrongful foreclosure, the Court did not have subject matter jurisdiction over that claim.

12-57090 Doc#40
03.05.2013 REB

(In re: Teresa G. Thomason),

(Teresa G. Thomason v. Chestatee Community Association, Inc.), Contested Matter; entered on 2013-03-05; Docket No. 86. (Debtor filed motion for damages and sanctions for alleged violation of automatic stay. Court found Respondent liable for willful violation of automatic stay under 11 U.S.C. Section 362(k) through its agents' intentional actions in sending letter regarding past due homeowner's assessment and in confronting Debtor at its swimming pool. Even though first agent sent letter in error, and second agent did not recognize Debtor's identity at time he challenged her right to use the pool, such acts were still intentional. Further, Respondent did have knowledge in its possession that Debtor had converted her bankruptcy case from a case under Chapter 13 to a case under Chapter 7. Although a principal's undisclosed knowledge is not imputed to its agent, in view of fundamental nature of the automatic stay, Respondent, who acted through its agents, should have shared this knowledge with its agents. Willful stay violation requires only knowledge of the stay and an intent to do the act in question -- not a specific intent by the actor to produce a violation of the stay. Court awarded reasonable attorney's fees and costs as limited to addressing the violations at issue, and nominal damages in compensation for emotional distress suffered by Debtor. Court further determined that Debtor did not establish basis for awarding punitive damages.

11-25344 Docket No. 86
03.05.2013 REB

(In re: Constance Susan Avery),

Case No. G10-21618-REB, (Albert F. Nasuti, Trustee v. Constance Susan Avery and William Chase Avery), Adversary Proceeding No. 12-2050; entered on 2013-03-05; Docket No. 15. Chapter 7 Trustee brought action to recover value of certain real property on grounds Debtor fraudulently transferred same in violation of 11 U.S.C. Section 548(a)(1)(A) and/or (a)(1)(B). Court granted summary judgment concluding Trustee established absence of fact issue pertaining to Debtor's intent to hinder, delay, or defraud creditors, as well as in Debtor's transfer of property for no consideration at a time when she was insolvent. Court ordered recovery against transferee family member under Section 550(a), who received property as a gift, based on statutory provision whereby lack of knowledge of transferee regarding intent or circumstances of debtor-transferor is not legally relevant when transferee does not take for value

10-21618, 12-2050, Docket No. 15
03.05.2013 JEM

In re Hindu Temple and Community Center of Georgia, Inc.

The Court denied a motion seeking recusal of the judge. Movant’s allegations were conclusory, wholly unsupported by facts, and failed to show any bias or prejudice against Movant. If dissatisfied with the Court’s ruling, Movant’s remedy was to appeal. Dissatisfaction with the Court’s ruling was not a basis for recusal.

BK 09-82915, Doc. #393
02.19.2013 MHM

In re James ;

(Reopening post discharge to list omitted asset)

05-78523 Doc#32
02.19.2013 MGD

Old Republic National Title Insurance Co. v. Presley,

Plaintiff filed suit to determine nondischargeability of debts under 11 U.S.C. § 523(a)(2), (4) and (6). Defendants filed a Motion to Dismiss Counts 1 and II, related to the § 523(a)(2) and (4) claims, and a Motion for Summary Judgment as to Defendant, Kristy Presley. The Court denied both Motions. Plaintiff alleged sufficient facts to satisfy Rule 12(b)(6) and Rule 9(b). Summary judgment was not appropriate because material facts were in dispute.

NOT INTENDED FOR PUBLICATION

12-4012 (Docket No. 32)
02.15.2013 WHD

(In re: Jeremy Chad Penton and Melissa Richelle Penton)

(The Court denied the Chapter 7 Trustee's Motion to Disallow Debtors' exemption after finding that half of the funds received through a pension plan death benefit were held in a constructive trust in favor of Debtor's sister and, therefore, not property of the bankruptcy estate in accordance with section 541(d) of the United States Bankruptcy Code. The Court further held that the Debtors were entitled to exempt their half of the proceeds from the pension plan in accordance with O.C.G.A. § 44-13-100(a)(2)(E), as these payments were reasonably necessary for the support of the Debtors and their Dependents).

12-12167 Docket No. 24
02.14.2013 MHM

Law Offices of Adam J. Klein v. Stillwell ;

(Adversary proceeding dismissed as untimely filed; Plaintiff's assertion of inaccessibility of Clerk's Office rejected)

12-5619 Doc#11
02.11.2013 JRS

In re Palmer-Dawkins

Court denied Debtor's objection to claim transfer because only the purported transferor of a claim has standing to object to the transfer under rule 3001(e)(2).

11-63059 Doc#49
02.07.2013 MGD

In re Fuel Barons, Inc.,

Debtor objected to various claims pursuant to 11 U.S.C. § 502(e)(1)(B), arguing that the claims should be disallowed because they were for contribution or reimbursement, there was co-liability on the claims, and the claims were contingent. Several claimants responded that their claims for indemnification for defense costs did not meet the requirements of § 502(e)(1)(B) because there was no co-liability and the claims were not contingent. The Court held that the noncontractual claims for indemnification for defense costs, for which there was no settlement or adjudication of the underlying lawsuit, would be disallowed. These claims were contingent because liability had not been determined in the underlying lawsuit. There was co-liability as a result of the broad statutory language and the interconnectedness of the indemnification claim with the defense costs related to that claim.

12-51650 (Docket No. 503)
02.07.2013 WHD

(Synovus Bank v. Brooks)

(Court granted Movant's Motion to Dismiss or Convert, finding that cause existed under 11 U.S.C. 1112(b)(4) because (1) the Debtor failed to file a disclosure statement or plan of reorganization within reasonable period of time; (2) the Debtor failed to make substantive progress toward confirmation of a plan; and (3) the Debtor was unable to effectuate a plan of reorganization. Moreover, pursuant to 11 U.S.C. 1112(b)(2), the Debtor was unable to satisfy the Court that unusual circumstances existed, establishing that it was in the best interest to remain in Chapter 11, and that the deficiencies could be remedied in a reasonable period of time.).

11-10365 Docket No. 193
02.07.2013 MGD

Trauner v. Thadikamalla (In re Thadikamalla)

The Court granted Chapter 7 Trustee leave to wind up a dissolved limited liability limited partnership, in which the estate held a 70% interest, as determined by prior order. The Court declined to order wind up of the Partnership under O.C.G.A. § 14-9-803(a). The Debtor’s partnership interest and Debtor’s rights and obligations under the Partnership were property of the estate, yet the Debtor’s bankruptcy filing did not necessarily give the Court jurisdiction over the Partnership’s assets.

11-5233 Doc#63
02.05.2013 JRS

In re Ohuche

Court granted Fannie Mae's motion for relief from automatic stay so it could proceed with state court dispossessory proceedings because Fannie Mae showed cause for relief pursuant to Code Section 362(d) by virtue of the fact that it had obtained a writ of possession in state court; the Court also held that Fannie Mae had standing to seek relief from the stay because its writ of possession indicated that it was a party in interest with a colorable claim to the subject property.

12-79379 Doc#38
02.04.2013 MGD

In re News Publishing Co.,

Debtor sought to pay pre-petition debts of certain creditors alleged to be critical vendors. In order to be granted such relief, a debtor must provide a sufficient evidentiary basis showing that the payments are necessary for reorganization, the vendors will otherwise refuse to do business with the debtor, and the disfavored creditors will be as well off with the critical vendor order than they would be without it. Debtor did not provide sufficient evidence to satisfy the stringent Kmart test.

13-40002 (Docket No. 64)
01.31.2013 MHM

Vaughan v. Vaughan ;

(Divorce attorney's postpetition action to collect attorneys fees violated automatic stay; attorneys fees were not domestic support obligation);

12-55199 Doc. No. 39
01.29.2013 REB

(In re: Pauline Elizabeth Whyte),

(Pauline Pinnock Dunn v. Pauline Elizabeth Whyte), Adversary Proceeding No. 12-2091; Docket No. 18. (In Chapter 7 case, Defendant-Debtor sought summary judgment on Plaintiff's complaint objecting to discharge under 11 U.S.C. Section 727(a)(2), and seeking determination of nondischargeability of debt under 11 U.S.C. Section 523(a)(2)(A) & (B), and Section 523(a)(4). Debtor argued that Plaintiff was precluded from asserting fraud claims since she elected remedy of breach of contract in prior state court action where she obtained award at issue. Court rejected Debtor's argument, concluding that Plaintiff's fraud claim was not precluded in subsequent bankruptcy action, but held for Debtor since Plaintiff failed to put forward evidence in support of such claim and did not respond to motion for summary judgment.)

12-21792
01.29.2013 WHD

(United Community Bank v. Harper),

(Court granted Defendant's Motion to Dismiss Complaint as untimely, holding that the time period for filing a complaint pursuant to section 523(a)(2) of the Bankruptcy Code could not be equitably tolled and concluding that (a) under Federal Rules of Bankruptcy Procedure 4007(c) and 9006(b)(3), the time set forth for filing a complaint under 11 U.S.C. § 523(a)(2) is 60 days from the first date set for the meeting of creditors, and that the Rules only authorize the Court to extend the deadline as prescribed within the Rules; (b) under Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988), which was not abrogated by the Supreme Court case of Kontrick v. Ryan, 540 U.S. 443 (2004), the Bankruptcy Court is without discretion to the granting of a late filed complaint; and (c) even if Byrd v. Alton was not good law, the Plaintiff failed to show that it qualified under the limited recognizable exceptions for equitable relief.).

12-1080 Docket No. 15
01.29.2013 JEM

Shaw v. Public Storage

The Court abstained from hearing an adversary proceeding brought by the Debtor to recover property allegedly stored prepetition with Defendant. The Trustee has abandoned the claim, the case was closed, and the Debtor had received a discharge. Hence, the relief sought would benefit only the Debtor, not the estate, and served no bankruptcy purpose.

BK 12-58761, AP 12-5396, Doc. #16
01.24.2013 BEM

Customized Distribution, LLC v. Coastal Bank & Trust Co. (In re Lee’s Famous Recipes, Inc.)

Order granting complaint seeking to compel marshaling. Junior creditor with lien against certain real estate sought to compel senior creditor with lien against the same real estate and an additional collateral source, a revenue stream that had been partly collected, to satisfy its claim from the collateral in which junior creditor did not have a lien. Marshaling requires that: 1) the creditors are creditors of the same debtor, 2) there are two funds belonging to that debtor, and 3) one of the creditors has the right to resort to both funds. In addition the Court must consider whether marshaling will impair the senior lienholder’s right to complete satisfaction or cause injustice to third parties. The Court determined that under Georgia law the senior creditor’s claim must be satisfied proportionally from each fund and that the senior creditor, as well as the creditors with liens in the non-real estate collateral, were sufficiently over secured so that marshaling did not impair the senior creditor’s right to complete satisfaction and was not unfair to the other junior lien holders.

11-5482
01.11.2013 JRS

In re Mit-Hima, Inc.

Debtor's motion for examination of creditor under Rule 2004 was granted in part and limited to the purpose of determining the extent to which Debtor's personal property contained in bed and breakfast facility may or may not have been foreclosed on.

12-64037 Doc#45
01.10.2013 BEM

Mele v. Bank of America Home Loans

Mortgage holder did not violate section 524 discharge injunction when it sent a variety of informational letters, some responsive to Debtor's requests, and mandatory FHA notices to borrower after her chapter 7 case was closed.

AP 12-5031
12.31.2012 PWB

CDC Corporation

The financial advisor to the Committee of Equity Security Holders is entitled to a "Completion Fee," calculated as a percentage of a "Shareholder Recovery" under the terms of its engagement that the Court approved pursuant to 11 U.S.C. § 328(a). The confirmed plan provides for a cancellation of existing shares and for shareholders to receive beneficial interests in a Liquidation Trust, from which they receive cash payments funded from the net proceeds of liquidation of the Debtor's assets. Because "Shareholder Recovery" is defined by consideration that is distributed to shareholders, the Shareholder Recovery is properly determined by reference to the cash the shareholders actually receive, i.e., that is distributed to them, not the preconfirmation average share price of the publicly traded shares.

NOT INTENDED FOR PUBLICATION

11-79079 Doc#682
12.26.2012 REB

(In re: Grant S. Smereczynsky and Donita S. Smereczynsky)

(Eamonn Foley and Christy Foley v. Grant S. Smereczynsky), Adversary Proceeding No. 10-2064; Docket No. 23. (Plaintiffs sought relief in form of ruling that arbitration award arising in connection with certain state court litigation was excepted from discharge under 11 U.S.C. Section 523(a)(2)(A). Court applied collateral estoppel to findings of arbitrator regarding false representations, and found findings sufficient to establish entitlement to relief on Plaintiffs' claim in view of claims asserted in state court and function of arbitration award to satisfy same in full.)

09-23920
12.26.2012 REB

(In re: John Paul Hedley and Freddie Cheryl Hedley),

(John Paul Hedley v. The United States, Internal Revenue Service, et al.), Adversary Proceeding No. 12-2125; Docket No. 22. (In Chapter 13 case, Court considered, among other things, motion to dismiss case on grounds of failure to state a claim upon which relief can be granted. Construing F.R.C.P. 8(a)(2) (F.R.B.P. 7008(a)) and F.R.C.P. 12(b)(6) (F.R.B.P. 7012(b), Court granted motion ruling that Plaintiff-Debtor had failed to put forth sufficient allegations of facts to create plausible issue that would support an entitlement to relief on claims as purportedly alleged.)

11-21783
12.19.2012 MGD

Montz v. Healthcare Realty & Development, LLC et al. (In re Houser and In re Moran Lake Convalescent Center, LLC),

Trustee’s unopposed motion to consolidate actions under Federal Rule of Civil Procedure was granted based on finding that the Defendants and causes of action are identical and that the action involve the same facts related to the same transfers.

11-4067 Doc#7
12.19.2012 JEM

In re Georgetown Square II LLC

Debtor moved for an order authorizing its counsel to apply retainers to previously awarded fees and expenses, which the Court denied. When the Debtor delivered the retainer check prepetition, it was not a transfer of an interest in property because it did not give the holder any claim on the property of the issuer other than enforcing the check. When the check was honored postpetition, however, the payment of the check was a transfer of property of the estate.

BK 11-86382, Doc. #120
12.18.2012 MGD

Trauner v. Thadikamalla et al. (In re Thadikamalla)

Plaintiff’s motion for certification and entry of final order under Federal Rule of Civil Procedure 54(b) was granted. Plaintiff was previously award summary judgment as to selected claims. The claim at issue was isolated from the bulk of the Plaintiff’s claims against Defendants. Given the distinct nature of the claim, the Court determined that the judgment as to that count was final and there was no just reason for delay.

11-5233 Doc#59
12.17.2012 PWB

Thomas Edgar Hayes and Raelynne Hayes

Former Chapter 13 debtors are entitled to unclaimed funds where creditor and debtor have postbankruptcy payment arrangement that is current, creditor did not take unclaimed funds into account in determining amount of debt, and creditor does not appear at hearing to show basis for distribution of funds to creditor.

NOT INTENDED FOR PUBLICATION

11-42579 Doc#56
12.11.2012 PWB

In re Acme Security, Inc.

In an earlier chapter 11 case of a corporation, its principal formed a new corporation that acquired the claim of a bank secured by substantially all of the corporation’s assets.  After dismissal of the corporation’s chapter 11 case, the new corporation accepted all of the old corporation’s assets in full satisfaction of the secured debt.  The value of the assets was substantially less than the amount of the secured debt.  In the current chapter 11 case of the new corporation, the landlord of the old corporation filed a claim for rent due under a lease rejected in the old corporation’s case on the ground of successor liability under Georgia law.  Noting that the landlord had no effective remedy against the assets of the old corporation in view of the fact that the secured debt substantially exceeded the value of the assets, the court concluded that successor liability did not apply in the circumstances of this case.

12-57103 Doc#51
12.11.2012 JRS

In re Jackson

Court granted Debtor's motion for exemption from credit counseling because exigent circumstances--primarily that an interruption in internet service (among other factors) prevented her from completing her credit counseling prior to her petition being filed--merited a waiver under Code Section 109(h)(3)(A) of the requirement to obtain credit counseling before filing her petition required by 109(h)(1).

12-77990 Doc#26
12.07.2012 REB

(In re: Charles N. Crew and Lora Yvonne Crew)

(Charles N. Crew and Lora Yvonne Crew v. Georgia Department of Revenue (AP No. 12-2126); Docket No. 6. (In Chapter 7 case, Defendant filed motion for summary judgment on complaint of Plaintiff-Debtors regarding nondischargeability of certain state income tax indebtedness under 11 U.S.C. Section 532(a)(1). Court granted motion finding debt in question for certain tax years variously excepted from discharge under Section 523(a)(1)(A) with the associated tax return being due within three years of filing bankruptcy petition, and Section 523(a)(1)(B) for failure to file amended state income tax return based on upward adjustment in federal income tax liability by I.R.S.)

12-22092
12.07.2012 REB

(In re: Brian Robert Martin),

(Leslie Rooney and Judy C. King v. Brian Robert Martin), Adversary Proceeding No. 12-2110; Docket No. 6. (In Chapter 7 case, Plaintiffs sought summary judgment on complaint seeking ruling that certain obligations set forth in divorce decree and award of attorney's fees were excepted from discharge. Court granted judgment ruling that obligations were nondischargeable under either 11 U.S.C. Section 523(a)(5) as a domestic support obligation, or under Section 523(a)(15) as incurred in the course of the dissolution of the parties' marriage relationship. Attorney's fees award also held excepted from discharge under Section 523(a)(15)).

12-21600
12.05.2012 JRS

1st Franklin Financial Corp. v. Sims (In re Sims)

Court denied Plaintiff's motion for default judgment seeking a judgment of nondischargeability under Code Section 523(a)(2)(A) because Plaintiff wholly relied on the presumption of fraudulent intent under 523(a)(2)(C) but did not allege sufficient facts--specifically, that the debt was a consumer cash advance under an open end credit plan--to invoke that presumption, and Plaintiff did not allege any other facts to satisfy the elements of fraud.

12-05460 Doc#7
12.04.2012 JRS

FIA Card Services, N.A. v. Morrow (In re Morrow)

Court denied Debtor's motion to dismiss because (1) Plaintiff did not fail to join a necessary party--Plaintiff acquired original lender's rights by virtue of a company merger--and (2) Plaintiff alleged sufficient facts related to Debtor's lack of intent to pay for credit card debts incurred to state a claim for fraud under Code Section 523(a)(2); however, the Court recognized that Plaintiff's theories based on implied misrepresentations, objective intent to pay, and credit card kiting do not state a claim under 523(a)(2).

12-05373 Doc#10
11.28.2012 MGD

Old Republic National Title Insurance Co. v. Buddy and Kristy Presley (In re Presley),

The Court granted Plaintiff’s Motion to Amend Complaint seeking nondischargeability. Plaintiff sought to assert new facts and clarify facts with regards to a particular piece of property. Because Defendants had already filed an Answer, Plaintiff needed leave of the Court or written consent of Defendants to amend its Complaint. The Court held that pursuant to the liberal standard favoring amendments under Rule 15, and the lack of undue delay, bad faith, undue prejudice, or futility, the amendment would be allowed. Furthermore, the amended Complaint would relate back to the original, so as to not be time-barred. The Court held that the amendment arose out of the same conduct, transaction, or occurrence as the original pleading. The Court found it important that the amendment sought to state new facts rather than new claims, and that the new facts served to render prior allegations more definite and precise.

12-4012 Doc#25
11.26.2012 MGD

Rabbi Harry H. Epstein School, Inc. v. Goldstein (In re Goldstein),

Plaintiff’s motion for judgment on the pleadings was granted, finding that the debt owed to Plaintiff was non-dischargeable under section 523(a)(8)(A)(ii). Each required element of the statute was satisfied on the pleadings. The court ruled on three legal issues. First, the enrollment contract and alternative payment terms constituted a loan based on common law. Second, section 523(a)(8)(A)(ii) does not impose a higher education benefit requirement. The Court also determined that a non-dischargeable debt does not require that the Debtor personally obtain the educational benefit of the loan. The Court addressed the merits of Plaintiff’s motion after finding that the motion for judgment on the pleadings had been properly served and granting Plaintiff’s motion for reconsideration.

12-5186 Doc#11
11.21.2012 REB

(In re: Richard J. Steffy and Jessica M. Steffy),

Case No. G11-23744-REB, (Richard J. Steffy v. State of Arkansas ex rel., Dustin McDaniel, Attorney General), Adversary Proceeding No. 12-2041; entered on 2012-11-21; Docket No. 20. (In Chapter 7 case, Defendants filed motion for partial summary judgment on Plaintiff-Debtor's complaint seeking determination of dischargeability concerning claims for restitution and civil penalties arising in state court litigation. Court decided Defendants' pursuit of its claims came within exception to automatic stay under 11 U.S.C. Section 362(b)(4) in the enforcement of state consumer protection laws. Court also decided Defendants entitled to preclusive effect on their claim pertaining to civil penalties as awarded, and same were excepted from discharge under 11 U.S.C. Section 523(a)(7). Court further determined that portion of award relating to restitution was not excepted from discharge.

11-23744, AP12-2041, Docket No. 20
11.20.2012 MHM

In re Cavin ;

(Topic: Trustee. Subtopic: Court will not compel Trustee to investigate and pursue objection to discharge);

12-60927 Doc#53
11.09.2012 JRS

Ziyad v. Wright (In re Wright)

Court denied Plaintiff's motion for summary judgment seeking nondischargeability due to alleged (1) fraud under Code Section 523(a)(2)(A) and/or (2) willful and malicious injury under 523(a)(6) because (1) Plaintiff did not show sufficient facts to support a fraud claim and merely relied on a state court judgment which did not address the fraud issue specifically and (2) questions of fact remained regarding whether Debtor's action of tearing up a check made out to him and Plaintiff jointly constituted a willful and malicious injury.

12-05173 Doc#43
11.08.2012 MGD

In re Stanley,

The Court accepted Debtors’ certificate of exigent circumstances and deferred Debtors’ pre-petition credit counseling requirement, finding that section 109(h)(3)(A) was satisfied. Acknowledging the split in authority regarding the 7-day period referenced in the statute in section 109(h)(3)(A)(ii), the Court found that Debtors’ efforts to seek the pre-petition counseling satisfied the statutory requirement, relying on the reasoning in In re Giambrone, 365 B.R. 386 (Bankr. W.D.N.Y. 2007).

12-78056 Doc#7
11.06.2012 MHM

McInnis v. U.S. Dept. Education ;

(Topic: Dischargeability; Subtopic: student loan);

10-6583 Doc#91
11.06.2012 MGD

Paul M. Skillings, v. Bank of America, N.A. et al (In re Skillings),

The Court granted Defendant’s motion to dismiss Plaintiff’s complaint. Plaintiff’s complaint alleged that his property was taken from him by Defendant by an illegal foreclosure and also amounted to a fraudulent transfer. Plaintiff made other claims against Defendant relating to his loan and the foreclosure. The Court dismissed the complaint for lack of subject matter jurisdiction. This proceeding did not arise under Title 11 because Plaintiff’s claims related to property which was not property of the bankruptcy estate, as Defendant foreclosed on the property seven months prior to the bankruptcy filing. Plaintiff’s claims were based on state law and non-bankruptcy federal law. There was also no related to jurisdiction under the Pacor test because resolution of the issues surrounding non-estate property could have no conceivable effect on the bankruptcy estate. Because the Court did not have subject matter jurisdiction over any claims, there could also be no supplemental jurisdiction. Relying on Supreme Court precedent, the Court held that the foreclosure sale was not a fraudulent transfer because the price received at the foreclosure was deemed to be the reasonably equivalent value.

12-5380 Doc#14
11.05.2012 PWB

In re Higgs,

Order denying creditor’s ex parte motion for order confirming bankruptcy petition does not operate as stay of writ of possession to evict post-foreclosure tenant at sufferance. Section 362(b)(22)’s exception to the automatic stay applies only to a landlord-tenant relationship and, therefore, is not applicable to facts of case. Creditor may file motion for relief from stay, subject to notice and hearing.

NOT INTENDED FOR PUBLICATION

12-76496 Doc#15
10.24.2012 JRS

Wright v. Ziyad (In re Wright)

Court denied Defendant's motion for judgment on the pleadings because complaint--which alleged that Defendant garnished Debtor's wages post-petition--alleged sufficient facts to state a claim for violation of the automatic stay, possibly warranting damages under Code Section 362(k).

12-05329 Doc#8
10.23.2012 MHM

Kerr v. Meadors (In re Knott)

(Claims: ex-husband's claim to recover overpayment of child support allowed as §507(a)(1)(A) priority claim)

09-90822 Doc#66
10.20.2012 JRS

Ziyad v. Wright (In re Wright)

Court denied Plaintiff's motion to amend complaint and add count seeking denial of discharge under Code Section 727(a)(4) because the deadline for objecting to discharge under Rule 4004(a)had passed and new objection did not stem from the conduct, transactions, or occurrences pled in the original complaint.

12-05173 Doc#30
10.16.2012 WHD

(Eason v. Owens),

(Court denied the Plaintiff's post-judgment Motion for Leave to File an Amended Complaint, concluding that Federal Rule of Civil Procedure 15(a) governs amendment to pleadings before judgment is entered, and because the Plaintiff failed to satisfy either Federal Rule of Civil Procedure 59(e) or 60(b) and gain relief from the judgment, the Court could not grant the Plaintiff's request to amend his Complaint).

12-1046 Doc#12
10.11.2012 MHM

Owoade-Taylor v. Babatunde ;

(Attorneys fees: former spouse who prevails in proceeding under §523(a)(5) is not entitled to award of attorneys fees);

11-5700 Doc#16
10.05.2012 MHM

In re Darren Buckner Living Trust;

(Eligibility: A non-business trust is not eligible to be a debtor under Chapter 7);

12-70036 Doc#2
10.01.2012 MHM

D.A.N. Joint Venture III, L.P. v. Wier;

(Dischargeability: Creditor's claim non-dischargeable under §523(a)(3));

10-6076
10.01.2012 MHM

SLW Partners, L.P. v. State Bank & Trust Co ;

(Equitable subordination);

11-5291 Doc#14
09.28.2012 WHD

In re: Ellen Flanders Brooks

(Court denied creditor's Motion in Limine to Exclude Evidence, concluding that, where a creditor forecloses on property and subsequently purchases the property at the foreclosure sale without confirming the sales price with the superior court of the respective county, in accordance with O.C.G.A. § 44-14-161, or seeking any form of judicial approval from the bankruptcy court that such a price approximated the fair market value of the property, a debtor, unrelated to the aforementioned foreclosure, shall have an opportunity to contest that price and any resulting deficiency before the creditor shall be allowed relief from the automatic stay to foreclose on additional collateral held by the debtor).

11-10365 Doc#178
09.28.2012 WHD

In re: Philip Harold Beagle, Jr.

(Court denied creditor’s Motion for Relief from Stay finding that the creditor was adequately protected and while the property lacked equity, the property was necessary for an effective reorganization in accordance with section 362(d).)

11-13716 Doc#171
09.28.2012 MGD

Archer v. America’s Servicing Co. & Shapiro & Swertfeger (In re Archer)

The Court granted Defendants’ motion to dismiss Plaintiff’s complaint. Plaintiff alleged, among other things, Defendants did not rightfully own the debt on his home mortgage and Defendants breached the duty of good faith and fair dealing. The Court ruled Plaintiff’s service was untimely under FRBP 7004(e) because service was not made within fourteen days after the issuance of the summons. The Court additionally ruled Plaintiff’s service on Defendant bank was insufficient under FRBP 7004(h). The Court noted its ruling did not prevent Plaintiff from pursuing his claims in another forum.

12-4055 Doc#11
09.28.2012 MGD

Trauner v. Thadikamalla et al. (In re Thadikamalla)

The Chapter 7 Trustee was awarded partial summary judgment on counts that related to determining the Debtor’s interest in a dissolved limited partnership under Georgia law. The undisputed facts showed that under Georgia limited partnership law, Georgia’s Revised Limited Partnership Act, and the Will of Debtor’s deceased husband and general partner in the limited partnership, the limited partnership was dissolved and that Debtor held 70% of the partnership interest at the time of the petition. The death of an individual, general partner is an event of withdrawal, resulting in dissolution. O.C.G.A. §§ 14-9-801(3), 14-9-602(6)(A), 14-9-203 & 14-9-206(c). Debtor inherited the deceased’s interest in the limited partnership, and Debtor’s total interest was property of the estate. The Chapter 7 Trustee’s claims for partition and turnover were denied based on the estate only holding an interest in the dissolved - but not wound up - limited partnership, and not the partnership property itself. The Chapter 7 Trustee, however, did hold the Debtor’s right for distribution, termination, cancellation, and liquidation of the partnership.

11-5233 Doc#51
09.28.2012 MHM

Pullen v. Harris ;

(State law: Attempted wrongful foreclosure);

11-5615 Doc#37
09.28.2012 MHM

Tyree v. Guzman ;

(Attorneys fees: §362(k));

10-68797 Doc#62
09.27.2012 WLH

Trauner v. State Bank and Trust Co. (In re Solid Rock Development Corporation, Inc.)

- Order on Cross Motions for Summary Judgment. After relief from stay, Defendant credit bid statutory attorney’s fees under O.C.G.A. § 13-1-11. Trustee seeks to recover the amount by which statutory attorney’s fees exceeds actual reasonable attorney’s fees under Section 506(b). On cross motions for summary judgment, the Court held (i) it has jurisdiction to construe its Order Modifying the Automatic Stay and to adjudicate the amount, if any, of excess proceeds due the Trustee following the foreclosure sale; (ii) the matter is a core proceeding; (iii) the Order Modifying the Automatic Stay was broad enough to permit the Defendant to send the attorney’s fees notice under O.C.G.A. § 13-1-11; (iv) under the terms of the relief from stay order, the Eleventh Circuit’s decision in In re Welzel continues to apply to determine if there are any excess proceeds due to the Trustee after foreclosure sale, particularly since the Order Modifying the Automatic Stay specifically retained the right of the Trustee to receive the excess proceeds; and (v) the foreclosure bid was a credit bid and does not necessarily reflect the extent to which the creditor recovered fees in excess of those allowable under Section 506(b). Consequently, the Court will hold an evidentiary hearing to determine the value of the property, and the amount of allowable fees under 11 U.S.C. § 506(b) in order to ascertain if the Defendant received more than its secured claim under Section 506(b).

12-5238 Doc#20
09.27.2012 MGD

In re Houser

The Court denied Debtor’s motion to stay all proceedings to sell estate assets in a chapter 7 case. Debtor claimed he needed time to pursue claims against third parties and that favorable judgments on these claims would augment the estate. Debtor offered no legal authority to justify granting the stay, however. The Trustee had full authority under § 704 to administer assets of the bankruptcy estate.

10-43407 Doc#147
09.27.2012 MGD

Montz v. Healthcare Realty & Development, LLC et al. (In re Moran Lake Convalescent Center, LLC/ In re Houser)

The Court denied Defendants’ motion to reset hearing and motion to vacate default judgment. Defendants failed to attend a hearing on Trustee’s previous motion and the Court entered default judgment against Defendants. The Court found Defendants offered no law in support of their motion and that it would harm the bankruptcy estate by unnecessarily adding to Trustee’s time and expenses.

11-4067 Doc#61
09.25.2012 PWB

Bank of America v. Albert F. Johnson (Debtor) and Crowne Aviation Services, LLC,

Automatic stay of 11 USC s 362(a) applies to garnishment action in its entirety, including any independent claim of the garnishing creditor against the garnishee based on the garnishee's failure to comply with garnishment summons, unless unmodifiable judgment against garnishee has been entered prior to filing of the case. Because the case was filed before the time for the fiilng of the answer to the garnishment summons, the garnishee is not in default. Because it is now undisputed that the garnishee employee failed to withhold prepetition wages from the debtor-employee, the stay is properly modified to permit creditor to pursue employer for failure to withhold wages because the claim does not involve the debtor, the debtor's property, or property of the estate. The debtor has no property interest that he can exempt and therefore cannot avoid the garnishment lien under 11 USC s 522(f) to the extent that the creditor seeks to enforce its claim against the employer.

12-50338 Doc#42
09.25.2012 PWB

Brandon Murphy Bone and Kelly Diane Bone,

Debtors who live in Atlanta Division filed case in Rome Division and moved for an order retaining the case in the Rome Division. BLR 1017-1(b) requires filing in proper division, and it is improper to file the case in the wrong division. The judge assigned to the case in the proper division should consider a transfer motion. Court orders transfer of case to Atlanta Division.

12-41765 Doc#18
09.25.2012 PWB

Clinton H. Johnson and Elizabeth C. Johnson ,

Debtors who live in Newnan Division filed case in Rome Division and moved for an order retaining the case in the Rome Division. BLR 1017-1(b) requires filing in proper division, and it is improper to file the case in the wrong division. The judge assigned to the case in the proper division should consider the transfer motion. Because transfer to the Newnan Division could result in adminsitrative burdens, however, the Court exercises its discretion to retain the case in the Rome Division. The Court notes that, in the future, it will order the transfer of an improperly filed case to the proper division and consider the imposition of sanctions. A party who wants to transfer a case to another division should promptly request transfer and request expedited consideration to avoid administrative burdens.

12-40381 Doc#31
09.24.2012 BEM

Bank of America v. Reed and Suzanne Seligman

Order Denying the Defendants' Motion to Dismiss for failure to state a claim. Plaintiff's allegations that Defendants concealed assets by failing to disclose future employment information and incorrectly valuing assets on Debtor's Schedules in addition to receiving payments in cash, when construed in favor of Plaintiff, were sufficient to state a claim under section 727(a)(2)(A) and (b), (a)(3), (a)(4), and (a)(5).

12-5268 Doc#18
09.21.2012 MHM

Cifelli v. Miles ;

(Discharge: Debtor's motion for summary judgment on Trustee's objection to discharge granted in part and denied in part);

10-6635 Doc#90
09.20.2012 MHM

Cifelli v. Mursalim (In re Miles) ;

(Dismissal: Stern v. Marshall does not require dismissal of proceeding in which bankruptcy court cannot enter final order or in which defendant seeks jury trial);

11-5705 Doc#19
09.20.2012 MHM

Cifelli v. Rame Properties (In re Miles) ;

(Sanctions: Rule 9011 sanctions denied);

11-5707 Doc#14
09.20.2012 MHM

Cifelli v. Rame Properties (In re Miles) ;

(Dismissal: Stern v. Marshall does not require dismissal of proceeding in which bankruptcy court cannot enter final order );

11-5707 Doc#15
09.18.2012 MGD

In re Diplomat Construction, Inc.,

Chapter 7 Trustee’s motion to approve sale and assignment of the debtor’s and estate’s interest in a ground lease with City of Atlanta was granted. The Trustee met its burden of proof in showing the proposed sale maximized returns for creditors, despite substantially higher offers. Key to the Trustee’s business judgment in proposing the sale to a certain entity and to the Court’s approval of such sale were the consent by the lease holder, City of Atlanta, and the secured creditor - State Bank of Texas’- consent on the sale to be free and clear of its security interest in the ground lease. The particular facts of this case made sale of the estate’s interest in the ground lease to any party other than the owner of the hotel that used the land tracts at issue untenable since the ground lease was not severable and required certain grants to be fulfilled by the City of Atlanta. The Trustee’s explanation on cross examination regarding the bank’s security interest and the requirements under the ground lease satisfied the business judgment standard. Additionally, at the hearing, the Court denied unsuccessful bidders from objecting to the Trustee’s Motion since they were not parties in interest and lacked standing.

09-68613 Doc#318
09.18.2012 MHM

Thompson v. Thompson ;

(Notice: entry of default denied and case dismissed based on improper service);

11-5667 Doc#24
09.12.2012 JEM

In re Hindu Temple and Community Center of Georgia, Inc.

The Barton doctrine required the Defendant to obtain leave of the Court prior to filing suit against the chapter 11 Trustee where the claim was related to and would adversely affect the bankruptcy case. The Court held parties initiating suit against Trustee without Court approval in contempt for violating the Barton doctrine and ordered them to dismiss cases in federal court that attempted to re-litigate issues decided by the Court’s denial of the motion to remove the Trustee.

BK 09-82915, Doc. #334
09.11.2012 WHD

(In re: Pamela Nicole Mack),

(Court denied Trustee's objection to confirmation and motion to dismiss concluding that in ascertaining the applicable commitment period under 11 U.S.C. § 1325(b)(4), the current monthly income of a non-debtor spouse can only be zero under 11 U.S.C. §§ 101(10A) & 101(13) and that only the amounts contributed regularly by the non-filing spouse toward household expenses of the debtor or debtor's dependents should be included in the debtor's current monthly income).

12-10594 Doc#34
09.07.2012 PWB

FIA Card Services, NA v. Evans,

(Order denying motion to dismiss for failure to state a claim. Complaint alleging credit card debt excepted from discharge pursuant to section 523(a)(2) states claim for relief on assertion that debtor engaged in credit card kiting scheme. To extent complaint relies on implied representation theory, however, complaint does not state a claim for relief.)

12-5226 Doc#9
09.05.2012 REB

In re: Anthony T. Bergalowski

(Anthony T. Bergalowski v. Military Star),(Court granted Defendant's motion to dismiss Plaintiff-Debtor's complaint alleging involuntary preferential transfer via post-petition garnishment of federal income tax refund, concluding Defendant entitled to exercise right of setoff. Defendant's operating entity (AAFES) and I.R.S. considered single entity for purposes of exercising right of setoff as preserved under 11 U.S.C. Section 553(a), and Defendant's post-petition action regarding same is excepted from automatic stay under Section 362(b)(26)).

12-2056 Doc#8
09.04.2012 MHM

Fisher v. Santry ;

(Res judicata/collateral estoppel: claim deemed allowed in prior bankruptcy proceeding is not preclusive in dischargeability proceeding in subsequent bankruptcy case; Dischargeability: §523(a)(15));

11-5721 Doc#11
08.28.2012 MGD

Moran Lake, Inc. v. Roswell Holdings Mortgage, LLC (In re Moran Lake Convalescent Center)

Defendants’ motion to dismiss was granted based on lack of subject matter jurisdiction. Plaintiffs sought to rescind a post-petition note sale and collateral assignment relating to liens on the debtor’s property. The Court held that it lacked subject matter jurisdiction over these rescission claims because the validity, extent, and priority of the liens was not in dispute, but rather the parties disputed which entity held the liens. The parties in dispute were non-debtor parties and the claims at issue were purely state law claims. The Court noted that to the extent it had jurisdiction, it abstained as to certain counts.

12-4015 Doc#56
08.24.2012 PWB

Noland Company v. Van Hamilton Gilstrap

(Order denying Defendant’s motion to dismiss. While BLR 7041-1(a) permits dismissal for want of prosecution if proceeding has been pending for more than six months without any substantial proceedings having been taken, court declines to exercise discretion to dismiss since Plaintiff indicates it is ready to proceed to trial. No basis for dismissal on the merits because there is factual dispute and defendant’s unverified assertions in the motion are not evidence.)

11-4019 Doc#16
08.23.2012 MHM

Dye v. BEP Creditor's Trust ;

(Injunction: pro se Debtor enjoined from further filings);

12-5033 Doc#27
08.22.2012 CRM

Maxwell v. HSBC Mortgage Corporation (USA) et al., )

Order granting Defendant’s motion to dismiss. The Debtor filed, and the Court granted, a motion to compel abandonment of property in his chapter 7 bankruptcy case. Debtor then filed a Complaint to determine the validity, priority or extent of liens. Defendant filed a motion to dismiss for lack of subject matter jurisdiction. The Court found that dismissal was appropriate because the adversary proceeding did not relate to Debtor’s bankruptcy case because the property at issue had been abandoned and was no longer part of the bankruptcy estate. Additionally, any issues relating to the extent and priority of the liens at issue could be resolved in another forum.

12-5284 Doc. No. 8
08.22.2012 MGD

Chapter 7 Trustee v. American Bodyworks, Inc. (In re Secure Buildout, LLC)

Defendants’ motion to dismiss under FRCP 12(b)(6) was denied in part and granted in part. The statute of limitations barred the claims brought under 11 U.S.C. §§ 544, 546, even though the issue was first raised in the motion to dismiss rather than the answer. This was because the motion was filed simultaneously with the answer, allowing it to be treated as the first responsive pleading, and because the time-bar was apparent from the face of the complaint. The Court held that the Trustee alleged sufficient facts to bring a veil-piercing claim on behalf of the Debtor against the Debtor’s principals, and that this claim was not time-barred because it arose under 11 U.S.C. § 541, and thus 11 U.S.C. § 546 did not apply. With regards to the claims for fraud, the pleading standard under FRCP 9(b) was not applied as stringently because the information necessary to support the claim was peculiarly within Defendants’ control. In the Trustee’s claims for relief for fraud, the Court found that the Trustee did not allege sufficient facts to support these claims. The Trustee also did not allege sufficient facts to show that Defendants were managing members of the Debtor, in order to support a claim for breach of fiduciary duty either owed to Debtor or to act for the benefit of Debtor’s creditors. The complaint alleged sufficient facts to support a claim for unjust enrichment under Georgia law.

12-05063 Doc#41
08.21.2012 REB

In re: Margie Lynn Wellborn

(Margie Lynn Wellborn v. Georgia Dep't of Revenue),(Court granted summary judgment in favor of Defendant on grounds that 2008 tax return was unfiled as of petition date and thus excepted from discharge under 11 U.S.C. Section 523(a)(1)(B)(i), and that although 2007 income tax liability could be discharged, Defendant's associated tax lien survives and cannot be stripped down to the value of property standing as security for said claim.)

12-2083 Doc#6
08.20.2012 WHD

In re: Walton v. Paul

(Court denied defendants Motion to Dismiss Amended Complaint in an adversary proceeding. The Court denied the Motion on the grounds that the complaint pled sufficient facts, if true, could support the relief that was requested. The Court found that the Complaint filed by the United States Trustee that requested the Court revoke the Defendant’s discharge under section 727(d)(1), met the requirements of Rule 12(b)(6) of the Federal Rules of Civil Procedure.)

AP 11-1059, Doc#18
08.17.2012 MHM

Cifelli v. Blue Star Residential, LLC (In re Miles) ;

(Stern v. Marshall does not require dismissal of Trustee's fraudulent transfer action)

11-5704
08.17.2012 MHM

Anderson v. Citimortgage, Inc. ;

(Decision by district court in action with same operative facts as in this adversary proceeding precludes litigation of the issues in this proceeding)

12-5068
08.17.2012 PWB

Olaleye v. BAC Home Loans Servicing, LP.

(Bankruptcy court abstains pursuant to 28 USC 1334(c)(1) from hearing claims asserted by debtor regarding foreclosure and eviction asserted in adversary proceeding and dismisses complaint. Abstention warranted because chapter 7 debtor did not list claims as assets, all claims asserted are under non-bankruptcy law and have no bearing on administration of chapter 7 estate, there has been extensive prepetition litigation between the parties, and automatic stay has been terminated).

11-5697 Doc#8
08.16.2012 REB

In re: Eric E. Harris

(Eric E. Harris v. Georgia Dep't of Revenue),(Court granted Defendant's motion to dismiss in part concluding that because Debtor failed to file certain state income tax returns as due after three years before petition filing date and said tax liability was, therefore, entitled to priority treatment under 11 U.S.C. Section 507(a)(8)(A)(i), the claim was excepted from discharge under Section 523(a)(1)(A)).

12-2059 Doc#8
08.15.2012 MGD

River City Bank v. Mathis (In re Mathis)

The Court granted in part Plaintiff’s request for attorney’s fees and denied defendant’s request for attorney’s fees. Under FRCP 37, Plaintiff was entitled to attorney’s fees for bringing a motion to compel because Plaintiff complied with the good faith requirement of the local rules, the motion to compel was necessary for Plaintiff to obtain relief, and the Defendant’s opposition to the motion and to the production of discovery was not substantially justified. Plaintiff was not entitled to the entire amount requested because it did not prevail on all of its arguments, and the amount of the award was within the discretion of the Court. The Defendant was not entitled to attorney’s fees because the Plaintiff’s motion was substantially justified.

11-4023 Doc#79
08.14.2012 MGD

Trustee v. Bullock (In re Bullock)

The Court denied the Chapter 7 Trustee’s motion to amend the complaint to add a new defendant. The amendment was for permissive joinder of a party under FRCP 20, and the Court had extensive discretion under FRCP 15, in deciding whether to grant leave to amend. The Court denied leave on the basis of undue delay and futility. The amendment was filed after the close of discovery and after the Court ruled on Defendant’s motion for summary judgment. The Trustee could not proceed against the party to be joined under 11 U.S.C. § 549 because that party was not an initial transferee; rather, recovery would only be available under 11 U.S.C. § 550. As a result, resolution of the claim against the party to be joined was not necessary to the resolution of the claims already before the Court. The § 550 claim could be brought at a later time.

10-04111 Doc#57
08.10.2012 MHM

In re McNair ;

(Debtor not entitled to stay pending appeal because Debtor is not protected by "Protecting Tenants at Foreclosure Act," therefore has no likelihood of success on appeal)

12-64142 Doc. No. 33
08.10.2012 MHM

In re McNair ;

(Debtor's application to proceed with appeal in forma pauperis denied because appeal is not taken in good faith);

12-64142 Doc. No. 34
08.10.2012 BEM

Silliman v. Murla et al (In re United Funding Mortgage Group)

The Court Granted the Trustee's Motion for Summary Judgment on Complaint to Subordinate Claims because under section 510(b), Defendants' claims for damages for recession and fraud in purchasing Debtor's stock are subject to mandatory subordination.

11-5623 Doc#17
08.06.2012 JEM

Pettie v. Saffan et al.

Motion for summary judgment denied where there were disputed factual issues. The chapter 7 Trustee sought to include in property of the estate rental property purchased by the Debtor’s mother in the name of herself and her 2 children. The filings of both parties raised an issue of the extent of an equitable interest in or potential gift to Debtor of the property.

BK 09-80845, AP 11-5389, Doc. #18
07.25.2012 REB

In re: Debra Jean Garner and John Earl Garner

(Court sustained objection to exemption claim holding that joint Debtor spouse could not exempt an interest in certain property using her rights under 'wildcard' provision of O.C.G.A. Section 44-13-100(a)(6), because said property constituted sole inheritance of other joint debtor. Debtors could not show demonstrative action taken to convert same to marital property as required under Georgia law. Thus, exemption limited to the inheriting debtor's right alone of $5,600.00.)

12-20065 Doc#74
07.19.2012 MGD

Adams v. Adams (In re Adams)

The Court granted in part and denied in part defendant’s motion to dismiss. Plaintiff’s complaint objected to the dischargeability of debts for damages resulting from personal injury, in accordance with 11 U.S.C. § 1328(a)(4). The defendant filed a motion to dismiss on the grounds that plaintiff failed to state a claim for relief. In its ruling, the Court first found that the judgment for damages did not have to be awarded pre-petition. Next, the defendant’s conduct, as plead in the complaint, rose to the level of willful or malicious conduct under § 1328(a)(4). Finally, the Court ruled that “personal injury” in § 1328(a)(4) included nonphysical injuries such as defamation and emotional distress, and that damages for these injuries could be excepted from discharge. But “personal injury” in § 1328(a)(4) did not include business or financial torts that are injuries to property. Thus, the Court granted the motion to dismiss to the extent plaintiff’s complaint was based on damages for business or financial torts, and denied the motion to dismiss to the extent plaintiff’s complaint was based on damages for defamation and emotional distress.

12-5198 Doc#11
07.12.2012 MHM

In re Sylla;

(Recusal: Allegations in motion insufficient to support a finding of bias)

11-85181 Doc#101
07.12.2012 MHM

Harris v. Pullen;

(Dismissal: pre-confirmation motion to dismiss denied as moot following confirmation of Chapter 13 plan to which creditor did not object)

11-81588 Doc#145
07.06.2012 WHD

In re Hayden,

(order granting motion to modify permanent injunction for purposes of proceeding against insurer only).

10-10895 Doc#61
06.26.2012 MHM

Owoade-Taylor v. Babatunde ;

(Obligation to pay former spouse's attorneys fees arising in divorce decree is nondischargeable domestic support obligation and entitled to priority under §507(a)(1));

11-5700 Doc#12
06.26.2012 MHM

Owoade-Taylor v. Babatunde ;

(Obligation to pay former spouse's attorneys fees arising in divorce decree is nondischargeable domestic support obligation and entitled to priority under §507(a)(1));

11-5700 Doc#12
06.15.2012 MGD

Stiles v. Internal Revenue Service (In re Styles)

The Court granted the Defendant’s motion to dismiss Plaintiffs’ claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs initiated the adversary proceeding by filing a complaint seeking turnover of their tax refund and to hold Defendant in contempt for violating the automatic stay. Under the facts as alleged, Plaintiffs could not obtain relief under existing law. The facts alleged that Defendant was exercising its right to setoff, and 11 U.S.C. § 362(a)(26) expressly allows Defendant to setoff an overpayment against existing tax liabilities without violating the automatic stay.

12-4028 Doc#11
06.15.2012 MGD

In re Anderson

The Court overruled the objection to confirmation of Debtor’s plan filed by American Servicing Company (ASC). ASC filed a claim secured by Debtor’s non-residential real property. ASC objected to Debtor’s plan on the basis that the interest rate on the secured claim was too low and that the plan did not provide for the contract-required Private Mortgage Insurance (PMI) payments. The parties ultimately stipulated to an interest rate. As to PMI, the Court ruled that, pursuant to 11 U.S.C. §§ 1322(b)(2) and 1322(d), a debtor is allowed to modify the rights of a mortgage creditor whose interest is not secured by the debtor’s primary residence.

12-51191 Doc#24
06.12.2012 MGD

Cooper v. Bullock (In re Bullock)

The Court granted in part and denied in part Defendant’s motion for summary judgment. Plaintiff’s complaint asserted claims of conversion under state law, fraudulent transfer under state law, and an unauthorized post-petition transfer under 11 U.S.C. § 549. The Court granted Defendant’s motion with respect to the conversion and fraudulent transfer claims, ruling that Defendant was entitled to judgment as a matter of law. Defendant’s motion for summary judgment was denied as to the unauthorized post-petition transfer, as the Court found that issues of material fact existed on this claim.

10-4111 Doc#44
06.08.2012 CRM

In re Hinson Management Group, Inc.,

Order granting creditor’s motion for comfort order. Creditor filed a motion seeking confirmation that the automatic stay did not impact its completed foreclosure sale. The precise issue before the Court was whether a foreclosure sale that occurred nineteen minutes before the Debtor filed bankruptcy terminated the Debtor’s equitable right of redemption. The Court found that, under Georgia law, the Debtor’s equity of redemption expired when the high bid was received at the foreclosure sale. Consequently, the Debtor had no interest in the subject property when it filed bankruptcy.

12-58962 Doc#22
06.08.2012 MGD

Magbee Brothers Lumber & Supply Co., Inc. v. Oliver (In re Oliver)

The Court denied Plaintiff’s motion for summary judgment. Plaintiff initiated an adversary proceeding to object to Defendant’s discharge pursuant to 11 U.S.C. § 727. Plaintiff then moved for summary judgment with respect to its objections under 11 U.S.C. §§ 727(a)(2) and (a)(4). The Court found that material issues of fact were in dispute as to whether Defendant intended to hinder, delay, or defraud creditors by transferring property to her daughter. And the Court found that issues of material fact were in dispute as to whether Defendant knowingly made a false statement of fact that was material to the bankruptcy proceeding. Thus, summary judgment was inappropriate on Plaintiff’s objection to discharge under § 727(a).

11-4041 Doc#48
06.07.2012 WLH

Richards v. Wells Fargo Bank (In re Richards),

- Order denying Debtor’s Amended Motion for Reconsideration but setting out findings of fact and conclusions of law on Debtor’s “Motion to Set Aside an Order Due to ‘Unclean Hands’” which was previously denied. The Court explained that the order granting relief from stay which Debtor sought to set aside only determined whether the movant had a colorable claim. It did not determine the validity of the creditor’s claim or the security deed or any of the debtor’s defenses thereto. Therefore, the order granting stay relief is not res judicata as to those issues and does not prohibit the Debtor from raising his defenses in state court. The Motion to Set Aside was denied under Rule 60(b) and Fed. R. Bankr. P. 9024 because, inter alia, (1) the Motion was brought more than one year from entry of the order on relief from stay; (2) the stay relief order was not void because the Court had both subject matter and personal jurisdiction to enter the order lifting stay, and the Debtor was provided due process; (3) the Debtor’s Chapter 13 plan had been fully performed prior to filing the Motion to Set Aside so therefore could not be modified to treat any claim of the creditor; and (4) Debtor could obtain full relief in state court since the order granting relief from stay was not res judicata as to the Debtor’s defenses. Debtor’s Motion to Reconsider the denial of the Motion to Set Aside is denied because, inter alia, sufficient newly discovered evidence does not exist to set aside the Court’s decision denying the debtor’s Motion to Reconsider because the facts discovered after the hearing were discoverable prior to the hearing and would not have changed the outcome. Finally, the Court directed the Clerk to leave the case open for a period of time so the Debtor could seek sanctions against the creditor and its counsel under Fed. R. Bankr. P. 9011.

09-69716 Doc#113
06.04.2012 MHM

In re Sylla ;

(Attorney's suspension not lifted because proof of CLE inadequate); entered 2012-05-25 (Doc. No. 75); Notice of Appeal filed 2012-06-04 (Doc. No. 81).

11-85181
06.01.2012 WHD

Adams v. Long,

(granting debtor's motion for partial summary judgment; claim of debtor's former in-laws for repayment of funds loaned to the debtor and his former wife were not in the nature of support and, therefore, were dischargeable in a Chapter 13 case).

11-1077 Doc#12
05.21.2012 REB

In re : James D. Boggus, Jr. and Jennifer Sullivan Boggus

(Gregory Blosser v. James D. Boggus, Jr.),(Plaintiff sought determination that indemnification claim should be excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) and 523(a)(6). Court denied Defendant-Debtor's motion to dismiss, finding that the facts were stated with sufficient particularity to support plausible claim for relief. Court also denied Defendant-Debtor's motion for summary judgment on count regarding Section 523(a)(2)(A), concluding that Plaintiff showed existence of a fact issue on requisite intent to defraud in connection with breach of promise in obtaining a release in a settlement agreement between the parties. In addition, Court concluded sufficient issues existed concerning legal effect of merger clause in interpreting the agreement and in the admissibility of evidence of pre-contractual negotiations. Court granted summary judgment in favor of Defendant-Debtor on count relating to Section 523(a)(6), concluding allegations were too remote to create fact issue of willful and malicious injury. Claim under Section 523(a)(2)(A) was set for trial, but matter was subsequently dismissed via consent order.)

10-2178 Doc#38
05.15.2012 WHD

Moore v. Delta Community CU

(following a trial, valuing the debtors' interest in their home for purposes of determining whether second lien is void).

11-1051 Doc#24
05.10.2012 MGD

Simms v. Deutsche Bank National Trust Co. (In re Simms)

The Court denied Plaintiff’s motion for a Rule 2004 Examination. Plaintiff sought a Rule 2004 Examination after initiating an adversary proceeding against the Defendant. The Court held that the “pending proceeding” rule barred Plaintiff from obtaining a Rule 2004 Examination. Under the pending proceeding rule, once an adversary proceeding is commenced, the Federal Rules of Bankruptcy Procedure supplant Rule 2004 and a party to the adversary proceeding must pursue depositions in accordance with the Federal Rules of Civil Procedure.

12-5035 Doc#23
05.04.2012 WHD

Mann v. Brown,

(following a trial, denying trustee's complaint to avoid transfer of debtor's interest in marital residence to his former spouse, as transfer was pursuant to a divorce decree, under which former spouse was to receive a set amount of money from the debtor and received the transfer of the property in satisfaction of that debt).

10-1074 Doc#22
05.02.2012 PWB

In re: Michael Eugene Cloninger;

"Mailbox rule" applies such that paper filed by prisoner, construed as a motion containing a request for determination of dischargeability of debt subject to 11 U.S.C. 523(c), that the prisoner delivered to prison authorities for mailing to the Court prior to expiration of the deadline of Fed. R. Bankr. P. 4007(c) is timely filed, even though the Clerk's office did not receive and docket it until after expiration of the deadline. Court grants the creditor 30 days to convert the motion into an adversary proceeding by filing a complaint and paying the filing fee.

11-83163 Doc#28
05.02.2012 REB

In re: Timothy D. Wilson and Penny D. Wilson

(Timothy D. Wilson and Penny D. Wilson v. Brian Durant), Contested Matter; (Court granted motion to avoid judicial lien under 11 U.S.C. Section 522(f), concluding that even if Debtors could not claim homestead exemption in certain property because it was not their residence at time of filing of their bankruptcy case, they were still entitled to claim their 'wildcard' exemption in underlying property.)

09-23166 Doc#80
04.23.2012 MHM

In re Bogan ;

(Petition dismissed because filed by attorney in fact who lacked authority under the power of attorney);

11-77196 Doc#39
04.13.2012 WHD

In re O'Neal,

(order denying motion to dismiss case and finding case and plan filed in good faith where debtor was proposing to commit all disposable income to payment of debt that would otherwise have been nondischargeable under Chapter 7).

11-13535 Doc#37
04.12.2012 PWB

In re: David Charles Wilmore, Jr.

Where judgment lien on exempt property is partially avoided under section 522(f) in a Chapter 7 case, the creditor is entitled to recover the amount of the debt that remains enforceable under the portion of the lien that is not avoided, even if the creditor enforces the lien through a judicial sale that does not result in the realization of replacement value such that the debtor does not receive the full amount of the exemption from the proceeds. A judgment creditor is not entitled to recover interest or expenses of sale except to the extent that sales proceeds exceed the sum of the enforceable debt and the debtor's exemption. Interest runs from the date of the bankruptcy petition on the amount of the debt that remains enforceable by virtue of the unavoided lien.

11-73964 Doc#62
04.11.2012 REB

(In re: Corey Benjamin Tallant),

(First Financial Services, Inc. v. Corey Benjamin Tallant),(Movant filed motion for reconsideration of Court's prior Order entered on 2011-12-06, Docket No. 19, denying Movant's motion for relief from stay and granting Debtor's motion to avoid judicial lien. Court denied motion for reconsideration reaffirming its earlier conclusion that perfecting judicial lien on motor vehicle under Georgia law (O.C.G.A. Section 40-3-53) does not thereby change the legal character of same into a consensual security interest or statutory lien that is not subject to avoidance. Movant misreads Court's ruling in (In re: Brian Edward Fox), Case No. G07-20069-REB (Fox v. Lakeview Publishing.com, Inc.), Contested Matter; entered on 2009-09-29, Docket No. 63).

11-23362 Doc#27
04.10.2012 JEM

In re Hambrick

The U.S. Trustee objected to the fee application of the law firm representing the Chapter 7 Trustee. The Court distinguished services performed by a trustee pursuant to 11 U.S.C. § 704 from legal services, awarding fees for services legal in nature and denying fees for work performed that did not require a license to practice law.

BK 08-66265
04.04.2012 PWB

In re: Perkins, et al. v. American International Specialty Lines Insurance Company, et al.,

In non-core proceeding, the Trustee for a debtor who been engaged in a Ponzi scheme sought coverage under an investment management insurance policy, claiming that the insured debtor had invested money of investors in risky index options rather than in common stocks of U.S. companies, that investors had claims against the Debtor as a result, and that the insurance policy covered the Debtor's liability to the investors. The Trustee requested a jury trial. The defendant insurer filed motions for summary judgment and to exclude the testimony of an expert witness. Court enters proposed findings of fact and conclusions of law with regard to all pending issues to insure that District Court has jurisdiction to conduct de novo review of all appropriate issues pursuant to 28 U.S.C. s 157(c)(1) and Bankruptcy Rule 9033. Court proposes that the District Court grant defendant insurer's motion for summary judgment on one issue and deny it on all others and that the District Court deny defendant's motions relating to exclusion of expert testimony. The basis for the Court's proposed entry of summary judgment in favor of the defendant is that an insurer is entitled to rescind an investment management insurance policy because of the Debtor insured's omission or misrepresentation of a material fact when the insured was operating a Ponzi scheme.

10-6090 Doc#108
04.03.2012 MGD

Johnson-Hines v. RES-GA EIGHT, LLC (In re Johnson-Hines),

The Court determined the value of real property for purposes of Debtor’s motion to strip down a first mortgage lien and confirmation. The Court did not adopt the value from the lender or Debtor’s appraisals, but, instead, used the evidence introduced at the hearing to determine the value of the real property using a income based valuation approach. The Court also determined that an apartment building, in which Debtor acts as the property manager and lives on-site, does not protect the lender’s security interest under § 1322(b)(2)’s anti-modification provision.

11-84228 Doc#65
04.02.2012 PWB

Gomez v. Citibank, N.A. (In re Gomez),

Based upon prepetition foreclosure and extensive litigation between parties, Court abstains from hearing chapter 7 debtor’s nonbankruptcy claims against lender pursuant to 28 U.S.C. 1334(c)(1).

11-5618 Doc. 7
04.02.2012 MHM

In re Miles ;

(Trustee may abandon property of the estate irrespective of possible tax consequences to Debtor)

09-92601
04.02.2012 MHM

Gordon v. GMAC Mortgage Corp. (In re Patterson) ;

(If reliable determination of historical value can be obtained, when the real property’s value has depreciated due to market conditions, Trustee may recover from lender who received preference the value of the property, rather than simply avoiding the lien. )

08-6442
04.02.2012 MHM

Promax Investments, LLC v. Choi ;

(Principles of equitable tolling are applicable to extensions of bar date for filing objections to discharge and complaints to determine dischargeability (Rules 4004 and 4007) ) This bankruptcy court order was reversed by order dated October 26, 2012 in the USDC, J. Batten, Civil Action File No. 1:12-cv-1560-TCB (this opinion may be accessed in Adv. Proc. No. 11-5104, Doc. No. 29).

11-5104
04.02.2012 MGD

In re Citrus Tower Blvd Imagining Center, LLC,

Debtor’s motion to assume an unexpired lease was granted over landlord opposition. Debtor’s proposal to cure the pre-petition default with cash installments funded from Debtor’s managing member over a 12-month period was determined to satisfy § 365(b)(1)(A)’s requirement of adequate assurance of a prompt cure. The term of the lease and Debtor’s principal’s net worth contributed to the ruling. Additionally, Debtor also sufficiently provided adequate assurance of future performance as required by § 365(b)(1)(c) based on Debtor’s principal’s performance of paying the post-petition lease payments, his promise and ability to pay going forward, the below-market rate of the lease, and fact specific circumstances impeding Debtor’s ability to generate revenue. Because Debtor satisfied § 365(b)(1)’s requirements, it could assume the lease.

11-70284 Doc#146
04.02.2012 MGD

Consolidated Proceedings of Kidd v. Student Loan Xpress, Inc. et al.,

Defendants were awarded summary judgment because the stipulated facts for each debtor showed that they could not meet the undue hardship standard applicable in this circuit - the Brunner test. Plaintiffs did not contest the facts but sought an equitable exception to the application of Brunner and the Court’s previously ruling that these debts qualified as student loan debts under § 523(a)(8)(A)(I). (Docket No. 61). Plaintiffs asserted that a material dispute of fact existed as to the amount of the debt owing, but Defendants did not seek a sum certain judgment. Instead, Defendants merely sought a non-dischargeability determination.

09-6507 Doc#91
04.02.2012 MGD

Kidd v. Student Loan Xpress, Inc. et al.,

Defendants were awarded summary judgment and the student loan debt owed by Plaintiff Kidd was deemed non-dischargeable. Defendants established that Plaintiff had not made good faith efforts to repay the loan, the third prong under the Brunner undue hardship test. The Court considered Plaintiff’s failure to diligently search for work, failure to minimize expenses, incurring discretionary expenses while not making loan payments, never making a student loan payment, filing bankruptcy shortly after she received loan concessions through a state court suit, and not presenting evidence of seeking alternative repayment options. Plaintiffs did not contest the facts but sought an equitable exception to the application of Brunner and the Court’s previously ruling that these debts qualified as student loan debts under § 523(a)(8)(A)(i). (Docket No. 61). Plaintiffs asserted that a material dispute of fact existed as to the amount of the debt owing, but Defendants did not seek a sum certain judgment. Instead, Defendants merely sought a non-dischargeability determination.

09-6507 Doc#92
03.30.2012 PWB

Brown v. Sneed (In re Sneed),

Order granting motion for default judgment determining that debtor’s obligation to pay attorney’s fees for former spouse pursuant to divorce decree is “support” and excepted from discharge pursuant to 523(a)(5).

11-4044 Doc. 13
03.30.2012 MHM

Southern Crescent Rehabilitation & Retirement Community, Inc. v. Humana Insurance Co. ;

(Dismissed: state law claims preempted by Social Security Act (Medicare) and Debtor failed to exhaust administrative remedies)

11-5284
03.27.2012 MHM

Zohbe v. Ameriquest Mortgage Co. ;

(Truth-in-Lending: Bankruptcy court has authority under §1635 of Truth in Lending Act to condition rescission of lien upon return to the creditor of the net balance due on the loan secured by the lien)

07-6194
03.26.2012 MGD

In re Berroet,

Debtor’s post-confirmation motion to strip a wholly unsecured second lien on real property was denied based on the res judicata effect of a confirmed Chapter 13 plan pursuant to § 1327.

11-58010 Doc#62
03.22.2012 PWB

In re Rutledge,

Court denies, without prejudice, application for unclaimed funds in Chapter 13 case paid on account of claim secured by motor vehicle in absence of showing that debt still exists and an accounting with regard to any disposition of the collateral.

06-42015 Doc. 63
03.22.2012 PWB

In re Christopher

Court denies, without prejudice, application for unclaimed funds in Chapter 13 case paid on account of claim secured by motor vehicle in absence of showing that debt still exists and an accounting with regard to any disposition of the collateral.

06-42452 Doc. 47
03.16.2012 MGD

Pettie v. Bonertz (In re LendXFinancial, LLC),

Order granting partial summary judgment to the Plaintiff-Trustee. Plaintiff filed complaint seeking to avoid a transfer of real property on the basis that it was a fraudulent transfer under 11 U.S.C. § 548 and corresponding state laws. Because issues of material fact existed as to the Defendant’s intent, the Court denied summary judgment as to the actual fraud claims. The Court granted summary judgment as to the constructive fraud claims.

11-5330 Doc#27
03.16.2012 WHD

In re Nittolo,

(order granting motion for relief from the automatic stay to permit owner of property foreclosed prior to filing of bankruptcy petition to evict Chapter 11 debtor).

11-14070 Doc#31
03.14.2012 REB

In re: Steven Thomas

(Charles Jordan Hawkins and Nathaniel Hawkins v. Steven Thomas),(Plaintiffs sought determination that state court damages award was nondischargeable under 11 U.S.C. Section 523(a)(4), based on findings of state court that in turn, established Debtor's defalcation while acting in a fiduciary capacity as a co-trustee. After trial and submission of additional briefs, Court held that damages award would be excepted from discharge on grounds as alleged. The Court concluded that as consistent with Eleventh Circuit's recent ruling in Bullock v. Bank-Champaign, N.A. (In re Bullock), _ F.3d _, (2012), proof of fraud is not necessary, and defalcation is shown by evidence of willful neglect of duty to oversee and protect trust funds, which rises above mere negligence. This Order is currently on appeal.)

11-2045 Doc#9
03.13.2012 PWB

In re Gilbert,

Debtor who owns 40 percent of shares in Subchapter S corporation, in which his wife owns the other 60 percent of the shares, that owns and operates a farming operation is not a "farmer" within the definition of 11 USC section 101(20) and, therefore, 11 USC section 1112(c) does not prohibit conversion of case to Chapter 7. Because debtor is not a farmer, cause for dismissal of case under 11 USC section707(b) does not exist.

10-41047 Doc. 196
03.09.2012 PWB

In re Reed;

Order for law firm to show cause why attorney fees in three chapter 13 cases should not be reduced due to filing of six motions containing multiple errors.

11-85682 Doc. 27
03.06.2012 MHM

Hilswepow, LLC v. Gefen ;

(Dismissal with bar to refiling for nine months + award of attorneys fees to creditor)

11-86027
03.06.2012 WHD

Moore v. Delta Community Credit Union,

(granting motion for reconsideration).

11-1051 Doc#19
02.28.2012 WHD

Love v. Barner,

(granting default judgment against debtor as to nondischargeability under section 523(a)(2)(A), as debtor induced plaintiff to loan money by misrepresenting that the debt would be secured by stock that he owned, when in fact he did not own the stock).

09-9001 Doc#45
02.28.2012 MGD

In re Fuel Barrons,Inc.,

Petitioning creditors motion requesting an intra-district transfer of this Chapter 11 case was denied as premature and without basis at the current time.

12-51650 Doc#62
02.27.2012 WLH

Tamara Miles Ogier, as Trustee of the Estate of Dwight Thomas Phillips, Sr. and Marcene Yvonne Phillips, v. Wells Fargo Bank, N.A., Dwight Thomas Phillips, Sr. and Marcene Yvonne Phillips (In re Dwight Thomas Phillips, Sr. and Marcene Yvonne Phillips),

Order Granting Trustee’s Motion for Summary Judgment holding, inter alia, (1) under 11 U.S.C. § 544, the Trustee is a bona fide purchaser for value as of the petition date and may avoid the lien of a security deed where the prior security deed had been cancelled, nothing on the face of the cancellation suggested existence of another security deed, and no new deed was recorded as of the petition date; and (2) equitable subrogation does not give Wells Fargo priority over the Trustee because any subrogated rights of Wells Fargo were terminated when the prior security deed was cancelled and equitable subrogation does not allow for the prior deed to be revived where a bona fide purchaser for value exists.

11-05292 Doc#17
02.23.2012 WHD

Howell v. Holmes,

(denying defendant's motion to dismiss complaint).

11-1084 Doc#9
02.23.2012 REB

(In re: Lee Harris-Onaxis and Suzanne Harris-Onaxis),

(Anne Wilson Parham and Lawrence Neil Parham v. Suzanne Harris-Onaxis and Lee Harris-Onaxis),(Court denied Debtors' motion for reconsideration of Order entered on 2011-12-08 (Docket No. 16 ) granting summary judgment in favor of Plaintiffs under 11 U.S.C. Section 523(a)(2). Court reaffirmed its conclusion that preclusive effect accorded findings in Alabama state court order was appropriate to establish entitlement to relief by Plaintiffs. This Order is currently on appeal before the U.S. District Court).

10-2169 Doc#26
02.17.2012 WHD

Stearns Bank, N.A. v. Mann

(granting in part and denying in party plaintiff's motion for summary judgment as to its claim that two deeds to secure debt regarding two different properties should be reformed to provide the correct name of the grantor and finding that the Chapter 7 trustee of the estate of the true owners of the property had the rights of a bona fide purchaser for value without notice of the plaintiff's interest as to one of the properties, thus precluding the granting of relief as to that property).

11-1010 Doc#22
02.13.2012 MGD

Bank of America, N.A. v. White,

The Court granted the Bank’s timely filed motions to reconsider and set aside the confirmation order. Debtor’s plan treated the Bank’s claim in the personal property section, yet treated the Bank’s claims as partially secured under § 506 based of the purported value of real property. The Court also noted that the Debtor’s placement of the Bank’s claim in the personal property section of the plan raised concerns about the Bank having meaningful notice of the proposed treatment, especially given U.S. Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367 (2010). The Bank, although it did not oppose the motion to value its collateral, contested valuation in the motions to reconsider. Using its discretion under Rule 9023 and noting that the Court’s discretion is at its height before an order becomes final, the orders were set aside and confirmation and the motion were set for an evidentiary hearing.

11-67119 Doc#41
02.09.2012 JRS

In re Goines

Chapter 13 debtor-in-possession is the equivalent of the trustee for purposes of retaining special counsel under 11 U.S.C. section 327(e).

11-76654 Doc#32
02.08.2012 REB

(In re: Kevin Erik Wren and Janine Marie Wren;)

(Kevin E. Wren v. Alley Cassetty Companies, Inc.),(Debtor-Movant filed motion to hold Respondent in contempt for alleged violation of automatic stay and for an award of damages under 11 U.S.C. Section 362(k). Court granted motion concluding that although Respondent agreed to halt prosecution of state court law suit once it learned of Debtor's bankruptcy filing, it still had affirmative duty to file suggestion of bankruptcy in that action as opposed to forcing Debtor to do so. Since Respondent was not motivated by improper intent, there were no grounds for punitive damages, but actual damages in the form of reasonable attorney's fees were awarded).

11-21847 Doc#56
02.08.2012 REB

(In re: Inpahn Thavongsa and Chris Thavongsa),

(Inpahn Thavongsa and Christ Thavongsa v. Georgia Dep't of Revenue),(Defendant filed motion for summary judgment on Plaintiff-Debtors' complaint to determine dischargeability of certain income tax liability indebtedness. Court held Debtors' state income tax obligation for year in question based on upward adjustment to their income for that year by I.R.S. to be nondischargeable under 11 U.S.C. Section 523(a)(1)(B)(i)).

11-2133 Doc#11
02.07.2012 MGD

Kidd v. Student Loan Xpress, Inc. et al.

In a consolidated action, Plaintiff’s motion for leave to amend and supplement pursuant to Fed. R. Civ. P. 15(a)(2) & (d) was denied. Plaintiff’s request followed the Court’s ruling on partial summary judgment and proposed amendments that were futile because they could not prevail under the summary judgment standard. The Plaintiff’s prior opportunities to amend, the timing of the request, and the proposed futile amendments justified the denial.

09-6507 Doc#88
02.07.2012 MGD

In re Malia;

Joint Debtors in Chapter 7 each claimed an exemption in a promissory note inherited by Debtor wife, and the Trustee objected. The Court granted the Trustee’s objection as to the Debtor husband but denied it as to the Debtor wife. First, the promissory note remained Debtor wife’s separate property because her actions never manifested a clear intent to convert the promissory note into marital property. Thus, only Debtor wife could claim an exemption in the promissory note. Second, the Court rejected the Debtors’ arguments that the Trustee’s objections should be barred under the doctrines of judicial admission and judicial estoppel.

09-42273 Doc#89
02.01.2012 REB

(In re: Lauren Denise Espinosa),

(Larry H. Tatum v. Lauren Denise Espinosa),(Plaintiff filed motion for entry of default judgment on complaint seeking determination that debt in issue was excepted from discharge under 11 U.S.C. Section 523(a)(5). Court held that guardian ad litem fees were subject to exception as a domestic support obligation since these fees were in the nature of support. Motion granted in favor of Plaintiff and judgment entered).

11-2130 Doc#18
01.31.2012 JB

Oluleye v. Metlife Home Loans (In re Oluleye),

(Claims under the Truth-in-Lending Act are time barred and dismissed. Claims under the Fair Debt Collection Practices Act dismissed; foreclosure under a security deed is not a debt collection activity under 15 U.S.C. § 1692(f)(6). Claims for wrongful foreclosure are dismissed, as defendants did not conduct a foreclosure.)

11-5518 Doc#9
01.26.2012 MGD

River City Bank v. Mathis (In re Mathis)

Order granting Defendants’ motion to set aside and vacate default judgment. After Defendants’ failed to appear or respond to the complaint, the Court entered default judgment denying their chapter 7 discharge. Defendants appeared by counsel immediately after default judgment was entered, asserting that the default judgment should be set aside on the basis of excusable neglect. The Court held that Defendants’ met the excusable neglect standard because they asserted potentially meritorious defenses, showed a good reason for the default, and showed a lack of substantial prejudice to Plaintiff.

11-04023 Doc#24
01.23.2012 WLH

Proudfoot Consulting Company (n/k/a Alexander Proudfoot Company) v. Gordon, (In re Gordon),

Order granting creditor’s motion to convert individual non-consumer Debtor’s case from one under Chapter 7 of the Bankruptcy Code to one under Chapter 11 of the Bankruptcy Code. The Court held that 11 U.S.C. § 706(b) permits the Court to convert an individual non-consumer debtor’s case from Chapter 7 to Chapter 11 and the act of conversion alone does not violate the Thirteenth Amendment to the Constitution as involuntary servitude nor does conversion violate the Anti-Peonage Act.

11-62509 Doc#111
01.17.2012 MGD

Dunn v. Fast Debt Buyers, LLC (In re Dunn)

Order granting Debtors’ motion to redeem with the second priority lien holder for no payment. Debtors had reaffirmed the debt with the first lien holder on the vehicle. Based on the amount of the first lien, there was no equity for the second lien to attach. The § 722 redemption requirements had been satisfied and the Court found redemption to be an available remedy with a wholly unsecured lien

09-87232 Doc#30
01.10.2012 MGD

Leon B. Perlis

Order denying creditor’s motion to dismiss or convert chapter 11 case for cause under 11 U.S.C. § 1112. Creditor, Debtor’s ex-wife, argued that cause existed to dismiss or convert Debtor’s chapter 11 case because Debtor failed to maintain a life insurance policy, pursuant to a divorce decree, that had lapsed pre-petition. According to Creditor, the obligation to maintain the life insurance policy was a domestic support obligation that first became payable post-petition. The Court held that the life-insurance obligation was a domestic support obligation. But the Court further held that the obligation did not first become payable post-petition. No premiums were due and owing under the lapsed policy, and there was no state court order requiring Debtor to replace the policy. Further, there were no other obligations related to the life insurance that were payable.

11-75215 Doc#35
01.10.2012 WHD

In re Davidson Hydrant Technologies, Inc.,

(finding that marketing agreement did not grant party an interest in intellectual property, such that the party was entitled to retain its rights under the agreement upon rejection by the debtor in possession in accordance with section 365(n)(1); court had insufficient evidence to determine whether the parties' conduct could have resulted in the granting of an implied license).

11-13349 Doc#65
01.06.2012 JEM

Whitaker v. Annamalai et al.

The Court denied Defendant’s motion to withdraw deemed admissions; the motion failed to address the two-part test for withdrawal in Fed.R.Civ.P. 36(b). Defendant’s blanket assertion of 5th Amendment privilege was not a basis for failing to respond to the request for admissions.

BK 09-82915, AP 09-9080, Doc. #242
01.05.2012 MGD

Moran Lake Convalescent Center, LLC

Order denying the Chapter 7 Trustee’s motion for sanctions against two creditors and their attorney. The Trustee sought to impose sanctions under the court’s inherent power, § 105, and 28 U.S.C. § 1927. Although the legal standard differs, all require a finding of bad faith. The facts did not support a finding of objective bad faith for the creditors or their attorney. Noting that bringing losing arguments do not evidence bad faith, the facts asserted by the Trustee as objective bad faith were not found by the Court to be frivolous or taken in bad faith. Additionally, none of the actions by the parties was found to multiply the proceedings. The Court also noted the impropriety of the Trustee in submitting communication between counsel to the Court, citing Local Rule 7.4, N.D. Ga. and BLR 9003-2, N.D. Ga.

10-43405 Doc#148
01.04.2012 REB

(In re: Sharon D. Hamilton),

Defendant filed for summary judgment on Plaintiff-Debtor's complaint to determine dischargeability of tax debt. Court granted motion concluding tax debt nondischargeable under 11 U.S.C. Section 523(a)(1)(B)(i) based on Debtor's failure to file annual state income tax return as required under O.C.G.A. Section 48-7-56).

11-2144 Doc#11
01.04.2012 WHD

Automobile Acceptance Corp. v. Sheikh

(denying motion for default judgment, as the complaint failed to allege sufficient facts to enable the Court to determine the portion of the debt that actually arose from the Debtor's willful and malicious injury).

11-1058 Doc#7
12.22.2011 PWB

Hensler & Beavers General Contractors, Inc. v. Sanford (In re Sanford);

Order denying motion to dismiss for failure to state a claim for relief. Plaintiff’s complaint to determine dischargeability of debt pursuant to 523(a)(2)(A) satisfies pleading standards of Rules 8 and 9 of the Federal Rules of Civil Procedure and also states claim for attorney’s fees under OCGA 13-6-11.

11-4063 Doc. 11
12.22.2011 JEM

Traylor v. Ahmed

The Court granted judgment on the pleadings for debtor defendant in plaintiff’s case for nondischargeability under 11 USC 523(a)(2),(4), & (6). Defendant’s claims of witness interference under FLSA, intimidation, and conspiracy to deter a witness from testifying were not supported merely by allegations of breach of an employment contract, a request for return of property, and a failure to remit severance pay.

BK 11-61754, AP 11-5392, Doc. #14
12.20.2011 WHD

In re Minnix Construction, Inc.,

(denying payment of compensation requested by accountant who was not retained by trustee).

04-17528 Doc#75
12.16.2011 JEM

Davis v. Williams

The issues here were whether various counts of the complaint asserting debts to be nondischargeable stated claims for relief. The court denied the motion Defendant’s motion to dismiss as to the count under section 523(a)(2) because the facts alleged, though they did not include a false representation, were sufficient to show actual fraud. The decision also dealt with claims under section 523(a)(6) (motion denied) and (a)(4) (motion granted).

BK 11-62794, AP 11-5403, Doc. #11
12.15.2011 MGD

Roswell Holdings, LLC v. Houser

Order modifying the automatic stay and continuing the relief from stay hearing. Finding that the automatic stay was applicable, the stay was modified for the lender to proceed with preparation for foreclosure and any action in the related criminal forfeiture action to determine the priority of lender’s claim in relation to that of the United States. Lender’s evidence of value of the property was suspect and revealed unusual accounting practices. Trustee raised several legal theories and concerns over the impact on the estate based on the sale of the property. However, based on the uncontested appraisals, there was no equity in the property and, therefore, some relief was appropriate given that this is a chapter 7 liquidation case.

10-43407 Doc#121
12.12.2011 REB

(In re: Lee's Famous Recipes, Inc.),

(Court denied motion of Defendant Coastal Bank & Trust to dismiss complaint asserting claim for equitable marshaling where Defendant argued Court lacked jurisdiction to hear and decide same based on decision of U.S. Supreme Court in Stern v. Marshall, 564 U.S. _, 131 S.Ct. 2594 (2011)).

11-5482 Doc#15
12.08.2011 REB

(In re: Lee Harris-Onaxis and Suzanne Harris-Onaxis),

(Anne Wilson Parham and Lawrence Neil Parham v. Suzanne Harris-Onaxis and Lee Harris-Onaxis),(Court denied renewed motion to dismiss and granted Plaintiff's motion for summary judgment seeking to except various claims as pursued in state court litigation from discharge under 11 U.S.C. Sections 523(a)(2)(A). Looking to state issue preclusion rules, Court determined that an Alabama state court would give preclusive effect to state court order where no trial actually occurred because Debtor-Defendants failed to participate. Finding no definitive authority under Alabama law addressing such situation, Court reasoned that reference to federal authority was appropriate in deciding what effect an Alabama court would give a default judgment. From its review of the state court order that adopted Plaintiff's allegations in that action, the Court found Plaintiff had established grounds supporting entitlement to relief under Section 523(a)(2)(A)).

10-2169 Doc#16
12.06.2011 MGD

George Wesley Taylor,

Order denying pro se Debtor’s motion. Essentially, Debtor sought to change the treatment of two secured creditors in a case where the plan had been confirmed in 2007. Based on the res judicata effect of the plan and the value of the property at the time of the petition, Debtor’s motion was denied.

06-76846 Doc#153
11.30.2011 CRM

Kasper v. Turnage (In re Turnage);

Order granting Plaintiff’s motion for summary judgment. Plaintiff sought a determination that a state court judgment for malicious prosecution and intentional infliction of emotional distress was non-dischargeable pursuant to section 523(a)(6). The Court found that the doctrine of collateral estoppel applied and barred relitigation of Defendant’s willful and malicious conduct. The debt arising from the state court judgment, including attorney’s fees, was deemed non-dischargeable.

09-6145 Doc#23
11.29.2011 WLH

Cathy L. Scarver, Trustee, v M. Abuhab Participacoes, S.A.,

Order on Defendant’s Motion for Summary Judgment holding, inter alia, (1) issues remain as to whether the Defendant is a non-statutory insider for purposes of a preference claim; (2) there is no evidence Debtor Nadine K. Baddour owed an antecedent debt to Defendant, a transfer on account of which would value; (3) the record is insufficient to determine whether Debtor Moskowitz received reasonably equivalent value for his obligation to Defendant when the funds borrowed from Defendant were invested in a company at Defendant’s direction; (4) facts remain in dispute concerning Defendant’s liability under 11 U.S.C. § 547 and O.C.G.A. § 18-2-74; (5) issues remain as to whether any resulting unsecured claim of Defendant should be subordinated; and (6) Trustee cannot “recharacterize” Defendant’s claim to a claim of equity in Debtors’ individual cases, even though the advance of funds may have been used as equity in another company.

10-6650 Doc#45
11.29.2011 WHD

In re Stallings,

(denying creditor's motion to extend time to object to debtor's discharge, as the deadline expired prior to the filing of the motion).

09-14535 Doc#83
11.29.2011 WHD

In re Freeman,

(granting Chapter 11 debtor's attorney's fee request in a reduced amount, following objections raised by the Debtor as to the necessity and reasonableness of the services rendered).

09-12732,-whd, docket no. 116
11.23.2011 MHM

In re Pullen ;

(Notice: service of emergency motion was inadequate); entered 2011-11-23 (Doc. No. 49; Notice of Appeal filed 2011-11-30.)

11-81588
11.17.2011 CRM

In re Wilhite,

The Trustee asserted that Debtors were not entitled to an additional $200 in transportation operating expenses and therefore were not committing all of their projected disposable income. The Court found that a debtor’s expenses are to be defined by IRS standards and using the Internal Revenue Manual to justify an additional operating expense would be inconsistent with the way that the Manual was used in Ransom v. FIA Card Services, N.A., ___ U.S. ___, 131 S. Ct. 716 (2011). The Court held that debtors with motor vehicles over six years old or with over 75,000 miles may not claim an additional $200 in operating expenses on line 27A of Form 22C.

11-53843 Doc#63
11.02.2011 REB

(In re: Kenneth J. Jones and Sonja D. Jones),

Defendant filed for summary judgment on Plaintiff-Debtors' complaint to determine dischargeability of tax debt. Court granted motion concluding tax debt nondischargeable under 11 U.S.C. Section 523(a)(1)(B)(i) based on Debtors' failure to file amended income tax return reflecting upward adjustment to Debtors' net income by IRS as required under O.C.G.A. Section 48-7-82(e)(1)).

11-2119 Doc#5
10.31.2011 MGD

Amerifirst Home Improvement Finance Co. v. Reid et al.,

Order granting in part and denying in part motion for default judgment. Wells Fargo Bank, N.A., is a federally insured depository institute and service of process is proscribed by Rule 7004(h). Service of the summons and complaint was not effectuated on the bank and entry of default judgment was not proper.

11-5397 Doc#11
10.28.2011 MGD

Georgia Lottery Corporation v. Kunkle,

Order granting Georgia Lottery Corporation’s motion for summary judgment, finding the debt owned non-dischargeable under § 523(a)(4). A fiduciary relationship exists between Plaintiff and Defendant, the owner of a Georgia Lottery retailer. O.C.G.A. § 50-27-21(a) creates a fiduciary duty and satisfies the technical trust requirements. Defendant asserts a theft defense, which under this timeline, still amounts to a defalcation while acting in a fiduciary capacity.

10-6584 Doc#25
10.27.2011 JRS

In re: Shinhan Bank America (Inc.) v. Kim

Denial of discharge under 11 U.S.C. § 727(a)(4)(A) for Debtor's knowing and fraudulent failure to disclose on her SOFA and Schedules $480,000 of income in 2008, 2009 and 2010 and a Rolex watch, among other things. At trial, Debtor admitted to failing to disclose $120,000 of rental income in 2008. She asserted that another $360,000 of undisclosed deposits into her personal accounts was not from income, but rather gifts and loan repayments. Because the definition of income for purposes of Questions 1 and 2 on the SOFA includes any receipt of money, the Court found the gifts and loan repayments should have been disclosed. Furthermore, in her 2009 divorce settlement agreement, Debtor acknowledged having sufficient income to support her children, but she disclosed no income for 2009 on her SOFA. Debtor admitted to failing to disclose the Rolex, but testified she did not think she had to do so because it was "aftermarket" and, in her opinion, not worth anything. The Court found it was not Debtor's place to determine whether the watch was worth disclosing. The Court found these and other omissions to be false oaths under § 727(a)(4)(A).

10-06500 Doc #:32
10.26.2011 WHD

In re MCB Financial Group, Inc.,

(denying trustee's motion to reconsider order lifting the automatic stay to permit bank to perform setoff of certificate of deposit), APPEAL filed 11/07/2011.

10-11176-whd, docket no. 66
10.23.2011 MGD

Gbolahan R. A. Eiowuawi

Order denying Debtor’s Motion to Bar City of Chicago from Reinstating Discharged Bankruptcy Debt. The Court construed Debtor’s motion as one to enforce the discharge injunction of 11 U.S.C. § 524. Debtor alleged that the city of Chicago violated the discharge injunction by seeking to enforce the payment of parking fines that were discharged in Debtor’s bankruptcy case. The Court found that parking fines are payable to a governmental unit and that their purpose was to enforce parking and traffic laws, not compensate the city for pecuniary loss. Consequently, the debts for the parking fines were excepted from discharge under 11 U.S.C. § 523(a)(7), and the discharge injunction was not violated.

09-75950 Doc#38
10.13.2011 WLH

Robert Trauner, as Chapter 7 Trustee v. Celio O. Burrowes (In re Burrowes),

Order denying Trustee’s Motion for Default Judgment on Trustee’s Objection to Discharge holding, inter alia, Trustee’s allegations pursuant to 11 U.S.C. § 727(a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) were conclusory in nature. The Trustee did not allege facts other than that the Debtor did not respond to a Rule 2004 order. Allegations did not include sufficient information from which the Court can conclude that the documents requested are necessary to the Trustee, that the withholding of the books and records was knowing, fraudulent or willful, or that facts supported the Trustee’s other allegations. Therefore, this matter is set for trial.

11-05254 Doc#10
10.11.2011 WHD

In re Buchanan,

(denying claimholder's motion for reconsideration and inclusion in final Chapter 7 distribution; claimant filed proof of claim after the Chapter 7 bardate, and there was evidence that the claimant had received notice and had actual notice of the filing of the bankruptcy case, such that section 726(a)(2) could not be applied to permit the payment of the late claim with timely claims).

07-11604 Doc#160
10.07.2011 REB

(In re: Stewart Raccuglia),

(Court denied Plaintiffs' motion for summary judgment on complaint to determine dischargeability of debt under 11 U.S.C. Sections 523(a)(2)(A), 523(a)(2)(B), and (a)(6) based on judgment obtained by default in New York state court. Court applied issue preclusion rules of New York, but found that various theories of recovery in the New York judgment, including breach of contract and negligence, were not limited to certain aspects of award and thus, could not support relief under the governing legal standards of the bankruptcy provisions at issue. Matter to proceed to trial).

11-2036 Doc#62
10.06.2011 MGD

Scarver v. Patel et al.,

Order denying Defendants’ motion to dismiss for failure to state a claim. Central to the decision was an analysis of whether sufficient facts were alleged under the Supreme Court’s Iqubal/Twombly standard as to the Debtor’s insolvency at the time of the alleged fraudulent transfers. It was determined that the fraudulent transfer claims had facial plausibility given the date of the transfers, the complaint’s allegation of insolvency, the date of bankruptcy filing, and scheduled assets and liabilities. Additionally, constructive fraudulent transfer claims were not subject to Rule 9's heightened pleading standard.

11-5103 Doc#25
10.03.2011 REB

(In re: Elizabeth M.S. Davis),

(Plaintiff-Debtor filed complaint asserting, among other things, that certain tax debt was not enforceable and was dischargeable because a state tax execution was not properly entered and became dormant. Court found Defendant complied with applicable state law (O.C.G.A. Sections 48-3-21; 48-2-56(e)(2); and 9-12-60) in filing its execution and re-recording same by filing nulla bonas. Motion for leave to amend complaint to seek determination of amount of tax liability denied. Judgment granted for Defendant on issue of nondischargeability of subject tax debt for failure to file required tax returns under O.C.G.A. Section 48-7-56)

11-2028 Doc#32
10.03.2011 MGD

Staten v. Walker (In re Walker)

The Court granted in part Plaintiff’s motion to quash subpoena. Defendant sought to depose Plaintiff and two others, and Plaintiff objected that discovery had closed. Defendant argued that the depositions were for the purpose of preserving evidence at trial. The Court granted the motion to quash because Defendant did not attempt to depose Plaintiff during the discovery period. Second, Plaintiff would be available for trial, making the preservation of evidence for trial unnecessary. Finally, the Court denied both Plaintiff’s and Defendant’s requests for sanctions because no authority was given to support either request.

11-4004 Doc#35
09.30.2011 MHM

Whitaker v. EMC Mortgage Corp. ;

(Jurisdiction: ripeness and common law causes of action)

09-9000
09.30.2011 MHM

Sun Nurseries, Inc. v. Conner ;

(stay modified to allow contingent creditor to pursue appeal of state court directed verdict in favor of Debtor)

11-50818
09.30.2011 MHM

Pettigrew v. Rollins ;

(Trustee's summary judgment motion denied because Trustee failed to show Debtor did not receive reasonably equivalent value for transfers from Debtor to his parents)

09-6054
09.29.2011 MGD

Terhune v. Houser (In re Houser)

The Court denied Plaintiff’s motion for summary judgment, finding that the application of collateral estoppel was improper and that Plaintiff failed to establish § 523(a)(4) and (a)(6) claims. Plaintiff’s state court jury verdict could not be used for its preclusive effect because it was not a final judgment. Even if the jury verdict was used, Plaintiff’s motion for summary judgment failed because the jury verdict did not make specific factual findings as to Debtor individually.

10-4095 Doc#18
09.29.2011 JB

In re Saintvil Family Irrevocable Trust,

(A trust is not eligible to be a Chapter 13 debtor and case must be dismissed. 11 U.S.C. § 109(e).);

11-74692 Doc#9
09.28.2011 MHM

In re Dye ;

(Because Debtor has no pecuniary interest in the estate and has no standing to interpose objections to claims of any creditor, no further such objections will be entertained and any further attempts to obstruct administration of this case may result in sanctions)

06-71024
09.28.2011 REB

(In re: Janice M. Bennett),

(Plaintiff U.S. Trustee sought summary judgment on complaint alleging violations of various provisions of 11 U.S.C. Section 110 regarding Defendant's efforts assisting Debtor as a bankruptcy petition preparer. Court granted motion and required return of monies and payment of fines, and enjoined Defendant from acting in such role in connection with other persons).

10-2109 Doc#30
09.27.2011 MHM

Ogier v. MERS ;

(Partial summary judgment granted to Trustee on elements of preferential transfer, late perfection of mortgage refinancing; summary judgment denied on Defendant's presented insufficient undisputed facts to prevail on affirmative defenses)

09-6017
09.27.2011 MHM

In re Buahin ;

(Debtor's attorney sanctioned with suspension and disgorgement of fee for inadequate representation)

09-65355
09.27.2011 MHM

In re Buahin;

(Petition preparer sanctions and enjoined under §110)

09-65355
09.22.2011 WHD

In re Williams,

(denying creditor's objection to debtor's exemption, as debtor's interest in funds garnished from her wages during the prepetition period had not been terminated at the time her petition was filed; thus the funds became property of her bankruptcy estate and were subject to exemption).

11-10804 Doc#25
09.21.2011 PWB

Perkins v. American Insurance Specialty Lines Ins. Co.

Although disappointed in professionalism of the lawyers, the court declines to award sanctions for filing of motion for protective order against second deposition under FRCP 30(b)(6) when party did not obtain leave of court for taking second deposition as FRCP 30(a)(2)(A)(ii) requires.

10-6090 Doc#89
09.18.2011 MGD

Citrus Tower Boulevard Imaging Center, LLC

Prior to the Debtor's Chapter 11 filing, the Debtor and its landlord were engaged in state court litigation. The landlord sought to evict Debtor and to determine damages under the lease. Debtor raised a setoff defense based on substantial improvements Debtor made to the building. The presiding state court judge heard two days of testimony before making a partial ruling on the amount of rents owing. The same day the state court order was entered, Debtor filed a Chapter 11 petition. The landlord now seeks relief from stay to continue the state court action. The landlord asserts that the lease terminated pre-petition by operation of Florida law and by the terms of the lease. The Court held that the lease was not terminated pre-petition. The state court complaint was insufficient written notice of termination based on Florida law disfavoring forfeiture provisions and the ambiguous language of the complaint. The stay was modified to allow the state court proceeding to continue for the purpose of determining the amount of pre-petition rent owing.

11-70284 Doc#71
09.15.2011 JB

In re Udell,

(Automatic stay lifted to, among other things, have state court determine if certain obligations in divorce decree are in the nature of support so as to constitute "domestic support obligation" under 11 U.S.C. § 101(14A). This is relevant to whether obligations will be discharged should debtor complete Chapter 13 plan payments. 11 U.S.C. §§ 1328(a)(2) and 523(a)(5).)

09-94073 Doc#111
09.13.2011 WLH

Janet G. Watts v. Peachtree Technology Partners, LLC, et al (In re Palisades at West Paces Imaging Center, LLC),

Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment holding, inter alia, (1) the Debtor’s payments to the Defendants to repurchase membership units and to settle disputes may be avoided under 11 U.S.C. §§ 544 and/or 548 if the facts show no reasonably equivalent value to the Debtor for the obligation and payments made, but disputed issues of fact and unknown facts remain; (2) no constructive trust had been imposed on funds making payment, so issues of fact remained as to whether the funds transferred were property of the estate; and (3) the Trustee’s claims are not time barred under 11 U.S.C. §§ 544 and 546, but some of the Trustee’s claims are time barred under 11 U.S.C. § 548.

11-05183 Doc#19
09.02.2011 JB

In re Anjanette Carter Rainey,

(Automatic stay lifted; repeated failure to pay filing fees.)

11-73752 Doc#16
09.02.2011 MGD

Kerr v. Commercial Credit Group, Inc., et al. (In re Siskey Hauling Co., Inc.)

Order denying Defendant’s Motion for Reconsideration after Court denied Defendant’s Motion for Summary Judgment. Defendant argued that the Court overlooked deposition testimony in the record that created a genuine issue of material fact as to Defendant’s knowledge of a lien. Defendant - a business entity - received a lien report showing the lien at issue. But Defendant argued that its employee failed to see the lien on the report and therefore Defendant had no knowledge of the lien. The Court ruled that the fact was immaterial and did not change the court’s legal conclusions. In the Eleventh Circuit, a business entity is held to have knowledge of a document’s contents if that document is received and placed in the business’s files.

10-6493 Doc#104
09.01.2011 MGD

Marvin Hewatt Enterprises, Inc. v. Mun,

Court granted Defendant’s motion for summary judgment on § 727 dischargeability issue. Defendant entitled to judgment as a matter of law because the transfer at issue did not occur within one year of Defendant’s filing bankruptcy, as required under 11 U.S.C. § 727(a)(2). And a scrivener’s error in the statement of financial affairs that was disclosed at the § 341 meeting of creditors did not constitute a false oath or account under 11 U.S.C. § 727(a)(4).

10-4013 Doc#32
09.01.2011 MGD

Marvin Hewatt Enterprises, Inc. v. Mun (In re Mun)

Order granting Plaintiff’s motion to amend complaint and granting Defendant’s motion for summary judgment. Plaintiff’s complaint sought denial of Defendant’s discharge under 11 U.S.C. § 727(a)(2) & (4). The Court granted summary judgment in favor of Defendant because the undisputed material facts defeated both of Plaintiff’s claims. The transfer at issue occurred outside the one-year limitation of § 727(a)(2), and the disclosure error cited for the § 727(a)(4) claim was unintentional and was corrected.

10-4013 Doc#32
08.30.2011 PWB

In re: Dry Creek Farms,

Regardless of whether an installment sale contract is an executory contract that is rejected, Debtor has an interest in the real estate, and the other party has a secured claim. A chapter 11 plan may deal with the claim.

09-43118 Doc #202
08.29.2011 JB

Provident Funding Associates, L.P. v. Faloye; Faloye v. Provident Funding Associates, L.P. and Mortgage Electronic Registration Systems, Inc. (In re Faloye),

(Motion for relief from stay is moot, as stay terminated under 11 U.S.C. § 362(c)(3)(A). Once property is abandoned, it is no longer property of the estate. Court has no jurisdiction to hear adversary proceeding involving property that is not property of the estate.)

11-5207 Doc#8
08.29.2011 WHD

Clower v. LeJardin at Baytown Wharf Condo. Assn',

(denying defendant's motion to dismiss debtor's complaint seeking damages for violation of the automatic stay, as the complaint alleged that the defendant filed a lawsuit prepetition, but served the summons on the debtor after the filing of the bankruptcy petition).

11-1021 Doc#9
08.25.2011 MGD

Windoor Inc. v. Heard,

Plaintiff’s motion for contempt and sanctions, including incarceration of Debtor, was denied because the order compelling Debtor to produce discovery responses was prepared by Plaintiff’s counsel and not served on Debtor. Serving the Order on Debtor’s former counsel did not effect service or provide appropriate circumstances to impose civil contempt sanctions on Debtor.

09-6338 Doc#53
08.23.2011 MGD

Avaya, Inc. v. Matthews et al. (In re Matthews),

Debtor was a majority shareholder in a corporation ("vTRax") that filed a pre-petition patent infringement suit against Avaya and other defendants. The patent infringement suit continued after Debtor filed a joint Chapter 7 case. The patent infringement suit was dismissed post-petition by the trial court when vTRax's counsel was allowed to withdraw from the case. Avaya is now seeking recovery of its attorneys' fees from vTRax and from Debtor and has filed a motion with the bankruptcy court so that its actions do not run afoul of the automatic stay. Avaya's motion is denied as to actions against the Debtor or the Debtor's estate. Avaya's actions against vTRax are not implicated. The Court found that the automatic stay prevented Avaya from seeking recovery from Debtor individually. Avaya’s attempt to limit the recovery of attorneys’ fees to post-petition periods was rejected. The caselaw supporting Avaya’s position was inopposite. Here, the plaintiff in the suit is distinct from the debtor. The corporate form provides insulation from personal liability. E.g., State ex rel. Continental Distilling Sales Co. v. Vocelle, 27 So. 728 (Fla.1948). Here, Debtor is not a party to the Patent Case. Debtor’s 80% ownership interest in vTrax did not automatically create any personal liability.

10-96519 Doc#95
08.22.2011 WHD

In re H & W Foodmart, LLC,

(granting UST's motion to dismiss Chapter 11 case because the petition was not properly authorized by the members).

11-11525 Doc#40
08.17.2011 WHD

Love v. Barner,

(granting plaintiff's motion for sanctions for defendant's failure to cooperate with discovery requests).

09-9001 Doc#35
08.16.2011 MGD

Kidd v. American Education Services et al.,

The Court granted Defendants’ motion for summary judgment, finding that Plaintiff’s debt qualified as student loan debt under § 523(a)(8)(A)(i). The non-profit played a meaningful role in the loan program, as the guarantee, and this role constituted “funding” the loan program under the statute. Plaintiff’s argument that § 523(a)(8) shouldn’t apply because she received no educational benefit was rejected. The statutory language doesn’t require educational benefit, and, by analogy, guarantors are subject to the scope of § 523(a)(8) even though they receive no educational benefit. Because § 523(a)(8) applied to the debt, any undue hardship defense asserted by Debtor would be assessed under the Brunner factors. The facts and circumstances already litigated and settled in the prior state court class action would be limited to relevant facts under the three-pronged Brunner test. The Court’s ruling was law of the case, applicable to all consolidated adversary proceedings.

09-6507 Doc#61
08.10.2011 JB

In re Camelot Club Condominium Association, Inc.;

(Case of debtor condominium association dismissed. 11 U.S.C. � 1112(b)(4)(A). Debtor could not present feasible plan of reorganization. Condominium Association is unlikely candidate for successful Chapter 11, because it generally has no mechanism for generating revenue other than the collection of association dues.)

09-62256 Doc#192
08.10.2011 REB

(In re: Steven Milton Crumley and Holly Ann Crumley),

(Defendant-Debtors moved to dismiss complaint of Plaintiff on grounds Plaintiff failed to state a claim upon which relief could be granted based on Fed.R.Bankr.P. 7012 and Fed.R.Civ.P. 12(b)(6). In the complaint, Plaintiff alleged Debtors' improper sale of collateral rendered resulting claim nondischargeble under 11 U.S.C. Section 523(a)(6) as arising from a "willful and malicious injury." Court denied motion and matter proceeded to trial. Stipulation of dismissal eventually filed).

11-2083 Doc#10
08.05.2011 JRS

In re Drummer;

Order denying motion for relief from stay to complete proceeding under Georgia law to foreclose Debtor’s equity of redemption on residence in connection with a tax sale pursuant to O.C.G.A. §§ 48-4-40 to -48. Three days after Debtor filed her Chapter 13 bankruptcy petition, Creditor served its notice of foreclosure of right to redeem, pursuant to O.C.G.A. §§ 48-4-45 and -46. Because the stay was in place at the time the notice was served, action was void pursuant to Section 362(a). Redemption price was about $13,200 and Debtor scheduled property for $55,000: therefore, Court found Movant was adequately protected. In addition, confirmation of proposed plan had not yet come on for hearing and Movant did not provide evidence to show that the property was not necessary to an effective reorganization. Court also found that the deadline to redeem the property was determined by the state statutory scheme and the expiration of that deadline could only be stayed pursuant to Section 108 and not Section 362.

11-54846 Doc#30
08.03.2011 MGD

Kerr v. Commercial Credit Group, Inc. et al.,

Defendant creditor moved for summary judgment on lien-priority issue, asserting a first-priority lien in debtor’s accounts receivable. The Court denied summary judgment, rejecting three arguments by Creditor. First, Court rejected argument that creditor was entitled to equitable subrogation as a matter of law. Creditor could not be equitably subrogated because it was guilty of inexcusable neglect. Creditor’s knowledge of an intervening lien and subsequent failure to appropriately structure its transaction to acquire the first-priority position constituted inexcusable neglect. The Court also rejected the argument that the estate had no interest in the accounts receivable. The estate had an interest because the accounts receivable were either never sold out of the estate or were sold subject to a lien in which the estate had a potential interest. Finally, the Court rejected the argument that creditor could use a fraudulent transfer action to avoid another party’s security interest in the accounts receivable. Fraudulent transfer actions under 11 U.S.C. § 548 can only be brought by the trustee, unless court approval and trustee consent is first obtained.

10-6493 Doc#96
08.03.2011 MHM

Suntrust v. Levell ;

(bankruptcy court lacks discretion to prevent Plaintiff's voluntary dismissal under FRCP 41(a)(1))

11-5112
07.27.2011 WHD

In re Pesante,

(denying Debtors' motion to enforce the automatic stay against utility company, as, under section 366, respondent had the right to terminate service when debtor failed to provide adequate assurance of payment for postpetition services).

11-11599 Doc#28
07.25.2011 MHM

In re Harman ;

(state court post-discharge order that creditor's claim was non-dischargeable was res judicata)

00-64335
07.22.2011 JB

In re Sanders;

(§ 521(i)(1) dismissal automatic. § 363(c)(3)(A) – automatic stay terminated 30 days after case filed. § 1328(f)(1) – debtor not eligible for Chapter 13 discharge as she received Chapter 7 discharge in a case filed within four years of the date the Chapter 13 was filed.)

11-55668 Doc#21
07.20.2011 PWB

Scott Brian Lopez;

Order sustaining Chapter 13 Trustee’s objection to debtor’s post-confirmation modification of plan. Plan that proposes to pay nothing to creditors during entirety of plan duration not proposed in good faith.

09-81662 Doc#54
07.18.2011 MGD

In re Richard Lamar Horner and Sherry Marie Horner

Order overruling objection to confirmation of chapter 13 plan. Secured creditor objected to plan confirmation on grounds that the plan did not provide payments to secured creditor equal to the value of the collateral securing its claim. An evidentiary hearing was held on the value of the collateral, and a dispute arose about which party has the burden of proof. The Court held that, in the context of a confirmation objection, the debtor has the burden of proof. In this case, Debtors met their burden and the secured creditor failed to rebut Debtors’ showing.

11-41012 Doc#19
07.12.2011 CRM

Gordon v. Hill et al. (In re Wilson),

Order granting the defendant, Ocwen Loan Servicing, LLC, summary judgment. The plaintiff claimed that Ocwen was liable for the unauthorized short sale after it had obtained relief from stay. The Court found that Ocwen was not liable because no injury occurred to the estate at the time it accepted a payoff, which was less than what it was entitled to receive as the secured creditor. Furthermore, Ocwen did not sell the property, did not receive any surplus funds owing to the estate, and could not have prevented the allegedly fraudulent and unauthorized sale.

08-06071 Doc#58
07.12.2011 CRM

Southern Golf Partners, LLC v. State Bank & Trust Co. (In re Southern Golf Partners, LLC),

Order dismissing the complaint for failure to state a claim upon which relief can be granted. The plaintiff alleged that the defendant was liable for breach of contract but failed to allege facts sufficient to state a plausible claim for relief. While the plaintiff’s pleading alleged that the plaintiff and defendant had entered into an integrated credit facility agreement covering both a line of credit loan and stand-by letters of credit, the attachments to the complaint contradicted the allegations. The defendant’s motion to dismiss was construed as a motion for judgment on the pleadings per Fed.R.Civ.P. 12(c) & 12(h), incorporated by Fed.R.Bankr.P. 7012. The Court also dismissed the defendant's counterclaim upon the defendant's request to pursue the claim in state court.

10-06644 Doc#34
07.11.2011 CRM

In re Jennings, & In re Hill,

Order holding lien stripping is permissible in chapter 13, where debtor is ineligible for a chapter 13 discharge because of a recent chapter 7 discharge (“chapter 20”), if the chapter 13 plan is filed in good faith. Whether lien stripping was permitted in a “chapter 20” case was relevant to plan confirmation in both the Jennings (11-50570-CRM) case and the Hill (10-88514-CRM) case.

11-50570 Doc#31, 10-88514 Doc#63
07.11.2011 PWB

Jose and Giovana Builes;

Secured lender bid in the Debtor’s real estate at a foreclosure sale that occurred a few hours before Debtors filed a Chapter 7 case. Because the Court granted retroactive relief from the automatic stay, the Court declined to address whether the mere conclusion of bidding at a foreclosure sale terminates a debtor’s equity of redemption when the lender is the high bidder.

11-56714 Doc#27
07.08.2011 PWB

Spencer R. Allen and Thomas J. Davis v. Kevin Loughery, Jr. -

Summary judgment granted on claim that debt is excepted from discharge under 11 U.S.C. § 523(a)(19) as debt for violation of federal securities law.

09-6380 Doc#36
07.08.2011 PWB

Jerry and Elizabeth Lichtenberg;

Debtor’s attorney ordered to show cause why fees should not be disallowed, reduced, or postponed, why sanctions should not be imposed, and why attorney should not be suspended from filing new cases, when attorney failed to appear at confirmation hearing and attorney who had been contacted to represent debtors at hearing after the time the hearing was scheduled to begin could not be prepared to represent them.

11-57671 Doc#27
06.30.2011 PWB

In re: Gayle v. Thompson,

Order denying motion for entry of default and default judgment. Even if answer to complaint is filed late, if it is filed prior to request for entry of default, clerk may not enter default, Fed. R. Civ. P. 55(a).

11-5202 Doc #7
06.29.2011 WLH

In re: Alonzo and Verlez Ward;

Order on creditor’s Motion for Relief from Stay to enforce a lien placed on funds in the Debtor’s deposit account at the creditor’s banking institution by way of setoff and the Debtor’s objection on the basis that the funds in the deposit account were social security benefits and not subject to the lien of the creditor under 42 U.S.C. § 407(a). The Court concluded that 42 U.S.C. § 407(a) did not prohibit the enforcement by the creditor of its lien on the deposit account in which social security funds were deposited, because the setoff did not use “legal process” and the Debtors would effectively be receiving the economic benefit of a claimed exemption twice. The Court held that the creditor was entitled to set off the liened funds.

11-53417 Doc#31
06.22.2011 MHM

In re Culver ;

(Sanctions: Debtor's attorney barred from filing cases until completion of CLE); entered 2011-06-22; DA complied with CLE requirement 6/28/11.

10-93189
06.20.2011 MGD

In re Pruitt,

Order directing United State Trustee to inquire whether Debtor was entitled to a discharge. Using §§ 727(c)(2) & 105(a), the Court sua sponte directed the United States Trustee to investigate whether grounds exist to deny Debtor’s discharge. The Court wanted further inquiry into the possibility that Debtor had an undisclosed history of bankruptcy filings.

11-52442 Doc#36
06.17.2011 MGD

Bahraini v. Urbaez (In re Urbaez),

Order granting Defendants’ motion to dismiss for Plaintiff’s failure to properly effectuate service of process.

11-5092 Doc#9
06.17.2011 WHD

Ford v. Opperman,

(Denying plaintiff's motion for summary judgment on claim that debt was nondischargeable under section 523(a)(2).).

adversary proceeding 08-1702-whd, docket no. 20
06.13.2011 PWB

In re: CSX Transportation, Inc. v. Brian K. Leggett.

The debtor and the creditor consented to judgment in the District Court and to a finding of fact that the debtor had "wrongfully and knowingly" converted creditor's property. The consent judgment does not have issue preclusive effect in dischargeability litigation under 11 U.S.C. section 523(a)(6) because the finding of fact does not establish that the debtor acted without just cause or excuse, which is necessary in order for conduct to be "willful and malicious."

08-6009 Doc#49
06.10.2011 JRS

In re: Advance Fin. Corp. v. Gross

Order following trial, determining Plaintiff failed to prove Debtors incurred debt through fraud under 523(a)(2)(A). Plaintiff and a company owned by Debtors entered into a receivables financing agreement pursuant to which Debtors' company submitted invoices and requested funding on a recurring basis. Debtors, as officers and guarantors, made certain representations in writing concerning their company's financial condition at the time of the agreement and agreed, at that time, that those representations would also apply to future funding requests, but no written representations were made at the time of the future requests. Plaintiff claimed subsequent requests for funding were fraudulent because, at the time, Debtors did not disclose pending vendor lawsuits or a contemplated Chapter 11 filing. The Court found (1) Debtors representations at the time of the agreement were made in good faith, and the evidence did not show Debtors made any reaffirmations of those representations at the time of their subsequent funding requests; (2) Plaintiff failed to show that Defendants intended to deceive Plaintiff at the time the agreement was signed or at the time of subsequent requests; and (3) even if Debtors had made reaffirmations of their initial representations, they were not actionable under section 523(a)(2)(A) because they and the initial representations themselves were statements with respect to Debtors’ or an insiders' financial condition.

10-6065 Doc#49
06.08.2011 WLH

Michael and Karen McClelland (Pollitt v. McClelland),

Order on a Complaint objecting to dischargeability of certain debt pursuant to 11 U.S.C. §§ 523 (a)(2)(A), (a)(2)(B) and (a)(4) after trial. The Court first determined Debtor’s personal liability for funds transferred and then concluded that certain of the funds were converted by the Debtor, the conversion occurred with fraudulent intent and the Debtor’s acts constituted embezzlement under Section 523(a)(4). All other transfers were either not the debt of the Debtor or were dischargeable.

AP 09-9030 (Docket No. 94)
06.07.2011 MGD

FIA Card Services, N.A. v. Coulter (In re Coulter),

Order denying Plaintiff’s Motion for Default Judgment because Plaintiff’s own evidence and Debtor’s response rebutted the presumption of nondischargeability available under § 523(a)(2)(C). The facts as presented were insufficient to award judgment to Plaintiff without the benefit of the presumption.

10-6598 Doc#8
06.06.2011 JRS

In re: Hraga,

Debtors' Motion to Retain Tax Refund, filed by Joint Debtors, Mohammed Hraga and Renee Hraga, was granted to the extent Mr. Hraga could exempt the refund and denied to the extent he could not, and it was denied to the extent Mrs. Hraga sought an exemption in the refund. Agreeing with the analysis in In re Evans, No. 10-10077-WHD, 2010 WL 6612501 (Bankr. N.D. Ga. 2010), the Court found that because the entire refund was attributable to Mr. Hraga's income, the refund in its entirety was the sole property of Mr. Hraga at the time of the bankruptcy filing and that Renee Hraga was not entitled to an exemption.

11-54704 Doc#41
06.03.2011 MHM

Jones v. Deutsche Bank ;

(State court order is res judicata)

10-9039
06.02.2011 WHD

In re Cox,

(Denying Trustee's objection to claim; secured lender's deficiency claim arising from foreclosed security deed was not unenforceable under state law, notwithstanding lender's failure to confirm another foreclosure sale on a related property.).

08-13461 Doc#131
05.31.2011 JRS

In re: PHA Lighting Design, Inc.,

Chapter 11 Plan Confirmation denied as neither fair nor equitable and for failure to comply with the "absolute priority rule" of 11 U.S.C. section 1129(b). Debtor's principle sought to retain 100% of his stock in the Debtor and retain a $150,000 salary per year. The shareholder's legally unenforceable "commitment" to cover operating losses for the first year after the confirmation of the plan did not satisfy the absolute priority rule under a plan which proposed to pay only $17,441 to non-insider unsecured creditors over four years when they were owed $600,000.

10-74787 Doc#86
05.26.2011 CRM

In re Chambers,

Order determining that campaign contributions made to a candidate for public office (“campaign funds”), who files bankruptcy without incorporating the campaign, are property of the bankruptcy estate. Whether the campaign funds constitute property of the estate was an issue relevant to confirmation of a chapter 13 plan. The Court found that campaign funds were property of the estate pursuant to section 541 of the Bankruptcy Code. The Court also found that the restrictions placed on a candidate’s use of campaign funds by the Georgia state campaign finance law did not prevent the campaign funds from being property of the estate.

10-90157 Doc#72
05.26.2011 MHM

Pullen v. Harris;

(Topic: Liens; Subtopic: Fair Debt Collection Practices Act and attempted wrongful foreclosure); entered ; motions for reconsideration denied 2011-04-29 (Doc. No. 84) and 2011-05-26 (Doc. No. 125). Notice of appeal filed 2011-05-13 (Doc. No. 98).

10-6355
05.25.2011 REB

In re: Jess J. Childress & Lori B. Childress

(Defendant sought summary judgment on complaint of Plaintiff-Debtor regarding dischargeability of certain tax liability under 11 U.S.C. Sections 523(a)(1) and 507(a)(8)(C) & (E). Court entered judgment in favor of Defendant, finding that Debtor failed to create fact issue pertaining to argument that sales and use taxes at issue were actually excise taxes under state law and not nondischargeable trust fund taxes. See O.C.G.A. Section 48-8-30 et seq.)

10-23983 10-2187 Doc#9
05.25.2011 WHD

In re Castillo,

(Granting debtor's motion for sanctions arising from a violation of the automatic stay; damages consisted of lost wages and attorney's fees, but not punitive damages.).

11-10108 Doc#57
05.24.2011 JB

Bailey v. U.S. Bank National Association (In re Bailey);

(Debtors' objection to proof of claim by U.S. Bank sustained as creditor has not demonstrated its right to receive payment under any confirmed plan in this case. Exhibits do not establish transfer or assignment of note or security deed from original lender.);

10-96570 Doc#65
05.17.2011 WHD

Carson v, United States of America,

(Finding obligations nondischargeable pursuant to section 523(a)(2)(C).).

09-1069 Doc#27
05.05.2011 MGD

In re Diplomat Construction, Inc.,

Order approving the Chapter 7 Trustee motion to compromise and settle claims with State Bank of Texas. A third party made an equal offer of settlement and agreed to fund the ongoing litigation. The Court held an evidentiary hearing and approved the proposed settlement, evaluating the counter proposal and proposed settlement under the Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544 (11th Cir. 1990). Specifically, found that the evidence showed a low probability of success on the merits and significant complexity, especially given the counter proposal’s offer of joint control of the litigation.

09-68613 Doc#248
04.27.2011 WHD

In re Coffee,

(Granting debtor's motion to reopen case for purpose of filing a complaint to determine dischargeability of a student loan debt; denying debtor's motion for an immediate injunction against student loan creditor's collection activities for lack of proper service.).

07-12822 Doc#52
04.19.2011 PWB

Perkins v. AISLIC (IMA CASE),

Court denies motion for protective order with regard to request for second deposition under Rule 30(b)(6) where second deposition involves subject matter outside the knowledge of first Rule 30(b)(6) deponent and party opposing discovery declined to identify employee with such knowledge; party opposing discovery required to show cause why court should not award expenses, including attorney’s fees, to party opposing motion for protective order.

10-6090, Doc 73
04.14.2011 JB

In re Revola Fontaine;

(Motion for relief from stay granted on rental property. Creditor has a colorable claim and has attached an assignment of rights under the security deed.)

10-98793 Doc#33
04.12.2011 MHM

Gordon v. Ameriquest Mortgage Corp. (In re Fischer);

(The stricter pleading standards of Iqbaland Twombley apply to affirmative defenses)

08-6521
04.07.2011 MHM

U.S. Trustee v. McCutcheon,

(Debtor's waiver of discharge in prior case was not defective or invalid)

10-6226
04.06.2011 PWB

Burke v. Riddle (In re Riddle),

Order granting motion to dismiss 523(a)(2), (3), (4), (6) complaint pursuant to Rule 12(b)(6) for failure to state claim upon which relief may be granted.

10-4088 Doc#12
04.04.2011 WLH

Kwang Cha Yi (Shrader v. Yi),

Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment relating to claims pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(2)(B), and (a)(4). The Court concluded that no genuine issue of material fact remained under Section 523(a)(2)(A) as to Defendant’s representation concerning the establishment of a sports bar; under Section 523(a)(2)(B) concerning an oral contract; under Section 523(a)(4) concerning fraud or defalcation while acting in a fiduciary capacity; and under Section 523(a)(4) for embezzlement of corporate funds. The Court concluded, however, genuine issues of material fact remained under Section 523(a)(2)(A) regarding the Defendant’s alleged misrepresentations of intent to repay, Plaintiff’s stake as a fifty percent (50%) shareholder in the corporation, and the use of Plaintiff’s investment in the operation of the business, and under Section 523(a)(4) for embezzlement of Plaintiff’s investment.

AP 09-6742 Doc#37
04.01.2011 PWB

In re Atlantis Plastics,

Watson, Ch. 7 Trustee v. Powell, et. al. - Adversary Proceeding No.: 10-6349-PWB, Chapter 7 Trustee’s amended complaint seeks to recover allegedly fraudulent transfers and the Defendants moved to dismiss it for failure to state a claim on which relief can be granted because it did not allege existence of creditor with a claim arising prior to transfers. O.C.G.A. § 18-2-74(a)(2)(A) permits a post-transfer creditor to avoid, as constructively fraudulent, a transfer for less than reasonably equivalent value that occurs when the debtor was engaged or was about to engage in a business or transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. Motion to dismiss denied.

NOT INTENDED FOR PUBLICATION

08-75473 Doc#11
04.01.2011 PWB

In re Danny D. Moore and Brenda C. Moore,

Chapter 13 Debtors failed to give notice of filing to Pawnbroker to which they had pawned two motor vehicles. After the Pawnbroker, without knowledge of the bankruptcy case, repossessed them, Debtors sought return of the vehicles and damages on the ground that the Pawnbroker violated the automatic stay. The Court concluded that the pawned vehicles were no longer property of the estate at the time of their repossession because the Debtors had not taken affirmative steps to redeem them in accordance with Georgia’s pawnshop laws and that, consequently, the Pawnbroker did not violate § 362(a)(3)’s prohibition on obtaining possession of property of the estate. Section 362(a)(3) also prevents an entity from obtaining possession of property from the estate. The Court declined to decide whether this provision applies when a Chapter 13 debtor is in possession of non-estate property with no legal basis for such possession because, in the circumstances of this case, the Pawnbroker was entitled to annulment of the stay retroactively to the date the Pawnbroker repossessed the pawned vehicles. Consequently, the debtors were not entitled to return of the vehicles or to any damages.

09-41226 Doc. # 61
04.01.2011 PWB

In re Danny D. Moore and Brenda C. Moore,

Chapter 13 Debtors failed to give notice of filing to Pawnbroker to which they had pawned two motor vehicles. After the Pawnbroker, without knowledge of the bankruptcy case, repossessed them, Debtors sought return of the vehicles and damages on the ground that the Pawnbroker violated the automatic stay. The Court concluded that the pawned vehicles were no longer property of the estate at the time of their repossession because the Debtors had not taken affirmative steps to redeem them in accordance with Georgia’s pawnshop laws and that, consequently, the Pawnbroker did not violate § 362(a)(3)’s prohibition on obtaining possession of property of the estate. Section 362(a)(3) also prevents an entity from obtaining possession of property from the estate. The Court declined to decide whether this provision applies when a Chapter 13 debtor is in possession of non-estate property with no legal basis for such possession because, in the circumstances of this case, the Pawnbroker was entitled to annulment of the stay retroactively to the date the Pawnbroker repossessed the pawned vehicles. Consequently, the debtors were not entitled to return of the vehicles or to any damages.

09-41226 Doc. # 61
04.01.2011 MHM

Pullen v. Harris;

(Demand that Plaintiff file discovery responses denied)

10-6355
04.01.2011 MHM

Pullen v. Harris;

(Sanctions imposed on Defendant's attorney for failure to timely notify Plaintiff's attorney of inability to attend deposition)

10-6355
04.01.2011 MHM

Pullen v. Harris;

(Fair Debt Collection Practices Act and attempted wrongful foreclosure)

10-6355
04.01.2011 MHM

Kerr v. Cressaty Metals, Inc. (In re Christou);

(Striking jury demand)

08-6402
04.01.2011 MHM

Cannon v. IRS;

(Debtors failed to file timely return; Plaintiff's tax liabilities are not dischargeable because the assessments for those tax years are not based on returns filed by taxpayers but instead are based on substitute returns created by IRS)

09-6400
04.01.2011 MGD

In re Hall,

Order overruling Debtor’s objections to claims. Debtor’s objections were all based on the claims’ non-compliance with Rule 3001. Even without the presumption of prima facie validity under Rule 3001(f), the Debtor’s sworn schedules and statement of financial affairs provided a sufficient basis to allow the claims, especially where no other creditor was asserting such debt.

10-98992 Doc# 41
03.31.2011 MHM

Ward v. Johnson & Freedman, LLC;

(Failure to state a claim under Fair Debt Collection Practices Act)

10-6517
03.30.2011 JRS

Jefferson v. Hedd-Williams (In re Hedd-WIlliams)

Collateral estoppel does not bar litigation of the issue of whether Debtors caused "willful and malicious injury" under section 523(a)(6) when a state court previously determined that Debtors were liable for “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” under O.C.G.A. Section 51-12-5.1(b) without making any additional findings. Motion for summary judgment denied.

AP 10-06091 Doc#21
03.29.2011 MGD

In re Meninger

Reconsidering its earlier Order, and pursuant to Bankruptcy Rule 9024 and Rule 60(b)(1), Debtor’s objection to claim was sustained finding excusable neglect.

09-63791 Doc#45
03.29.2011 MHM

U.S. Trustee v. Poch ;

(While appeal pending, bankruptcy court may enter order extending time to maintain "status quo")

10-6304
03.29.2011 MHM

Katz v. Miles;

(Extension of time to file discharge or dischargeability complaint denied)

09-92601
03.28.2011 MHM

U.S. Trustee v. Stewart (In re Sam's Enterprises, Inc.);

(Sanctions and injunction against petition preparer)

10-6063
03.28.2011 WHD

In re Dixson,

bankruptcy proceeding , entered (denying motion to declare reaffirmed debt discharged for failure to state a claim and denying motion to declare reaffirmed debt discharged for lack of proper service).

09-12786 Doc#27
03.28.2011 WHD

Griffin v. Bayview Loan Servicing, LLC,

(granting motion to dismiss complaint for sanctions lack of standing and recommending dismissal of non-core claims for lack of standing and lack of subject matter jurisdiction).

10-1002 Doc#15
03.25.2011 WLH

Arnold Scott Meredith (Durhamtown Plantation Sportsman’s Resort LLC v. Meredith),

Order Denying Defendant’s Motion for Summary Judgment on Plaintiff’s Complaint objecting to the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(4). Plaintiff contended Debtor failed to list in the Schedules alleged claims against the Plaintiff for injuries to his minor child and alleged claims against Debtor’s wife for a share of her recovery for injuries to the minor child. The Court concluded that factual issues remained concerning the possible existence of the claims and the intent of the Debtor.

AP 10-6528 Doc#15
03.23.2011 WHD

Matthers v. Matthers,

(order allowing plaintiff to file an amended complaint to allege facts to support cause of action under section 727; absent such an amendment, the Court would dismiss the complaint, as all claims, if any, held by the plaintiff were already nondischargeable).

10-1044 Doc# 9
03.21.2011 WLH

Buckhead Oil Company, Inc. (Ogier v. Steele, et. al),

Order Granting Trustee’s First Motion for Partial Summary Judgment on a Complaint that sought, among other theories of recovery, to disallow claims filed by the Defendants. The Court concluded that the claims filed by the Defendants based on subrogation or payment on guaranties are disallowed. Each guaranty contained a waiver of all claims in Debtor’s bankruptcy case for any amount arising out of or related to the guaranties. The Court concluded that such waiver was enforceable under Georgia law and the Trustee was a third-party beneficiary of the guaranty entitled to assert the waiver on Debtor’s behalf.

AP 10-6301 Doc#16
03.21.2011 MHM

Griff v. Marsh,

(failure to state a claim–application of Iqbal/Twombly standard)

10-6198
03.18.2011 WHD

In re Simpkins,

(concluding that movant had an obligation upon receiving actual knowledge of a Chapter 7 bankruptcy case to inquire as to whether a claims bar date had been set and that imposing such an obligation on the movant did not violate due process).

10-10293 Doc# 58
03.17.2011 MHM

Milburn Partners, LLC v. Miles ;

(Granting Rule 12(b)(6) motion to dismiss)

10-6229
03.17.2011 MGD

ARC Real Estate, LLC v. Richards (In re Richards),

Plaintiff’s motion for default judgment in a nondischargeability action was granted over Defendant’s objection thereto. Defendant failed to move to set aside the default, and since Defendant failed to answer, the facts in the complaint were deemed admitted, as provided by Fed. R. Civ. P. 8(b)(6). Additionally, the asserted defenses by Defendant had no merit. Defendant sought protection from her personal liability on the subject debt by asserting that only the limited liability company entered into the contract. A corporate officer cannot use the corporate shield to avoid liability for fraud which is committed by such officer. Defendant’s assertion that Plaintiff failed to make out the loss requirement for an actual fraud claim was also unsuccessful. Plaintiff’s judgment in a state court suit was sufficient evidence to prove loss.

10-4100 Doc#10
03.14.2011 MHM

In re Miles ;

(DA denied compensation for period after appointment of Ch11T)

09-92601
03.11.2011 WHD

In re Bank,

(granting debtors' motion to reopen case for purposes of seeking a determination of dischargeability of debt pursuant to section 523(a)(3)).

03-12904 Doc#31
03.11.2011 WHD

Medlin v. Bell, et al.,

(order following trial, determining plaintiff failed to prove debtors incurred debt through fraud).

09-1076 Doc#19
03.10.2011 MHM

Dye v. Litton Loan Servicing, LP

(Sua sponte dismissal under Rule 12(b)(6)); entered

11-5099
03.10.2011 MHM

In re Miles Properties, Inc. ;

(Approval of incentive-based severance payment to insider)

10-60797
03.10.2011 JB

RK Hospitality, LLC,

(Chapter 11 case filed by LLC without counsel dismissed since corporate debtor must be represented by counsel and cannot appear through shareholders, officers or members.)

11-52483 Doc#15
03.10.2011 MGD

Chase Bank USA N.A. v. Peters (In re Peters),

Order denying Plaintiff’s motion for default judgment for a § 523(a)(14) claim because the facts as alleged were insufficient to warrant an award of judgment to Plaintiff. Sufficiently pleading a § 523(a)(14) claim incorporates requirements under §§ 523(a)(1) and 507(a)(8).

10-6316 Doc#7
03.10.2011 JRS

In re Ladha

Untimely Rule 4007 motion for extension of time to file an objection to discharge under 11 U.S.C. section 523(a)(2), (4), and (6) denied. Equitable tolling was not justified. Movant did not support its assertions that Debtor actively misled it regarding the cause of action. Further, though a snowstorm prevented movant from filing its complaint on January 11, 2011, it should have filed the very next day the court was open, and filing eight days after the Court reopened was not sufficient. Though it based its decision on the abovementioned factors, the court also discussed whether equitable tolling of the time to file under Rule 4007 is permissible under any circumstance in the eleventh circuit (See Kontrick v. Ryan, 540 U.S. 443 (2004); Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988)).

10-89992 Doc#60
03.08.2011 JB

Maxx Redwine,

(Hardship discharge granted in Chapter 13 case where debtor passed away. 11 U.S.C. § 1328(b) and Fed. R. Bankr. P. 1016.)

09-84032 Doc#68
02.28.2011 MGD

Gordon v. Martinson (consolidated estates of In re Vaugh and In re MC Vaugh, LLC)

Order granting Trustee’s motion for default judgment as to Defendant Kathy Martinson on avoidance claims. The transfers at issue were not part of Debtor’s prior Chapter 7 bankruptcy estate, nor were the transfers affected by Debtor’s discharge.

10-06106 Doc#14
02.25.2011 MHM

Silliman v. Kennebec Lumber Co. (In re Samy Santa Flooring Depot, Inc.) ;

(Topic: Evidence; Subtopic: Business records exception to hearsay rule. Topic: Preferential transfer; Subtopic: Ordinary course of business exception);

09-6571
02.25.2011 MHM

In re Hellhoff ;

(Topic: Discharge Injunction; Subtopic: omission of creditor from schedules in no-asset case does not prevent discharge and imposition of the §524 discharge injunction)

09-81880
02.25.2011 MGD

In re McCarthy,

Order denying Debtor’s motions to reopen and invalidate a foreclosure sale based on the Court’s lack of subject matter jurisdiction. Debtor was discharged and the estate was fully administered. The property at issue was no longer part of the bankruptcy estate and there was no action this Court could take as to the payment dispute issues raised by Debtor because the allegations did not concern any debt that was discharged or that was subject to the discharge injunction.

03-64009 Doc#211
02.24.2011 MHM

In re Tawfik ;

(Topic: Discovery; Subtopic: Rule 2004 exam scheduled before § 341 meeting is premature)

11-53598
02.23.2011 MGD

In re Coscarelli

The Court denied the car creditor’s motion to dismiss the Chapter 13 case with prejudice and modified the automatic stay to all the car creditor to continue with the pending state court litigation. Considering Debtor’s filing history within the context of the car creditor’s state court litigation schedule, Debtor’s behavior had prejudiced the car creditor enforcing its rights. Because Debtor’s plan provided the car creditor with adequate protection, the interests of each party were served by allowing Debtor to prosecute its Chapter 13 case and modifying the automatic stay to allow the car creditor to pursue its pending state court action.

11-51097 Doc#21
02.18.2011 CRM

Liberty Cmty. Mgmt., LLC v. Hall (In re Hall),

Order granting motion to reconsider and vacate the court's previous order sanctioning movant for violation of the automatic stay. The issue on reconsideration was whether the attempt to collect post-petition condominium association assessments violated the automatic stay. The Court held that such assessments are not pre-petition claims based on sections 101(5) and 362(a) of the Bankruptcy Code. The Court rejected the respondent's argument that the obligation to pay post-petition assessments is in the nature of contractual duties. Instead, the Court found that obligations to pay post-petition assessments are in the nature of covenants that run with the land and do not arise as claims until assessments are made, as provided by state law.

07-67762 Doc#73
02.15.2011 JB

William Keith Davidson,

(Dismissal of Chapter 13 case under 11 U.S.C. §§ 109(g)(1) and 349(a). Case dismissed with debtor ineligible for filing for 180 days.)

10-86690 Doc#52
02.09.2011 JEM

In re Richfield 81 Partners II, LLC;

Debtor moved to value a portion of the collateral (unimproved land) securing a debt owed to a bank and guaranteed by third parties in connection with a plan of reorganization proposing to transfer that portion of the collateral to the bank in full satisfaction of its claim. Following an evidentiary hearing, the court denied the motion, finding that the evidence did not prove the value of the property at issue and therefore failed to show that its value was the indubitable equivalent of Respondent’s claim.

10-73883 Doc #84
02.08.2011 PWB

In re Green Hobson Riddle, Jr.,

Based on credible and uncontroverted evidence of value of real estate, court confirms chapter 11 plan providing "dirt for debt" treatment of one secured creditor over its objection pursuant to the "cram-down" provision of 11 U.S.C. section 1129(b).

10-42735 Doc#186
02.08.2011 MGD

Hix v. Flood (In re Hix)

Order granting Defendants’ Motion to Stay Proceeding and Compel Arbitration. Plaintiff initiated adversary proceeding seeking damages for non-core breach of contract claim. Construction contract between Plaintiff and Defendant contained arbitration clause compelling arbitration of contractual disputes. The Federal Arbitration Act and Supreme Court precedent require the Court to enforce the arbitration clause, and the adversary proceeding was therefore stayed pending arbitration.

10-4070 Doc#9
02.02.2011 WHD

In re Foster,

(denying motion to withdraw as counsel for failure to send notice of intent to withdraw to client filing the motion to withdraw).

06-12013-whd, docket no. 79
02.02.2011 WHD

In re Watson,

(granting motion to reconsider disallowed claim).

10-10424 Doc#36
02.01.2011 PWB

Francene McCloud

Chapter 7 discharge does not affect lien on debtor’s residence. Lender did not violate discharge injunction by proceeding with foreclosure; by sending a letter to “occupant” providing information about imminent foreclosure and procedures for an occupant to apply to continue to live in the property; or by advising debtor that she is not eligible for the Home Affordable Mortgage Program because her personal liability for the debt was discharged. Court denied Debtor’s motion to reopen the case to assert claims against the lender because she had shown no colorable basis for the grant of any relief if the court reopened it. NOT INTENDED FOR PUBLICATION

NOT INTENDED FOR PUBLICATION

01-42676 Doc13
01.31.2011 PWB

Janice Bernice Crowe,

Individual, who had brought postdischarge lawsuit against debtor and mortgage lender sought to reopen the debtor’s bankruptcy case to obtain reconsideration of stay relief order. In denying the motion, the Court noted that the stay relief order did not determine any substantive rights or have any preclusive effect in the pending litigation. The court also questioned whether the debtor’s attorney could properly decline to discuss with her the effect of her bankruptcy case on the individual’s actions in bringing the lawsuit against the debtor. NOT INTENDED FOR PUBLICATION

NOT INTENDED FOR PUBLICATION

09-84906-pwb, Doc. # 25
01.31.2011 REB

In re: Hannah Hyun Lee & Leo Richard Lussier

(Plaintiff sought determination of nondischargeability of certain debt arising from retail charges under 11 U.S.C. Sections 523(a)(2) and with regard to presumption period set forth in 523(a)(2)(C). Court denied Plaintiff's motion for summary judgment, directing case to trial on issue of Debtor's intent in making disputed charges.)

09-21406 09-2080 Doc#20
01.24.2011 WLH

In re: Brenda Kate Stewart-Harrel

Order on Trustee’s objection to confirmation of Chapter 13 plan under 11 U.S.C. § 1325(a)(3) and 11 U.S.C. § 1325(b)(1). The Court held that a plan which proposes to pay unsecured creditors in full, but without interest, satisfies the requirements of 11 U.S.C. § 1325(b)(1)(A), and, therefore, the Debtor is not required to pay all of her available net income into a plan to satisfy a trustee’s objection under section 1325(b)(1)(A). However, issues of good faith remained under 11 U.S.C. § 1325(a)(3).

10-77244 Doc#24
01.24.2011 JEM

In re Howell;

Disclosure Statement in Chapter 11 case disapproved for not providing “adequate information” within the meaning of 11 U.S.C. § 1125 because it provided no facts or analysis to show that the plan was superior to liquidation and no information to show how Debtor would generate the earnings needed to fund the plan.

09-91538 Doc #86
01.13.2011 WHD

The Woodbury Banking Co. v. Hatchett,

(granting summary judgment in favor of creditor and finding debt for embezzlement nondischargeable).

10-1020 doc#14
01.07.2011 PWB

Ogier v. UPAC Insurance Financial (In re Bauer Agency, Inc.)

Trustee’s complaint sought to avoid fraudulent or preferential transfers of $18,700, together with additional transfers made within applicable time periods and“reserved” the right to amend to assert additional claims. The Court concluded that because the complaint put the defendant on notice of the trustee’s intent to recover all avoidable transfers, the trustee did not have to amend the complaint to assert avoidance claims in excess of those originally stated. Alternatively, any amendment to the complaint would relate back. Because the defendant had not timely moved to dismiss the complaint for failure to state a claim on which relief can be granted, the court did not decide whether it met requisite pleading standards. NOT INTENDED FOR PUBLICATION

NOT INTENDED FOR PUBLICATION

07-06641 Doc#39
01.07.2011 PWB

In re Lester,

The Court avoided a creditor’s judgment lien under 11 U.S.C. § 522(f) only to the extent that it impaired an exemption in the one-half interest originally titled in the debtor’s name. The Court determined the amount of the lien that was not avoidable with regard to that one-half interest and ruled that the lien was fully enforceable against the one-half interest titled of record in the name of the debtor’s deceased wife. The Debtor did not provide information from which the court could determine whether the debtor inherited some or all of his deceased wife’s interest. NOT INTENDED FOR PUBLICATION

NOT INTENDED FOR PUBLICATION

10-72768 Doc#28
01.06.2011 PWB

Amos Carlton Jackson, Jr.,

Court declines to confirm Chapter 13 plan containing nonstandard provisions with regard to treatment of nonmodifiable mortgage that impose certain affirmative duties on lender. The Court concluded that the provisions were not appropriate because they were either surplusage, impermissibly modified the mortgage, or imposed procedural requirements that neither the Bankruptcy Rules nor the Court’s local rules and procedures contemplate.

10-42730-pwb, Doc. # 22
01.06.2011 MGD

Siskey v. Kerr (In re Siskey Hauling Co., Inc.)

Order Denying Defendant’s Motion to Dismiss. Plaintiff, the Chapter 7 Trustee, commenced adversary proceeding to avoid alleged fraudulent transfers between Debtor and Defendant under 11 U.S.C. § 548(a)(1)(A). Defendant moved to dismiss based on failure to state a claim or, in the alternative, for a more definitive statement. The Court ruled that Plaintiff stated a valid claim because Plaintiff alleged fraudulent transfers with sufficient particularity to allow an inference that Defendant was liable. First, Plaintiff alleged the parties involved, their insider relationships, the date, amount, and method of transfers, and the condition of indebtedness between the parties. Moreover, Plaintiff set forth adequate badges of fraud to allow an inference of fraudulent intent, such as a subsequently insolvent transferor and the transfer of assets to or for the benefit of an insider. Finally, requiring Plaintiff to make a definitive statement was inappropriate. Plaintiff plead sufficient factual detail and clear legal bases. Thus, the complaint was not so vague or ambiguous as to be unintelligible, and Defendant was able to respond.

10-6493 Doc#38
12.29.2010 MHM

In re Thomas;

(SSI is excluded from projected disposable income; but Debtor's retention of SSI income while paying unsecureds 0% is not good faith);

10-67280
12.28.2010 WHD

In re Evans,

(discussing the allocation of ownership of a tax refund between joint debtor spouses).

10-10077 Doc# 24
12.20.2010 MGD

Wells Fargo Bank, N.A. v. Henderson (In re Henderson),

The Court annulled the automatic stay and validated the post-petition foreclosure sale. Debtor asserted an interest in the property at issue based on an unrecorded “joint tenancy deed,” which was admitted into evidence. The grantor in the “joint tenancy deed” was the party on the note and security deed with Wells Fargo. The Court heard testimony from the Debtor and determined that annulling the stay was appropriate under § 362(d)(4). Debtor failed to establish that he had any interest in the property because the “joint tenancy deed” was unrecorded and incomplete. Additionally, Debtor’s testimony lacked credibility regarding the purported notice he provided to Wells Fargo in advance of the foreclosure sale. Debtor’s bankruptcy history and the absence of prosecution of this case evidenced that his Chapter 13 case was not filed in good faith. Therefore, the stay was annulled and the foreclosure sale was validated to the extent otherwise valid under Georgia law.

10-89458 Doc#14
12.17.2010 MGD

Vision Building Materials, LLC,

Order granting trustee’s motion to sell property over the objection of creditor asserting a right to reclamation. Creditor did not have a reclamation right because it failed to timely assert that right in compliance with the provisions of 11 U.S.C. § 546(c). And Creditor could not exercise its state law right to reclamation, as § 546(c) provides the exclusive right to reclamation in bankruptcy.

10-81106 Doc#102
12.16.2010 WLH

Bradley and Linda Lowery (Lewis v. Lowery),

Order Granting in Part and Denying in Part Plaintiff’s Motion for Summary Judgment regarding claims of nondischargeability under 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6). Plaintiff’s assertion of summary judgment relied upon the doctrine of collateral estoppel, which was based upon the entry of a Superior Court order prior to the filing of the Debtor Defendant’s bankruptcy petition under Chapter 7.

09-6771 Doc#34
12.14.2010 MGD

GMAC Mortgage, LLC v. Bryant (In re Bryant),

Order granting GMAC’s motion for an order confirming no stay is in effect. The Court found that Debtor was ineligible pursuant to § 109(g)(2) since GMAC had a motion for relief in Debtor’s prior Chapter 13 case when it was voluntarily dismissed by Debtor within the applicable 180-day period. The Court, however, made the distinction that ineligibility does not necessarily mean the stay is not in effect. Based on Debtor’s ineligibility and § 362(b)(21), it was confirmed that no automatic stay prohibited GMAC from exercising it state law remedies.

10-95778 Doc#9
12.07.2010 WLH

in re: Lou A. Cassell,

Order on Trustee’s objection to Debtor’s proposed exemption of an annuity under O.C.G.A. § 44-13-100(a)(2)(E). The Court concluded that the annuity identified in the Debtor’s schedules was an annuity exemptible under O.C.G.A. § 44-13-100(a)(2)(E) and the payments under such annuity were on account of age. The Court further provided an opportunity for the Trustee to request a hearing as to the whether the payments under the annuity were reasonably necessary for the support of the Debtor.

10-74119 Doc#44
12.02.2010 MGD

Donne Fisher, LLC v. Boone (In re Boone),

Order granting Plaintiff’s motion to compel discovery and award attorney’s fees in the amount of $2,500.00. Defendant did not dispute that no written responses to Plaintiff’s request for production of documents had been served. Without the written responses or objections, there was no discovery dispute for the Court to resolve. Based on Defendant’s failure to comply with the request and in accordance with Rule 37, the Court awarded $2,500.00 in attorney’s fees.

10-6209 Doc#20
11.26.2010 MGD

In re Willis,

Order overruling Plaintiff’s objection to claim. The objection was based on the creditor’s failure to comply with the documentation requirements of Federal Rule of Bankruptcy Procedure 3001(c). The creditor did not respond or appear to defend the objection; however, the Court determined that there was no proper basis to disallow the claim. The record, including Debtors’ own sworn statements and schedules, provided support for the claim. The Court declined to disallow a claim based solely on the creditor’s failure to attach the documentation required with Rule 3001(c).

10-75584 (Docket No. 37)
11.26.2010 MHM

In re Sullivan ;

(DSD executed by Debtor/guarantor in his corporate capacity was invalid to convey security interest in Debtor's real property);

10-6242
11.15.2010 JB

McMillen v. Syndicated Office Systems, Inc. d/b/a Central Financial Control (In Re: McMillen;

(Filing duplicate proofs of claim does not give rise to a claim under the Fair Debt Collection Practices Act (FDCPA). Filing a proof of claim (even one that is invalid) cannot constitute the sort of abusive debt collection practice proscribed by the FDCPA. Filing a proof of claim is not an activity against a consumer debtor; it is a request to participate in the distribution of the bankruptcy estate. Complaint does not state a claim under 15 U.S.C. §§ 1692e(2)(A), (5) or (10). Adversary proceeding is dismissed under Rule 12(c).);

AP 09-6611 Doc#20
11.10.2010 MGD

In re Buck,

Order denying Plaintiff’s post-confirmation modification, which sought to change the applicable commitment period (“ACP”) from sixty months to thirty-six months based on a reduction in income. The Chapter 13 Trustee objected, contending that post-confirmation modifications could not change Debtors’ ACP. Based on the Eleventh Circuit’s In re Tennyson holding, the Court determined that ACP is a temporal concept and that the Congressional intent of BAPCPA included requiring above-median debtors to remain in their Chapter 13 plan for five years. The Court also determined that § 1329 incorporates § 1325(b)’s disposable income test. Admittedly § 1325(b) is not explicitly included in the language of § 1329. However, §§ 1325 and 1329, read together, demonstrate that § 1325(b)’s disposable income test is incorporated into post-confirmation plan modifications. Section 1325(a) is referenced in § 1329 and § 1325(a) provides, “[e]xcept as provided in subsection(b).”

07-41187 Doc#42
11.10.2010 WHD

Melin v. Howard, et al.,

(denying summary judgment to plaintiff as to defendant's liability for fraud damages arising from defendant's alleged forging of deed to secure debt pledging debtor's interest in real property as security for a loan).

08-1047 Doc#96
11.09.2010 MHM

In re Lofton ;

(Case reopened to allow Chapter 7 trustee to evaluate previously undisclosed asset. Creditor had filed motion to dismiss in state court on grounds of judicial estoppel)

09-77895
11.09.2010 WLH

Kenneth and Susan Rudmose,

Order Denying United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b)(3). The Court concluded that based on the totality of circumstances, the Debtors’ financial condition does not demonstrate abuse.

10-74514 Doc#30
11.08.2010 MHM

Williams v. Carson ;

(Adversary Proceeding dismissed for Plaintiff's failure to submit pretrial order)

07-9050
11.08.2010 MHM

In re Johnson ;

(Chapter 13 case dismissed with prohibition to refiling and order for Debtor's attorney to show cause why sanctions should not be imposed for bad faith filing)

10-86408
10.28.2010 WHD

In re Martin,

(denying debtor's motion to set aside dismissal of case on the basis that debtor is not eligible to be a debtor and the US Trustee opposes reconsideration of the dismissal of the case).

NOT INTENDED FOR PUBLICATION

10-11152 Doc# 29
10.26.2010 WLH

Barbara R. Barker,

Order on Debtor’s Objection to Claims addressing issues of the claimants’ standing to assert claims under divorce decree on behalf of deceased father, dying intestate, where no administrator was appointed.

07-70036 Doc#94
10.25.2010 PWB

Norwood v. Bank of America (In re Norwood),

Order dismissing complaint for failure to state a claim for relief. Challenges to Bank’s standing to seek relief from stay and validity of its lien did not state a claim for relief because the Bank had not sought stay relief in the case and the Bank had no lien since it was the owner of the property based on a foreclosure. Complaint, supported by a purported cease and desist order and “certified forensic loan audit,” is nonsensical.

AP 10-6458, Doc. 6
10.25.2010 MHM

In re Mitchell ;

(Monetary sanctions for attorneys' negligent improper payment of settlement proceeds)

06-62937
10.22.2010 WHD

In re Hyatt,

(denying motion of debtor's counsel to withdraw as attorney of record due to his failure to comply with BLR 9010-5).

10-13186 Doc#12
10.22.2010 JEM

Pilgrim’s Pride Corp. v Certain Growers;

Reorganized debtor that is a defendant in an adversary proceeding in another bankruptcy court lacked standing to bring motion to quash subpoenas duces tecum to individuals in connection with that litigation because it did not show it had a personal right or privilege regarding the subject matter of the subpoenas.

NOT INTENDED FOR PUBLICATION

10-609 Doc. #11
10.21.2010 WLH

Kareem J. Dewberry, Sr.,

Order Denying Movant’s Objection to Proof of Claim filed by Bank of America as successor by merger to LaSalle Bank National Association as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates, Series 2005-HEIO, its Successors and/or Assigns. Court held claimant made prima facie case because (i) note was endorsed in blank, (ii) claimant submitted affidavit of possession of original note, (iii) claim included properly executed assignment of security deed and all indebtedness secured thereby, (iv) Debtor scheduled servicer and had no competing demands for the payments, and (v) Debtor submitted no evidence to rebut prima facie claim.

10-60155 Doc#57
10.14.2010 WHD

Georgia Lottery Corporation v. Hunt,

(granting summary judgment on behalf of plaintiff and finding debt owed to Georgia Lottery Corporation nondischargeable pursuant to section 523(a)(4)).

09-1095 Doc#17
10.12.2010 PWB

Allen v. Loughery (In re Loughery);

Order denying plaintiffs’ motion for judgment on the pleadings. Order granting partial summary judgment entered in district court action not entitled to preclusive effect with respect to 523(a)(19)(A) because partial summary judgment order does not meet “finality” requirement for purposes of issue preclusion.

AP 09-6380 Doc#16
10.08.2010 WLH

Southern Bowling Inc. (Lubin v. Georgia Commerce Bank),

Order Granting in Part and Denying in Part Cross Motions for Summary Judgment holding (1) a foreclosure advertisement for the sale of realty inadequate to foreclose on and convey title to certain personal property described in the security deed; and (2) factual issues remain as to whether pin setters and bowling alley lanes are fixtures.

AP 09-6045 Doc#14
10.01.2010 MHM

In re Mattison;

(attorney suspended due lack of capacity/incompetence);

09-87487
09.30.2010 MHM

In re Compann ;

(In Chapter 13 case, gross (not net) monthly business income is used in determining Current Monthly Income and applicable committment period);

09-82626
09.27.2010 MHM

Tyree v. Guzman ;

(D is entitled to turnover of personal property seized prepetition by sheriff under writ of fi. fa.; title transfers upon sale, not levy);

10-68797
09.27.2010 MGD

In re: Georgia Lottery Corporation v. Mathai Koshy and Mariamma M. Koshy;

Order denying Defendants’ motion to dismiss because Plaintiff stated a claim under 11 U.S.C. § 523(a)(4) upon which relief can be granted and timely filed its complaint pursuant to Federal Rule of Bankruptcy Procedure 4007(c).

10-06329 Doc#8
09.24.2010 WLH

Jewel Rogers Waddy,

Order Denying Debtor’s Objection to Fulton County Tax Commissioner’s priority tax claim, because the Debtor was the owner of the real property for the tax years in question and, therefore, personally liable for the ad valorem taxes assessed against the property in those years, notwithstanding stay relief granted to the holder of security deed.

09-64634 Doc#75
09.24.2010 MHM

Kerr v. Cressaty (In re Christou and In re Atlas Mortgage Corp.) ;

(Fraudulent conveyance: what constitutes good faith)

08-6402
09.24.2010 MHM

Kerr v. Hart (In re Christou and In re Atlas Mortgage Corp.) ;

(Fraudulent conveyance: what constitutes good faith);

08-6420
09.24.2010 MHM

Johns v. Washburn

(Dischargeability under §523(a)(15));

09-6620
09.24.2010 MHM

Gajaanan Investment, LLC v. Vanjaria and Lorgat ;

(Dischargeability: fraud in sale of business);

09-6516
09.24.2010 MGD

Shapiro v. Hudson (In re Hudson),

Order granting Plaintiff’s motion to add an indispensable party and to substitute a party where a dissolved corporation sought to substitute the sole shareholder, officer and director. Because the corporation was dissolved more than five years ago, O.C.G.A. § 14-2-1422, the corporation could not be reinstated to prosecute this action. Under Georgia law, where a close corporation has one shareholder, upon dissolution, the dissolved corporate assets immediately transfer to the sole shareholder. Finding that the judgment against Defendant was a transferable asset, the sole shareholder could be substituted as a party to prosecute this nondischargeability action.

09-6534 Doc#13
09.24.2010 MGD

In re Howard,

Lessor objected to the certification in Debtor’s petition that stated that landlord had a judgment against her to take possession of the residence, but that applicable state law permits debtor to cure the entire monetary default that gave rise to the judgment. Lessor moved for an expedited hearing pursuant to § 362(l)(3)(A) to object to Debtor’s certification. Under Georgia law, O.C.G.A. § 44-7-49, once a landlord obtains a writ of possession, the landlord has no legal obligation to accept rent from the debtor-tenant. The Court also found that an exception to the automatic stay was applicable to these facts as provided by § 362(b)(22) in sustaining Lessor objection and determining that the automatic stay was not applicable.

10-86721 Doc#13
09.24.2010 CRM

In re Barkley;

Order granting the defendant’s motion for summary judgment. Debtor initiated an adversary proceeding to determine the dischargeability of debt owed to the IRS. The defendant’s motion asserted the debtor willfully evaded payment of taxes by failing to withhold the required amount of taxes from draws made on her IRA account, dealing in cash, and supporting an expensive lifestyle. The court granted the motion for summary judgment because the defendant proved the conduct requirement and the mental state requirement of section 523(a)(1)(C) by a preponderance of the evidence and the plaintiff failed to credibly challenge the defendant’s assertions.

09-6549 Doc#20
09.24.2010 CRM

In re Barkley;

Order granting the defendant’s motion for summary judgment. Debtor initiated an adversary proceeding to determine the dischargeability of debt owed to the IRS. The defendant’s motion asserted the debtor willfully evaded payment of taxes by failing to withhold the required amount of taxes from draws made on her IRA account, dealing in cash, and supporting an expensive lifestyle. The court granted the motion for summary judgment because the defendant proved the conduct requirement and the mental state requirement of section 523(a)(1)(C) by a preponderance of the evidence and the plaintiff failed to credibly challenge the defendant’s assertions.

09-6549 Doc#20
09.17.2010 JB

Courtney S. and Douglas D. Bailey,

(Rule 4004(c)(2) - motion to delay entry of discharge denied. The purpose of Rule 4004(c)(2) is to give debtor time to decide to reaffirm a debt, not to extend the automatic stay. Bankruptcy courts do not typically rule on objections to proofs of claim in no asset Chapter 7 cases, since the point of filing a proof of claim is to obtain a distributive share in the assets of the proceeding.);

10-62834 Doc#61
09.10.2010 MGD

Bryan v. Jackson (In re Jackson),

Plaintiff’s request for entry of default was denied based on improper service. Plaintiff failed to comply with Federal Rule of Bankruptcy Procedure 7004(b)(9) which requires service of process on a debtor at the address shown on the petition. Service of process on Debtors’ purported attorneys is insufficient on its own to effectuate service and providing the Court with jurisdiction.

10-6027 Doc#10
09.09.2010 WLH

Kiamsha Community Development Corp. Inc,

Order finding Debtor’s counsel in violation of Fed. R. Bankr. P. 9011(b) by filing of bankruptcy petition, under the circumstances of the case.

10-72520 Doc#29
09.07.2010 MGD

Jordan v. HSBC Bank of Nevada, N.A. (In re Jordan),

Order denying Plaintiff’s motion for default judgment without prejudice because sufficient facts were not alleged to entitle Plaintiff to an award of judgment. Plaintiff’s claim was based on § 522(h) using § 547. However, the complaint failed to allege facts sufficient to make out the elements of a preference claim.

10-6260 Doc#5
08.30.2010 PWB

in re: CSX Transportation, Inc. v. Brian K. Leggett

Creditor timely filed action to determine nondischargeability of debt under sections 523(a)(2), (a)(4), and (a)(6) based on consent judgment in the District Court in which the Debtor acknowledged that the debt would be excepted from discharge under those sections but failed for over two years to serve summons and the complaint. On the Debtor's motion to dismiss and the Creditor's motion to extend time for service under Fed. R. Civ. P. 4(m), applicable under Fed. R. Bankr. P. 7004(a), the Court concluded that good cause for an extension of time did not exist but that, in its discretion, it would extend the time for service for ten days in view of the fact that the Creditor's claim would otherwise be time-barred, the Debtor would not be prejudiced other than by having to defend the lawsuit, and the Debtor should not be able to use a procedural deficiency to avoid defending on the merits when he had expressly agreed that the debt would not be dischargeable in the earlier litigation.

NOT INTENDED FOR PUBLICATION

08-6009 Doc. #21
08.30.2010 REB

In re: Jerry Dwayne Gibson & Delynn Gibson

(Dispute concerning dischargeability of loan indebtedness under 11 U.S.C. Section 523(a)(2)(A). Complaint also set forth objection to discharge under 11 U.S.C. Sections 727(a)(2), (a)(3), and (a)(4). Court denied Defendant-Debtors' motion for summary judgment stating that Plaintiffs made sufficient case for proceeding to trial on issue of Debtors' intent in entering into loan transaction.)

09-23929 10-2077 Doc#10
08.25.2010 CRM

Lyons v. United States Internal Revenue Service;

The matter was before the court on the defendant’s motion for summary judgment. The defendant alleged that the debtor willfully evaded the payment of taxes by failing to file tax returns and causing a controlled entity to pay his personal expenses, make payments to his wife, and purchase vehicles for his use. The court granted the defendant’s motion for summary judgment because the plaintiff/debtor failed to provide sufficient evidence to raise a genuine issue of material fact.

09-09024 Doc#30
08.25.2010 PWB

in re: Robert Clark Gilbert

Plaintiffs in a pending state court action in which the debtor and others are co-defendants obtained an order for the Rule 2004 examination of the debtor. The other defendants then filed a motion to prohibit the examination as an attempt to obtain discovery in the state court action after the time for discovery had expired. The Court denied the objection.

10-41047 Doc. #46
08.23.2010 JB

In Re Bailey,

(Automatic stay terminates against property that is no longer property of the estate and terminates with respect to other acts when the case is closed or a discharge is granted. Disputes regarding assignment of deed do not involve bankruptcy law and stay is lifted to permit parties to litigate their disputes in state court.)

10-62834 Doc#56
08.23.2010 MGD

Douglas County Board of Commissioners v. Quarterman

Order granting Plaintiff’s motion for summary judgment, declaring debt as non-dischargeable under § 523(a)(6). The Court found that the undisputed material facts show that Defendant filed frivolous lawsuits against Plaintiff pre-petition in state courts, knowingly caused Plaintiff to incur legal fees to defend against those suits, and was adjudged liable for those legal fees. The undisputed facts were, in part, based on Defendant’s failure to respond to request for admissions. Therefore, under FRCP 36(a)(3), the statements are admitted as true. Further, the Court held that Plaintiff’s nondischargeability suit was timely. Plaintiff had no knowledge of Debtor’s bankruptcy until four days before the bar date for § 523(a)(6) nondischargeability actions, as provided by Fed. R. Bankr. P. 4007(c). This debt falls under the protections in § 523(a)(3)(B) and was not discharged because Plaintiff was neither listed or scheduled.

09-6399 Doc#26
08.23.2010 MGD

Douglas County Board of Commissioners v. Quarterman,

Order denying Defendant’s motion to amend pleadings. The Court found no good cause had been shown. Defendant was not diligent in his actions and his motion was a delay tactic. The acts at issue in this adversary proceeding had taken place from 2006 to 2009. No discovery or additional facts were needed or sought. The Court also stated that the amendment was futile and filed after motions for summary judgment.

09-6399 Doc#25
08.17.2010 CRM

In re R & B Construction, Inc;

Order granting the debtor’s objection to claim. The creditor alleged that it held a materialmen’s lien on the debtor’s property. The court held that the creditor failed to properly perfect its claim by filing a notice of the commencement of an action to enforce the debt within 14 days of the commencement of an action as required by O.C.G.A. § 44-14-361.1(a)(3). Also, the debtor’s failure to file an adversary proceeding was excusable as “harmless error” under Fed. R. Bankr. P. 9005 and Fed. R. Civ. P. 61 because the creditor was given adequate notice, an opportunity to file briefs, and a hearing.

08-62023-CRM (jointly administered with 08-62029-CRM) (Docket #873)
08.13.2010 CRM

RD Legal Funding, L.P. v. Mark Robinson;

Order granting the plaintiff’s motion for summary judgment to the extent that it objected to the court’s jurisdiction. The plaintiff and the defendant sought a determination of their relative interests in legal fees awarded to the debtor. The court held that it did not have jurisdiction because the proceeding was not “related to” the bankruptcy case. The property was not property of estate and it was highly unlikely that resolution of the dispute would impact the estate.

09-06445 (Docket #41)
08.09.2010 MGD

In re Vasko,

Order denying an objection to a Rule 2004 examination. Debtor’s daughter filed this Chapter 7 bankruptcy case pursuant to a power of attorney. The Court previously ruled that the power of attorney as presented was sufficiently broad to include the filing of bankruptcy. The Chapter 7 Trustee’s motion to examine Debtor’s daughter was granted and Debtor’s daughter objected. Her objection was based on the basis that the power of attorney, originally relied upon to file the bankruptcy case, was invalid under Pennsylvania state law. The objection was denied based on judicial estoppel.

09-79334 Doc#72
08.04.2010 MHM

Pullen v. Cornelison ;

(Damages in legal malpractice case)

AP 07-6220
07.30.2010 MHM

In re Bowen;

(Sanctions imposed against debtors' attorney who failed to submit proposed order and failed to respond to communications from court and Chapter 13 Trustee);

BK 09-70395
07.23.2010 MGD

In re: Anderson,

Order denying Debtor’s motion for sanctions, arising out of an alleged willful violation of the automatic stay. The Court found that the property at issue was not property of the estate and, therefore, not protected by the automatic stay. In particular, Debtor signed the security agreement related to the property at issue in his capacity as president of his corporation, not as an individual.

10-72072 Doc#21
07.15.2010 CRM

In re Magnolia Beach, LLC

Order granting the creditors’ motions for summary judgment. The debtor failed to deliver the condominium units in accordance with the construction agreements. The debtor alleged that the material and labor shortages caused by hurricanes in 2005 excused its performance. The court held that, under Florida law, material and labor shortages are not grounds to excuse performance.

07-79221 (Docket # 456)
07.15.2010 MGD

in re: Walton v. Cooper,

Order granting United State Trustee’s motion for summary judgment and denying Debtor’s discharge under § 727(a)(8) where Debtor received a discharge in a prior Chapter 7 case less than eight years before the present Chapter 7 case was filed.

10-6151 Doc#6
07.12.2010 PWB

In re Barnes

Although only a debtor may seek to defer entry of discharge under Rule 4004(c)(2), the court may enlarge the time to file a reaffirmation agreement under Rule 4008(a). The effect is the same since Rule 4004(c)(1)(J) provides that, upon expiration of deadlines for objecting to discharge or filing a motion to dismiss, a the court shall grant a discharge unless a motion to enlarge the time to file a reaffirmation agreement is pending.

10-72796 Doc. #26
07.12.2010 MGD

Terry v. Owens,

Order denying Defendant’s motion to dismiss for failure to state a claim and denying motions for summary judgment filed by both Plaintiff and Defendant. The facts alleged in the complaint were sufficient provided enough facts to infer each element of the nondischargeability claims under § 523(a)(2)(A) & (B). Material facts were in dispute and an award of summary judgment to either party was unwarranted.

09-6417 Doc# 25
07.02.2010 WHD

In re Shelley,

(denying debtor's motion to reopen case as reopening case and setting aside dismissal would serve no bankruptcy purpose).

09-60496 Doc#37
07.01.2010 MHM

In re Poch;

(Bcy court may enter order extending deadlines while appeal is pending)

bankruptcy case No. 08-68429
06.29.2010 PWB

In re Baker,

Order granting chapter 13 debtor’s motion to strip wholly unsecured second priority deed to secure debt, but noting that because the property is owned jointly by the debtor and his non-filing spouse from whom he is separated, only his interest in the property is property of the estate. As a result, the lien continues to exist on the non-filing spouse’s interest in the property.

NOT INTENDED FOR PUBLICATION

BK 10-67569 Doc. #31
06.28.2010 MHM

Haysman v. Georgia Department of Revenue ;

(Debtor is not "responsible person," so that unpaid sales and payroll taxes are not D's personal liability)

AP 08-6564
06.22.2010 MHM

Gordon v. GMAC (In re Patterson);

(DSD not timely perfected)

AP 08-6442
06.21.2010 MGD

Gordon v. Graybeal,

Order denying Defendant’s motion to dismiss for failure to state a claim because Trustee made sufficient factual allegations to support its claims for preference avoidance under section 547 and recovery and avoidance and recovery of a fraudulent transfer pursuant to section 548(a)(1)(A)

10-6105 (Docket No. 10)
06.17.2010 MGD

In re Bell,

Order granting the Chapter 13 Trustee’s motion to amend Debtor’s Chapter 13 plan, finding that section 1329(a) explicitly provides the Trustee with standing to modify the plan and under the facts of this case–Debtor’s schedules did not properly disclose $120,000 in non-exempt property and the Chapter 13 plan, providing a zero percent distribution to unsecured creditors, without objection – Trustee’s motion to modify is warranted.

07-74432 (Docket No. 69)
06.15.2010 MGD

Dixon v. World Finance Corporation of Georgia,

The Court entered an Order granting Plaintiff’s uncontested motion to amend, denying Plaintiff’s motion for summary judgment, and denying Plaintiff’s second motion to amend to add a state law claim. Plaintiff sought Truth in Lending Act (“TILA”) damages resulting from a 2009 car loan. Defendant included the cost of single interest vehicle insurance in the amount financed. The Court determined that this inclusion did not violate TILA because the requirements under 12 C.F.R. § 226.4(d)(2) were satisfied. Language excepting the waiver of subrogation rights with fraud was insufficient to amount to a violation under this TILA disclosure requirement of waiver of all subrogation rights. Plaintiff’s second motion to amend was denied because the factual allegations as stated were futile.

10-06022 (Docket No. 17)
06.14.2010 REB

In re: John Robert Cracknell

(Dispute over whether payment of certain debt ordered under divorce decree constituted domestic support obligation under 11 U.S.C Section 523(a)(5) and/or (a)(15). Summary judgment granted in favor of Plaintiff.)

09-21812 09-3005 Doc#15
06.11.2010 MGD

In re Diplomat Construction, Inc.,

Order denying a creditor’s motion for allowance and payment of Chapter 11 administrative expense where the creditor sought allowance of a Chapter 11 administrative expense for franchise services it provided the Debtor from December 1, 2009 to March 31, 2010. Since the Court never approved the franchise contract, and the services were provided after the senior secured creditor obtained relief from stay and a court-appointed receiver was appointed, the expenses were not necessary or actual expenses necessary to preserve property of the estate. The creditor reported that it received payment for the period prior to the court-appointment receiver was put in place.

09-68613 (Docket No. 209)
06.10.2010 MGD

Hays v. Shaw,

Order granting Plaintiff’s motion for default judgment was based on the allegation of sufficient facts to grant turnover under § 542(a) and enjoining Debtor to enter property at issue.

10-06025 (Docket No. 6)
06.04.2010 1455

In re JLT Enterprises, Inc.,

Order allowing Debtor’s counsel to use carve-out funds from post-petition financing agreement with bank for unpaid allowed attorneys’ fees, this finding relied upon the terms of the Court’s earlier order allowing the fees (Docket No. 167) and In re US Flow Corp., 332 B.R. 792 (Bankr. W.D. Mich. 2005); In re Rite Industries, Inc., 2000 Bankr. LEXIS 2116 (Bankr. M.D.N.C. 2000).

10-40129 (Docket No. 179)
06.04.2010 MGD

Ragsdale v. Arnold,

Order denying Defendant’s motion to dismiss was based on a finding that service was proper pursuant to Rule 7004(g) and that despite the complaint failing to specify a nondischargeability subsection under 523, the factual allegations were sufficient to make out a section 523(a)(2)(A) claim.

09-04107(Docket No. 19)
06.03.2010 MGD

In re Harmon,

Order imposing sanctions on the law firm of Semrad and Associates and designated individuals for a pattern or practice of filing documents with the Court, which included an electronic signature from the Debtor, yet the information actually signed by the Debtor on file either differed from the signed document in the file or there was no signed document on file. Sanctions were imposed pursuant to Rule 9011 for these violations of Local Rules 5005-7(b) and 5005-5(c), which govern electronic filing practice. Imposition of sanctions was based on testimony at the show cause hearings and the report submitted by the United States Trustee. The United States Trustee selected two hundred cases to review and found the following: discrepancies including changes to: (1) property valuation, (2) claims valuation, (3) the security status of creditors’ claims, (4) the list of creditors, (5) the statement of financial affairs, (6) the means test form, and (7) the terms of the proposed Chapter 13 plan. The report noted “that in almost every case, the Semrad firm modified the date the debtors signed the petitions.” Also, in three of the twenty-two cases, the debtors appeared to have signed uncompleted Chapter 13 Plan with zeroes,” with the actual terms of the plan completed after the signing.

09-84515 (Docket No. 22)
06.02.2010 MGD

Walton v. Heard,

Order granting Plaintiff’s motion for default judgment where sufficient facts were alleged to grant the United States Trustee’s objection to discharge under § 727(a)(8).

10-06079 (Docket No. 6
06.02.2010 MGD

FIA Card Services, N.A. v. Longmore,

Order partially granting Plaintiff’s motion for default judgment where there was sufficient factual allegations in the record to invoke the presumption of nondischargeability under section 523(a)(2)(C).

09-06374 (Docket No. 7)
06.01.2010 PWB

In re Tessema,

Motion or complaint to strip off wholly unsecured junior lien in chapter 13 must be predicated on a chapter 13 plan that provides for such a modification. Because plan was silent as to treatment of claim, motion to strip off unsecured junior lien on residence in chapter 13 denied without prejudice.

NOT INTENDED FOR PUBLICATION

10-64124 Doc#21
05.28.2010 PWB

William Edward Butler,

Chapter 13 debtor contends that he has funds in a bank account that have been attached by a creditor who may be a branch of the German government. The Court has exclusive jurisdiction of the debtor's property under 28 U.S.C. 1334(e)(1) and because the account is in the United States no question of the extra-territorial reach of this jurisdiction is presented. Because jurisdiction of the property of the estate is in rem, any sovereign immunity does not preclude exercise of jurisdiction. The bank is obligated under section 542(b) to pay the funds to the trustee; if the creditor has an interest in the funds, the funds constitute cash collateral that cannot be used without providing adequate protection. In order to facilitate administration of the case, the court orders payment of the funds in the account into the registry of the court, with any liens to attach to the funds, pending further order and enters a bar order requiring the bank and the creditor to assert any interest in the account, in the absence of which any such interest will be deemed waived and forever barred.

10-41489 - Doc#26
05.27.2010 MGD

Gordon v. U.S. et al.,

Order granting U.S.’s Motion for Summary Judgment and denying Trustee’s Motion for Summary Judgment where Debtor and non-Debtor spouse’s claimed joint tax refunds were found not to be property of the estate because there is a distinction between Debtor’s right to a refund and the actual claimed funds. Therefore, Trustee’s willful stay violation or turnover claims were denied. Trustee’s theory of recovery under § 724(b) was also denied. Trustee’s letter to an attorney at the Department of Law was insufficient notice to provide actual notice or knowledge of Debtor’s bankruptcy to Georgia Department of Revenue, a separate legal entity. Summary Judgment for Trustee’s turnover claim was awarded to Georgia Department of Revenue.

09-6091 Doc#63
05.25.2010 MGD

In re Henderson,

Order denying Movant’s Motion for Relief from Stay to pursue state court litigation. Movant represented that it sought to litigation the pending state court litigation to judgment and use res judicata in this court to obtain a non-dischargeability judgment against Debtor. The Court was not persuaded that Movant’s strategy was more efficient or convenient and the motion was denied.

10-65398 Doc#24
05.13.2010 PWB

CYJA, Inc. v. Koo,

Order denying motion to dismiss for insufficient service of process and insufficient process. A motion asserting these defenses must be made before pleading and, because the defendant did not raise it and preserve it as an affirmative defense in answer filed 4 months earlier, the defenses were waived.

AP No. 09-6586, Doc. 21
05.13.2010 MHM

In re Olusoga;

(Exemption from prepetition credit counseling granted)

10-67122
05.12.2010 PWB

In re Rose,

Unemployment compensation benefits are included in "current monthly income."

09-70088 Doc#39
05.10.2010 JB

Lynn Ann Celestin,

(Trustee's objection to exemptions sustained. Debtor claimed exemptions in amounts owed under a stock purchase agreement and a related non-compete agreement. Amounts owing are property of the estate, and there is no exemption under Georgia law that would permit debtor to retain the funds. 11 U.S.C. § 541(a)(6). O.C.G.A. § 44-13-100. Georgia statute O.C.G.A. § 44-13-18 is not applicable.)

09-89133 Doc#86
05.10.2010 CRM

Tyrone Lamar v. Citibank, N.A.;

Order denying the debtor’s motion for default judgment. The debtor sought to strip the second lien on his personal residence pursuant to 11 U.S.C. § 506. Although the record indicated that the creditor had an allowed secured claim, the debtor asserted that the lien was not secured when it was created because the value of senior liens exceeded the value of the residence. The court held that the value of an allowed secured claim can not be determined until the petition is filed. By the time the petition was filed, the creditor had an allowed secured claim; therefore, the debtor could not strip the lien.

10-06008 (Docket #6
05.10.2010 CRM

Chase Bank v. Oh;

The creditor filed a complaint to determine the dischargeability of a credit card debt under 11 U.S.C. § 523(a)(2). The court denied the creditor’s motion for default judgment because the complaint relied on implied representations of the debtor’s financial condition when she used the credit card.

09-06515 (Docket #9)
05.07.2010 WHD

Walton v. Hodges

(granting motion to set aside entry of default).

AP 09-1112 Doc#7
05.07.2010 JEM

In re Nestel;

Motion to approve compromise was denied because the attorney filing the motion did not represent the debtor in the Chapter 13 case but rather in tort litigation and notice of the settlement terms and of the hearing were not served on all creditors as required by Bankruptcy Rule 2002(a)(3).

09-60947 Doc #81
04.30.2010 PWB

In re Benson

Order appointing guardian ad litem for chapter 13 debtor pursuant to Bankruptcy Rule 1004.1.

10-64761-PWB, Doc. No. 21
04.29.2010 REB

In re: Edward Stalnaker II

(Court granted judgment on the pleadings in favor of Plaintiff concerning whether obligation in question (expenses Debtor had been ordered to pay in connection with certain litigation among the parties in another forum) constituted a domestic support obligation under 11 U.S.C. Section 523(a)(5) and/or (a)(15).)

09-23362 Doc#17
04.28.2010 MGD

TI Acquisition, LLC v. Southern Polymer, Inc.,

Order granting Plaintiff’s Motion for Partial Summary Judgment and denying Defendant’s Motion for Partial Summary Judgment, holding that a creditor that delivered goods to the debtor pre-petition is not entitled to the new value defense under 11 U.S.C. § 547(c)(4) when that creditor has been paid in full on a § 503(b)(9) claim regarding the same pre-petition deliveries.

09-04009 (Docket No. 32)
04.28.2010 1419

Duncan et al. v. Bucciarelli,

(denying motion to extend time to file notice of appeal for failure to establish cause; the only basis for not filing a timely notice of appeal was failure to receive a copy of the order and judgment, and that failure was caused by the defendant's failure to file a change of address with the Court).

AP 08-1009 Doc#26
04.23.2010 PWB

In re Harris,

Order denying without prejudice default motion for stay relief. Affidavit must be based on personal knowledge of facts and affidavit of counsel stating that she “has been advised” that the debtors were delinquent under consent order is insufficient.

08-71756-PWB, Doc. No. 52
04.14.2010 MGD

In re Atlanta Franchise Group, LLC,

Show cause order was entered in involuntary Chapter 11 because of improper service of the petition and summons under Rule 1010. No order for relief could be entered without proper service.

10-67798
04.14.2010 MGD

Dixon v. Household Realty Corporation,

Ordering granting Defendant’s Motion to Compel Arbitration, holding that under the Federal Arbitration Act and the Eleventh Circuit’s application of the FAA in Whiting-Turner Contracting Co. et al. v. Elec. Mach. Enters., Inc. (In re Elec. Mach. Enters., Inc. ), 479 F.3d 791, 796 (11th Cir. 2007) arbitration was compelled whether the matter was core or non-core. The parties agreed that they entered into a binding arbitration agreement. Adjudication of Plaintiff’s Truth in Lending claim against Defendant did not present any inherent conflict between the Bankruptcy Code and the parties’ arbitration agreement. Plaintiff’s basis for core jurisdiction, 28 U.S.C. § 157(b)(2)(K), was circular – conflating the claim and the remedy sought – and insufficient to deny arbitration.

09-6745
04.14.2010 WHD

Beauvais v. Thompson,

(denying request to set a prompt hearing; if the plaintiff's complaint is construed as dischargebility complaint, the discovery period has not ended; if the complaint is construed as a motion for relief from stay to pursue litigation in state court, the motion asserts no legally cognizable basis for lifting the stay; in either case, the complaint is deficient because it was signed by a nonattorney as "attorney in fact" for the plaintiff, rather than the plaintiff as a pro se litigant).

AP 09-1104 Doc#5
04.14.2010 WHD

Gibbons v. Thompson,

(denying request to set a prompt hearing; if the plaintiff's complaint were construed as dischargebility complaint, the discovery period had not ended; if the complaint were construed as a motion for relief from stay to pursue litigation in state court, the motion asserted no legally cognizable basis for lifting the stay).

AP 09-1106 Doc#5
04.12.2010 PWB

In re McNeal,

Order denying Debtor’s motion to strip off wholly unsecured mortgage in chapter 7 case. Based upon Dewsnup v. Timm, 502 U.S. 410 (1992), sections 506(a) and 506(d) do not permit a debtor to strip off a wholly unsecured lien in a chapter 7 case. APPEAL PENDING

09-78173-PWB, Doc. No. 20
04.09.2010 PWB

Perkins v. Wisneski et al. (In re International Management Associates),

Order denying motions for summary judgment. The trustee’s action under O.C.G.A. Section 18-2-22 to avoid fraudulent conveyance was not barred by the statute of limitations. Though the applicable statute of limitations is four years and presuming, for purposes of this issue only, that a Ponzi scheme existed, the running of statute was equitably tolled based upon the alleged conduct of non-defendant individual who perpetuated Ponzi scheme and concealed fraud. APPEAL PENDING

NOT INTENDED FOR PUBLICATION

AP No. 08-6099, Doc. No. 25
04.09.2010 REB

In re: Nigel Shannon Morgan & Pamela Heard Morgan

Using strong-arm powers (11 U.S.C. Sections 544(a)(3) and 551), Trustee sought to avoid Bank's security interest on grounds of failure to file security deed in proper county as required by Georgia law. See O.C.G.A. Sections 44-2-1, 44-14-67(c), 14-14-4, and 14-14-67(b)(3). Court rejected Bank's arguments concerning inquiry notice and equitable subrogation. Bank's motion for summary judgment denied and judgment granted for Trustee.)

09-20319 09-2044 Doc# 21
04.08.2010 PWB

Meadows v. Hagler (In re Meadows),

In landlord’s post-discharge suit for rent against debtor, magistrate court ruled that debtor had not met his burden of proving affirmative defense of bankruptcy discharge and entered judgment in favor of landlord. In action for discharge violation, Bankruptcy Court concluded that action was a suit on pre-petition lease and violated the discharge injunction. The Court ruled that bankruptcy was not an affirmative defense under section 524(a). With regard to the preclusive effect of the magistrate court judgment, the court ruled that the Rooker-Feldman doctrine did not apply because the discharge injunction existed prior to the state court judgment and that a state court judgment determining whether a debt is discharged is not entitled to preclusive effect under section 524(a) if it is based on inadequate facts or misconstrues the effect of the discharge as a matter of law. Consequently, the Court determined that the judgment was void. In the circumstances of the case, the Court declined to award sanctions.

Adv. No. 07-4033, Doc. 20.
04.08.2010 PWB

FIA Card Services, NA v. Matveyev (In re Matveyev),

Order denying motion for default judgment. Plaintiff fails to set forth factual or legal basis for judgment on 523(a)(2) claim since it erroneously relies on implied representation theory and fails to make allegations from which, if true, court could draw an inference of the Debtor’s actual, subjective fraudulent intent.

AP No. 09-6714, Doc. No. 7
04.07.2010 MGD

Jordan v. HSBC Bank USA, N.A.,

Order denying Plaintiff’s Motion for Default Judgment because Plaintiff failed to effectuate service of process on Defendant. Defendant, a federal depository institute, was never served with a valid summons in accordance with Rule 7004(h) and (e).

09-6600 (Docket No. 6)
04.06.2010 PWB

Lou Robustelli Marketing Services, Inc. v. Robustelli (In re Robustelli),

Based on stipulated record in lieu of trial, court determined that the only claims for damages remaining for trial in Fulton County State Court, after remand from Georgia Court of Appeals, are claim for value of the address book, customer list and telephone number belonging to Plaintiff that Debtor used in new business after resignation and claims for usurpation of corporate opportunities prior to resignation. But the court concluded that only the claim for value of the address book, customer and list telephone number was excepted from discharge pursuant to section 523(a)(6) and that the Plaintiff had no other claims against the debtor excepted from discharge under sections 523(a)(2), (4), or (6).

Adv. No. 08-06513 Doc. 38
04.06.2010 WHD

In re Krielow,

(denying debtors' motion to vacate discharge for the purpose of executing a reaffirmation agreement).

BK 08-12311 Doc#87
04.02.2010 WHD

In re Penn,

(granting creditor's motion for relief from the stay and to validate foreclosure sale, as debtor had no interest in the property, the property was not property of the debtor's estate, since it was owned by a separate limited liability company at the time of the foreclosure, and the co-debtor stay did not prohibit the postpetition foreclosure of the property).

BK 09-14624 Doc#24
04.01.2010 MGD

Thompson et al. v. Hornyak and Chandler,

Trial order granting Defendants’ Motion for Involuntary Dismissal, dismissing Plaintiffs’ 11 U.S.C. §§ 523(a)(6) and 523(a)(19) nondischargeability claims. Georgia’s Disabled Adults and Elder Persons Protection Act, as Plaintiff’s intentional tort theory of recovery under § 523(a)(6), was determined to be inapplicable. Similarly, § 523(a)(19) was inapplicable because there was no evidence of any misrepresentation by Defendants and the Note in question did not qualify as a security under Reves v. Ernst & Young, 494 U.S. 56 (1990).

08-9048 Doc#26
04.01.2010 MGD

Thompson et al. v. Hornyak and Chandler,

Trial order granting Defendants’ Motion for Involuntary Dismissal, dismissing Plaintiffs’ 11 U.S.C. §§ 523(a)(6) and 523(a)(19) nondischargeability claims. Georgia’s Disabled Adults and Elder Persons Protection Act, as Plaintiff’s intentional tort theory of recovery under § 523(a)(6), was determined to be inapplicable. Similarly, § 523(a)(19) was inapplicable because there was no evidence of any misrepresentation by Defendants and the Note in question did not qualify as a security under Reves v. Ernst & Young, 494 U.S. 56 (1990).

08-9048 and 10-90002 (Docket No. 26)
03.29.2010 JEM

In re Value Family Properties - West Atlanta, LLC

Debtor’s objection seeking disallowance of proof of an unsecured claim arising from an equity security was construed as seeking subordination of the claim under section 510. The Court subordinated the claim but held that the fact that the claim was based on a security did not negate that it was in fact a claim and could not be disallowed under section 502 merely because it was “based on an equity investment.”

08-84255 Doc#147
03.26.2010 PWB

Gordon v. Castresana et al. (In re Castresana),

Order denying motion for default judgment in part based upon death of defendant. Capacity to be sued is determined by law of the party’s domicile (Rule 17(b)(1)). Because Georgia law provides that proceedings held after the death of an individual are void without substitution of proper representative party and because no substitution had been made, court could not adjudicate matter with respect to deceased defendant.

09-6200 Doc#12
03.24.2010 JB

In re Jacob Holdings, Inc., et al.,

(§ 364. Debtor, not debtor's owners, must bring the motion to obtain credit.);

09-94015 Doc#40
03.24.2010 WHD

High Grade Materials Co. v. Medina-Fernandez,

(denying motion for summary judgment as to whether claim is nondischargeable pursuant to section 523(a)(4) due to defalcation by the debtor in his fiduciary capacity to building materials supplier under Michigan's builder's trust law).

AP 08-1051 Doc#24
03.23.2010 JB

Rodriquez v. United States of America, In Re Rodriquez,

(Overpayment of Social Security disability payments; exhaustion of administrative remedies; jurisdiction of bankruptcy court; magistrate judges, not bankruptcy judges, have delegated authority to hear Social Security actions to review administrative determinations by the Social Security Administration. Debtor did not exhaust his administrative remedies with respect to a request for reconsideration of a determination with respect to overpayments. Once debtor receives a Chapter 7 discharge, it will discharge any overpayment claim by the Social Security Administration. The discharge will include any obligation by the debtor to the Social Security Administration for overpayments as of the date the bankruptcy was filed.)

10-9006 Doc#16
03.23.2010 JB

Rodriquez v. United States of America,

(Summary judgment granted. Automatic stay did not go into effect upon filing of case. § 362(c)(4)(A).)

10-9007 Doc#8
03.23.2010 JEM

In re Bentley

The Chapter 7 Trustee objected to the proof of a fully secured claim on the ground that the Trustee abandoned the property securing the claim and that Respondent should look to its collateral for satisfaction of its debt. Objection denied. The basic issue raised is not about disallowance under section 502 but about whether the claim is fully secured under section 506(a).

05-73970 Doc#185
03.18.2010 MGD

Gordon v. Taylor et al.,

Order granting Defendant’s partial motion for summary judgment and denying Plaintiff’s motion for summary judgment. The Court found that Defendant was entitled to judgment as to Plaintiff’s willful violation of the automatic stay claim and avoidance claim. The facts of the complaint involved an unauthorized sale of debtor’s residence. Defendant Deutsche Bank violated the automatic stay under § 362(a)(6) when it applied payoff funds to Debtor’s account and released its security deed. However, § 362(h)(1) was not eligible to recover under this statute because the Trustee demonstrated no injury to the bankruptcy estate and the Trustee did not qualify as an individual entitled to recover under the statute. Additionally, Defendant’s security deed complied with the Georgia recording statutes, and, therefore, the Trustee’s avoidance powers under § 544(a)(3) were inapplicable.

07-6565 Doc#49
03.16.2010 MGD

Branch Banking and Trust Company v. Ray,

Order granting in part Plaintiff’s Motion for Default Judgment, holding the debtor’s debt to Plaintiff nondischargeable pursuant to 11 U.S.C. § 523(a)(6) when Plaintiff alleged that the debtor sold collateral, which was the subject of a security agreement, without Plaintiff’s authority as the creditor and without paying the proceeds to Plaintiff. The Court denied Plaintiff’s Motion to the extent that it sought to declare the debtor’s debt nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) when Plaintiff did not allege any facts indicating that Defendant had any fraudulent intent or otherwise acted to defraud Plaintiff at the time that the parties entered into their agreement.

09-04094 Doc#6
03.15.2010 PWB

In re Lewis

Debtors’ motion to redeem vehicle for $0 denied. Although the Debtors had paid the creditor’s claim in full pursuant to their chapter 13 plan prior to conversion to chapter 7, because they did not pay the contractual interest rate, the Debtors did not pay the “full amount of such claim determined under applicable nonbankruptcy law” and, thus, the creditor’s claim continued to be secured. See 11 USC 348(f)(1)(C).

08-68723 Doc#78
03.12.2010 JB

In Re Streeter;

(Objections to mortgage claim, history of buydown agreement, bankruptcy of both creditor and debtor, facts set out for debtor to use in a submission to credit reporting agencies, and order to counsel to provide name and address of authorized agent that currently holds loan.)

07-71190 Doc#84
03.11.2010 JEM

In re Williams

In this Chapter 13 case, Debtors objected to the proof of claim of the lender, stating that they disputed its “validity” and that the claim misstated the amount of the prepetition arrearage. The relief demanded was to direct the Trustee not to pay anything to the claimant until it amended its claim. Counsel then submitted a proposed order that would have disallowed the entire claim. Objection denied. Submitting an order provides for relief not requested in the motion is unprofessional. The claim as a whole was not in dispute, and hence disallowance was not permitted under section 502.

08-75770 Doc#84
03.08.2010 MGD

Beede et al v. Regions Bank,

Order granting in part Plaintiffs’ Motion for Default Judgment and stripping a second residential mortgage lien pursuant to 11 U.S.C. § 506(a) when Plaintiffs alleged sufficient facts to show that the second mortgage was wholly unsecured. The Court denied Plaintiffs’ Motion to the extent that it sought an award of legal fees, costs and expenses because Plaintiffs failed to identify any legal authority for granting such an award.

09-04109 Doc# 6
03.08.2010 JEM

In re Appling

The Chapter 7 Trustee objected to and sought disallowance of a proof of a claim that asserted it was fully secured by a mechanics lien. The premise of the objection was that the claimant should look to its collateral. The Trustee held funds derived from another source as to which the claimant asserted no interest. Objection denied. Like the objection in the Bryant case above, this one also confuses disallowance under section 502, which says nothing disallowance due to collateral for a claim, and a determination under section 506(a) that the claimant has no unsecured claim. A Chapter 7 trustee only pays unsecured claims under section 726, and this claimant asserted neither an unsecured claim nor an interest in funds held by the Trustee.

09-62040 Doc#54
03.05.2010 MGD

Anderson v. George,

Trustee’s motion for default judgement based on a claim under § 544(b)(1) was denied because the complaint failed to allege sufficient facts to warrant an award of judgment. Section 544 allows a trustee to avoid any transfer of the interest of the debtor in property that is voidable under applicable law by a creditor holding an unsecured claim . . . . The complaint failed to allege one of the required elements of the statute. No facts were plead that an unsecured creditor qualified. Additionally, the underlying state law that the Trustee relied upon, O.C.G.A. § 18-2-74(2), was not plead sufficiently.

NOT INTENDED FOR PUBLICATION

09-6043 Doc#6
03.03.2010 JEM

Preston v. Sallie Mae, Inc., et al. (In re Preston)

Motion for default judgment against a bank was denied because the certificate of service of the summons and complaint failed to show that this defendant, which is insured by the FDIC, was properly served under Fed. R. Bankr. R. 7004(h).

09-6592 Doc#8
03.01.2010 JEM

In re Gelibert

Debtor objected to and sought disallowance of the secured portion of a proof of claim of the IRS on the ground that he was surrendering the property in his Chapter 13 plan. Objection denied. The objection stated no basis for disallowing the claim under section 502. A debt does not cease to be enforceable merely because collateral is surrendered or abandoned or because the stay is lifted. Nor does allowance of a claim that is secured automatically mean that it is entitled to be paid in bankruptcy.

08-84618 Doc#68
02.26.2010 JB

In re: Ronald James Foster,

Chapter 7 Case No. 09-68240; Franz v. Foster, Adversary Proceeding No. (Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) granted in part, denied in part. §§ 523(a)(2)(A), 523(a)(2)(B) and 523(a)(6).);

09-9043 Doc#17
02.26.2010 MGD

James Alan Murphy,

Order denying counsel’s application for supplemental compensation when the fee requested was not contemplated in the filed attorney disclosure statement.

09-40854 Doc#38
02.26.2010 MGD

Corey Lamar Blevins and Amber Leah Blevins,

Order denying counsel’s application for supplemental compensation when the fee requested was not contemplated in the filed attorney disclosure statement.

08-42441 Doc#41
02.25.2010 JB

In Re McMillen;

(Motion for default judgment denied; service improper under Fed. R. Bankr. P. 7004(b)(3); filing a duplicate proof of claim in error does not state a claim under the Fair Debt Collection Practices Act.)

A.P. 09-6611 Doc#9
02.24.2010 WHD

Georgia Lottery Corporation v. Hunt,

(denying motion for default judgment due to lack of property service of the complaint and summons upon the debtor in accordance with Rule 7004(b)(9)).

AP 09-1095 Doc#7
02.23.2010 WHD

Lavigne v. Buchanan,

(granting unopposed motion for summary judgment as to objection discharge, as the plaintiff failed to allege any facts to support a finding that the debtor's discharge should be denied; denying unopposed motion for summary judgment as it pertained to the dischargeability portion of the complaint, as the debtor failed to file a statement of undisputed material facts and pointed to no evidence to refute the facts alleged in the complaint)

AP 08-1099 Doc#22
02.22.2010 WHD

Duncan, et al. v. Bucciarelli,

(declaring a debt owed by the debtor to her former attorneys nondischargeable under section 523(a)(2)(A) after finding that the debtor incurred a debt for legal services with no subjecting intent to pay the fees).

AP 08-1009 Doc#20
02.19.2010 PWB

In re: - Bobby Eugene Amos and Melissa Darlene Amos -

Court orders creditor to return vehicle repossessed postpetition in violation of stay and imposes escalating sanctions for each day that creditor does not comply with order, in addition to damages under section 362(k) to be determined in further proceedings. Individual who directs or is responsible for actions of corporate creditor may be liable in individual capacity.

10-40114 Doc#13
02.18.2010 MGD

Linda Coty Bullock,

Order denying counsel’s motion to withdraw as attorney of record when counsel’s motion and accompanying notice to debtor failed to comply with Bankruptcy Local Rule 9010-5. Counsel’s notice to debtor failed to identify debtor’s ongoing responsibilities and failed to inform debtor of her right to object to the withdrawal.

08-43724 Doc#161
02.17.2010 JB

In re Owens;

(Judicial liens on vehicles);

BK 09-78584 Doc#20
02.16.2010 JEM

In re Teron Trace, LLC

Motion for reconsideration denied under Fed. R. Civ. P. 59(e), made applicable in adversary proceedings by Fed. R. Bankr. P. 9023.

09-82889 Doc#83
02.09.2010 MGD

Georgia Lottery Corporation v. Jackson,

Order granting Plaintiff’s motion for summary judgment and finding debts nondischargeable pursuant to 11 U.S.C. § 523(a)(4) when Defendant failed to remit all lottery proceeds and unsold tickets to Plaintiff. The alleged theft of tickets was immaterial when Defendant failed to supervise his employees or employ internal controls to prevent thefts.

09-4058 Doc#15
02.08.2010 MGD

Stephen Michael Riordan and Sandra Jean Riordan

Order denying movants' motion to compel trustee to abandon property when the statute of limitations with respect to potential avoidance actions was near its end and the Court was presented with no legal basis to interfere with the Trustee’s duty to administer the estate and maximize value for all creditors.

08-68604 Doc#32
02.04.2010 JEM

In re McDuffie

When attempting to file a petition in this case in the ECF system, the filer uploaded a document that did not include a petition. No petition was subsequently filed. Under section 301, a case is commenced by the filing of a petition. Because no petition was filed, Debtor never filed a case. No automatic stay ever existed. The file purporting to be a case was closed .

09-82270 Doc#18
01.28.2010 PWB

In re Stevens,

Court declines to dismiss case on U.S. Trustee's motion under section 521(e)(2) or section 707(a) based solely on debtor's failure to produce a tax return to the Chapter 7 trustee when the undisputed record shows that the debtor has not filed tax returns for 15 years and there is no showing that the debtor has otherwise failed to provide required information. Court declines to enter consent order of dismissal because granting relief on the record before the Court would be a manifest injustice and contrary to law.

09-81799 Doc#16
01.28.2010 JEM

In re Teron Trace, LLC

Motion for relief from stay granted pursuant to section 362(d)(2). Debtor did not have to prove feasibility of a plan to prevail but at a minimum had to show facts that would enable the Court to assess the probability that a plan could be confirmed - that an effective reorganization is “in prospect.” Debtor has not provided sufficient proof to make a reliable assessment of the feasibility of a plan.

09-82889 Doc#76
01.28.2010 JB

In Re Verso Technologies, Inc.,

(Creditor's expenses in attending hearing on objection to proof of claim is not entitled to payment of administrative expenses.)

08-67659 Doc#741
01.27.2010 MGD

Watson v. Bennett Thrasher PC,

Order granting Plaintiff’s motion to amend the complaint and relating the amendment back to the date of the originally filed complaint under Fed. R. Civ. P. 15(c)(1)(B).

09-6695 Doc#5
01.27.2010 MGD

Daniel v. Ocasio,

Order granting Defendants’ motion to dismiss under local rule 7041-1(a)(3) and Fed. R. Civ. P. 41(b). An undisputed clear record of inactivity in the adversary proceeding without a proposal to move the action forward where the claims against Defendants included an objection to discharge were sufficient for the Court to find that lesser sanctions were inadequate. Here, Debtors case was filed on July 1, 2008 and the Chapter 7 Trustee entered a no distribution report on May 27, 2008. The adversary proceeding had been pending 9 months before entry of this order. The Court also emphasized Debtors’ interest in the prompt resolution of objection to discharge claims as justification for dismissal.

09-6112 Doc#12
01.22.2010 WHD

Brown v. Fox Broadcasting Company, et al.,

(denying the defendant's motion to dismiss; finding that the court has subject matter jurisdiction over the trustee's motion for declaratory judgment that funds are property of the bankruptcy estate, notwithstanding the defendant's assertion of Eleventh Amendment immunity).

AP 09-1068 Doc#26
01.21.2010 JEM

In re Valentine

Debtor sought to avoid state tax liens pursuant to section 522. Motions denied. The lien was not a judicial lien but a statutory lien and was unavoidable under section 522 even though the tax executions provided for a Sheriff’s sale.

09-69530 Doc#36
01.21.2010 JEM

In re Hindu Temple and Community Center of Georgia, Inc.

The Court denied a motion of an individual seeking an order approving an amendment to the Debtor’s schedules that he, and not the corporate Debtor, had prepared and filed.

09-82915 Doc#107
01.20.2010 PWB

In re Leviner,

Order denying motion for reconsideration of dismissal pursuant to 11 U.S.C. 521(i)). “Without deciding the issue of whether the Court can even vacate an order that is entered under 521(i), the Court declines to grant the Debtor’s motion because the Debtor has asserted no error of fact or law that warrants reconsideration of the order of dismissal.”

BK 09-87983 Doc#22
01.19.2010 WHD

Brown v. American General Financial Svcs., Inc.,

(granting motion to dismiss for failure to state a claim; lender's security interest in real property could not be avoided under section 544(a)(3) on the basis that the signature of the debtor's nonfiling spouse on the security deed was not properly attested).

AP 09-1016 Doc#18
01.19.2010 JEM

In re Hibic

Debtors objected to the proof of a claim secured by an automobile on the ground that the debt was not “valid” because “upon information and belief the collateral has been in an accident and declared a total loss by the insurance company.” The relief sought was to direct the Trustee to stop funding the claim until it was amended to show an unsecured claim. Debtors’ counsel submitted a proposed order that would have disallowed the claim altogether. For that reason the Court denied the objection, pointed out that an objection to the claim was not the correct procedure, and expressed doubt that Debtors could modify the plan under section 1329.

07-65834 Doc#42
01.06.2010 WHD

In re Jackson-Rone,

(dismissing Chapter 13 debtor's petition void abinitio and barring her from refiling another petition for two years).

BK 10-10024 Doc#5
01.05.2010 JEM

CEP Holdings, Inc. :, LLC v. Schreier. Et al. (In re CEP Holdings, Inc.: Trust, LLC )

In Findings of Fact and Conclusions of Law, the Court determined that certain transfers made by Debtors to Defendants as fraudulent under section 548 and that Defendants were liable to Plaintiffs under section 550(a) in part as initial transferees and in part as persons for whose benefit transfers were made.

07-6428 Doc#61
12.30.2009 JEM

In re Friele;

Court denied objection to claim of Georgia Department of Revenue served only on the person who filed claim at an address stated therein. The proof of claim limited the address to correspondence and payments. Service should have been made on the head of the Revenue Department and on the Attorney General.

NOT INTENDED FOR PUBLICATION

08-79042 Doc#32
12.29.2009 MGD

Ellis Astin Grading Co., Inc. v. Hornyak

Defendant prevailed on cross motions for summary judgment where Plaintiff sought a determination of nondischargeability pursuant to § 523(a)(4). Plaintiff asserted that loan documents between the Defendant’s company and its lender provided a basis for a technical trust between it and Defendant. The requirements of a technical trust were not satisfied because the loan documents did not explicitly provide for a trust in Plaintiff’s benefit and no preexisting fiduciary relationship existed before the loan documents on which the Plaintiff relied to establish the alleged fiduciary relationship. Without establishing a fiduciary duty, Defendant was entitled to judgment as a matter of law.

08-06495 Doc#31
12.23.2009 JEM

In re Terrell;

Court denied objection to proof of claim based on alleged failure of creditor to respond to debtor’s demand that creditor “verify” claim. Debtor scheduled debt to creditor as undisputed in an amount greater than the amount stated in the proof of claim, thereby eliminating any basis for asserting that claim was unenforceable.

NOT INTENDED FOR PUBLICATION

09-81051 Doc#59
12.23.2009 WHD

Comfort Care Transportation Prods., LLC v. Around Town Transportation Prods., LLC, et al.

(proposed findings of fact and conclusions of law recommending the dismissal of complaint for lack of subject matter jurisdiction).

AP 09-1084
12.22.2009 JB

In re Alliance Resource Management, LLC;

(Chapter 7 case - general claims belong to trustee; claims for particular injury belong to injured party; "claim-splitting" is an affirmative defense and must be raised as such. Fed. R. Civ. P. 8(c)); entered .

07-61934 Doc#634
12.22.2009 JEM

McNeely v. Carroll (In re Carroll)

Motion to dismiss under Rule 12(b)(6) denied because complaint stated sufficient facts to make it plausible that Plaintiffs could prevail on their objection to Defendant’s discharge.

NOT INTENDED FOR PUBLICATION

09-6657 Doc#14
12.21.2009 PWB

Wages v. HSBC Nevada, N.A. (In re Wages),

Order overruling Debtors’ objection to claim. Creditor holds valid and enforceable security interest in goods purchased on account by virtue of the application and cardholder agreement, coupled with the use of the credit account and the sales slips that show the purchased items serving as collateral.

09-73223 Doc#29
12.21.2009 JB

In re Bowen;

(Individual Chapter 11 case - Motion to use estate property denied);

09-89758 Doc#24
12.16.2009 PWB

In re Knight,

Order denying request for finding pursuant to 11 U.S.C. § 362(d)(4)(B). Court denied motion for relief in part because creditor may not take a “no opposition” order on a request for relief under 11 U.S.C. § 362(d)(4)(B). Because the statute specifies that the court must find that the debtor engaged in a “scheme to delay, hinder, and defraud creditors,” by filing a petition, the creditor must make sure such a request is heard by the court and must, at a minimum, proffer facts in sufficient detail to permit the court to draw the conclusion required by the statute.

09-86178 Doc#19
12.11.2009 WHD

Grant v. Home Loan Servicing, Inc, et al.,

(proposed findings of fact and conclusions of law recommending the dismissal of the plaintiff's complaint on the basis that the plaintiffs lacked standing to prosecute the claim).

AP 09-1020
12.10.2009 REB

In re: Teresa J. Shaw;

(Order denying Trustee's motion for partial summary judgment on complaint seeking relief under 11 U.S.C. Sections 548(a)(1)(A) (alleged fraudulent transfers), 547 (alleged voidable preference), and 542 (turnover of property). Order also refers to defense asserted under 11 U.S.C. Section 548(c). Motion would require Court to ascertain issues of intent and good faith, which are inappropriate for summary judgment.)

AP 04-6251 Doc# 51
12.10.2009 JEM

Gordon v. U.S. National Assn (In re Hagler);

Plaintiff trustee was entitled to avoid pursuant to 11 U.S.C. § 544(a)(3) the transfer of real property to a lender because the security deed was unattested and did not provide constructive notice of its existence under Georgia law. Court rejected argument that amendment to O.C.G.A. § 44-14-33 in 1995 changed Georgia law. The label “Georgia Second Mortgage” at the bottom of the first page of an attested second security deed would not excite attention of a person of ordinary prudence so as to cause such a person to infer or to discover the existence of the unattested first security deed

07-6456 Doc#65
12.10.2009 JEM

Gordon v. Wells Fargo, N.A. (In re Codrington)

Plaintiff trustee was entitled to avoid pursuant to 11 U.S.C. § 544(a)(3) the transfer of real property to a lender because the security deed lacked an unofficial witness and did not provide constructive notice of its existence under Georgia law. Court rejected argument that amendment to O.C.G.A. § 44-14-33 in 1995 changed Georgia law. The attestation of the signatures of the borrowers on a waiver of borrower’s rights attached to the partially attested deed would not provide constructive notice of the waiver to a bona fide purchaser having no actual notice, so as to create a duty of inquiry that would lead to the discovery of the partially attested deed.

07-6612 Doc#16
12.03.2009 JEM

American Express Centurian Bank v. Ibeh (In re Ibeh)

Alleged failure of counsel for Defendant debtor to notify debtor of the deadline for filing a timely notice of appeal did not constitute excusable neglect under Bankruptcy Rule 8002(c)(2) so as to permit the court to grant an untimely motion to extend the time for filing an appeal.

NOT INTENDED FOR PUBLICATION

09-6147 Doc#30
12.02.2009 WHD

Walton v. Vincent,

(granting motion for default judgment; pursuant to section 727(a)(8), the Court could not discharge the Debtors' Chapter 7 case because they received a discharge in a Chapter 7 case filed within the eight-year period prior to the filing of their instant case).

AP 09-1051 Doc#7
12.01.2009 JB

In re Dawson;

(Order directing appearance at Bankruptcy Rule 2004 examination and consequences of failure to appear including procedure under Bankruptcy Rule 2005);

BK 09-68035 Doc#17
12.01.2009 PWB

In re International Management Associates,

Order denying trustee’s motion for partial summary judgment. For purposes of fraudulent transfer action involving alleged Ponzi scheme, debtors received “value” under 548(c) to the extent they made payments to an investor up to the amount of the principal that the investor invested regardless of whether investment was an equity investment/participation rather than debt.

09-601 Doc#38
12.01.2009 PWB

In re International Management Associates,

Pursuant to Bankruptcy Rule 8001(f)(4)(A), certification of Order (Doc. 38) for direct appeal to the Eleventh Circuit. The court certifies pursuant to 28 U.S.C. 158(d)(2)(A)(i)) that the Order involves a questions lf law that is a matter of public importance as to which there is no controlling decision by the Eleventh Circuit or the U.S. Supreme Court and that an immediate appeal of the Order may materially advance the progress of the proceedings.

09-601 Doc#39
11.25.2009 WHD

In re Hugh

(denying Chapter 13 trustee's motion to convert case from Chapter 13 to Chapter 7 after finding that the secured creditor's lien would not be avoidable by a Chapter 7 trustee pursuant to section 544(a)(3)).

BK 09-10164 Doc#41
11.25.2009 WHD

In re Roan Valley, LLC,

(granting motion to dismiss Chapter 11 case pursuant to section 1112(b) after concluding that the continued operations of the debtor's golf course and real estate development business would lead to continuing diminution of the estate's assets and that the debtor had no likelihood of rehabilitation)

BK 09-13229 Doc #53
11.20.2009 MGD

In re Diplomat Construction, Inc.,

Confirmation was denied because the confirmation requirements of feasibility and good faith, 11 U.S.C. §§ 1129(a)(11) and (a)(3), were not established by Debtor. Debtor’s proposed plan of reorganization included an eventual sale of the Debtor’s hotel for a minimum sum of $12,750,000.00, which the Court found to be improbable given the economic conditions, Debtor’s current performance, and lack of evidence establishing valuation of the hotel. The Court also found the plan not to be proposed in good faith where no general maintenance of the hotel is provided and the plan’s timeline for sale extended 18 months with no qualified buyer under contract. Additionally, the plan did not satisfy cramdown requirements based on the proposed interest rate for the secured creditor.

09-68613 (Docket No. 159)
11.18.2009 WHD

HBH Enterprises, et al., v. Freeman,

(granting motion to dismiss for failure to state a claim for nondischargeability and for failure to perfect service).

AP 09-1077 Doc# 4
11.12.2009 JEM

McColm v. Michal (In re Michal);

Plaintiff’s motion to hold non-party in contempt for failure to produce documents in accordance with a subpoena issued by a California bankruptcy court was denied because in that circumstance Civil Rule 37(a)(2) required the motion to be filed in the court that issued the subpoena.

AP 06-09036 Doc#163
11.05.2009 JEM

In re Ibeh;

Unopposed motion to reopen was denied where movant’s counsel failed to timely submit an order within the 7-day period required by BLR 9013-2(a).

BK 08-84962 Doc#27
11.03.2009 JB

(In re Cherokee Run Country Club, Inc.),

(Contract construction. Lease by city does not violate public policy. An executory contract cannot be assumed in part and rejected in part. on rare occasions, a court can supply a contract with implied terms.

BK 08-84120 Doc#107
11.02.2009 PWB

In re McKenzie,

Order denying motion for stay pending appeal and motion for fee waiver on appeal. For purposes of fee waiver, court certifies that the appeals are not taken in good faith pursuant to 28 U.S.C. 1915(a)(3).

09-78963 Doc#58
10.27.2009 JEM

Chiodo v. Safe and Secure Storage (In re Chiodo);

Debtor’s motion to hold defendant in contempt for violating the automatic stay was denied because no stay was in effect under 11 U.S.C. § 362(c)(4).

AP 09-09033 Doc#7
10.20.2009 MHM

Cohran v. Mangal ;

(Net funds in the hands of Ch13T following dismissal may be garnished by prepetition judgment creditor);

BK 08-69918;
10.09.2009 PWB

McCamy and Rowe v. Kerr, Trustee (In re Real Estate Exchange Services, Inc.),

Movants filed separate motions for an order requiring turnover of proceeds from the sales of their real properties asserting the existence of an express, resulting, or implied trust. Proceeds were held by debtor who had served as a qualified intermediary for clients desiring to effect tax-deferred exchanges of real property under § 1031 of the Internal Revenue Code. The Court held that the written agreements did not create an express trust with regard to Movants’ funds, that parol evidence could not be used to vary the terms of the agreements, and that neither a resulting trust nor a constructive trust could be imposed. The opinion also discusses tracing of commingled proceeds and the “lowest intermediate balance” rule.

BK 08-85871 Doc 155
10.09.2009 REB

In re: Trevor Chadwick Lariscy and Kristi Kapua Lariscy;

(Order denying Debtor's motion for summary judgment on complaint to determine dischargeability of debt under 11 U.S.C. Section 523(a)(2)(A), (a)(4), and (a)(6). Court cannot enter summary judgment under Fed.R.Civ.P. 56, applicable through Fed.R.Bankr.P. 7056, when motion for such relief requires review of issues pertaining to intent or state of mind.)

AP 08-2049 Doc#46
10.06.2009 JB

Franz v. Foster;

(Standard for granting a motion to dismiss. Motion granted in part.)

AP 09-9043 Doc#9
10.05.2009 PWB

Hardge v. Lackey,

Order denying Defendant’s motion to dismiss for failure to state a claim for relief. Plaintiff’s complaint satisfied the “facial plausibility” requirement of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949.

AP 09-9006 Doc#14
10.01.2009 MHM

In re Davis ;

(Debtor's plan based upon fictitious financial instruments that are premised upon secret bank account at the Treasury Department was frivolous);

BK 09-65484;
09.30.2009 CRM

Allied Holdings, Inc. et al. v. Cox,

(granting judgment in favor of plaintiff and finding that purchaser of estate assets was not entitled to payment by the reorganized debtor pursuant to the sales agreement; rather, parties must allow a neutral auditor to determine whether the seller or the purchaser owed money to the other party, as provided for in the sale agreement).

AP 07- 6244 Doc#61
09.30.2009 MGD

Hays v. Curry el al.,

The Chapter 7 Trustee prosecuted a breach of fiduciary duty claim at trial against selected officers and directors of Debtor Maxxis Group, Inc. Judgment was made in favor of the defendants. The evidence failed to support a finding of defendants’ knowledge of insolvency and specified damages from the alleged breach.

06-6554 Doc#75
09.30.2009 MGD

Hays v. Curry el al.,

The Chapter 7 Trustee prosecuted a breach of fiduciary duty claim at trial against selected officers and directors of Debtor Maxxis Group, Inc. Judgment was made in favor of the defendants. The evidence failed to support a finding of defendants’ knowledge of insolvency and specified damages from the alleged breach.

06-6554 Doc#75
09.29.2009 MHM

Kerr v. Audio Answers, Inc. (In re Christou) ;

(Any transfer made in the course of a Ponzi scheme is deemed made with actual fraudulent intent);

AP 08-6405;
09.29.2009 MHM

Ballew v. Smith,

(Defendant's motion to set aside entry of default granted);

Adversary proceeding No. 08-6663;
09.29.2009 MHM

Ogier v. Braswell (In re Clark);

(Debtor's sister is initial transferee under §550 from whom fraudulent transfer may be recovered even though sister expended funds only at Debtor's direction);

AP 07-6445;
09.29.2009 REB

(In re: Brian Edward Fox),

(Fox v. Lakeview Publishing.com, Inc.),(Court granted Debtor's motion to avoid judicial lien concluding that even though Respondent filed its lien on general execution docket, it failed to perfect same as a lien on a motor vehicle under Georgia law in accordance with O.C.G.A. Section 40-3-53. Since lien did not attach to vehicle in question, it did not secure an interest of Respondent in said property and thus, could be avoided under 11 U.S.C. Section 522(f)(1)).

07-20069 Doc#63
09.18.2009 MHM

Orr v. Osagie ;

(In motion for summary judgment on objection to discharge under §727(a)(2), plaintiff failed to show actual fraudulent intent);

AP 08-9043;
09.18.2009 MHM

In re Lavarnway ;

(Assertion that student loan debt should be paid directly is not grounds for objection to claim);

BK 08-60454;
09.18.2009 MHM

Whitaker v. EMC Mortgage Corp. ;

(Entry of debtor's discharge while proceeding is pending does not remove subject matter jurisdiction over core or non-core proceedings.);

Adversary proceeding No. 09-9000;
09.18.2009 MHM

McKelvey v. Murray ;

(Collateral estoppel precludes relitigation of state court finding of fraudulent conduct);

AP 07-6275;
09.14.2009 PWB

Chase Bank USA, N.A. v. Hampson (In re Hampson),

(Order denying motion for default judgment. Plaintiff’s allegation that within 174 days of the debtor’s bankruptcy filing, the debtor accumulated $6,900 in cash advances did not invoke 523(a)(2)(C)’s presumption of nondischargeability because the Plaintiff did not demonstrate or even allege that any of the advances were obtained on or within 70 days of filing. Further, no basis for entry of default judgment on the 523(a)(2)(A) claim existed because the complaint lacked specific factual allegations from which a finding of actual, subjective fraudulent intent to establish actual fraud could be inferred.)

AP 09-4059 Doc#6
09.11.2009 WHD

In re Darlington,

(granting mortgage creditor relief from the stay to foreclose on debtor's real property, but denying the creditor's request for a finding under section 362(d); dismissing debtor's case with a refiling bar of 180 days due to her failure to prosecute previous cases).

BK 09-10691 Doc#31
09.11.2009 JEM

In re Holt-White;

Motions to avoid judgment liens were denied where the motions asserted that Debtor had exempted property when in fact Schedule C was not filed until 21 days after the motions were filed.

NOT INTENDED FOR PUBLICATION

BK 09-80319 Doc#39
09.11.2009 PWB

In re McKenzie,

Motion to extend stay denied where time for doing so has expired. No circumstances exist whereby court can extend stay under 362(c)(3) where stay has statutorily expired.

BK 09-78963, Doc. 26
09.10.2009 REB

In re: Jackson Mowery;

(Order granting Debtor's motion to determine secured status of claim of second mortgagee and avoiding lien effective upon discharge. Order cites 11 U.S.C. Section 506(a) and (d))

BK 09-65834 Doc#47
09.09.2009 JEM

Sunrise bank v. Godwin(In re Godwin);

Motion to strike answer for failure to produce documents was denied because request for production of documents failed to specify the time, place and manner of production as required by Civil Rule 34(b)(1)(B).

AP 08-06678 Doc#14
09.03.2009 PWB

In re Bailey,

(Order denying motion to vacate order of dismissal and reopen case. One month after dismissal of chapter 13 case in which no meeting of creditors was held, debtors sought to vacate dismissal and reopen case. At hearing, debtors’ attorney and chapter 13 trustee agreed to consent order by which dismissal would be vacated and attorney would renotice 341 and confirmation hearing. Because seven weeks after hearing no order on the motion had been presented, court denied motion deeming failure to present order in timely manner an abandonment of the motion. Further, the Court observed that the motion stated no factual basis to warrant relief from the dismissal order under Rule 60(b) and, even if the motion had been brought timely as a motion for reconsideration under Rule 9023, the Debtors failed to assert that the dismissal order was based upon an error of fact or law that would warrant reconsideration.)

BK 09-40795 Doc#21
09.02.2009 MHM

Allied Financial Corp. v. Abney ;

([1] for purposes of Bankr. Rule 7015, a motion to dismiss is not a responsive pleading; [2]Amended complaint adding §523(a)(2) claim was timely; [3] a complaint should contain enough factual allegation to satisfy Iqbal but need not recite evidence);

Adversary proceeding No. 09-6260;
09.01.2009 JEM

In re Manning;

In this reopened case, the Court granted the Trustee’s motion to revoke the technical abandonment of Debtors’ residence that occurred under section 554(c) when the case was closed, based on an analysis under Civil Rule 60. Debtors had scheduled a second lien on the residence as undisputed, showing that there was no equity and did not claim the residence as exempt. When the existence of the proceeds was discovered, Debtors filed affidavits in an adversary proceeding stating that they never received loan proceeds or signed the second security deed.

NOT INTENDED FOR PUBLICATION

BK 05-79056 Doc #65
08.31.2009 JB

(In re Sean Anthony McGuirk);

(Absent extraordinary circumstances, a Chapter 7 Trustee may not sell avoidance claims.);

Case No. 08-76179 Doc#51
08.31.2009 WHD

Godfrey v. Internal Revenue Service,

(granting motion for summary judgment in favor of the IRS; holding that the IRS properly treated forgiven debt, which arose from the deficiency after a foreclosure of real property, as income, notwithstanding the mortgage creditor's failure to confirm the foreclosure sale in accordance with state law).

AP08-1032 Doc#37
08.28.2009 JEM

Giuliani v. Giuliani (In re Giulani);

Motion to dismiss for failure to state a claim was granted under the holding of Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) because the complaint contained no facts that if true would satisfy the elements of a preference or fraudulent transfer..

AP 09-06229 Doc #8
08.27.2009 JB

Newton v. Pettigrew (In re Alliance Resource Management, LLC);

(Order denying motion for relief from stay in part.)

07-61934 Doc#615
08.26.2009 JEM

In re Webb;

In a Chapter 13 case, Debtor moved to reopen the case after third party contended in state court that Debtor was judicially estopped to claim ownership of property not disclosed on schedules. After an evidentiary hearing, the Court found Debtor’s failure to disclose the property was inadvertent, noting that Debtor had paid the claims of creditors in full in the Chapter 13 case. The motion to reopen pursuant to section 350(b) was granted.

NOT INTENDED FOR PUBLICATION

BK 96-74639 Doc#39
08.21.2009 WHD

Howell v. Noble,

(granting trustee's motion to compel defendant to attend deposition).

AP 07-1060 Doc#27
08.14.2009 MHM

In re Van Landingham ;

(DA who received postpetition retainer while the filing fee remained unpaid was directed to pay the filing fee from the retainer);

BK 09-73958;
08.14.2009 MHM

In re Gregorakos ;

(Filing a Chapter 11 case in bad faith without any reasonable prospect for reorganization constitutes cause for dismissal and in rem relief);

BK 09-78940
08.14.2009 MHM

In re Gregorakos ;

(Debtor's motion for stay of in rem order pending appeal denied);

BK 09-78940
08.12.2009 PWB

In re Balliew,

After closing of Chapter 13 case prior to discharge, Debtors request disbursement of funds that car creditor did not claim on the ground that the creditor’s debt was paid. Court declines to order disbursement of funds. The Court cannot make a determination that the holder of a proof of claim does not have an interest in unclaimed funds unless either (1) the Application shows, with properly authenticated documentation, that an authorized representative of the entity acknowledges that fact or (2) the entity has had notice and an opportunity to be heard with regard to its interest in the unclaimed funds that complies with constitutional due process. Even if creditor is not entitled to the funds, the Trustee or unsecured creditors might have an interest in the funds. Therefore, they must also have notice of the application and opportunity to object and to be heard.

99-41154 Doc#75
08.10.2009 PWB

Chase Bank, USA, N.A. v. Santiago (In re Santiago),

Order denying summary judgment on 523(a)(2)(A) and (C) claims. Court concluded that the Plaintiff had put forth no evidence nor cited any legal authority for the contention that a “convenience check” was a “cash advance” for purpose of § 523(a)(2)(C). Further, court cannot conclude that the execution of a convenience check to a third party, where there is no evidence that the debtor obtained cash or engaged in an intentional strategy with his wife who was not an obligor, constitutes a cash advance. Because the Plaintiff failed to offer evidence from which the court could draw an inference of the Debtor’s subjective fraudulent intent, summary judgment on the § 523(a)(2)(A) claim was denied as well.

AP 08-4029 Doc#13
08.03.2009 MHM

GRP Loan, LLC v. Gregorakos ;

(In rem relief granted based on debtor's multiple filings without prospect of reorganization); notice of appeal filed August 12, 2009.

BK. 09-78940;
08.03.2009 MHM

In re Thomas ;

(Debtor's motion to reopen to seek discharge of student loan denied because facts alleged insufficient to support finding of undue hardship);

BK 08-78130;
08.03.2009 JEM

In re Porter;

On a motion to avoid liens, excess equity in real property after accounting for the Debtor’s exemption was allocated among three judgment liens. Judgments obtained at the same term of court are deemed to have equal rank pursuant to O.C.G.A. § 9-12-87.

NOT FOR PUBLICATION

BK 09-60675 Doc#42
07.30.2009 PWB

In re Burgess,

Order denying motion to withdraw as counsel for the debtor. Although new attorney had filed entry of appearance, this fact alone insufficient to relieve original attorney of responsibility of complying with BLR 9010-5. Local rule contemplates does not require motion to withdraw if certificate of consent, signed by the client, the withdrawing attorney and substituting attorney is filed with court. Since parties had not filed certificate of consent, attorney who seeks to withdraw must comply with the procedural requirements of motion to withdraw. The court observed that existence of dual counsel complicates issue of fees because nothing in record to instruct court, creditors, or trustee as to how payment of fees is to be allocated. Court instructed original attorney to file fee application and new attorney to file Rule 2016(b) statement.

08-42126 Doc#42
07.27.2009 PWB

In re Geneva Ann Sims,

Court cannot disallow proof of claim when the objection to it seeks amendment of the claim. Further, citing In re Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004), court declines to require creditor to amend the claim. Debtor may amend objection to state the amount, if any, debt she contends she owes.

06-61058 Doc#38
07.24.2009 WHD

Israel v. United States Dep't of Education,

(granting defendant's motion to compel; plaintiff directed to respond to all pending discovery requests and to pay a fine).

AP 08-1701 Doc#50
07.22.2009 JEM

First National Bank of Omaha v. Holtzclaw (In re Holtzclaw);

Defendant included in his answer to the complaint a motion to dismiss for failure to state a claim for relief. Held: Motion denied. It is improper to combine a motion with a pleading such as an answer. Such a motion must be made before filing an answer as provided in Fed. R. Civ. P. 12(b). Hence, the motion was untimely.

NOT INTENDED FOR PUBLICATION

AP 09-06016 Doc #:12
07.22.2009 WHD

In re Johnson,

(denying debtor's request for sanctions for violation of the automatic stay/discharge injunction, as unscheduled debt, upon which creditor initiated collection action was not discharged).

BK 02-18777 Doc#241
07.16.2009 JEM

Tow v. Boulware (In re Boulware);

After the trial of this matter commenced but was continued, Defendant filed motion for judgment on the Pleadings or alternatively for failure to state a claim for relief, which the Court denied as untimely. Court granted motion for reconsideration to consider whether motion to dismiss for failure to state a claim could be considered during the trial but denied the motion to dismiss. Defendant in effect waived right to move to dismiss after having a belated pretrial order to narrow the issues and thereby to define the substance of the claims in greater detail.

NOT INTENDED FOR PUBLICATION

AP 08-09028 Doc #27
07.15.2009 PWB

In re Lee,

(Order denying Movant’s default motion for relief from stay. Proposed order on default motion provided for conversion of the case to chapter 7 and awarded movant fees and costs in conjunction with filing/prosecution of the motion. Default motion denied because (1) nothing in the consent order entitled the movant to conversion of the case without notice and hearing and, thus, motion failed to state a claim for relief (consent order only provided for termination of stay and opportunity for trustee to file motion to convert case); and (2) no legal or factual basis for award of fees asserted. In addition, court observed that inclusion of an award of fees in a routine order submitted to chambers on a default motion where there has been no consent and no hearing is inappropriate and improper.

08-69486 Doc#32
07.01.2009 JB

Brooks v. Frempong (In re Brooks);

(Claim disallowed as a § 507(a)(4) priority claim).

BK 08-85401, Docket No. 50;
07.01.2009 JB

Brooks v. Frempong (In re Brooks);

(Claim disallowed as a § 507(a)(4) priority claim).

BK 08-85401, Docket No. 50;
07.01.2009 PWB

In re: William Wallace Powell, Jr.;

Court denies objection to claim of IRS for improper service. Court also notes that notice did not comply with BLR 3007-1(c) and Official Form 3007-1(c) because it did not state a specific date for a response.

BK 08-69791 Doc#42
07.01.2009 JEM

(In re Ades);

Court tried the motion of Southwick Real Estate LLC to dismiss for abuse under section 707(b), which apples to an individual Chapter 7 Debtor whose debts are “primarily consumer debts.” The Court found that Debtors renovated a home for investment purposes because their intent was to sell it, rather than to live in it. Debts incurred for renovation exceeded amount of other debts, including initial mortgage debt, so that debts were not primarily consumer debts.

NOT INTENDED FOR PUBLICATION

BK 08-86062 Doc#44
06.30.2009 MHM

In re Farris ;

(Reaffirmation agreement is made when parties agree to material terms, even if executed and filed after discharge);

BK 08-82709;
06.30.2009 MHM

In re Farris ;

(Reaffirmation agreement is made when parties agree to material terms, even if executed and filed after discharge);

BK 08-82709;
06.24.2009 MHM

GRP Loan, LLC v. Gregorakos;

(Debtor's argument that prepetition foreclosure sale was invalid was rejected based upon prior state court ruling. Bankruptcy court is not substitute to appeal state court ruling);

BK 09-72614
06.23.2009 WHD

Chase Bank, USA v. Bagby,

(order denying motion for default judgment for failure to plead sufficient facts to support a conclusion that credit card debt is nondischargeable under section 523(a)(2)).

AP No. 08-1053, docket number 7,
06.16.2009 JEM

Miller v Hirm (In re Raymond);

Trustee brought preference action against non-resident to recover $6,000. Defendant moved to dismiss for improper venue under 11 U.S.C § 1409(b), contending that the debt in question was a consumer debt. Held: motion denied. Section 1409(b) on which Defendant relies applies to proceedings to avoid and recover preferences, but Plaintiff did not seek a “to recover . . . a consumer debt” within the meaning of section 1409(b) but instead sought to recover on a debt created by the Bankruptcy Code by section 550 as the consequence of avoidance of a preference under section 547.

NOT INTENDED FOR PUBLICATION

AP 09-6177 Doc#9
06.12.2009 MHM

In re Surace ;

(motion to dismissed so debtor could refile and obtain discharge of taxes denied; conversion to Ch13 OK);

BK 07-77545;
06.12.2009 JEM

In re Tarver;

Motion to avoid judicial liens named “Sears” and “Chase” as respondents. Motion denied for improper service under Rule 7004. Failure to use precise legal names of respondents probably contributed to failure to effect proper service.

NOT INTENDED FOR PUBLICATION

08-73794 Doc#27
06.12.2009 JEM

Denson v. Mercedes Benz (In re Denson) ;

Debtor sued to recover damages and repossessed automobile, alleging a willful violation of the automatic stay. Complaint alleged facts that established the claim except for amount of actual damages and attorney’s fees and was properly served with a summons. Defendant failed to answer, and Plaintiff moved for a default judgment. Defendant then filed a belated answer. Held: motion granted. Failure to file a timely response resulted in admission of well-pleaded facts, entitling Plaintiff to partial judgment directing turnover of car and adjudication of liability under section 362(k), with amounts of actual damages, punitive damages and attorney’s fees to be tried.

NOT INTENDED FOR PUBLICATION

AP 09-6206 Doc#7
06.02.2009 JB

In re Wyckoff;

(Order denying motion to reopen Chapter 13 case.);

08-62203-BJ (Docket #23);
05.29.2009 JEM

In re Rogers

Court denied unopposed motion to avoid judicial liens that alleged only that the liens impaired a $10,000 exemption with respect to a residence valued on schedule C at $656,000. Debtor failed to allege in the motion that there were any other liens against the residence. In his schedule C, however, Debtor showed consensual liens amounting to only $430,396, leaving ample equity to support the judicial liens after reserving for the claimed exemption.

NOT INTENDED FOR PUBLICATION

BK 09-60109 Doc #:36
05.29.2009 MHM

Ragsdale v. Morgan ;

(denial of motion to set aside default judgment)

AP 08-6651
05.28.2009 JEM

In re Mithchell

Court denied unopposed motion to avoid lien held by a respondent that is an insured depository institution because movant failed to show in the certificate of service compliance with Fed. R. Bankr. P. 7004(h).

NOT INTENDED FOR PUBLICATION

BK 09-67911 Doc #:13
05.27.2009 WHD

In re Norsworthy,

(holding that the debtor does not have an absolute right to dismiss a Chapter 13 case; court has limited discretion to consider a request to convert the case to Chapter 7).

BK 05-15098 Doc# 84
05.26.2009 REB

In re: Solomon Olufelo;

(Order granting motion for summary judgment against Debtor under 11 U.S.C. Section 727(a). Court also granted summary judgment against nondebtor Co-Defendant secured creditor for willful violation of automatic stay under 11 U.S.C. Section 362(k) and set a hearing to determine amount of any damages. Although Co-Defendant did not participate in Debtor's wrongful sale of property, it did receive proceeds from Debtor that it used to reduce its claim without seeking Court authority even though it had knowledge of bankruptcy case.)

AP 04-6481 Doc# 90
05.22.2009 PWB

In re: Allison Vanessa Kee

Application for unclaimed funds disbursed on claim for arrearage on note secured by security deed on debtor’s residence denied, without prejudice, in absence of showing that debt has not been satisfied through sale or foreclosure. Court notes discrepancies in the record concerning the holder to the claim and states, “The Court relies on lawyers to be accurate in their pleadings and proposed orders. The Court cannot possibly check the technical accuracy of every proposed order presented by consent or without opposition, but the Court will not knowingly enter orders such as the ones referenced to if they contain material unexplained discrepancies. For example, the Court will not knowingly enter an order on a motion for stay relief filed by a lender or servicer if the record shows that another entity holds the claim unless the lender or servicer shows good cause for doing so.” Application also denied because parent corporation is not authorized to obtain funds of its alleged subsidiary.

BK 01-87193 Doc#60
05.22.2009 PWB

In re: Kevin Landry and Terese Landry

Pro se Motions to avoid lien denied, without prejudice, to permit debtor time to amend Schedule C to claim residence as exempt.

BK 09-61843 Doc#49
05.20.2009 JEM

In re Copeland

Motion for stay relief denied. In May 2009, movant’s attorney submitted a proposed order not consented to by opposing counsel that recited “at the January 9, 2009 hearing, the parties stipulated” an agreement. In fact, a different attorney for movant had merely announced at the calendar call in January that a consent order would be presented. Because movant’s attorneys failed to comply with BLR 9013-2(a), which requires submission of a proposed order within 7 days of a scheduled hearing, and because the proposed order misstated what happened at the hearing and lacked debtor’s counsel’s consent, the court denied the motion.

NOT INTENDED FOR PUBLICATION

BK 08-74645 Doc #:30
05.19.2009 MGD

In re: William A. Donahue,

Order granting Debtor’s application for waiver of the Chapter 7 filing fee when Debtor’s income was less than 150% of the poverty guideline after deducting domestic support payments, made by Debtor to another household, from Debtor’s income.

09-41672 (Docket No. 12)
05.19.2009 REB

In re: Isaac Swofford,

(Order denying motion for court to resume jurisdiction to determine added cause of action under 11 U.S.C. Section 523(a)(2) as relating back to original filing under Fed.R.Civ.P. 60(b)(6) applicable through Fed.R.Bankr.P. 9024. Plaintiff-Movant failed to provide sufficient factual allegations to warrant amendment and setting aside Court's prior order dismissing its claim under Section 523(a)(6)).

AP 08-2053 Doc# 14
05.15.2009 JB

Rodriguez v. United States Department of Education (In re Rodriguez);

(11 U.S.C. § 523(a)(8); Debtor's motion to reopen case to file undue hardship complaint Granted);

08-82836 Doc#27
05.14.2009 PWB

Perkins v. Harley-Lewis (In re Int’l Management Associates, LLC),

Because the Plaintiff’s request for entry of money judgment was founded on the avoidance of transfers, entry of default judgment must be made by court under Rule 55(b)(2), and not clerk under Rule 55(b)(1), but default judgment could not entered presently due to failure to comply with Servicemembers Civil Relief Act.

AP No. 08-6180-,Doc. No. 13
05.12.2009 WHD

Israel v. United States Dept of Education,

(granting plaintiff additional time to obtain account records to provide in response to defendant's discovery requests and extending the discovery period).

AP 08-1701 Doc# 38
05.08.2009 MHM

In re Wood ;

(Denied request to waive reopening filing fee);

BK 08-79328;
05.06.2009 MGD

In re: TI Acquisition

Order allowing Creditor’s administrative expense claim pursuant to 11 U.S.C. § 503(b)(9), but denying immediate payment thereof when Debtor has a pending adversary proceeding to determine Credtior’s liability for preferential payments. The Court also held that 11 U.S.C. § 502(d) is not a defense to the allowance of § 503(b)(9) claims due to the limited applicability of § 502 to claims pursuant to 11 U.S.C. § 501.

08-42370 (Docket No. 301)
05.06.2009 MGD

In re: TI Acquisition

Order allowing Creditor’s administrative expense claim pursuant to 11 U.S.C. § 503(b)(9), but denying immediate payment thereof when Debtor has a pending adversary proceeding to determine Credtior’s liability for preferential payments. The Court also held that 11 U.S.C. § 502(d) is not a defense to the allowance of § 503(b)(9) claims due to the limited applicability of § 502 to claims pursuant to 11 U.S.C. § 501.

08-42370 (Docket No. 301)
04.30.2009 PWB

Walton v. Fowler,

Order denying the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(8). Debtor had prior case, filed over seven years earlier as a chapter13 and converted and discharged as chapter 7. Debtor contended that, because she filed the prior case under a chapter 13, § 727(a)(8) is inapplicable. The court concluded that this argument ignores the plain language of both § 727(a)(8) and § 348(a). Section 727(a)(8) does not require that the prior case be commenced under chapter 7; it only requires that the debtor has been granted a discharge under chapter 7 in a case commenced within the previous 8 years. Secondly, courts have construed § 348(a) to mean that a case that has been converted to chapter 7 from chapter 13 relates back to initial filing date for purposes of discharge.

AP No. 08-6687-[Doc. No. 6 ]
04.29.2009 PWB

In re Glover,

Based on finding that the Debtor did not authorize the filing of a Chapter 13 petition, the Court vacates earlier order of dismissal and dismisses the case as a fraudulent and unauthorized filing for which the Debtor was not responsible. Court cannot direct credit reporting company to change records but authorizes the reporting of the petition as being fraudulent and without the debtor’s authority. Court directs copies of the Order to be sent to the U.S. Attorney,. U.S. Trustee, and State Bar of Georgia for further investigation as to whether conduct of lawyer and person who submitted the petition was fraudulent, criminal, or otherwise improper.

BK 07-95002 Doc#27
04.28.2009 MGD

Sanders v. Naguszewski,

Order holding debts dischargeable when Plaintiff sought a declaration that the debts were non-dischargeable pursuant to 11 U.S.C. § 523(a)(4) and Plaintiff failed to carry its burden of proving that the debts at issue were the result of fraud or defalcation while acting in a fiduciary duty.

07-04050 (Docket No. 31)
04.27.2009 JEM

Constance Roberts;

Debtor filed an application to employ the attorney who filed her bankruptcy case to represent her in truth in lending case. The Court denied the application because a debtor in a bankruptcy case (as opposed to a debtor in possession in a Chapter 11 case) is free to employ any professional that the debtor chooses to employ for any purpose, including prosecution of a cause of action that the debtor is entitled to pursue.

NOT INTENDED FOR PUBLICATION

BK 08-75357 Doc #:25
04.17.2009 JEM

The S&Q Shack, LLC;

In an involuntary case filed by a single creditor, the alleged debtor filed an answer to the involuntary petition denying that it was not paying its debts as they came due and a separate motion to dismiss on the ground that the debtor has more than 11 creditors. The Court denied the motion to dismiss, pointing out that the defense of too few petitioning creditors had to be raised in the answer and that Bankruptcy Rule 1003(b) requires a list of the names and addresses of all creditors so they may be afforded the chance to join the petition. The Court afforded the debtor an opportunity to amend its answer.

NOT INTENDED FOR PUBLICATION

BK 09-67151 Doc #:8
04.10.2009 PWB

Michael and Patricia Ray,

The Internal Revenue Service filed a proof of claim for unpaid taxes for the years 2001 through 2007. The proof of claim indicates that tax returns were filed for all years except 2007. The Debtors filed an objection to the claim, asserting that they have now filed tax their tax return for 2007 and that they received a tax refund of $950 that the IRS applied to the unpaid balance of other taxes. For some unexplained reason, they conclude that this set of circumstances entitles them to disallowance of the entire proof of claim. Although IRS did not respond to the objection or appear at the hearing, no basis for disallowance of the claim exists. The objection is denied, without prejudice to the rights of the debtors to renew the objection and to seek allowance of the IRS’s claims in the proper amount.

BK 08-43009 Doc#37
04.09.2009 PWB

Roger and Veira Owens,

A Chapter 13 debtor must act in good faith in connection with the claims resolution process. IRS filed a proof of claim for taxes for 2005 through 2007, noting that the Debtors had not filed returns for those years. Debtors objected to the claim on the ground that they have now filed tax returns. Disallowance is not proper given that debtors known their tax liabilities. Objection denied, without prejudice to renew objection and to show seek allowance of claim only in amount that Debtors actually owe according to their tax returns.

BK 08-61790 Doc#52
04.09.2009 MGD

In re: Jeffrey Allan Charnote and Debra Sparks Charnote

Order denying car creditor's motion to reconsider, which followed a motion to disburse unclaimed funds. Applying Georgia law, O.C.G.A. § 10-1-36, the Court found there was no evidence that the creditor had complied with the requirements of Georgia law to preserve its right to seek a deficiency claim on the vehicle.

03-93371 (Docket No. 63)
04.07.2009 PWB

In re Dabney,

Order allowing $1,500 of $3,500 chapter 13 fee request, without prejudice to the attorney’s right to seek further compensation if circumstances warrant or to file a renewed application for the currently disallowed portion. The Court concluded that the Debtor’s attorney failed to demonstrate that a fee of $3,500 for this case was reasonable, taking into account all of the factors that are relevant to determination of a reasonable fee under § 330, Rule 1.5(a) of the Georgia Rules of Professional Conduct, and the Johnson factors. The court reasoned that “Fair compensation is a function of objective factors and subjective factors unique to each case. It is the role and responsibility of the debtor’s attorney to consider such factors in calculating her fee, and articulate such factors if the fee is challenged.” (Order at 13).

BK 08-77955 Doc#35
04.06.2009 PWB

Christy Lynne Goodman,

When attorney declines to make certifications required in connection with reaffirmation, attorney’s responsibility is to assist client in presenting (but not advocating) the agreement to the court for review. The attorney does not have to withdraw as a condition to the court’s review of the agreement.

BK 08-41521 Doc#30
04.02.2009 JEM

McColm v. Michal;

Plaintiff obtained subpoenas from the Clerk and served one of them on a California resident with a demand for document production in California. When the witness failed to produce the documents, Plaintiff moved for an order to show cause why the individual should not be held in contempt. The Court denied the motion and quashed the subpoena. Civil Rule 45, made applicable by Bankruptcy Rule 9016, limits the geographic area where a subpoena may be served, and the subpoena in question was not served in accordance with that rule.

NOT INTENDED FOR PUBLICATION

AP 06-9036 Doc #:138
03.31.2009 MHM

Pullen v. Cornelison ;

(Attorney's decision to reopen prior case rather than file new Ch13 bankruptcy case to stop execution sale constituted professional malpractice; expert witness not necessary when the ordinary experience of the fact-finder provides sufficient basis for determining standard of care)

AP 07-6220
03.31.2009 MHM

Haysman v. Georgia Department of Revenue ;

(permissive abstention under §1334(c)(1) is not authorized unless the plaintiff has an alternative forum available);

AP 08-6564;
03.25.2009 MHM

Kelly v. Child Support Services;

(Under 11 U.S.C. §105(a), the bankruptcy court has authority to enjoin collection activities allowed by 11 U.S.C. §362(b)(2)(D) (suspension of Debtor's drivers' license) when warranted by circumstances);

BK 08-85727;
03.25.2009 PWB

Cohutta Banking Company v. Rebecca Bowman;

A plaintiff cannot voluntarily dismiss an objection to discharge without providing notice of the proposed dismissal to the trustee, the Unites States Trustee, and other parties as the Court directs. Fed. R. Bankr. P. 7041. Moreover, when a claim that a debt is nondischargeable is joined with an objection to discharge, the Court ordinarily does not permit settlement of the dischargeability matter unless the discharge objection is first resolved. Kay v. Parker (In re Parker), 2003 WL 21703528 (Bankr. N.D.Ga. 2003)

AP No. 06-4011 Doc No. 23
03.25.2009 PWB

In re Taylor,

The Court has the discretion to determine whether information is “required” under § 521(a)(1), even when such inquiry occurs after the 45 day deadline. Court scheduled hearing to determine whether debtor, whose schedules reflect that she is self-employed is required to file “copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor” or whether, to the extent the Debtor was exclusively self-employed during this time period, the Court may “order otherwise” and excuse this filing requiremen

BK 09-63120 Doc. No. 21
03.25.2009 JEM

Shaquannah N. Williams;

Pro se debtor’s Chapter 11 case was dismissed on motion of U.S. Trustee based in part on Debtor’s refusal to answer the Trustee’s questions. Ms. Williams contended that the debtor is a corporation called “Shaquannah N. Williams cestui que trust,” that she is a secured creditor of the Debtor and that one of the Debtor’s assets is an “indemnity bond” for $300,000,000, which she would use to pay her mortgage. The Court did not buy her contentions.

NOT INTENDED FOR PUBLICATION

BK 09-61395 Doc #:22
03.23.2009 MHM

In re Hamilton ;

(Denial of Debtor's motion to reopen to file proceeding to determine dischargeability of student loan: Debtor failed to set forth prima facie case of undue hardship and bankruptcy court is not exclusive forum for determination of student loan dischargeability);

BK No. 07-68258;
03.23.2009 PWB

Tim Bice Enterprises, Inc.

Debtor whose case is properly filed in one division of Northern District may, under BLR 1070-1, file in another division in the District in which the case of an affiliate is pending.

BK 09-40697 Doc No. 9
03.20.2009 MHM

Cavalli v. Cavalli;

(BAPCPA amendments to §§523(a)(5) and (a)(15) strengthened Congressional policy favoring enforcement of family obligations by rendering all support and property division obligations nondischargeable);

AP 08-6338;
03.18.2009 JB

In re Thompson;

(Order granting relief from automatic stay to proceed with spouse's claim against real property in divorce proceedings.)

BK 08-81673-BJ (Docket #58)
03.18.2009 MHM

Tulsa Dynaspan, Inc. v. Evilsizer;

(Dischargeability: Obligations arising from state court judgment regarding Debtor's conduct of siphoning corporate funds and redirecting them to another corporate entity owned by Debtor and co-conspirators were nondischargeable under §523(a)(2) and (a)(6)); entered 3/18/2009; motion to extend time to file appeal entered 3/18/2009; order entered 3/31/2009 extending time for Defendant to file notice of appeal.

AP 08-6298;
03.13.2009 JB

In re Wyckoff,

Motion to reopen denied. Required documents not filed pursuant to § 521(a) and §521(i).

BK 08-82629-JB, (Docket #26)
03.12.2009 PWB

In re Three Rivers Companies LLC,

Order granting motions to transfer venue to the Bankruptcy Court for the Southern District of West Virginia pursuant to 28 USC 1412 based on interest of justice and convenience of the parties. Substantial pending litigation in West Virginia, location of real estate in West Virginia, involvement of local state agencies, and the lack of contacts with Georgia warranted transfer of venue.

BK 09-61430 Doc. No. 51
03.12.2009 JEM

Sean Eric Goodwin;

Debtor moved for a waiver of the requirement that he complete a course on financial management on the ground of a disability under section 109(h)(4) – he is in prison and unable to take such a course. The Court denied the motion. Being unable is not the same thing as being disabled. “‘[D]isability’ refers to a medical condition and not to a law of physics that prevents Mr. Goodwin from walking through walls and iron bars.”

NOT INTENDED FOR PUBLICATION

BK 08-82704 Doc #:20
03.11.2009 JEM

Stalzer, Trustee v. Martin;

Motion for default judgment denied service was made in one envelope addressed to: Mr. Tom Martin Mrs. Judy Martin Mrs Martin was entitled to her own copy of the summons and complaint. She was not served, since the first name on the envelope was her husband’s, and therefore the Court lacked jurisdiction over her.

NOT INTENDED FOR PUBLICATION

AP 08-06533 Doc #:9
03.04.2009 JEM

Antonio Bernard Bates;

The Court dismissed the case on the Trustee’s motion but denied a creditor’s motion to dismiss with prejudice for the following reasons. (1) the motion was coupled with an objection to confirmation and counsel for movant announced a “109(g) objection” at the calendar call; (2) counsel for debtor announced no opposition to the “objection,” but no one referred to the motion; and (3) counsel failed to present an order for over two months.

NOT INTENDED FOR PUBLICATION

BK 08-79346 Doc #:17
03.03.2009 PWB

Townson v. Loftin,

Order setting hearing on Plaintiff’s motion for default judgment. Although the statement in the affidavit of counsel that the Defendant “may have Alzheimer’s Disease” raises the possibility that the Defendant may be incompetent, this possibility alone does not preclude a finding of competency for purposes of Rule 55(b)(2). Instead, in the absence of evidence of competence, the proper inquiry is whether a conservator or guardian has been appointed for the Defendant by a probate court because the absence of such an appointment raises a presumption of competency under Georgia law. Although the Court concluded that Rule 55(b)(2) does not impose upon a moving party an independent duty to investigate a defendant’s competency, the Plaintiff has raised the issue of the defendant’s competency. To demonstrate the existence of the presumption in this proceeding in which the Plaintiff has raised the issue of the Defendant’s mental status, the Plaintiff may establish that, in the appropriate probate court, no record of guardianship or conservatorship proceedings with respect to the Defendant exists

AP No. 08-4069, [Doc. No. 10].
02.25.2009 JEM

Miami Entertainment, Inc.

In a Chapter 11 case, a bank moved for stay relief with respect to property that may have significant equity. The debtor and the bank then presented a consent order compromising the dispute pursuant to which the stay would be lifted if Debtor failed to make certain payments. Because the movant failed to serve notice of the proposed compromise (or the motion) on creditors as required by Bankruptcy Rule 4001(a), the Court denied the motion.

NOT INTENDED FOR PUBLICATION

BK 08-79618 Doc#32
02.25.2009 JEM

Miami Entertainment, Inc.

In a Chapter 11 case, a bank moved for stay relief with respect to property that may have significant equity. The debtor and the bank then presented a consent order compromising the dispute pursuant to which the stay would be lifted if Debtor failed to make certain payments. Because the movant failed to serve notice of the proposed compromise (or the motion) on creditors as required by Bankruptcy Rule 4001(a), the Court denied the motion.

NOT INTENDED FOR PUBLICATION

BK 08-79618 Doc#32
02.25.2009 JEM

Miami Entertainment, Inc.

In a Chapter 11 case, a bank moved for stay relief with respect to property that may have significant equity. The debtor and the bank then presented a consent order compromising the dispute pursuant to which the stay would be lifted if Debtor failed to make certain payments. Because the movant failed to serve notice of the proposed compromise (or the motion) on creditors as required by Bankruptcy Rule 4001(a), the Court denied the motion.

NOT INTENDED FOR PUBLICATION

BK 08-79618 Doc#32
02.23.2009 JEM

Thomas McElroy

The Court limited no-look compensation to Debtors' counsel in case 2 filed a few days after case 1 was dismissed based on a "surprise" that counsel should have anticipated. Because case 2 was merely a much simpler version of case 1, counsel's efforts to obtain even greater compensation in case 2 required proof of value of services.

NOT INTENDED FOR PUBLICATION

09-61362 Doc#15
02.17.2009 PWB

In re Hunt,

Duties of attorney representing debtor in case filed in improper venue upon transfer of case. Where attorney filed chapter 13 case for GA resident in Chattanooga and case was subsequently transferred to Northern District of Georgia, attorney sought to withdraw and debtors sought substitution of new counsel. The Court granted both motions, noting that the motion to withdraw would not have been filed absent client consent to substitution. The Court further observed that if a lawyer files a case for a debtor in an improper district, the lawyer mus be prepared to deal with the consequences of transfer to the proper district if it occurs. If the lawyer who files a case transferred to this district is not a member of the Court’s bar and the client does not retain substitute counsel who promptly appears in the case, the lawyer must file an application to appear pro hac vice in the Northern District of Georgia. Further, the provisions of 11 U.S.C. § 329(b) permit the Court to inquire as to the reasonableness of fees charged by an attorney for a debtor who files a case in a district in which venue is not proper.

BK 08-44335 Doc. No. 43
02.10.2009 JB

Roswell Holdings, LLC v. Peterson (In re: Peterson),

(Order granted judgment on the pleadings making state court judgment for slander of title nondischargeable under 11 U.S.C. § 523(a)(6) )

AP 08-6088, docket no. 14,
02.09.2009 MGD

Strickland v. Barr,

Denying Defendant’s motion to dismiss when Plaintiffs had insufficient notice of Defendant’s bankruptcy case and was therefore not limited by the Rule 4007(c) deadline for filing complaints.

08-09017 (Docket No. 7)
02.06.2009 PWB

Duke Realty Limited Partnership v. North Metro Mill Work Distributors, Inc. (In re Manis Lumber Co.)

Retroactive Rejection of Unexpired Lease and Amount Due Under 365(d)(3). Held: (1) Equitable considerations permit retroactive approval of an unexpired lease as of a date when the landlord is in substantially the same position that it would be if the bankruptcy court had approved rejection on that date. A landlord is ordinarily in such a position on the date when it has received unequivocal notice of the estate’s intent to reject the lease and when it has the opportunity to obtain possession of the premises and to commence the reletting process. In this case, that date is ten days after the filing of the motion, in the absence of any indication that the debtor in possession had affirmatively indicated that the landlord could have possession at an earlier time. (2) The pro rata approach best reflects the Congressional purpose of § 365(d)(3) and, therefore, rent is due on a pro rata basis through April 20.

BK 08-40398 Doc. No. 353
02.02.2009 MGD

Titan Financial Group II, LLC et al v. Delta Family Partnership, L.P. et al,

Granting Plaintiff’s motion to amend complaint. Permitting Plaintiff to join additional defendants when Plaintiff alleged that the proposed defendants received proceeds from fraudulent transfers made by the original defendants. Permitting Plaintiff to amend and add claims when there was no prejudice to Defendants because Plaintiff still had time to initiate new proceedings against Defendants.

06-06400 (Docket No. 48)
01.30.2009 WHD

Israel v. United States Dept of Education (In re Israel),

(granting defendant's motion to compel debtor to respond to discovery regarding her postdischarge financial condition, as such information is relevant to a determination of whether the debtor's student loan should be discharged as an undue hardship).

AP 08-1701, docket no. 31,
01.26.2009 MGD

Citrico International Limited v. Citrico Inc.,

Granting in part and denying in part Plaintiff’s motion for summary judgment. Granting Plaintiff’s motion for summary judgment when the undisputed evidence showed that Defendant had received payments on a debt properly owed to Plaintiff and that Plaintiff, as a co-obligor, paid off debts that were traceable to Defendant’s use of credit. Denying Plaintiff’s motion for summary judgment when Plaintiff’s exhibits did not demonstrate the amount of inter-company debt Plaintiff claimed.

AP 05-06589 (Docket No. 52)
01.12.2009 PWB

Kendall Electric, Inc. v. Black (In re Black);

Order denying plaintiff’s motion for summary judgment on 523(a)(4) claim. Plaintiff’s Michigan default judgment (for violation of Michigan Building Contract Fund Act) not entitled to issue preclusive effect in dischargeability proceeding because neither federal law nor Michigan law would give preclusive effect to a default judgment based on a “true default” where there was no participation by the defendant. As to merits of the 523(a)(4) claim, the Plaintiff had failed to establish necessary element of MBCFA in order for court to determine that debt was a trust fund debt. As a result, summary judgment inappropriate at this time.

AP No. 07-6409-PWB, Doc. No. 13
01.09.2009 PWB

In re Lary,

Order denying Debtor’s amendment to petition. Individual chapter 7 debtor’s amendment denied to extent it seeks to substitute corporation as a debtor in this case. Although Bankruptcy Rule 1009 permits liberal amendment to pleadings, a bankruptcy case cannot be amended to change the identity of a debtor after the entry of the order for relief.

BK 08-86694 Doc. No. 9
12.29.2008 REB

Atlanta Contract Glazing, Inc. v. Isaac W. Swofford (In re Isaac W. Swofford);

(11 U.S.C. 523(a)(6), Fed.R.Bankr.P. 7012, nondischargeability of debt (applicability re breach of contract claim))

AP 08-2053
12.11.2008 MGD

In re: Charles S. Alba and Susan K. Alba, Debtors,

Denying Creditor’s motion for relief from stay when Creditor failed to establish a prima facia case showing that Creditor held a valid security interest in Debtors’ property. The Creditor’s only evidence of a possible security interest included an unsigned security agreement marked “copy,” a signed loan agreement that referred to the existence of separate documents creating security interests, and the loan officer’s testimony that he remembered the Debtors signing the security agreement. The Court found insufficient evidence of the Debtors’ intent to create a security interest in favor of Creditor in Debtors’ personal property.

BK 08-72093 (Docket No. 61)
12.01.2008 JEM

Dugan v. Sea Products, Inc.

Following trial, These findings of fact and conclusions of law provide a detailed factual and legal analysis of the Defendant’s ordinary course of business and new value defenses under section 547(c)(2) and (4) in this preference action. This document also discusses the basis for awarding pre-judgment interest on the amount of avoided preferences.

NOT INTENDED FOR PUBLICATION

AP 06-06498-jem Doc #:46
11.25.2008 MGD

Charles Michael Vaughn, Debtor,

Denying Debtor’s exemptions in a watch and a boat, which Debtor concealed from the Chapter 7 Trustee, based on the Court’s authority under 11 U.S.C. § 105(a) to prevent abuse of the bankruptcy process. Also denying Trustee’s request to surcharge Debtor’s remaining exemptions to cover the administrative costs incurred by the estate as a result of Debtor’s concealment. The Bankruptcy Code provides specific circumstances for using a Debtor’s exempt property to satisfy administrative expenses, and provides specific remedies for a debtor’s failure to turnover estate property, but the circumstances of Debtor’s case did not justify using the Court’s equity power to grant a surcharge.

08-64060 (Docket No. 152)
11.24.2008 JEM

Dugan v Graphic Advantage, Inc.

On motion for summary judgment in preference action, Court denied motion in part with respect to the affirmative defense of new value under section 527(c)(4).

NOT INTENDED FOR PUBLICATION

AP 06-06479-jem Doc #:25
11.19.2008 JB

In re MB Properties, LLC;

The debtor was a corporation and under Bankruptcy Rule 9001(5), the debtor was defined as any and all officers, members or persons in control. Debtor’s principals fell within the scope of the definition of “debtor” pursuant to Rule 9001(5) and could be examined under Bankruptcy Rule 2004 when the Court so ordered.

BK 08-61492 Doc#24
11.18.2008 MGD

Linda Coty Bullock, Debtor,

Denying Creditor’s motion to dismiss case and denying Creditor’s motion to validate foreclosure sale, based on the inapplicability of 11 U.S.C. § 109(g)(2). Although Debtor’s prior case was dismissed after Creditor had filed a motion for relief from stay, that case was a Chapter 13 case for which Debtor was ineligible, Creditor sought to have Debtor’s prior case converted to a Chapter 11, and Debtor had extensive equity in property securing Creditor’s debt. Therefore, Debtor’s dismissal of the Chapter 13 case was not in response to Creditor’s motion for relief from stay, the subsequent Chapter 11 filing did not represent the harm that 11 U.S.C. § 109(g)(2) is intended to remedy, and the bankruptcy estate was best served by preserving equity in Debtor’s property.

08-43724 (Docket No. 13)
11.17.2008 JB

In re Carlos Ramos Henry;

(11 U.S.C. §§ 523(a), 727; Part VII Fed. R. Bankr. P. (Creditor’s letter which alleges Debtor is hiding assets and objects to discharge and dischargeability of a judgment is construed as a motion to extend the time to file and serve a proper complaint in accordance with Part VII of the Fed. R. Bankr. P.)

Case No. 08-75452 Doc#15
11.14.2008 PWB

Maxine Ewing v. United States of America (In re Ewing),

(Order denying Debtor’s Motion for Contempt for Violation of the Automatic Stay by the Internal Revenue Service/United States of America. IRS’ setoff of 2007 prepetition federal tax refund against 1996 prepetition federal income tax liability pursuant to 26 U.S.C. § 6402(a) did fell within the exception of 362(b)(26) and did not violate the automatic stay. Further, IRS has discretion to determine how such overpayments are applied.

08-60367 Doc#41
11.10.2008 JEM

Gail Celeste Green

The Chapter 13 Trustee objected to confirmation of Debtor’s plan, which provides for a term of 3 years, contending that the gross income of the non-debtor spouse should be included in calculating the applicable commitment period because section 1325(b)(4)(A)(ii) refers to the “current monthly income of the debtor and debtor’s spouse combined.” For a variety of reasons, the Court disagreed, holding that a non-debtor spouse has no “current monthly income” as that term is defined in section 101(10A).

NOT INTENDED FOR PUBLICATION

BK 08-67270 Doc #31
11.05.2008 WHD

In re Bolar,

(order recharacterizing claim as nonpriority unsecured claim for marital property settlement and overruling objection to confirmation pursuant to section 1322(a)(2), after concluding that debt owed to debtor's ex-spouse was not in the nature of alimony or support).

BK 08-10350 Doc#49
10.30.2008 MHM

In re Gish ;

Order directing DA to turnover prepetition retainer as property of the estate);

bankruptcy case No. 07-74427;
10.28.2008 MHM

In re Farris ;

(Denial of motion for reconsideration of dismissal order);

BK. 04-95802;
10.28.2008 JEM

Dugan v. Golden Chair

Court denied in part motion for summary judgment in preference action. Plaintiff failed to show that transfers by check to "GoldenChair/Capital Factors." were made to or for the benefit of Defendant Golden Chair. For purposes of motion, the Court was constrained to construe the slash as “or,’ thereby leaving open the factual question of whether Golden Chair received or derived benefit from transfers not deposited in its bank account.

NOT INTENDED FOR PUBLICATION

AP 06-06478 Doc #23
10.24.2008 JEM

The Adason Group. LLC

A creditor and the debtor agreed to an examination of the debtor, though no contested matter had been commenced. The creditor filed a “Notice of Rule 2004 Examination,” seeking certain documents. The Debtor filed an objection to the scope of document production. The Court held that the notice was insufficient to obligate Debtor to produce documents because creditor failed to move for and obtain an order requiring Debtor to appear for a Rule 2004 examination.

NOT INTENDED FOR PUBLICATION

BK 08-72984 Doc#20
10.21.2008 JB

In re Foremam;

Reaffirmation Agreements - Court does not have authority to allow debtor to rescind a reaffirmation agreement unless debtor gives timely notice of the rescission to the creditor.

Case No. 08-67230 Doc#25
10.16.2008 MHM

In re Toweh ;

(Debtor's motion to reopen granted: Debtor allowed to file a reaffirmation agreement "made" before the discharge was entered);

BK. 07-81635
10.16.2008 MHM

UST v. Bahamundi ;

(Denial of motion for reconsideration of order denying UST's motion to dismiss because UST failed to satisfy burden of proof);

BK 08-69596;
10.14.2008 WHD

Watts v. Crane Grading Company,

(granting summary judgment to trustee on complaint to avoid preferential transfer).

AP 05-1127 Doc# 20
10.14.2008 MGD

Gordon v. US Department of Education,

Summary Judgment for Debtor, finding an undue hardship and discharging Debtor’s student loan debt pursuant to 11 U.S.C. § 523(a)(8). Debtor was 62 years old, had a history of health problems, had limited education, lacked stable employment, and had attempted to pay her student loan debts through the years.

07-09049 (Docket No. 36)
10.14.2008 REB

In re: Mark Edward Gray;

(Order denying motion to compel discovery under Fed.R.Civ.P. 37, as incorporated by Fed.R.Bankr.P. 9014(c) and 7037. Party asserted Fifth Amendment privilege against self-incrimination, which Court interpreted as extending to any response that might furnish a link in the chain of evidence needed to prosecute said party.)

BK 07-22331 Doc#66
10.10.2008 MHM

In re Codjoe ;

(Debtor presented insufficient information to show she is entitled to waiver of filing fee); Case was dismissed by order entered 10/28/08.

bankruptcy case No. 08-76964;
10.10.2008 MHM

In re O'Dell;

(Reaffirmation agreement was "made" pre-discharge when Debtor and the creditor executed the agreement pre-discharge, but Debtor's attorney executed the agreement after entry of the discharge);

BK 08-67027;
10.10.2008 MHM

In re Watts;

(motion to extend Rule 4007 bar date was untimely when it was filed one day after last day of previous extension of time; also where no contested matter or adversary proceeding is pending, bankruptcy court lacks subject matter jurisdiction to approve a settlement about dischargeability);

BK 08-69513
10.10.2008 MHM

Harris v. Pullen;

(stay pending appeal denied where movant failed to offer to post supersedeas bond and failed to show likelihood of success on appeal and failed to show irreparable injury);

BK 07-65415;
10.06.2008 PWB

HSBC Mortgage Services, Inc. v. Harry W. Pettigrew, Chapter 7 Trustee (In re Southstar Funding, LLC),

(Order granting Plaintiff’s motion for summary judgment and denying Trustee’s motion for summary judgment. Debtor held legal title to loan in trust for the benefit of the Plaintiff, its equitable owner and, as a result, the loan is not property of the Debtor’s estate. Prepetition transaction did not effect a transfer of anything more than bare legal title to the Debtor for the purpose of permitting it to sell the loan to another purchaser on behalf of the Plaintiff and to remit the sales proceeds to the Plaintiff; it did not transform the Plaintiff’s ownership interest into a security interest.)

AP 07-6524 Doc#48
10.06.2008 JEM

Audrey Small

Motion of Debtor’s counsel to withdraw denied where counsel failed to comply with BLR 9010-5.

NOT INTENDED FOR PUBLICATION

BK 08-74928 Doc#21
09.30.2008 MHM

In re Dean;

(For above-median-income debtors in a Chapter 13 case, "projected disposable income" will be calculated based upon the actual income Ds expect to earn during the term of the plan less the actual projected expenses as calculated under §707(b)(2)(A) and (B), i.e. the form B22C expenses);

BK 07-73132
09.30.2008 MHM

Kerr v. Couchell (In re Christou);

(Mere passage of time does not constitute prejudice sufficient to deny motion to amend complaint and to reopen discovery);

AP 07-6609
09.29.2008 CRM

In re Tennyson,

Trustee’s Objection to Confirmation; (Confirming a 36-month plan for an above-median income debtor over Trustee’s § 1325(b)(1)(B) objection; holding that with respect to § 1325(b)(1)(B), the applicable commitment period, prescribed in 1325(b)(4) for an above-median income debtor, is irrelevant when the debtor has no projected disposable income);

BK 07-78937 Doc#24
09.29.2008 MGD

Spinner v. Cash In A Hurry, LLC,

Judgment for Plaintiff for Truth In Lending Violations on the Motor Vehicle Pawn Contract, 15 U.S.C. § 1632(a), and damages awarded for willful stay violation for the postpetition sale of Debtor’s car, 11 U.S.C. § 362(k) (including emotion distress damages), based on excessive interest rate charged by Defendant which voided the pawn transaction by operation of law, O.C.G.A. § 14-12-131(b), and Defendant lost the automatic forfeiture benefit of the Georgia Pawnshop Act;

06-6415 (Docket No. 34)
09.23.2008 JEM

Walton, US Trustee, v. Nelson

Pursuant to Findings of Fact and Conclusions of Law, Court denied Chapter 7 Debtor’s discharge for failure to account for approximately $500,000 borrowed from banks using credit card checks. Facts also supported denial of discharge for transferring and concealing property with intent to defraud.

NOT INTENDED FOR PUBLICATION

AP 08-6025 Doc#41
09.18.2008 CRM

In re Allied Holdings, Inc. et al.,

(sustaining debtor's objection to claim arising from the sale of a business)

BK 05-12515 Doc#4040
09.17.2008 REB

In re: Thomas C. Giordano and Mary Giordano;

(Order denying Co-Defendant's motion for summary judgment on complaint to determine dischargeability of debt under 11 U.S.C. Section 523(a)(3). Movant asserted Plaintiff-Debtor's failure to list claim it holds as assignee excepts debt from discharge. Court held that whether or not assignor had notice, Movant charged with notice by virtue of its listing in Debtor's schedules. In other words, a purported lack of knowledge of a bankruptcy case cannot be imputed to an assignee with notice. Judgment granted in favor of Debtor.)

AP 05-6543 Doc#22
09.08.2008 PWB

In re: Employment and compensation of R. Scott Cunningham as counsel for debtors in pending cases.

Employment and Compensation of R. Scott Cunningham as Counsel for Debtors in Pending Cases. Attorney convicted of felonies in the district court and sentenced to prison filed five new bankruptcy cases on the day his incarceration began and failed to withdraw from representation of debtors in 102 Chapter 13 cases, despite inability to represent clients while in prison. Court imposed sanctions in favor of Chapter 13 Trustee and the Clerk's office to compensate for time and expenses incurred on account of attorney's failure to comply with his professional duties.

06-00401 Doc#48
09.04.2008 WHD

Redwine v. Sholar, , entered

(denying motion to dismiss complaint objecting to discharge and dischargeability; Court could not take judicial notice of the fact that the plaintiff had previously filed bankruptcy and failed to disclose claim against the defendant-debtor for purposes of establishing defense of judicial estoppel).

AP 08-1013 Doc# 15
08.29.2008 REB

In re Yoo Sun Chi,

(Order granting Trustee's motion for summary judgment and denying Debtor's discharge under 11 U.S.C. Section 727(a)(5)).

AP 06-9069
08.28.2008 MGD

Wells Fargo Auto Finance v. Jimmie Lue Smith (In re Jimmie Lue Smith),

Judgment for Debtor; debt owing to assignee car creditor deemed dischargeable when car creditor failed to carry its burden of proof regarding Debtor's intent to deceive and original seller's justifiable reliance at trial; Debtor was co-signor on contract and co-maker on the note; and car creditor sought its debt to be nondischargeable pursuant to Debtor's alleged false representations under § 523(a)(2)(A));

07-6242 (Docket No. 19)
08.22.2008 PWB

In re: Joseph Travis Sanders and Hope Lane Sanders - Entered

Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing.

BK 08-40879 Doc#34
08.22.2008 PWB

In re: Marvin B. Brooks, II -

Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing.

BK 07-63364 Doc#50
08.18.2008 JB

Rojay V. Howell,

(11 U.S.C. § 524(c); Debtor filed pro se motion to reaffirm a debt, but failed to file the Reaffirmation Agreement. Debtor must file the Reaffirmation Agreement before the Court can consider Debtor’s motion to reaffirm and meet the statutory test including that the Reaffirmation Agreement must be made before the discharge is granted; that the creditor make certain disclosures; and that the Reaffirmation Agreement does not impose an undue hardship and is in the best interests of Debtor);

BK 08-71169 Doc#27
08.18.2008 JEM

Opteum Financial Services v. RBC Centura Bank

Debtor had obtained two loans secured by real property and then obtained a line of credit secured by the same property. One of the first two loans was thereafter refinanced. After bankruptcy case was filed and stay was lifted as to the real property, holders of the first two loans sued line of credit lender for a declaratory judgment that their liens were senior. Proceeding was dismissed for lack of subject matter jurisdiction in that outcome of proceeding could not affect bankruptcy estate or debtors and hence was not related to the bankruptcy case.

NOT INTENDED FOR PUBLICATION

AP 07-6043 Doc#46
08.12.2008 MHM

In re Gresham ;

(The automatic stay render a state court contempt order void even though creditors were not listed in Debtor's bcy petition);

BK 06-60027;
08.12.2008 MHM

In re Gresham ;

(The automatic stay render a state court contempt order void even though creditors were not listed in Debtor's bcy petition);

BK 06-60027;
08.12.2008 JB

Horn et. al. v. Farley (In re Farley),

(11 U.S.C. § 523(a)(2), (a)(4), (a)(6); Rule 55; default judgment under § 523 cannot be granted when complaint does not allege elements of the claim);

AP 07-6312 Doc#21
08.07.2008 MHM

In re: Pullen v. Harris;

(Sanctions imposed against creditor who threatened to arrive at Debtors' residence with police and a locksmith)

BK 07-65415
08.07.2008 JB

In re Dingley;

(Service in an adversary proceeding on an insured depository institution was not proper);

AP 08-9034 Doc#3
08.04.2008 PWB

Antonio Marco Acosta Entered on

Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing.

BK 08-40623 Doc#36
08.01.2008 JB

Dennis v. Dennis,

(11 U.S.C. §§ 522(f)(1)(A), 523(a)(5); Debtor’s motion to avoid a lien under § 522(f)(1) is denied. Judicial liens based on domestic support obligations are not avoidable under the lien avoidance statute)

BK 08-69128 Doc#16
07.31.2008 MGD

Ragsdale v. Meir Shoshan, et al. (In re Meir Shoshan),

(Conditionally denying Debtor's request for appointment of a guardian ad litem to represent Debtor's son's one-third interest in real property subject to the Chapter 7 Trustee's § 363(b) and (h) motion to sell because Debtor, as legal guardian for his son, could represent the interest of his minor son under Bankruptcy Rule 7017(c), Debtor's identical one-third interest in the property aligned with the interests of his minor son, and Debtor made no allegations that his representation of his son's interest was inadequate; the Court authorized Debtor to appoint a guardian with costs coming from the proceeds of his portion of the sale of the subject real property if Debtor determined his representation of his minor son's interest was inadequate);

08-6057; (Docket No. 17)
07.30.2008 MGD

In re Grace Johanna McCarthy;

(Denying pro se Debtor's Motion to Recuse Judge under 28 U.S.C. § 455 because Debtor made no substantiated allegations or provided evidence of the Court's favoritism or antagonism, instead Debtor's allegations were in reference to the Court's statements at a hearing regarding applicable burden of proof requirements);

03-64009; (Docket No. 160)
07.30.2008 JEM

Southern Value Homes, Inc.

In this case, the court had granted the Chapter 7 trustee’s objection to a proof of a priority claim filed by the law firm that represented the debtor in possession in the superceded Chapter 11 case because the court had never authorized the employment of the firm. Former debtor in possession then moved for nunc pro tunc approval of employment of the firm. The Court denied the motion in part because the movant was no longer the debtor in possession, and only a trustee (including a debtor in possession) can seek approval of counsel under section 327.

NOT INTENDED FOR PUBLICATION

BK 03-81907 Doc#156
07.29.2008 MGD

Awald, et al. v. Bienvenu;

Denying Plaintiff's Motion to Abstain under 28 U.S.C. § 1334(c) based on the Plaintiff's claims "arising in" the underlying bankruptcy proceeding and Plaintiff's failure to prove that the claims could be timely adjudicated in state court; Plaintiff's claims "arise in" the underlying bankruptcy proceeding (In re Halo Technology Holdings, Inc., case numbers 07-50480 through 07-50481, 07-50486 through 50494, 07-50496 (Bankr. D. Conn.)) because the implicated Director and Officer's liability policy was an asset of the bankruptcy estate, with the debtor-in-possession as a named insured, and the proceeds of the policy were also an asset of the bankruptcy estate; the imposition of the automatic stay to any proceeding involving a bankruptcy estate assets would not allow Plaintiff's to timely adjudicate the matter in state court);

07-06582 Doc#28
07.28.2008 JB

Fridella v. Renaissance Homeowner Association, Inc.,

(11 U.S.C. § 522 (b) and (f)(1), O.C.G.A. § 44-3-232; Debtor’s motion to avoid lien on her residence is denied. Respondent’s lien appears to be a homeowner association’s statutory lien and such a lien is not avoidable under § 522(f)(1). The lien avoidance statute applies only to certain types of judicial liens or a nonpossessory, nonpurchase money security interest in certain types of personal property);

BK 07-70108 Doc#54
07.21.2008 WHD

In re Buciarelli,

(order finding violation of the automatic stay, but awarding no damages because debtor demonstrated no injury).

BK 07-13114-whd, docket number 19,
07.18.2008 WHD

Chase Bank, NA v. Huynh,

(denying summary judgment on nondischargeability of credit card debt under section 523(a)(2) due to lack of evidence supporting the creditor's claim that the debtor incurred charges without the subjective intent to repay).

AP 07-1026-whd, docket number 19,
07.17.2008 JB

In re Johnny Simmons;

(Debtor requested relief or direction with respect to real property in Mississippi purportedly sold at a tax sale by the Town of Liberty, Mississippi for Debtor’s failure to pay property taxes. The Chapter 7 Trustee and counsel for the Town of Liberty and the individual who purportedly bought the property at the tax sale are ordered to appear and show cause why the tax sale should not be declared void)

BK 05-92328 Doc#153
07.16.2008 PWB

New Equipment Leasing, Inc. v. Sideris (In re Sideris),

Order granting Chapter 13 Debtor’s motion to dismiss 523(a)(6) complaint for failure to state claim. Section 523(a)(6) claim not excepted from a chapter 13 discharge and facts as alleged did not state claim under 1328(a)(4).

AP No. 08-6322
07.16.2008 JEM

First Centurion Receivables Mgmnt, Inc.

Motion to use cash collateral in Chapter 11 case denied because the motion was not served pursuant to Bankruptcy Rules 9014 and 7004 on creditors alleged to have an interest in cash collateral.

NOT INTENDED FOR PUBLICATION

08-72770 Doc#17
07.14.2008 PWB

Glass v. Isotec International, Inc. (In re Southwest Recreational Industries),

Order denying motion to stay post-judgment discovery and collection pending appeal.

AP 05-4066,Doc. No. 84
07.11.2008 CRM

Allied Holdings, Inc. v. Volvo Parts North America, Inc.,

(granting summary judgment to debtor and finding that creditor violated section 362(a)(3) by receiving overpayments postpetition and refusing to return the overpayments upon the debtor's request; rejecting the creditor's contention that it was entitled to retain the overpayments as recoupment of its prepetition claim).

AP 06-1013-crm, docket number 73,
07.09.2008 WHD

Progressive v. Mann (In re Parker),

(dismissing insurance company's complaint for declaration that insurance company was not required to defend the trustee in litigation against the estate because the trustee was not the named insured under the policy and the debtor, who was the named insured, was no longer a named defendant in the litigation).

AP 08-1002-whd, docket number 17
07.09.2008 JB

ilshire Credit Corp., as Servicer for Merrill Lynch Mortgage Lending, Inc. v. Brown (In re Brown),

(The Court needs more facts to determine whether the exception to the automatic stay found in § 362(b)(22) applies. This is the exception with respect to the continuation of any eviction or dispossessory proceeding involving residential property when the landlord has obtained a judgment for possession of the property before the date the bankruptcy case is filed);

BK 08-69728 Doc#14
07.07.2008 PWB

In re John Leroy Howard and Nohemi Beltran Howard,

Order (1) denying Litton Loan Servicing, LP’s motion to declare tax sale void and (2) retroactively annul the stay. During the pendency of the Debtors’ case, Rockdale County Georgia conducted a tax sale as to the Debtors’ residence at which American Lien Fund, LP was the purchaser. Neither Rockdale County nor ALF had notice of the bankruptcy case. The Debtors had not opposed stay relief by Litton. Litton, the holder of a deed to secure debt on the Debtor’s residence, requested that the Court set aside the tax sale as being void in violation of the stay. ALF sought retroactive annulment of the stay. Held: (1) Litton has standing to seek a determination that an act in violation of the stay is void; (2) the tax sale was not excepted from the automatic stay pursuant to section 362(b)(24) because ALF was not a “good faith purchaser” as contemplated by 549(c); (3) retroactive annulment of the stay to validate the tax sale to the extent valid under state law was warranted. The Court found that the Debtor had no interest in the property and it was of no value to the estate; neither Rockdale County nor ALF had notice of the bankruptcy; and Litton had failed to protects legal and financial interest in the property by recording its interest. Had Litton recorded its assignment, it would have received notice of the tax lien by Rockdale County. Litton’s remedy remained redemption in accordance with Georgia law.

BK 06-61345, Doc. No. 68
07.01.2008 PWB

In re Randall Wayne Finney and Patricia Elaine Finney,

Chapter 7 trustee sought excess proceeds resulting from foreclosure of debtors’ residence which were the subject of an interpleader action in Cobb County, Georgia. Cobb County Superior Court attempted to transfer case and interpleader funds to bankruptcy court. Trustee asserted interest derived from stay relief order which provided that excess proceeds from foreclosure should be paid to the chapter 13 trustee for the benefit of the estate. Held: Registry funds retained, but file returned to Cobb County because bankruptcy court lacks jurisdiction since no party sought removal of the action. Court found that it was appropriate to permit the superior court, which has concurrent jurisdiction with regard to disputes concerning the funds, to adjudicate issues of entitlement to funds if it deems it appropriate to do so. Court questioned advisability of provision in the stay relief order which provided for excess proceeds to be paid to the [chapter 13] trustee for the benefit of the estate which the chapter 7 trustee relied on for a basis for seeking the funds, noting that even if the trustee had received the surplus funds from the foreclosure sale, the trustee would have had the responsibility to hold them for the benefit of whoever was entitled to them under applicable law; the surplus funds could not become unencumbered property of the estate.

Case No. 05-83587, Doc. No. 89
06.30.2008 JEM

McColm v. Michal

Plaintiff moved to compel discovery because Defendants’s response was a copy that did not include their original signatures. The Court denied the motion because revised Civil Rule 34 also does not specifically state that the answers must bear the original signatures and BLR 7026-3(a) directs that the party making discover “shall also retain original discovery material . . . .”

NOT INTENDED FOR PUBLICATION

06-9036 Doc#111
06.26.2008 JEM

Wells Fargo Financial Bank v . Nguyen

Attorney moved for reconsideration of order in which Court denied application for attorney’s fees on ground that Movant and Debtor did not comply with Bankruptcy Rule 9011(c)(a)(A). In denying motion for reconsideration, the Court held that Movant had not alleged or shown any factual basis for imposing sanctions for filing adversary proceeding based on Court’s inherent authority to sanction misconduct.

NOT INTENDED FOR PUBLICATION

07-6656
06.19.2008 JEM

Mouzon Enterprises, Inc.

In reopened case, Debtor moved to vacate a consent order allowing claim of Ga. Dept. of Revenue on the ground that the amount allowed was wrong due to an error made by Debtor’s accountant. The Court granted the motion, overruling the position of the GADoR that the motion was untimely under Bankruptcy Rule 9024. Because the consent order merely allowed an agreed sum that the Court did not determine, there was no contest for purposes of Rule 9024.

NOT INTENDED FOR PUBLICATION

05-86016
06.13.2008 WHD

Israel v. Direct Loans;

(denying motion to dismiss for lack of service).

AP 08-1701, doc#6
06.13.2008 JB

Ragsdale, Trustee v. Ojemeni (In re Ojemeni);

(11 U.S.C. §§ 547, 548; Fed. R. Civ. P. 56; Trustee’s motion for partial summary judgment on fraudulent conveyance claims (both factual and constructive fraud) and preference claims denied as there are material facts in dispute)

Adv. Pro. No. 07-6412 (Docket #25);
06.10.2008 JEM

Wells Fargo Financial Bank v . Nguyen

After Court granted Defendant’s motion for summary judgment, Defendant’s attorney filed an application for attorney’s fees on the ground that Plaintiff’s claim had no merit. The Court denied the application because (1) Defendant, not his attorney, was the real party in interest and should have been the movant, (2) Defendant had not complied with the safe harbor provision of Bankruptcy Rule 9011(c)(1)(A) and (3) the motion had not been properly served on Plaintiff.

NOT INTENDED FOR PUBLICATION

07-6656
06.10.2008 JEM

Merrill Lynch v. Odum

Defendants’ motion for reconsideration of an order denying Defendants’ motion to disqualify Plaintiff’s counsel was denied because Defendants failed to show a change in controlling law, new evidence, or the need to correct clear error or manifest injustice. Further the motion was untimely.

NOT INTENDED FOR PUBLICATION

07-9048
06.06.2008 JEM

Dugan v. Sea Products, Inc.

Plaintiff’s motion in limine to bar Defendant from introducing evidence on solvency in preference dispute was denied where the pre-trial order showed no issue on solvency, making the motion unnecessary. Defendant’s motion in limine to bar testimony of expert witness because his deposition testimony cast doubt on the extent of his knowledge was denied; such an objection should be made at trial (based on evidence about witness’s qualifications).

NOT INTENDED FOR PUBLICATION

06-6498
06.06.2008 JEM

Mark Brancheau

Under Bankruptcy Rules 7004(b)(3) and 9014, Court lacked personal jurisdiction over corporate respondent to motion to redeem, where the motion was mailed to respondent but not to the attention of a named officer or managing agent.

NOT INTENDED FOR PUBLICATION

08-63576
06.02.2008 WHD

In re Cagle,

(ordering granting motion to reconsider order disallowing claim).

07-11689-whd, docket number 39
05.30.2008 JEM

In re: Sandra Sheppard

Pro se debtor moved to reopen the case to enable her to sue a lender that had foreclosed on her residence. Motion denied. If the claim had been abandoned by the trustee, as debtor alleged, the Court lacked jurisdiction, and if the claim had not been abandoned, only the trustee could sue on it.

NOT INTENDED FOR PUBLICATION

BK 06-65467 Doc#44
05.29.2008 WHD

In re King,

(lifting automatic stay to permit creditor to perform setoff).

BK 08-10892, doc#32
05.25.2008 MHM

In re Pullen;

(Ch 13 and §362(c)(3) good faith filing) on appeal to USDC 1:07-CV-1927-RLV.

BK 07-65415
05.23.2008 JEM

In re: Merrill Lynch v. Odum

Plaintiff sued Debtors, one of whom had worked for Plaintiff as an account representative, to determine the dischargeability of debt that included debt assigned to Plaintiff by one of its customers. Defendants moved to disqualify Plaintiff’s counsel, which had also represented the customer, on the ground that if the amount paid by Plaintiff to the customer for her claims turned out to exceed the amount of any debt owed by Defendants to the customer, Plaintiff might sue the customer to recover the difference. The Court denied the motion because the motion was based on speculation, not an actual conflict, and because Defendants had not timely filed a motion to disqualify, having raised the issue in January 2007 in state court litigation.

NOT INTENDED FOR PUBLICATION

AP 07-9048 Doc#40
05.23.2008 CRM

In re Chandler;

(Creditor’s Motion to Reconsider Order Granting Debtor’s Motion to Reopen granted as Debtor was barred by res judicata from relitigating the dischargeability of the debt it owed to the creditor as the matter had been fully litigated in state court)

BK 02-65783 Doc#58
05.22.2008 JEM

In re: CEP Holdings v. Kimbrell

In 74 adversary proceedings, Debtors in possession sued numerous individuals, a few of whom were insiders of Debtors, to recover preferences and fraudulent transfers. The proceedings were consolidated for the purpose of trying the issue of whether Debtors had engaged in a Ponzi scheme. The Court found that the Debtors had promised public investors extraordinary returns but had no business or assets that could fund the promised returns and that they operated a Ponzi scheme.

NOT INTENDED FOR PUBLICATION

AP 07-6382 Doc# 54
05.16.2008 MGD

Evans-Lambert v. Sallie Mae Servicing Corp.,

Plaintiff’s Motion for Reconsideration is denied based on the Plaintiff’s failure to satisfy Rule 9023's standard, and the Court’s previous Summary Judgment Order deeming Plaintiff’s student loan debt nondischargable remains unchanged

AP 07-5001 Doc#43
05.12.2008 JEM

In re: Dugan v. Leather Bella

Motion for leave to amend complaint pursuant to Civil Rule 15(c) to add new defendant denied, where plaintiff made no showing that new defendant had knowledge of the pendency of the adversary proceeding during the 120-day period following its commencement. No presumption of receipt of process arose where the envelopes addressed to an individual who was an officer of the defendant sought to be added were mailed to an address that the existing defendant, the officer and the defendant sought to be added had vacated 9 months prior to the commencement of the proceeding.

NOT INTENDED FOR PUBLICATION

AP 06-6500 Doc #30
05.07.2008 JEM

In re: CEP Holdings v. Zavala

Plaintiffs’ motion for default judgment was denied because service of process on the individual Defendant at a post office box did not comply with Bankr. Rule 7004(b)(1)

NOT INTENDED FOR PUBLICATION

AP 07-6498 Doc#25
05.07.2008 JEM

In re: Merrill Lynch v. Odum

Non-parties to adversary proceeding moved for protective order to quash subpoenas duces tecum and to bar their depositions on the ground that they were not parties, there had been no showing that any information they might have would be relevant and plaintiff had not shown a substantial need for their testimony. Motion denied as without merit to the point of being friviolous.

NOT INTENDED FOR PUBLICATION

AP 07-9048 Doc#34
05.05.2008 WHD

Howell v. Noble,

denying motion to dismiss complaint for avoidance of fraudulent conveyance).

AP 07-1060 doc#19
05.01.2008 MGD

In re Sims;

Court’s sua sponte Order provides Debtor with an extended period to file the requisite § 1328(a) certificate in order to obtain a discharge. Debtor has completed his plan earlier than expected due to his particular circumstances, and the Court deemed that additional time and an Order directing the filing of the Certificate was reasonable based on this relatively new BAPCPA requirement for discharge.);

BK 06-62756; Doc#48
04.18.2008 PWB

National Income Tax Service, Inc. v. Dorsey (In re Dorsey),

Order denying Plaintiff’s motion for summary judgment. Plaintiff’s objection to discharge claims under §§ 727(a)(2) and (a)(4) fail to state claims for relief. Complaint’s alleged facts that the debtor, behind on her mortgage payments, executed a warranty deed conveying her residence to the Plaintiff; that Plaintiff agreed to pay the past due mortgage balance; that the debtor agreed to lease the property back for twelve months; and that the debtor defaulted on rent payments to the Plaintiff and then filed a bankruptcy case on eve of eviction proceedings commenced by the Plaintiff, are insufficient to support a finding of intent to hinder, delay or defraud under § 727(a)(2). Debtor’s disclosure of incorrect social security number which was later corrected and multiple disclosures in schedules regarding residence do not support finding of “false oath” under § 727(a)(4) where Plaintiff has offered no evidence of intent.

AP 07-6666 (Doc. No. 5)
04.18.2008 PWB

In re Coates,

Order and Notice directing eCast Settlement Corporation to file statement explaining why it failed to comply with Bankruptcy Rule 3001(e)(2); what procedures it follows to insure compliance with Rule 3001(e)(2); and the reasons that the amount it states in its unsecured proof of claim exceeds the amount in the alleged assignor’s claim.

BK 06-71205 Doc#38
04.18.2008 CRM

Layng v. Mary Brooks (In re BCC Systems, Inc.);

(Trustees’s Objection to Claim and Motion to Avoid pursuant to 11 U.S.C. §544 is denied as the Trustee’s strong-arm powers under § 544(a)(1) did not give him priority over the Respondent’s unrecorded equitable interest in the vehicles at issue.);

BK 05-84208 Doc#62
04.17.2008 MGD

Free at Last Bail Bonds v. Franklin-Graham;

Order Granting Plaintiff’s Motion for Summary Judgment. Plaintiff’s Motion for Summary Judgment was granted based on a finding of non-dischargeability pursuant to § 523(a)(2)(B), and Debtor’s discharge was denied under § 727(a)(4)(A));

BK 05-06585 Doc#43
04.17.2008 JB

In re Rafael Borrero, Jr. and Amina Nicole Borrero;

(11 U.S.C. § 362(c)(3)(B); Debtors’ motion to extend automatic stay is unnecessary and denied as the statutory section is inapplicable. Although Debtors had a previous Chapter 7 case pending within the preceding one-year period, Debtors received a discharge and that case was closed rather than dismissed)

BK 08-65660 Doc#14
04.15.2008 JEM

In re: Brian Bennett

Chapter 7 Trustee moved for order authorizing the Rule 2004 examination of a law firm that closed on behalf of the lender a real estate transaction to which Debtors were parties. The Trustee did not serve the Debtors with the motion and was not required to by the Bankruptcy Rules. The law firm objected, citing Ga. Code Ann. § 7-1-360 that requires a financial institution to provide its customer an opportunity to object to the production of confidential information. The Court granted the motion, directed service of the order on Debtors and delayed the examination for two weeks to give Debtors time to object.

NOT INTENDED FOR PUBLICATION

BK 07-77463 Doc#66
04.15.2008 WHD

In re Sherrod,

(overruling creditor's good faith objection to confirmation of Debtor's chapter 13 plan).

BK 07-12288 Doc# 28
04.14.2008 JB

Detroit Phone Card, Inc. v. Verizon Business Global, LLC, Buchanan, Ingersoll & Rooney, PC (In re CNS Communications, LTD);

(Defendants filed motion to dismiss complaint which sought imposition of constructive trust on funds being held by one of Defendants. The Chapter 7 Trustee claimed no interest in the funds, and the Court concludes it is without jurisdiction to decide this dispute among non-debtor parties. The Court granted Defendants’ motion to dismiss without prejudice to the parties pursuing any claims and remedies they have in another forum)

AP 07-6681 Doc#25
04.10.2008 JEM

In re: Eddie Milledge

Movants sought stay relief alleging only that Debtor had another case pending within one year of the filing of the present case and that they were entitled to an order under section 362(c)(3)(A). Motions denied. The condition that no stay exists with respect to property of the debtor is not congruent with the condition that no stay exists with respect to property of the estate. Argument that motions should be granted because Trustee did not oppose them was without merit. The motions failed to allege facts that entitled them to the relief requested.

NOT INTENDED FOR PUBLICATION

BK 08-62839 Doc#26
04.08.2008 MHM

In re Partain;

(Corporate name included as "DBA" on petition of individual stricken; an individual cannot "do business as" a corporation)

BK 07-79992
04.06.2008 WHD

Barnette v. Bankers Financial Services,

(granting motion for default judgment on defendant' counterclaim).

AP 07-1068 Doc# 6
04.04.2008 PWB

Galleria Investments, LLC v. Hong Duck (In re Galleria Investments, LLC),

Contract for purchase of debtor’s real estate pursuant to § 363, executed in accordance with bidding procedures by “stalking horse” bidder who was also successful bidder at auction sale, provided for earnest money of $ 1 million and for the debtor to retain the earnest money as liquidated damages if the stalking horse bidder defaulted. The stalking horse bidder failed to close, and the debtor sold the property to the back-up bidder for $100,000 less. The stalking horse bidder contends that the debtor is not entitled to retain the earnest money because the liquidated damages provision is an unenforceable penalty under Georgia law. On cross-motions for summary judgment, the court held that a bidder participating in a bankruptcy sale is bound by the orders governing the sale and that the liquidated damages provision is enforceable as a judicially approved material term of the sale. Alternatively, the court ruled that the liquidated damages provision is not a penalty under Georgia law. The court declines to decide, on motions for summary judgment, other issues relating to the debtor’s alleged defaults that, the stalking horse bidder contends, excused its performance.

BK 06-62557 Doc#220
04.03.2008 MHM

In re Robinson;

(Electronic service upon a Registered User of CM/ECF is sufficient under Bankruptcy Rule )

BK 07-68960
04.02.2008 MHM

In re Center of Life Apostolic Ministries, Inc.;

(Chapter 11 case dismissed with 270-day bar to refiling)

BK 08-62137
04.01.2008 PWB

Paige v. Byrider Sales of Indiana S, Inc. (In re Paige),

Proposed Findings of Fact and Conclusions of Law with respect to the Debtor’s non-core Truth in Lending Act claim for review de novo by the District Court. Court found that the creditor’s disclosure of the contract’s payment schedule (semi-monthly payments with only the starting date of the semi-monthly payments)does not comply with the requirement to disclose “the number, amount, and due dates or period of payments scheduled to repay the total of payments” as required by 15 U.S.C. § 1638(a)(6). However, the court found the defendant in good faith relied on Regulation Z, 12 C.F.R. § 226.18(g), and the accompanying Commentary of the Federal Reserve Board in its disclosure of payment terms and that based upon the defendant’s reliance on Regulation Z and the Board’s Commentary, it is shielded from liability pursuant to the good faith defense of 15 U.S.C. § 1640(f).

AP 06-6401 Doc# 36
03.27.2008 MGD

SmithKline Beecham Corp. v. Catherine Lam,

Order Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment. Plaintiff’s claims for nondischargeability were insufficient as a matter of law where there was no evidence that Defendant acted wilfully and maliciously or intended to deceive Plaintiff.

BK 06-09096 (Docket No. 36)
03.27.2008 MHM

Williams v. Carson;

(Alleging fraud with particularity in complaint to determine dischargeability not required; Plaintiff's state court default judgment in case in which Plaintiff did not allege fraud does not collaterally estop Plaintiff from seeking a nondischargeability determination based on §523(a)(2));

AP 07-9050
03.27.2008 MHM

Ultra Group of Companies, Inc. v. Porter;

(where Defendant had signed the settlement agreement but refused to sign consent motion or consent order to approve the settlement, Plaintiff's motion to enforce settlement granted);

AP 07-6674
03.27.2008 PWB

Ronald L. Glass, as Chapter 7 Trustee of Southwest Recreational Industries, Inc. v. Isotec International,

The Defendant admitted receipt of preferential transfers under 11 U.S.C. § 547(b) and raised the ordinary course of business defense of § 547(c)(2). The payments were later than 88% of the payments in the prepreference period, but not as late as a few. Under the pre-BAPCPA law that applies in this proceeding, the Defendant must show that the transfers were in the ordinary course of business as between the debtor and the transferee, § 547(c)(2)(B), and that the transfers were made according to ordinary business terms, § 547(c)(2)(C). The Court found that the payments at issue were made according to ordinary business terms in the industry and thus met the (c)(2)(C) requirement. With regard to the (c)(2)(B) requirement, the Court determined that preferential payments within the historical range that vary significantly from the typical payment pattern during the historical period are ordinary for purposes of § 547(c)(2)(B) only if the reasons for the variation in both the historical and preference periods are similar. Because the defendant had not shown the reasons for the variations from the typical pattern, the Court determined that the defendant could not invoke the ordinary course defense. The Court exercised its discretion to deny prejudgment interest requested by the trustee based on the defendant’s credible, good faith affirmative defense that, although not successful, nevertheless presented a close and difficult question for resolution.

AP 05-4066 Doc # 53.
03.26.2008 MHM

NATCA v. Davenport; ;

(In defalcation AP, Debtors cannot set off prior contributions to fund against the defalcated amount);

AP 05-9179
03.26.2008 MHM

Zohbe v. Ameriquest Mortgage Co.

(In this Truth-in-Lending-Act ( TILA) action, notice of right of rescission was not misleading);

AP 07-6194;
03.25.2008 CRM

Johnson v. SouthTowne Motors of Stone Mountain (In re Johnson);

Denial of Plaintiff's Motion for Summary Judgment; Plaintiff sought statutory damages pursuant to 15 U.S.C. 1640(a)(2)(A)(i) under the Truth In Lending Act, and its implementing regulation, 12 C.F.R. 226, for Defendant's alleged failure to comply with disclosure requirements. Defendant's disclosures were sufficiently "clear and conspicuous" and no violation under 15 U.S.C. 1638(a), 12 C.F.R. 226.17(a)(1) and 226.4(d)(3) was found.

AP 05-6393
03.25.2008 MGD

Nicole F. Evans-Lambert v. Sallie Mae Servicing Corp., et. al,

Order Granting Defendants’ Motions for Summary Judgment. Debtor, a practicing attorney, failed to satisfy any prong of the Brunner test; Debtor failed to produce any evidence to support her claims that she would be unable to maintain a minimal standard of living if she were required to repay her student loans or that she made a good faith effort to repay her student loans.

BK 07-05001 (Docket No. 36)
03.24.2008 MHM

Miller v. Gem Financial Services, Inc.,

(Pawned property that remains unsold on the petition date gains benefit of §108 to extend deadline to redeem, but when the §108 period expires, the property is no longer property of the estate or subject to turnover).

AP 06-9063
03.24.2008 JB

Robert S. Rosenthal;

(11 U.S.C. §§ 1308, 1325(a)(9); Confirmation of Debtor’s Chapter 13 plan was denied. A condition for confirmation is that debtor file all applicable Federal, State, and local tax returns for all taxable periods ending during the four year period ending on the date of the filing of the petition which Debtor had failed to do)

BK 07-66912 Doc#53
03.20.2008 MGD

In re Monica Y. Goggins,

Order Overruling Drive Financial Services’s Objection to a Post-Confirmation Modification of Debtor’s Chapter 13 Plan. Finding that a change in circumstances existed to justify modification of Debtor’s Chapter 13 Plan, the Court allowed Debtor to modify her plan to change the treatment of Drive’s unsecured claim.

BK 05-42962
03.05.2008 WHD

In re Walker,

(finding that debtors' case should be dismissed as an abuse under section 707(b)(3)).

BK 05-15010 doc#49
03.04.2008 JEM

In re: McComb v. Michal

Defendants moved to dismiss the complaint seeking revocation of their discharges on the grounds that Court lacked subject matter jurisdiction because Plaintiff failed to alledge the proceeding was core and that Plaintiff lacked standing. Motion denied. Complaint alleged sufficient facts to show jurisdiction. Standing argument was based on assertion that Plaintiff is not a creditor of debtors, but Plaintiff alleges she is, and motion to dismiss cannot be granted unless a defendant can show the plaintiff can prove no set of facts entitling her to relief.

NOT INTENDED FOR PUBLICATION

AP 06-9036 Doc#67
02.29.2008 WHD

Falla v. Tolbert,

(dischargeability of debt pursuant to section 523(a)(6), (a)(4), and (a)(2)).

AP 06-1701, Doc# 31
02.29.2008 WHD

Georgia Lottery Corporation v. Ingram;

(dischargeability of debt pursuant to section 523(a)(4)).

AP 07-1013 Doc# 34
02.27.2008 JEM

In re: Walton v. Nelson

Defendant moved to dismiss adversary proceeding objecting to his discharge on the ground it was “unfounded” and failed to state a claim for relief. Motion denied. “A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Defendant could not show from the complaint alone that Plaintiff could not prove facts to support the claim.

NOT INTENDED FOR PUBLICATION

AP 08-6025 Doc#7
02.21.2008 JEM

In re: Wells Fargo v. Nguyen

Defendant’s motion to dismiss for failure to state a claim was denied, even though the complaint had only minimal factual allegations. All that is required is that the complaint contain a "statement calculated to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."

NOT INTENDED FOR PUBLICATION

AP 07-6656 Doc#11
02.21.2008 JEM

In re: Marquisha Amir

Unopposed motion to vacate dismissal order was denied where debtor’s counsel waited over four months to present a proposed order granting the motion in disregard of BLR 9013-2(a).

NOT INTENDED FOR PUBLICATION

BK 04-80505 Doc#27
02.13.2008 MGD

In re Mohammed A. Faiyaz,

Order Denying Dr. Suraiya Mateen’s Motion for Reconsideration of Order Denying Dr. Suraiya Mateen’s Motion to Compel Trustee to Deposit Funds into the Court’s Registry. Notice of appeal filed February 25, 2008.

BK 01-64875 (Docket No. 202)
02.13.2008 JEM

In re: Marshall Wallace

Movant submitted proposed order that included an award of attorney’s fees and costs, but the motion did not allege that Movant incurred such expenses and did not allege the amount of any fees. Further the contract attached to the motion contained no provision for attorney’s fees on the facts alleged. That portion of the motion was highly improper and the motion was DENIED in part with respect to fees and expenses.

NOT INTENDED FOR PUBLICATION

BK 07-81755
02.11.2008 REB

Franklin D. Sparks, Jr. v. Georgia Dep't of Revenue (In re Franklin D. Sparks, Jr.),

(11 USC Section 523(a)(1), dischargeability of income tax liability).

BK 04-30380
02.08.2008 MHM

In re Dye;

(denial of motion to stay proceedings in the bankruptcy case based upon debtor's request for inquiry by UST);

BK 06-71024
02.05.2008 REB

In re Scott Lamar Chambers and Mary Jane Chambers,

(11 USC Sections 502(b), 522(f), preclusive effect of lien avoidance regarding treatment of secured claim through Chapter 13 plan and need for objecting to underlying claim).

BK 06-20632
02.04.2008 MHM

Peng v. Hill;

(judgment for debtor in objection to discharge because pro se debtor lacked requisite scienter)

AP 05-9147
01.31.2008 JEM

In re: Erick Thomas

Motion to vacate dismissal order filed two months after dismissal denied as untimely.

NOT INTENDED FOR PUBLICATION

BK 05-83115
01.30.2008 MGD

In re Anthony Nzeribe,

Order Denying Debtor’s Motion for Reconsideration and Motion for Stay.

BK 07-73732 (Docket No. 55)
01.25.2008 JEM

In re: Rhodes, Inc.

Objection to claim of Pension Benefit Guaranty Corporation on ground that amount of claim is overstated was denied. Claim is not for future payments but rather is presently due, such that court has no authority to recalculate the claim.

BK 04-78434
01.24.2008 PWB

In re Turner,

Chapter 7 Trustee avoided prepetition transfer of debtor’s undivided interest in real property and thereafter sought to abandon the interest because of the burden and expense of attempting to market the problem due to title difficulties. A judgment creditor objected. The court concluded that abandonment would not reverse the avoidance of the transfer, that the effect of abandonment is that abandoned property reverts to the debtor, and that the debtor could not claim an exemption in it because he had voluntarily transferred it, and that the judgment lien consequently would, upon abandonment, attach to the undivided interest. Because the judgment lien creditor held substantially all of the debts in the case and had a remedy that could be pursued without burdening the estate, the Court permitted the abandonment. The Order also discusses the effect of the judgment lien on other property of the debtor, concluding that it could not attach to property acquired by the debtor after the filing of the petition or to exempt property.

BK 00-72597 Doc#56
01.18.2008 WHD

Watts v. Pride Utility Construction, Inc.,

(on motion for reconsideration, granting trustee's motion for summary judgment as to defendant's ordinary course of business defense).

AP 05-1134, doc#43,
01.17.2008 MGD

In re Mohammed A. Faiyaz,

Order Denying Dr. Suraiya Mateen’s Motion to Compel Trustee to Deposit Funds into the Court’s Registry and re-entering the Court’s May 5, 2004 Order. The Court’s May 5th Order was previously remanded by the District Court for erroneous reliance on the doctrine of res judicata where a writ of certiorari was pending before the Supreme Court of Georgia. The Court re-entered its Order in light of the Supreme Court of Georgia’s subsequent denial of the writ of certiorari. Motion for Reconsideration filed January 29, 2008.

BK 01-64875 (Docket No. 198)
01.15.2008 MHM

In re Patterson;

(DA in case converted from Ch11 to Ch7 required to turn over prepetition retainer to Trustee; "security retainer" not recognized. Also, value of DA's services did not exceed (or even equal) the amount of the retainer); entered 1/15/08; order denying motion for reconsideration entered 2/4/08; Notice of Appeal filed 2/14/08.

BK 07-61961
01.14.2008 WHD

Chase Bank, USA v. Huynh,

(granting motion to deem facts admitted, but denying motion for expenses pursuant Rule 37(c)(2)).

AP 07-1026, doc#16
01.11.2008 PWB

In re Rios,

Court discussed duties of attorney with regard to credit briefing requirements of § 109(h).

BK 07-66047 Doc# 37
01.09.2008 JEM

In re: Kelvin New

Section 521(i)(3) provides the only means by which a debtor who has not complied with section 521(a)(1) may avoid automatic dismissal as of the 46th day following the petition date. Hence, Debtor’s motion for the Court to “order otherwise” after the 46th day had passed to permit late filing of pay stubs was DENIED.

NOT INTENDED FOR PUBLICATION

BK 07-75092
01.04.2008 MGD

Hays v. Nano-Tex, Inc.

Order Granting Defendant’s Motion for Relief from Admission.

BK 06-04134 (Docket No. 53)
01.04.2008 JEM

In re: Richard Sullivan

Motion by Debtor’s counsel to withdraw DENIED because counsel failed to strictly comply with BLR 9010-5 dealing with withdrawal.

NOT INTENDED FOR PUBLICATION

BK 06-75803
01.03.2008 MHM

In re Pullen;

(Motion to recuse denied)

BK. 07-65415
01.03.2008 MHM

In re Pullen;

(bankruptcy court retains jurisdiction while appeal pending to consider matters related to but different from the matter on appeal)

BK 07-65415;
12.18.2007 MGD

Regions Bank v. Hart,

Order Denying Plaintiff’s Motion for Default Judgment. The facts set forth in Plaintiff’s complaint failed to make out a prima facie case under 11 U.S.C. § 523(a)(6).

BK 07-06405 (Docket No. 7)
12.18.2007 JEM

In re: Rhodes, Inc.

Motion to file late prepetition and postpetition administrative expense granted under Pioneer test.

NOT INTENDED FOR PUBLICATION

BK 04-78434
12.17.2007 MGD

Alliance Capital, Inc. v. Herzfeld,

Order Denying Defendant’s Motion in Limine. The Court declined to exclude certain of Plaintiff’s exhibits on Defendant’s Motion in Limine where Defendant’s objections went to weight and not admissibility of the documents. The Court noted that the denial of a motion in limine does not result in the admission of the subject documents, but is merely a determination that admissibility is better decided in the context of the trial.

BK 05-05001 (Docket No. 59)
12.14.2007 MHM

In re Allen;

(Denial of T's motion for conditional abandonment; T must pursue state court claim on behalf of estate);

BK 01-82408
12.12.2007 WHD

In re Norsworthy;

(overruling debtor's objection to claim and denying debtor's request for estimation of claim on the basis that the claim was neither unliquidated nor contingent).

BK 05-15098, doc#64
12.12.2007 WHD

In re Norsworthy;

(overruling debtor's objection to claim and denying debtor's request for estimation of claim on the basis that the claim was neither unliquidated nor contingent).

BK 05-15098, doc#64
12.11.2007 MHM

In re Patterson;

(Debtor's attorney, who received postpetition, pre-conversion-to-Ch7 retainer was required to turn over retainer to T);

BK No.07-61961
12.05.2007 MHM

In re Dye;

(bankruptcy court is not required to dismiss a case when D fails to comply with §109(h) or §521(a));

BK 06-71024
11.30.2007 PWB

In re Brown,

Order denying the Debtor’s motion to dismiss her chapter 13 case pursuant to 1307(c). Because the debtor previously converted from chapter 7, she was not permitted to voluntarily dismiss her case. The court denied the debtor's motion under 1307(c) for cause because the court must consider what is in the best interests of creditors and the estate, not the debtor.

BK 04-98160 Doc.57
11.29.2007 CRM

Gordon v. Terrace Mortgage Co. (In re Kim);

(Trustee’s motion for summary judgment granted pursuant to O.C.G.A. §44-14-33. A security deed that incorporates the terms of another document by reference does not also incorporate attestations to that document)

AP 06-06593 Doc#26
11.26.2007 WHD

In re Sumner,

(disallowing debtor's exemption in property recovered by the Chapter 7 trustee)

BK 05-14243 DOC#33
11.20.2007 JB

In re Simmons;

(11 U.S.C. §§ 362, 549; Chapter 7 Trustee filed motion to intervene and be substituted for debtor in a motion to set aside post-petition transfer of title for violation of automatic stay debtor had previously filed against Town of Liberty, Mississippi and tax sale purchaser. Chapter 7 Trustee’s motion is granted as he is the only party with standing to prosecute a claim belonging to the bankruptcy estate, and debtor did not allege that he suffered any individual injury or that the property at issue was exempt)

BK 05-92328 Doc#127
11.20.2007 CRM

Park v. Lee (In re Lee);

(Partial grant of the Plaintiff's Motion for Summary Judgment under section 523(a)(2)(A) where one of the three transactions between the parties amounted to actual fraud and was deemed nondischargeable. The Defendant's purported assignment of her interest in property in exchange for a loan amounted to a false statement with the intent to deceive and on which the Plaintiff justifiably relied. The Plaintiff failed to establish a prima facie case regarding the remaining transactions under section 523(a)(2)(A) or (a)(6))

AP 05-6513
11.15.2007 JEM

In re: Calvin Irby

Debtor’s motion to reopen case to pursue alleged stay violation denied where there was no stay in the case under section 362(c)(4). A dismissal of a case under section 707(a), as opposed to section 707(b), counts in the determination of the number of pending cases a debtor has within one year of the filing of the latest case.

NOT INTENDED FOR PUBLICATION

BK 07-72742
11.14.2007 MHM

Pullen v. Cornelison;

(denial of motion, in an adversary proceeding asserting a legal malpractice claim, under §329 to disgorge attorneys fee paid in prior bankruptcy case)

AP 07-6220
11.14.2007 JEM

In re: Erica Faye Johnson

Debtor’s modification of confirmed Chapter 13 plan to surrender collateral was not approved because it is unnecessary to modify the plan to surrender collateral, and section 1329 governing modifications does not permit surrender. The only purpose of this ploy was to try to avoid having to pay the secured claim, which is the contract Debtor made in the plan.

NOT INTENDED FOR PUBLICATION

BK 06-64062
11.14.2007 JEM

In re: Andre Wilson

Proposed Modification of Confirmed Plan to delete a secured creditor provided for in the plan DENIED as unnecessary because the plan purported to deal only with allowed claims of creditors and this creditor never filed a proof of claim. Nothing in the plan showed that the claim was allowed.

NOT INTENDED FOR PUBLICATION

BK 07-66692
11.08.2007 JB

In re Woodard;

(Debtor’s pro se motion to reopen her bankruptcy case, closed for more than 5 years, is denied. Debtor failed to identify any action she would take if the motion were granted and stated she wanted the case to be transferred to the Northern District of California. Although a bankruptcy discharge often results in a discharge of pre-petition obligations to the Social Security Administration, the ongoing dispute between Debtor and the Social Security Administration appears to involve issues unrelated to the discharge or the bankruptcy proceeding)

BK 02-94685 Doc#8
10.30.2007 MGD

In re Kathy Darlene Boran,

Order Denying Debtor’s Motion to Impose Stay. Debtor failed to rebut the presumption that her case was not filed in good faith by clear and convincing evidence.

BK 07-42460 (Docket No. 19)
10.29.2007 CRM

Allied Holdings, Inc. v. Volvo Parts North America, Inc.,

(granting defendant's motion to amend answer).

AP 06-1013 Doc 62
10.19.2007 JB

In re Espinosa;

(Chapter 7 debtor’s motion to convert his case to a Chapter 13 case is denied as debtor’s noncontingent, liquidated, unsecured debts exceed the eligibility limit set forth in 11 U.S.C. § 109(e). Debtor’s objection to creditor’s proof of claim is overruled at this time. However, creditor is directed to file and serve debtor with a complete transactional history of the loan, following which debtor may file an objection)

BK 05-83785 Doc37
10.18.2007 JEM

Dugan, as Liquidating Agent v. The Alan White Company, Inc. (In re Rhodes, Inc.);

Plaintiff’s moved to strike defendant’s answer because its counsel had withdrawn and no new counsel had appeared. Motion denied. At the time defendant corporation’s answer was filed, it was represented by counsel. While a corporation may not represent itself in federal court, withdrawal of a corporation’s counsel does not void or abrogate pleadings previously filed by that counsel.

AP 06-6452 Doc#17
10.15.2007 MHM

Anderson v. Midwest Holding #7 (in re Tanner);

(Lease termination payment was preference); entered 10/9/07; notice of appeal filed by Defendant.)

AP 07-6034
10.09.2007 MHM

Dye v. BEP Creditor's Trust;

(Debtor lacks standing to prosecute proceeding to determine validity, priority and extent of judgment lien)

AP 07-9017
10.05.2007 JEM

Silliman, Trustee v. Benson (In re Metro Builders Supply, Inc.);

Plaintiff’s motion for summary judgment to avoid preferential transfers made by defendant-insider is granted as plaintiff established all elements of preferential transfer pursuant to 11 U.S.C. § 547(b), including that debtor was insolvent when transfers occurred and that transfers allowed defendant to receive more than he would have in a Chapter 7 case, the only defenses defendant raised in his amended answer. Defendant failed to respond to Plaintiff’s motion for summary judgment and is deemed not to contest the undisputed facts or the motion. Plaintiff’s request for an award of pre-judgment interest is denied to the extent it requests interest from the date of the transfers, which dates Plaintiff did not set forth. Plaintiff is entitled to interest, calculated from the date of demand, under a rate prescribed by 28 U.S.C. § 1961

AP 06-6497 Doc#15
10.05.2007 CRM

In re Watson;

(The Chapter 7 Trustee’s motion to dismiss pursuant to Section 707(b) was denied after applying the totality of the circumstances standard required under the statute. The court found that the Debtor’s rent deduction which exceeded the Trustee’s recommended amount based on the IRS National and Local Standards was appropriate because the amount more accurately reflected the Debtor’s actual expenses)

BK 06-72831 Doc#32
10.05.2007 CRM

In re Watson;

(The Chapter 7 Trustee’s motion to dismiss pursuant to Section 707(b) was denied after the applying the totality of the circumstances standard required under the statute. The court found that the Debtor’s rent deduction which exceeded the Trustee’s recommended amount based on the IRS National and Local Standards was appropriate because the amount more accurately reflected the Debtor’s actual expenses)

BK 06-72831 Doc32
10.04.2007 MHM

In re Cirillo;

(Chapter 11 debtor's request for claims bar date denied because too soon after 341 meeting)

BK 07-72626
10.04.2007 PWB

In re Sears,

In calculating projected disposable income, the debtors are entitled to deduct ownership expense with regard to motor vehicle under IRS Standards, without regard to whether any debt is owed on the vehicle.

BK 06-42597 Doc.29
10.02.2007 PWB

In re Pearl Robbins,

At the originally scheduled confirmation hearing, the Debtor’s chapter 13 case was put on “ten day status” for the debtor’s attorney to provide notice to creditors of a re-scheduled § 341 meeting and confirmation hearing. The § 341 meeting could not be conducted because of a conflict the attorney had. After counsel failed to renotice the meeting and hearing, the trustee submitted a report requesting dismissal, and the case was dismissed. The attorney timely moved to reinstate the case, but did not schedule a hearing on it in accordance with the court’s self-calendaring procedures. Several months after dismissal, when the motion came to the court’s attention, the court directed the attorney to schedule a hearing on the motion. In the meantime, the attorney had filed another motion to reinstate the case, for which the Clerk’s office charged a $235 filing fee, which the debtor paid. The attorney still did not schedule a hearing on either motion. The court scheduled a hearing on reinstatement and also directed the attorney to show cause why notice had not been served as directed, why fees should not be disgorged, and why the filing fee should not be refunded. By separate order, the Court reinstated the case. In this Order, the Court required the attorney to refund the filing fee and disgorge fees he had received and directed payment of the money to the trustee. The Court referred the matter to the State Bar of Georgia for consideration of whether discipline was appropriate.

BK 07-62006 Doc#31
10.01.2007 MHM

In re Hummel ;

(On the Means Test Form, Debtor may deduct the full amount of payments to a secured creditor even when Debtor intends to surrender the collateral)

BK 06-68931
09.28.2007 WHD

Andersen 2000, Inc. v. Greenwich Insurance Company, et al.,

(granting in part motion to dismiss Chapter 11 debtor's request for injunction, declaratory relief, and estimation of claim)

AP 06-1039 Doc#64
09.27.2007 WHD

Collins Brothers Corp. v. Perrine,

(finding debt owed under PACA to be nondischargeable pursuant to section 523(a)(4))

AP 05-1118 Doc#36
09.27.2007 WHD

Watts v. Pride Utility Construction, Inc.,

(denying cross motions for summary judgment on trustee's preference claim)

AP 05-1134 Doc# 39
09.24.2007 JEM

In re Shady Green, Inc.;

Attorney’s application to employ himself as counsel for debtor in possession is denied. Counsel misstated there was a debtor in possession as the case converted to Chapter 7 case more than two years ago, and counsel presented no exceptional circumstances or reason for the late filing.

BK 04-97890 Doc#92
09.24.2007 WHD

In re Lowery,

(rejecting trustee's argument that debtor was not entitled to exempt single damage award as both damages for personal bodily injury and payment attributable to future lost earnings)

BK 05-13536 Doc# 50
09.24.2007 MHM

In re Brunatti ;

(motion to reopen denied because post-discharge judgment did not violate discharge injunction; claim for abusive litigation expenses does not arise until the conclusion of the underlying litigation)

BK 05-66202
09.21.2007 REB

Great American Insurance Co. v. William Jacent Davis (Adv. Proceeding No. 07-6036), In re William Jacent Davis & Erin Kathleen Davis (Chapter 13 Case No. A04-74475-REB);

Order denying summary judgment and granting motion to dismiss complaint (applicability of dischargeability exceptions under 11 U.S.C. Section 523(a) in 11 U.S.C. Section 1328(a) (pre-BAPCPA case));

AP 07-6036, BK-04-74475
09.18.2007 MHM

n re Richardson ;

(Debtor's former spouse, who attended closing and executed closing documents conforming to the terms of the Ch7 Trustee's motion to sell, effectively waived her previously filed objections to the disbursement of the proceeds of the sale)

BK 05-84614
09.17.2007 PWB

Blue Thunder Auto Transport, Inc. v. Exxon Mobil Corporation (In re Blue Thunder Auto Transport, Inc.),

(Order granting Defendant’s motion to dismiss pursuant to Rule 12(b)(3) based on improper venue. Based on BAPCPA’s changes to 28 USC § 1409(b), venue in Northern District of Georgia is improper because defendant’s non-consumer, non-insider debt is less than $10,000.)

AP 07-6343 Doc#6
09.14.2007 JEM

Reliable Air, Inc. v. Jape and Ruse (In re Reliable Air, Inc.);

28 U.S.C. §§ 1334(b), 157(a), (b) and (c); 11 U.S.C. § 362; 15 U.S.C. § 1125(a); O.C.G.A. §§ 10-1-370 et. seq., 10-1-451, and 23-2-55; Court has jurisdiction over this non-core proceeding to enter interlocutory Order on preliminary injunction. Chapter 11 plaintiff’s motion for preliminary injunction to enjoin the use of its trade name and related service mark against defendant Jape is granted. Plaintiff established a prima facie trademark infringement case by showing: (1) likelihood of success on the merits by proving it has a right to use the trade name and service mark and, unless the injunction is granted, there is a high risk of consumer confusion; (2) likelihood of irreparable harm as in a trademark infringement case injury is presumed; (3) potential injury to plaintiff of the diminishment of the goodwill of its business by allowing defendant Jape to use a similar trade name and service mark weighs in favor of granting the injunction; and, (4) public interest will be served by avoiding confusion in the marketplace and granting the injunction.

AP 07-6352 Doc#27
09.12.2007 JEM

Hinton v. Internal Revenue Service (In re Hinton);

Debtors motions to avoid the IRS’s tax liens are denied. Such liens are neither judicial liens or nonpossessory, nonpurchase money security interests, which are avoidable pursuant to 11 U.S.C. § 522(f), and cannot be avoided even if they impair an exemption.

BK 07-61497 Doc#36
09.11.2007 MHM

In re Brown ;

(Ch13 case dismissed as abusive because it was filed while another active Ch13 case with a confirmed plan was pending)

BK 07-70688
09.10.2007 MHM

In re Dobbins;

(petition for unclaimed funds denied because claimant failed to establish its entitlement to funds)

BK 02-66806
09.10.2007 MHM

In re Williams ;

(Imposition of sanctions against Debtor's attorney will be deferred to allow him opportunity to voluntarily improve his practice)

BK 07-68540
09.07.2007 WHD

Andersen 2000, Inc. v. Georgia Gulf Corporation,

(denying cross motions for summary judgment in Chapter 11 debtor's suit for turnover of estate property and breach of contract)

AP 05-1161 Doc# 49
09.06.2007 MHM

Aero Housewares, LLC v. Interstate Restoration Group, Inc. (In re Aero Plastics, Inc.) ;

(non-residential real property lease, which is site of Debtor's operations, may have little or no value standing alone, but within context of sale of Debtor's business, the lease has value sufficient to secure claim of creditor who performed extensive prepetition repairs of damage caused by fire)

BK 05-60451
09.06.2007 MHM

National Air Traffic Controllers Association v. Davenport ;

(Claims arising from Debtors failure to account for funds in ERISA-qualified benefits fund are nondischargeable under §523(a)(4); failure to account is defalcation. Failure to insure financial solvency of a plan, however, is not defalcation)

AP 05-9179
09.04.2007 WHD

Goodman v. Southern Horizon Bank,

(granting Chapter 13 trustee's motion for summary judgment avoiding bank's security interest as a preferential transfer)

AP 06-1070 Doc# 30
08.30.2007 MHM

In re Thornton ;

(motion to reimpose automatic stay unnecessary because §362(c)(3) does not apply to property of the esta

BK 07-70002
08.29.2007 JB

Townson, Chapter 13 Trustee v. Kakol (In re Willis);

(Fed. R. Bankr. P. 2016(b), 11 U.S.C. § 329; General Order No. 6-2006, numbered ¶5 (Bankr. N.D.Ga. 2006); On Chapter 13 Trustee’s motion against debtor’s counsel to show cause why he failed to file a Statement disclosing compensation, why he failed to file a status report within three days of returning funds to debtor, why the funds were returned in cash, and whether debtor’s funds were placed in an escrow account as represented by counsel, Court determined that counsel must promptly file a disclosure statement or supplemental disclosure statement as required by the governing law and rules, that counsel must develop practices and policies for documenting and disclosing fee arrangements with clients and to track and meet statutory, rule, and Court deadlines, that counsel must attend continuing legal education classes, confer with the State Bar, and not file more than two new bankruptcy cases a month until February 1, 2009)

BK 06-61285 Doc#75
08.24.2007 CRM

U.S. Trustee v. McDaniel (In re McDaniel);

(On the U.S. Trustee's motion to dismiss Debtor's case for abuse, the motion was dismissed based on the totality of the circumstances. Agreeing with Judge Drake in Walker, the Court held that the Debtor properly accounted for payments due to secured creditors for property that he planned to surrender since those amount would have been contractually due had the Debtor not filed for bankruptcy protection)

BK 06-62786 Doc#35
08.23.2007 JUM

Medical Investment Partners, LLC and The Doctor’s Office Management Services Organization, LLC v. Bush (In re Bush);

Plaintiffs’ motion to dismiss counterclaims asserted by debtors/defendants is granted; debtors/defendants lack standing because the estate, not defendants, holds the claims as property of the estate, which the Chapter 7 Trustee has not abandoned.

AP 07-6274 Doc#10
08.22.2007 MHM

In re Dobbins;

(petition for unclaimed funds denied because claimant failed to establish its entitlement to funds)

BK 02-66806
08.22.2007 PWB

In re Dean,

(Order denying debtor’s motion to disqualify judge denied. The debtor has shown no evidence of partiality or bias to warrant recusal under 28 USC § 455. Existence of pending lawsuit brought by debtor against judge based on the judge’s rulings in a prior case does not serve as basis for recusal.)

BK 07-71556 Doc# 24
08.16.2007 MHM

Matar v. Matar ;

(insufficient undisputed facts to establish obligation as nondischargeable under §523(a)(5))

AP 05-9096
08.08.2007 MHM

In re Terrestrial Enterprises, Inc. ;

(Ch 11 Debtor's request for claims bar date which was less than 30 days after the date first set for the §341 meeting was denied)

BK 07-70311
08.08.2007 MHM

In re Patterson ;

(attorney employed by D following conversion from Ch 11 to Ch 7 is not entitled to payment of compensation from the estate and need not file an application to approve employment. The attorney must, however, file Bankruptcy Rule 2016 disclosure of compensation)

BK 07-61961
08.07.2007 CRM

Ridge v. Union Acceptance Corporation (In re Ridge);

(On Debtor's objection to creditor's assignee's efforts to claim insurance proceeds totaling more than the value of the collateral at the time of confirmation, Debtor's objection is sustained pursuant to supporting case law)

BK 05-75189 Doc#26
08.07.2007 MHM

Cherokee Indian Hospital Authority v. Building Trends, Inc.;

(denial of creditors' claims to interpleader funds, finding creditors bound by their proofs of claim that were filed or deemed filed as unsecured)

AP 06-9050
08.07.2007 MHM

Royal Insurance Co. v. Sims;

(Order granting Debtor's motion to avoid lien not vacated to allow creditor to file late response; creditor showed neither excusable neglect nor meritorious defense)

BK 07-65562
08.07.2007 MHM

Green v. Litton Loan Servicing, LP;

(creditor's discovery responses must be meaningful; the production of naked, unintelligible or coded records does not comply with the spirit of discovery)

AP 06-6048
08.06.2007 JEM

Shuffler et al v. United Brotherhood of Carpenters and Joiners of America, Southeastern Carpenters Regional Council (In re Shuffler);

(Defendant’s motion to dismiss complaint for conduct which allegedly violates the automatic stay of 11 U.S.C. § 362(a) is granted. Defendant’s picketing does not violate any of the provisions of the automatic stay, and thus plaintiff’s complaint fails to state a claim against defendant)

AP 07-6282 Doc#15
08.03.2007 JB

Anderson, Chapter 7 Trustee v. Citizens Fidelity Mortgage Corp. v. Regions Bank (In re Money);

(Crossclaim defendant’s motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is granted, and defendant’s motion to amend its crossclaim is denied. Defendant’s original crossclaim does not allege facts sufficient to create plausible grounds to infer a cause of action under Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). Nor does the crossclaim as amended allege facts that would lead to liability on the crossclaim defendant’s part)

AP 05-6414 Doc#74
08.01.2007 JB

Tucker v. Internal Revenue Service (In re Tucker);

(Debtor's motion to avoid IRS's lien denied as the tax lien is neither a judicial lien or a nonpossessory, nonpurchase money security interest and exempt property remains subject to properly filed tax liens)

BK 07-64169 Doc#18
07.31.2007 PWB

In re Alston,

A claims locator, acting as attorney-in-fact for a creditor with a claim in a chapter 13 case secured by a motor vehicle, sought to recover unclaimed funds on behalf of the creditor. The application was signed by a person as “general counsel” for the claims locator who is not admitted to practice in the Court. The Court denied the application without prejudice because (1) a person not admitted to practice before the Court cannot sign a pleading on behalf of an entity and (2) the application did not establish that the claim had not been satisfied through foreclosure or payment following conclusion of the case. The Court noted that it is not necessary for an attorney to be admitted to the Court’s bar for purposes of filing a proof of claim and that it had permitted a corporate or other entity to retrieve unclaimed funds without the necessity of engaging counsel, but that an attorney could not file a pleading on behalf of another entity without being admitted unless the attorney did so in the capacity of an officer.

BK 01-87477 Doc. #43
07.31.2007 MHM

In re Dye;

(denial of Debtor's motion to convert from Ch 7 to Ch 11)

BK 06-71024
07.25.2007 reb

In re Preston Grigsby Mitchell,

(motion for summary judgment, 11 USC Section 523(a)(6), collateral estoppel)

AP 06-2035
07.24.2007 MHM

n re Dye; bankruptcy case No. ; (

Denial of motion for stay pending appeal because no showing of likelihood of success.

BK 06-71024
07.20.2007 WHD

In re Davis,

Denying debtor's motion for stay pending appeal.

BK 07-10035, Doc# 83
07.17.2007 MGD

In re Maria Angelica Nodora,

Order Denying the Chapter 13 Trustee’s Objection to Confirmation and allowing Debtor to make direct payments to her student loan creditors.

BK 07-60672 Doc#18
07.16.2007 WHD

In re Bright,

(granting in part Chapter 7 trustee's objection to exemption of life insurance proceeds pursuant to OCGA 44-13-100(a)(11)(C)).

BK 05-14093 doc# 47
07.16.2007 WHD

In re Bright,

(granting in part Chapter 7 trustee's objection to exemption of life insurance proceeds pursuant to OCGA 44-13-100(a)(11)(C)).

BK 05-14093 doc# 47
07.13.2007 WHD

Automotive Finance Corp. v. Redick

(granting in part motion for partial summary judgment as to dischargeability of debt for conversion of collateral under section 523(a)(6)).

AP 06-1095 Doc# 18
07.12.2007 MHM

n re Dye;

Abandonment of D's personal property.

BK 06-71024
07.12.2007 MHM

In re Dye;

Annulment of stay to validate postpetition consent order in which D participated but without informing the other parties participating that he had filed a bankruptcy petition the day before.

BK 06-71024
07.11.2007 JB

In re Baldwin;

(Motion to reconsider denial of motion by post-petition creditor for Chapter 13 Trustee to disburse debtor’s exempt funds to creditor is denied in part and granted in part. Movant and debtor have a post-petition dispute being litigated in the state court, and the dispute does not involve property of or the administration of this bankruptcy estate. To the extent the Chapter 13 Trustee has already disbursed the exempt funds to debtor, Movant’s motion is moot. Motion is granted solely in order to reflect that movant alleges that debtor signed the document assigning exempt funds voluntarily and that movant disputes debtor’s contentions that she assigned exempt funds only under duress);

BK 05-72883 Doc#47
07.09.2007 MHM

In re Pullen; bankruptcy case No. ; (); entered 7/9/07

Order vacating emergency order to allow foreclosure sale to take place.

BK 07-65415
07.09.2007 WHD

In re Davis,

Granting motion for relief to permit bank to exercise state law rights with regard to property foreclosed prior to petition date.

BK 07-10035 Doc# 81
07.03.2007 JEM

Patterson v. Georgia Department of Revenue (In re Patterson);

Defendant’s second motion for summary judgment is granted. Plaintiff failed to respond to defendant’s motion, and defendant showed that plaintiff had failed to file Georgia tax returns for the years 1985 through 1987 and such debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(1)(B)(I).

AP 06-9058 Doc#14
07.02.2007 MHM

In re Greene;

Two months after D's IFP application was approved, D filed a reaffirmation agreement in which she proposed to reaffirm a $34,000 debtor for a pickup truck; the reaffirmation agreement showed that D had obtained employment postpetition and take-home pay was $2700 per month; the reaffirmation agreement was approved on condition that Debtor pay the filing fee she was relieved of paying when she was unemployed.

BK 07-61941
06.29.2007 WHD

Barnette v. Myles,

Denying motion to set aside default judgment.

AP 06-1115, Doc#11,
06.27.2007 PWB

In re Knight,

Chapter 13 trustee objects to confirmation of the debtor’s plan on the ground that continuation of direct payments on student loans results in failure to pay all disposable income to unsecured creditors under § 1325(b)(1)(B). The court concludes that the plan is potentially confirmable for two reasons. First, § 1322(b)(5) permits continuation of payments on long-term unsecured debt, and the Debtor’s use of PDI to make such payments results in all PDI being paid to unsecured creditors. Second, although the student loan payments do not qualify as a “reasonably necessary” expenditure under § 707(b)(2)(A)(ii)(I) in view of its specific exclusion of payments on debts, the circumstances surrounding the Debtor’s student loans, including their nondischargeable nature, may qualify as a “special circumstance” under § 707(b)(2)(B) that may justify a downward adjustment of PDI if the Debtor properly documents and explains them under § 707(b)(2)(B)(ii) and (iii).

BK 06-70061 Doc#33
06.27.2007 PWB

Glass, Trustee, v. Isotec International, Inc. (In re Southwest Recreational Industries, Inc.),

Trustee seeking to recover voidable preference under § 547(b) and defendant filed cross-motions for summary judgment. The Court grants partial summary judgment to the Trustee that all elements of a preference have been established but concludes that there are disputed issues of fact that preclude entry of summary judgment on the defendant’s ordinary course of business defense under § 547(c)(2).

AP 05-4066 Doc#34
06.27.2007 MHM

In re Dye;

Standard for approving T's proposed settlement.

BK 06-71024
06.27.2007 MHM

In re Dye;

Standard for reconsideration.

BK 06-71024
06.27.2007 JEM

Stalzer v. Payne (In re Kelly);

Plaintiff-trustee’s motion for default judgment is granted. Plaintiff’s motion shows that defendant was properly served and that defendant failed to respond. Plaintiff is not entitled to turnover of property pursuant to 11 U.S.C. § 541, but facts she pled are sufficient to entitle her to recover the value of the property transferred under the fraudulent transfer section, 11 U.S.C. § 548.

AP 07-6132 Doc#8
06.26.2007 PWB

Sweat v. Sweat (In re Sweat),

Order denying the Defendant’s motion to exclude issue from proposed pretrial order. If the Plaintiff had failed to properly plead the issue and thus deprive the Defendant of the ability to prepare a defense in anticipation of trial, the Defendant would have a basis for objecting the inclusion of the issue in the pretrial order. However, the Plaintiff’s complaint sufficiently set forth the claim. A factual dispute as to whether the Plaintiff can prove the claim is not a basis for exclusion of the claim from the pretrial order.

AP No. 05-6331 doc.#55
06.25.2007 WHD

In re New Power Co. et al.,

Granting in part motion for payment of attorneys fees and expenses pursuant to section 503(b)(3) and (b)(4).

NOT INTENDED FOR PUBLICATION

BK 02-10835, Doc#1476,
06.22.2007 WHD

In re Davis,

Denying motion for reconsideration of order lifting stay and denying motion to invalidate prepetition foreclosure sale.

NOT INTENDED FOR PUBLICATION

07-10035, Doc# 66,
06.22.2007 PWB

Kaye v. Juanita Bynum Ministries, Inc. (In re Value Music Concepts, Inc.),

Order granting summary judgment on the Plaintiff’s preference action. The Plaintiff established all elements of a preference action under 11 U.S.C. § 547 and set forth facts in its Statement of Material Facts which negated the applicability of Defendant’s affirmative defenses. Although the Defendant pled a number of affirmative defenses in its answer, it did not file a response to the Plaintiff’s motion for summary judgment and failed to carry its burden of establishing any affirmative defense.

AP 04-6210, doc. #35
06.22.2007 JEM

Richard v. JLA Credit Corp. et al. (In re Richard);

Debtor’s motion to avoid judgment liens is denied as 11 U.S.C. § 522(f) has no applicability to property acquired after date she filed her bankruptcy petition. However, debtor is protected against such pre-petition judgment liens by 11 U.S.C. § 524(a) which provides that any effort to enforce such a void lien on property acquired after debtor filed her bankruptcy petition would violate the Bankruptcy Code’s discharge injunction.

BK 01-84744 Doc#34
06.13.2007 JEM

Southwest Hospital and Medical Center, Inc., by and through its Liquidating Agent, J. Michael Weathers v. Precision Anesthesia & Associates, LLC (In re Southwest Hospital and Medical Center, Inc.);

Plaintiff’s motion to avoid and recover preferential transfers is granted. 11 U.S.C. §§ 547, 550(a). Defendant has failed to respond and is deemed not to oppose Plaintiff’s motion. BLR 7007-1. Plaintiff satisfied all elements of a voidable preference. Because defendant did not raise any affirmative defenses in its answer, it is proper to award pre-judgment interest along with post-judgment interest. Any claim asserted by defendant is disallowed pending payment of Plaintiff’s judgment.

AP 06-6381 Doc#21
06.11.2007 MHM

In re Shelton

D’s Ch13 plan providing that D would continue contributing to his retirement plan ($655/mo compared to Ch13 plan payment of $550/mo) while paying a 0% dividend to unsecureds may not have been proposed in good faith

BK 06-68375
06.04.2007 MHM

In re Ajaka

D’s §363(c)(3) motion to extend stay, heard more than 30 days after petition date, denied as unnecessary on the grounds that §363(c)(3) does not apply to property of the estate

BK 06-64920
06.01.2007 MHM

Unifund Financial Corp. v. Hughes

Denying dismissal with 5-year bar to refiling but granting dismissal with 180 day bar to refiling

BK 04-98206
05.31.2007 MHM

Hays v. Paradise Mission Church, Inc. (In re Harrington, George & Dunn, P.C.)

motion of Plaintiff/Trustee to disqualify Defendant’s attorney denied

AP 06-6253
05.25.2007 mhm

Highway 54 Property, LLC v. Manigault

case dismissed with five-year bar to refiling

BK 07-67308
05.24.2007 JB

Strickland v. CADD Centers of Florida, Inc. (In re Strickland);

Fed. R. Civ. P. 12(b)(6); 11 U.S.C. § 524(a); O.C.G.A. §§ 13-6-10, 13-6-11; plaintiffs filed a complaint alleging breach of a settlement agreement and violation of discharge injunction, seeking declaratory judgment, punitive damages, and attorneys’ fees. Defendant filed a motion to dismiss all counts except that for declaratory judgment. Defendant’s motion to dismiss the counts for breach of the settlement agreement and for attorneys’ fees must be denied as both allege a cause of action and sufficient supporting facts to survive a 12(b)(6) motion. With respect to dismissal of the counts for violation of the discharge injunction and punitive damages, defendant’s motion is granted. The discharge injunction only operates against a discharged debt, and the debt at issue was held to be nondischargeable. Punitive damages cannot be recovered on a breach of contract action under Georgia law.

AP 07-6054 (Docket #21)
05.23.2007 PWB

In re Hayes

Trustee objected to reasonableness of attorney’s fees of $4,200 in chapter 13 case. Based on modification of fee agreement to provide that the flat fee encompassed substantially all legal services that the debtor would likely require during the life of the case, the Court allowed the fee.

BK 06-42225
05.23.2007 PWB

GE Mortgage Services, LLC, v. Johnston

Creditor who acquired, by assignment from an affiliate, a real estate mortgage executed by the debtor alleged that the debtor had committed fraud in connection with the mortgage and sought determination that its deficiency claim was excepted from discharge. Default judgment is denied because a fraud claim cannot be assigned and no fraud was committed against creditor.

AP 04-4052, Doc. No. 25
05.22.2007 PWB

Cincinnati Insurance Company v. Porter

At trial, court determined that the debt of the debtor to the plaintiff for insurance fraud was nondischargeable and determined the amount of the debtor’s liability. The plaintiff is also entitled to attorney’s fees as an element of damages under O.C.G.A. § 13-6-11, punitive damages under O.C.G.A. 51-12.5.1, and prejudgment interest at seven percent under O.C.G.A. § 7-4-2. Bankruptcy court has jurisdiction under 28 U.S.C. § 157(c)(2), with consent of the parties, to enter money judgment on the nondischargeable claim.

AP 06-5002, BK 05-44583
05.18.2007 JB

Hays v. Hamblen Family Irrevocable Trust et al. (In re Charles Randall Hamblen and Janet Smith Hamblen);

(Fed. R. Civ. P. 54(b); In a case involving defaults by some but not all of the defendants, a request to stay default judgments is granted. Under the Frow doctrine, it is proper to stay default judgments in an adversary proceeding with multiple defendants when there is a possibility that inconsistent judgments will result upon final adjudication)

Adv. Pro. No. 06-6394 (Docket # 86)
05.15.2007 WHD

In re Reeves,

(granting motion for reinstatement to practice before the Court).

AP 04-17370, docket number 86
05.14.2007 MHM

In re Sarfraz

striking power of attorney file by an individual who signed the petition and other documents on behalf of the debtor

BK 07-67117
05.11.2007 REB

William McGill v. Christine Laudermill (In re Christine Laudermill);

motion for summary judgment, 11 USC Section 523(a)(2));

Adv. Pro. No. 06-3001
05.10.2007 JB

Hays v. Hamblen Family Irrevocable Trust et al. (In re Charles Randall Hamblen and Janet Smith Hamblen);

(O.C.G.A. § 53-12-175(d); Defendant Gibson’s objection to Plaintiff’s motion for default judgment against defendant Hamblen Family Irrevocable Trust (“HFIT”) for failure to properly serve the trust is overruled. Serving a trustee of a trust is, generally, sufficient service on the trust. Plaintiff served the amended complaint and summons on the trustees of HFIT. Although the trustees resigned, the resignations did not take effect for 30 days under the terms of the Trust Agreement, and under O.C.G.A. § 53-12-175(d), a trustee’s resignation is not effective unless there is a successor trustee in place)

Adv. Pro. No. 06-6394 (Docket # 83)
05.08.2007 CRM

In re Foster;

(11 U.S.C. § 1325(b)(1)(B); Chapter 13 Trustee objected to confirmation of Debtor's Amended Plan because the Debtor’s Plan proposed to contribute zero dollars to his general unsecured creditors even though his actual income and expenses, as reflected on Schedules I and J, indicated that the Debtor could afford to pay his general unsecured creditors a dividend greater than zero dollars. Holding: Court sustained the objection. Citing to authority holding that a Chapter 13 debtor’s “projected disposable income”, as employed in 1325(b)(1)(B), should be determined by reference to the debtor’s Schedules I and J to prevent manipulation of the system, the Court ordered that Debtor submit an amended Chapter 13 Plan within 15 days of entry of the Order providing for payment of general unsecured creditors based on Schedules I and J.)

BK 06-68298 (Docket # 36)
05.08.2007 WHD

Goodman v. Southern Horizon Bank,

(denying cross motions for summary judgment on trustee's action to avoid preferential transfer of security interest).

AP 06-1070, docket number 24
05.03.2007 JB

In re Hamblen;

(11 U.S.C. § 704(a)(11); Chapter 7 Trustee’s motion for authorization to serve as independent fiduciary to administer and terminate debtor Brookstone Fine Wood Products, Inc.’s ERISA-covered employee benefit plan is denied. Section 704(a)(11) provides that the Chapter 7 Trustee shall continue to perform the duties of a debtor if such debtor, at the commencement of the case, served as administrator of an ERISA-covered employee benefit plan. This provision does not appear applicable as the Chapter 7 Trustee failed to show that any debtor served as the administrator of the plan in question. The motion also seeks to pay “related expenses” from assets of the employee benefit plan, but the Chapter 7 Trustee has not indicated what these related expenses might be and has not served affected parties, such as the plan participants.

Case No. 05-95215 (Docket # 356)
05.02.2007 PWB

Christopher v. D & G Auto Sales (In re Christopher)

Although it may be appropriate to object to a claim that includes unmatured interest, it is not appropriate to seek its complete disallowance on that ground; the proper remedy is allowance of the claim in the proper amount. Further, it is not appropriate to disallow a claim, without a hearing, if a response to an objection has been filed, even if the claimant fails to appear at the hearing. If the debtor has an actual objection to a claim on the merits, the court will, of course, hear it. But the court will not disallow a claim, in whole or in part, in the absence of a showing that the debtor has a valid objection that requires its disallowance under 11 U.S.C. §§ 502(b). In re Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004). Moreover, if the claim is secured by collateral that the debtor desires to retain, disallowance of the claim other than because it is not owed would not seem to affect the holder’s lien. Thus, the lien might survive the bankruptcy case under Universal American Mortgage Co. v. Bateman (In re Bateman), 331 F.3d 821 (11th Cir. 2004). If the Debtor’s objective is to retain collateral, disallowance of the claims for a procedural defect would not appear to be in the Debtor’s interest.

BK 06-42452
05.01.2007 MGD

In re George Wesley Taylor, Jr.,

Order Granting in part and Denying in part Debtor’s objection to the claim of Countrywide Home Loans.

06-76846 (Docket No. 91)
04.23.2007 WHD

Looney v. Owens,

Denying motion to dismiss dischargeability complaint and setting case for trial.

AP 05-1706 Doc#92
04.20.2007 CRM

In re Allied Holdings., et al.;

17 C.F.R. section 240.14(c); Ad Hoc Committee sought an order compelling Debtors to convene annual shareholders’ meetings for 2006 and 2007 for the purpose of electing directors. SEC regulations require than a corporation that solicits proxies from shareholders must send an annual report with each proxy statement, and that the annual report must include, inter alia,audited financial statements for each of the three most recent fiscal years. Contrary to the arguments made by the Ad Hoc Commitee, even in situations when debtors do not solicit proxies, SEC regulations require that every shareholder who is entitled to vote receive information substantially similar to that found in a financial statement at least twenty calendar days before an annual meeting. Ordered that the Ad Hoc's Motion was denied to the extent it requested Debtors to convene shareholders’ meetings without complying with 17 C.F.R. section 240.14(c).

Case Nos. 05-12515 through 05-12526 and 05-12528 through 05-12537 (Jointly Administered) Doc#2920
04.19.2007 JEM

Chase Bank USA, N.A. v. McGraw (In re McGraw);

Plaintiff’s motion seeking a default judgment that defendant’s debt in the amount of $1,914 for retail charges is non-dischargeable pursuant to 11 U.S.C. § 523(a)(2) is denied. The allegations in the complaint which are deemed admitted by defendant’s failure to answer and the insufficient specificity of the factual allegations do not support a finding in plaintiff’s favor. If plaintiff does not amend its complaint within 30 days, the Court will schedule this adversary proceeding for trial.

AP 07-6016 Doc#7
04.17.2007 WHD

In re Haynes,

Granting motion for relief to permit creditor to dispossess debtor from property foreclosed upon prior to bankruptcy filing.

BK 07-10365 Doc#22
04.10.2007 MHM

Homecomings Financial Network v. Goodman (In re Hurt);

Ch13T's Motion to Deem Mortgage Current should have been filed as an adversary proceeding, but failure to do so is insufficient grounds to reconsider the order entered granting Ch13T's motion. Also, notice to creditor's attorney who filed a notice of appearance in the bankruptcy case is sufficient notice under Rule 7004.

BK 01-61881
04.10.2007 MHM

Decision One Mortgage Co., LLC v. Brantley;

The general release executed by the parties in settlement w/Debtor's insurance company released Debtor from all liability to Plaintiff, depriving Plaintiff of any claim that could be held nondischargeable

AP 04-9176
04.10.2007 MGD

Phenizie Burr v. I.R.S.,

Order Granting Defendant’s Motion for Summary Judgment. A federal tax lien is not avoidable as a statutory lien pursuant to 11 U.S.C. § 545 and thus cannot be avoided as a preference pursuant to § 547.

AP 06-06596 (Doc#8)
04.09.2007 WHD

In re White,

Denying confirmation of Chapter 13 plan that contained provision permitting surrender in full satisfaction of secured claim.

BK 06-12427 Doc# 38
04.06.2007 JEM

First American Title Insurance Co. v. Frazier (In re Frazier);

Plaintiff’s motion to amend its complaint to determine dischargeability of its debt pursuant to 11 U.S.C. § 523(a)(2) and (a)(6) is granted. Defendant, appearing pro se, did not respond to plaintiff’s motion. Fed. R. Civ. P. 15(a) allows a court to freely grant leave to amend, and Plaintiff filed the motion within four months of the answer, prior to the entry of a pre-trial order, does not appear to be filed to cause undue delay, and it will not prejudice defendant.

AP 06-9100 Doc#9
04.05.2007 PWB

Morris et al. v. Kelly (In re Kelly),

(Order denying Defendant’s motion to dismiss for failure to state a claim. Whether the plaintiffs were independent contractors or employees under Fair Labor Standards Act and, thus, whether they were creditors for purposes of bringing a 523 or 727 action, was a fact-intensive determination inappropriate for a Rule 12(b)(6) motion. The court declined to treat the Rule 12(b)(6) motion as a motion for summary judgment since the parties had engaged in no discovery in this proceeding and where discovery had not been completed in the district court case which was pending at the time of the bankruptcy filing.)

AP No. 06-6369, Doc. No 11
04.04.2007 MHM

in re: Jaecksch v. General Motors Acceptance Corp.

Ds sought to recover amounts paid to GMAC as secured creditor after the judicial lien was avoided.

AP 06-6256
04.04.2007 MGD

In re Randall and Dana Evans,

Order finding that attorney fee of $4200 was reasonable based on the facts and circumstances of the case provided that the 2016 disclosure statement and plan are amended to include the language: “The fee set out above will cover all customary and usual work required during the course of this case. In the event that circumstances not presently known require more than the customary and usual services, the Debtor’s attorney reserves the right to file a fee application for additional fees.

BK 06-42115 (Doc#66)
04.04.2007 PWB

WFI Georgia, Inc. v. Phillips (In re Phillips),

(Order granting Defendant’s motion to dismiss for failure to state a claim for relief under 523(a)(2)(A). The Plaintiff’s oral statement regarding the unencumbered value of real property was a statement regarding his financial condition and, thus, was not actionable under 523(a)(2)(A) under either the broad interpretation or narrow interpretation of “statement respecting the debtor’s or an insider’s financial condition.”).

AP 06-9028, Doc. No 13
04.04.2007 JEM

TI Management Investment Co. v. Miele (In re Miele);

Plaintiff’s motion for summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A) is granted and defendant’s debt is non-dischargeable. Plaintiff alleged that defendant and her husband made fraudulent representations which deceived plaintiff and caused it to make various investments. Defendant-debtor’s amended response that she lacks sufficient information to deny most of plaintiff’s factual allegations and stating under oath that her statements were true and correct to the best of her information and belief are insufficient to challenge a motion for summary judgment. Plaintiff demonstrated that defendant made false representations with an intention to deceive, that plaintiff relied on the misrepresentations, that the reliance was justified, and that plaintiff sustained a loss as a result of the misrepresentations.

AP 04-9216 Doc#40
04.03.2007 PWB

Watts v. Argent Mortgage Company, LLC,

In earlier order in this preference action brought by the chapter 7 trustee, the court concluded that the security deeds held by a purchase money lender on the Debtor’s property were perfected within the meaning of § 547(e)(1)(A) at the time they were executed and delivered because, under Georgia law, a bona fide purchaser would have had inquiry notice of them at all times prior to their recordation based on the Debtor’s absence of record title and the existence of a cancelled security deed on the property in favor of another lender. On reconsideration, the court ruled that, when established by reference to a bona fide purchaser standard, the rights of a bankruptcy trustee are determined on a hypothetical basis and without regard to what an actual purchaser actually did or did not know about the facts as they actually existed. A bankruptcy trustee’s rights based on a hypothetical bona fide purchaser’s rights are neither diminished nor augmented by attributing actual knowledge or its absence to the trustee In other words, the facts cannot be changed, and the bankruptcy trustee’s rights, i.e., the legal consequences of those facts, are determined on the basis of those actual facts.

AP No. 06-6235, Doc. No. 36
03.22.2007 MGD

Dierkes v. Crawford Orthodontic,

Order Granting Crawford’s Motion for Summary Judgment on Dierkes’ Section 362 Claims and Denying Crawford’s Motion for Summary Judgment on its Promissory Note Action and Dierkes Counterclaim for Breach of Contract and Abstaining from and Remanding Claims to State Court. There was no willful violation of the stay where Crawford complied with the Court’s order for turnover. The promissory note action and the related counterclaim are state law claims, originally brought in state court, which have been abandoned by the trustee. The Court no longer has subject matter jurisdiction over these claims, but to the extent that the Court may retain jurisdiction over the claims, abstention and remand are appropriate.

AP 05-06022 Doc 44
03.22.2007 CRM

Huntington National Bank v. Kyu Tae Cho (In re Kyu Tae Cho);

11 U.S.C. sections 523(a)(2)(A) and 523(a)(2)(B); Pursuant to §523(a)(2)(A) and §523(a)(2)(B), Movant requested a non-dischargeable judgment in the amount of $19,149.96, plus interest, costs, and attorney’s fees arguing Debtor obtained credit from the Movant (1) under false pretenses, false representation, and/or actual fraud, and (2) by a statement in writing that was materially false, respecting the Debtor’s financial condition, on which the creditor reasonably relied. With regard to Count I, brought pursuant to 11 U.S.C. section 523(a)(2)(A), Movant’s amended Complaint and accompanying evidence revealed no actual statements or representations made by the Debtor evidencing that Debtor made false statements with requisite fraudulent intent. With regard to Count II, brought pursuant to 11 U.S.C. section 523(a)(2)(B), the amended Complaint sufficiently plead facts with the required specificity to establish a legitimate exception to discharge pursuant to section 523 due to use of a materially false statement in writing that was reasonably relied on by the Movant under section 523(a)(2)(b).

AP 05-6139 Doc.13
03.21.2007 PWB

Procter v. Tulloss (In re Procter),

(Debtor’s complaint to determine that unsecured debt owed to ex-spouse arising from divorce decree is dischargeable fails to state a claim for relief. While the Debtor’s debt to the ex-spouse may not be a domestic support obligation as contemplated by § 523(a)(5), it is nevertheless a debt to a former spouse incurred by the Debtor in connection with the divorce decree and, therefore, falls within the category of debts described in § 523(a)(15) which are now excepted from discharge based upon changes made to § 523(a)(15) under BAPCPA).

AP No. 06-4112, Doc. No. 6
03.19.2007 JB

Royster-Clark Agribusiness, Inc. v. Mask (In re Mask);

(Plaintiff’s motion for summary judgment for non-dischargeability of its debt pursuant to Defendant’s fraud or defalcation while acting in a fiduciary capacity, under 11 U.S.C. § 523(a)(4), is denied. Plaintiff failed to show that its state court judgment was entitled to collateral estoppel effect and its statement of undisputed material facts failed to demonstrate the necessary trust and fiduciary relationship. Plaintiff’s claim under § 523(a)(2)(A) will be tried. Defendant’s request for dismissal denied as it was unaccompanied by law or facts allowing the Court to dismiss this adversary proceeding in its entirety);

AP 06-6085 Doc. 21
03.13.2007 PWB

Baskin & Baskin v. Carlucci (In re Carlucci),

Guardian ad litem fees awarded in custody dispute excepted from discharge pursuant to 11 U.S.C. § 523(a)(5).

AP No. 05-5007, Doc. No. 11
03.13.2007 CRM

In re Allied Holdings., et al.;

11 U.S.C. section 1102(a)(2); Ad Hoc Committee sought the appointment of an official committee of equity security holders to represent the interests of the holders of publicly traded shares of the Debtors. Proponents of an equity committee have the burden of proof to show that equity holders are not adequately represented and the debtor is not “hopelessly insolvent”. Ad Hoc failed in its burden to prove that shareholders are not being adequately represented. Ad Hoc witness testified that Debtors' board regularly met to discuss Debtors and it was his belief that the board was doing a “good job” of representing shareholders. Motion Denied.

Case Nos. 05-12515 through 05-12526 and 05-12528 through 05-12537 (Jointly Administered) Doc.2635
03.13.2007 JEM

Brodsky v. Taylor and Central Pet (In re Brodsky);

Movants’ motion to avoid judgment liens pursuant to 11 U.S.C. § 522(f)(1)(A) after case was reopened is granted. Respondent Taylor did not file a response or indicate opposition to movants’ motion. Respondent Central Pet’s arguments are without merit. Debtors may amend their schedule of exemptions after a case has been reopened. The correct date for valuing debtors’ interest in their property is the date the petition was filed, and the liens in question, when added to all other liens and to the amount of the debtors’ exemptions, exceeded the value of the debtors’ interest in property and impaired the debtors’ claimed exemptions.

BK 05-81736 Doc#38
03.09.2007 JEM

Jape v. Reliable Air, Inc. (In re Reliable Air, Inc.);

Movant’s motion to dismiss Chapter 11 bankruptcy case on ground bankruptcy filing was improperly authorized and Court lacks jurisdiction is denied. Movant and his wife were each 50% stockholders and directors of debtor corporation and having marital and business problems. Movant’s wife and third board member authorized the filing of this bankruptcy filing. Movant filed this motion almost eleven months following the filing of the bankruptcy petition, claiming that he did not vote for filing bankruptcy and third board member who voted for filing was not properly elected as director. It is unnecessary for Court to reach the issue of whether third board member was duly elected as Court finds Movant ratified the bankruptcy filing post-petition through his participation in, his acquiescence to, and his acceptance of benefits from this bankruptcy case. Such ratification relates back to the authorization for filing as of the time it was made. O.C.G.A. § 10-6-52.

BK 05-85627 Doc#143
03.08.2007 REB

Aegis Mortgage Corp. d/b/a New America Financial v. Christine Renee Laudermill (In re Christine Renee Laudermill)

(11 U.S.C. Section 523(a)(2)(A), collateral estoppel).

AP 06-3003
03.07.2007 PWB

Perkins v. Crown Financial LLC (In re International Management Associates LLC)

Defendant’s motion to dismiss fraudulent transfer claims denied because actual fraud claims stated with sufficient particularity for purposes of Rule 9(b). Motion for more definite statement of constructive fraudulent transfer claims denied as claims are not “vague or ambiguous.” Motion to strike immaterial matters denied because defendant has not shown that the allegations at issue have no bearing on the litigation or will cause it prejudice. 548(a)(1)(A) and (B); O.C.G.A. §§ 18-2-74, 18-2-75; FED. R. CIV. P. 8, 9, 12(e), 12(f).

AP No. 06-6421, Doc. No. 15
03.07.2007 MGD

In re George Wesley Taylor, Jr.,

Order Denying Debtor’s Motion to Determine the Identity of Lien Holder and Denying Debtor’s Motion to Reconsider Order Denying Debtor’s Motion to Extend the Stay as to HFC. In seeking to determine which entity was entitled to receive his mortgage payment, Debtor was in effect seeking a declaratory judgment regarding HFC and HSBC’s interest in Debtor’s property and such action would have to be brought as an adversary proceeding pursuant to Rule 7001(2) and Rule 7001(9). The stay had expired as to HFC at the time Debtor filed his original Motion to Extend Stay; his Motion to Reconsider was thus denied.

BK 06-76846 (Docket No. 85)
03.07.2007 MGD

In re George Wesley Taylor, Jr.,

Order Denying Debtor’s Motion to Determine the Identity of Lien Holder and Denying Debtor’s Motion to Reconsider Order Denying Debtor’s Motion to Extend the Stay as to HFC. In seeking to determine which entity was entitled to receive his mortgage payment, Debtor was in effect seeking a declaratory judgment regarding HFC and HSBC’s interest in Debtor’s property and such action would have to be brought as an adversary proceeding pursuant to Rule 7001(2) and Rule 7001(9). The stay had expired as to HFC at the time Debtor filed his original Motion to Extend Stay; his Motion to Reconsider was thus denied.

BK 06-76846 (Docket No. 85)
03.02.2007 JEM

Woolner v. LaFevor (In re LaFevor);

Plaintiff's motion for reconsideration of Court’s order denying summary judgment on her 11 U.S.C. § 523(A)(2)(A) claim is denied. Plaintiff did not demonstrate any change in controlling law, new evidence, or clear error, the acknowledged reasons for granting a motion to reconsider, and it was untimely as it was not filed within the ten day period following the entry of the judgment. Fed. R. Civ. P. 59(e).

AP 06-6167 Doc#33
02.28.2007 PWB

Waddell v. Internal Revenue Service, In re Waddell,

Although Internal Revenue Service was properly served with objection to proof of claim and notice of hearing and did not appear at the hearing, its proof of claim, as amended after the time for the hearing, is allowable as a secured claim to the extent of the value of the Debtors’ property as scheduled, net of secured claims with priority over the IRS’ liens. A tax lien is a statutory lien that is not avoidable under § 522(f)(1), and a debtor cannot exempt property from a properly filed tax lien under § 522(c)(2)(B).

BK 06-41365 Doc#34
02.28.2007 PWB

Hospitality Ventures/La Vista v. Heartwood 11, L.L.C., et al., (In re Hospitality Ventures/La Vista, Case No. 01-88200-PWB)

The Court submits proposed findings of fact and conclusions of law to the District Court in a non-core proceeding pursuant to 28 U.S.C. § 157(b)(2) and Fed. R. Bankr. P. 9033. In the proceeding, third-party plaintiff Heartwood asserts an unjust enrichment claim against third-party defendant DeKalb County based on Heartwood’s purchase of a tax fi. fa. for ad valorem taxes on real property owned by the plaintiff Debtor for more than the amount allowed in the Debtor’s bankruptcy case under the provisions of former 11 U.S.C. § 505(a). The Debtor and Heartwood had earlier settled this issue as between themselves, with court approval. The proposed findings of fact and conclusions of law deal with issues raised at trial and incorporate earlier opinions with regard to motions for summary judgment and the motion of third-party defendant DeKalb County for judgment as a matter of law at the conclusion of third-party plaintiff Heartwood’s evidence at trial. Based on its proposed findings of fact and conclusions of law, the Court proposes that the District Court, after consideration and de novo review of them: (1) conclude that it has subject matter jurisdiction of Heartwood’s third-party claim that it should properly exercise; (2) grant Heartwood’s motion for partial summary judgment against DeKalb County (determining that Heartwood has a claim for unjust enrichment); (3) deny DeKalb County’s motion for summary judgment against Heartwood (determining that DeKalb County has no legal defenses to the claim); (4) deny DeKalb County’s motion at trial for judgment as a matter of law pursuant to Fed. R. Civ. P. 52(a); (5) accept the Court’s findings of fact and conclusions of law with regard to the proper amount of the tax due under § 505(a) based on a proper valuation of the property; and (6) enter judgment in favor of Heartwood and against DeKalb County in the amount of $59,853.07 (being the difference in the amount Heartwood paid for the tax fi. fa. and its proper amount based on a proper valuation of the property), plus post-judgment interest and costs.

AP 03-6596 Docket # 161
02.27.2007 JEM

Wayland v. Kap Title, Inc. (In re Wayland);

Movant’s objection to attorneys’ fees portion of respondent’s unsecured claim is granted. Respondent failed to show the reasonableness of its attorneys’ fees request as it had admittedly not been billed and had not paid attorneys’ fees in connection with its pre-petition claim.

BK 06-74203 Doc#32
02.23.2007 PWB

Watts, Trustee, v. Argent Mortgage Company, LLC, (In re Hunt, Case No. 04-77191),

Chapter 7 trustee seeks to avoid under § 547(b) two security deeds that were recorded weeks after they were executed and delivered. The debtor’s warranty deed was recorded after one security deed was recorded and at the same time as the other. The Court rules that, under Georgia law, the absence of record title in the debtor imposed a duty of inquiry that would have put a subsequent purchaser from the debtor on notice of the unrecorded security deeds. Therefore, the security deeds were perfected within the meaning of § 547(e)(1)(A) at the same time they were executed and delivered, and the transfers were effective as of that date under § 547(e)(2)(B). As such, the transfers were not on account of an antecedent debt as required by § 547(b)(3), and the trustee may not recover.

AP 06-6235 Doc# 29
02.23.2007 PWB

Ghee v. Retailers National Bank (In re Ghee),

(Order granting Defendants’ motions to dismiss and denying Plaintiff’s motion for default judgment and motion to intervene. The Debtor has failed to set forth a factual or legal basis for any alleged violation of the discharge injunction by any of the Defendants. Further, the Court lacks subject matter jurisdiction over what is essentially a dispute between the Debtor’s spouse (who was not a debtor in the bankruptcy case) and the various non-debtor Defendants.)

AP 06-9105, Doc# 60
02.22.2007 MHM

In re Webb;

Approving Debtor’s Chapter 13 plan providing for payment of student loans directly under §1322(b)(5), while paying other unsecured creditors 1%

BK 06-61821
02.22.2007 MHM

Simpukas v. Bayview Loan Servicing, LLC,

Confirming that the parties’ contractual choice of California law to apply to the terms of repayment of a note secured by real estate located in Georgia

AP 05-6440
02.20.2007 MHM

Miller v. Delco;

Order granting Plaintiff's motion to consolidate a fraudulent transfer proceeding with an objection to discharge.

AP 05-6300
02.16.2007 MGD

Pettigrew v. Hoey Construction,

Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment; Defendant’s security interest in property was avoided as a preference. In September of 2003, Defendant obtained a default judgment against Debtor in the State Court of Gwinnett County and requested that the Clerk of the State Court issue a Writ of Fieri Facias. The Clerk’s office did not timely process Defendant’s request and the Fi. Fa. was not recorded until December of 2003. Under Georgia law, the transfer of real property occurs when the transfer is perfected against bona fide purchasers. Defendant’s security interest, therefore, was perfected on December 5th when the Fi. Fa. was recorded, not when the default judgment was entered on September 19th. So while Defendant obtained its default judgment against Debtor outside the preference period, the perfection fo Defendant’s security interest occurred within the preference period and is thus avoidable.

AP 06-06252 (Doc# 25)
02.15.2007 JB

In re Burton;

(Debtor’s former wife has supplemented her motion for contempt against Debtor’s former employer as required by previous Order. Because the Settlement Agreement and Release signed by the parties on December 23, 2004 bars Debtor’s former wife from raising any claim which arose before that date, Debtor’s former employer is directed to respond only to those claims alleged to have occurred after that date)

BK 03-92191 Doc#107
02.13.2007 PWB

Gordon v. Citibank (South Dakota, N.A.) (In re Anderson),

Court will not disallow proof of claim based on chapter 7 trustee’s objection for lack of documentation in absence of showing of some basis to suspect that claim is not owed.

BK 03-93082 Doc# 42
02.12.2007 PWB

Bouchard v. Schiaffino, (In re Schiaffino, Case No. 06-71620).

Complaint seeking exception of debt under § 523(a)(2) dismissed on motion of debtor because creditor filed it one day beyond 60 day limit of Fed. R. Bankr. P. 4007(c).

AP 06-9108 Doc# 7
02.08.2007 PWB

Hospitality Ventures/La Vista v. Heartwood 11, L.L.C., et al., (In re Hospitality Ventures/La Vista, Case No. 01-88200-PWB)

Third party plaintiff’s claim for recovery based on a theory of unjust enrichment is fairly raised by the pleadings, and the record in the case demonstrates that it has been argued and determined with fair notice to the adverse party that it was before the Court. There is no basis for entry of summary judgment on the ground that the unjust enrichment theory had not been properly pleaded.

AP 03-6596 Doc#154
02.06.2007 MGD

Montz v. Chase Card Services,

Order Denying Plaintiff’s Motion for Default Judgment. Chapter 7 Trustee’s Motion for Default Judgment is denied because Trustee failed to serve the complaint in a proper manner and appears to have named as Defendant a non-existent corporation.

BK 06-04108 (Doc# 7)
01.31.2007 MGD

L. Lou Allen, Chapter 7 Trustee v. Jane J. Boggs (In re George T. Boggs),

Order Granting Plaintiff Trustee’s Motion to Amend Complaint. Trustee filed a complaint against Debtor’s wife seeking to recover $175,000.00. Trustee moved to amend the complaint to add counts seeking to avoid any purported interest Defendant claims in the funds. The Court granted Trustee’s Motion to Amend on the basis that Defendant established no grounds upon which the Court could deny the Motion and the statute of limitations within which Trustee could bring avoidance actions had not run.

AP 06-04099 (Docket No. 28)
01.26.2007 PWB

Discover Financial Services v. Goodman,

Presumption of nondischargeability under 523(a)(2)(C) does not apply to balance transfers on a credit card account. To the extent that the presumption applies, it does not establish nondischargeability, but shifts the burden of going forward to the debtor. The ultimate burden of proof remains with the debtor. Creditor's motion for summary judgment denied.

AP 06-6238 (Docket entry #13
01.26.2007 JEM

In re Wang;

Debtor’s motion to reopen Chapter 7 case after receiving discharge in order to execute a reaffirmation agreement is denied as a reaffirmation agreement is not enforceable unless it was made prior to debtor’s discharge. 11 U.S.C. § 524(c)(1).

BK 05-94765 Doc#15
01.23.2007 JEM

Hays, as Trustee for Apyron Technologies, Inc. v. ChemReg International, LLC (In re Apyron Technologies, Inc.);

Only issue at trial on plaintiff’s action to avoid preferential transfer pursuant to 11 U.S.C. § 547(b) was whether the $13,876.73 transfer which defendant received belonged to debtor or another entity. Defendant did not appear at trial. Plaintiff proffered evidence showing that the transfer was made from an account debtor operated under a trade name and not from a separate corporation, entitling plaintiff to avoid the transfer and recover the funds for the estate.

AP 06-6177 Doc#36
01.18.2007 MHM

Julian Lecraw & Co., LLC v. Gunter;

Motion for reconsideration denied: Constitutional issue under Article I, Section 10, regarding gold and silver Coin as legal tender; Debtor is not entitled to jury trial.

BK 06-73835
01.12.2007 PWB

MBNA America Bank NA v. Russell (In re Russell),

Order on Debtor’s Motion for Summary Judgment, (§ 523(a)(2)(A): To establish actual fraud in the use of a credit card, the Plaintiff must show a debtor’s actual subjective intent not to pay)

AP 06-4063 doc.#17
01.11.2007 JEM

Woolner v. LaFevor (In re LaFevor);

On cross motions for summary judgment plaintiff’s motion for summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(2)(B), and (a)(6) is denied as plaintiff failed to carry her burden of showing no material facts in dispute and entitlement to judgment as a matter of law, and Defendant’s motion for summary judgment is granted as to plaintiff’s claims under § 523(a)(2)(B) and (a)(6) and denied as to plaintiff’s claims under § 523(a)(2)(A). Defendant did not address the § 523(a)(2)(A).

AP 06-6167 Doc#28
01.10.2007 WHD

Automotive Finance Corporation v. Miles,

Declaring debt nondischargeable under section 523(a)(6); debt arose from "out of trust" sales of vehicles.

AP 06-1006, doc# 28
01.09.2007 MGD

Smithkline Beecham Corp. d/b/a Glaxosmithkline v. Catherine Lam (In re Catherine Lam),

Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss. Defendant moved to dismiss Count I of Plaintiff’s complaint, which seeks to have the debt Defendant owes to Plaintiff deemed non-dischargeable pursuant to 11 U.S.C. § 523(a)(4), on the grounds that the complaint fails to state a claim for larceny or embezzlement. The complaint failed to state a claim for larceny, however, the Court could not conclude that the allegations could not, under any circumstances, make out a claim for embezzlement. The Court therefore granted Defendant’s Motion to Dismiss with respect to the dischargeability claim based on larceny and denied the Motion with respect to the dischargeability claim based on embezzlement.

AP 06-09096 (Docket No. 10)
01.08.2007 MGD

In re Olsen,

Order Granting GRP Financial Services Inc.’s Motion to Annul Automatic Stay and Validate Foreclosure Sale. Debtor’s last mortgage payment was made in September of 2002, but two bankruptcy filings and extensive district court litigation prevented Movant from completing a foreclosure sale of Debtor’s property. After two years of litigation regarding the validity of the promissory note and deed to secure debt held by Movant, the District Court determined that Movant had the authority to foreclose on Debtor’s property. Debtor, pro se, filed a petition for relief under Chapter 13 of the Bankruptcy Code the Friday before the scheduled foreclosure sale of her property. The Court modified the stay to allow Movant to cry the foreclosure sale. Debtor subsequently obtained counsel who represented her at the hearing on this matter and briefed the issue of whether Debtor filed her petition and plan in good faith. The Court concluded that cause existed to annul the stay because Debtor lacked good faith in filing her petition.

06-66198 (Docket No. 56)
01.07.2007 WHD

Avera, et al. v. Fitzgerald

granting summary judgment to plaintiff on her claim that attorney's fees awarded by state court were intended to be additional child support and are therefore nondischargeable pursuant to section 523(a)(5)

NOT INTENDED FOR PUBLICATION

AP 04-1710, docket number 19
01.05.2007 MGD

In re Lewis,

Order Denying Petition for Payment of Unclaimed Funds. Movant, attorney-in-fact for JP Morgan Chase Bank, provided no evidence that the debt related to the unclaimed funds request was not satisfied through foreclosure or other payment or that JP Morgan Chase Bank still holds the claim and has not transferred or assigned the claim to another entity.

BK 03-41970 Doc# 34
01.05.2007 PWB

In re Angela Carter,

Order Denying Debtor’s Motion to Reopen, Motion to Vacate Foreclosure Sale and Remanding Case to State Court, (Order denying debtor’s motions in closed case and remanding the debtor’s attempted removal of a state court dispossessory proceeding (which had been removed multiple times to District Court) to DeKalb County State Court and noting that such remand is not reviewable by appeal pursuant to 28 U.S.C. § 1452(b))

BK 05-95808, doc.#24
01.05.2007 PWB

In re Rios;

The Debtor’s chapter 13 plan, as amended, met all the requirements for confirmation under 11 U.S.C. § 1325, but the Trustee objected to its confirmation, and requested dismissal of the case, because Debtor was not eligible because he did not receive the credit briefing required by 11 U.S.C. § 109(h) until three days after the filing of his petition. § 109(h) is not jurisdictional and may be waived. Because the Trustee did not timely pursue dismissal of the case due to the Debtor’s ineligibility, the Court declined to dismiss the case and confirmed the plan.

BK 07-66047 Doc.30
01.04.2007 PWB

Hospitality Ventures/LaVista v. Heartwood 11, L.L.C., et al., v. DeKalb County, et al.

The Opinion considers whether the District Court, under principles of supplemental jurisdiction codified in 28 U.S.C. § 1367, has subject matter jurisdiction of, and if so, whether a bankruptcy judge may hear, a third-party claim for which no independent basis of jurisdiction exists under 28 U.S.C. § 1334(b). The Opinion notes that courts generally agree that a district court has supplemental jurisdiction under § 1367 with regard to its bankruptcy jurisdiction under § 1334 but that they disagree over whether a bankruptcy judge may or may not hear a matter within a district court’s supplemental bankruptcy jurisdiction under§ 157(a). The Opinion concludes that the better view is that the system for the allocation of bankruptcy jurisdiction between a district court and its bankruptcy unit, comprised of the bankruptcy judges, authorizes the referral to a bankruptcy judge of a third-party claim within a district court’s bankruptcy jurisdiction, as supplemented by § 1367, that is asserted in response to a claim arising under the Bankruptcy Code. Thus, although the third-party claim had no independent jurisdictional basis, the Opinion determines that the District Court had supplemental jurisdiction of it and that it was properly referable to a bankruptcy judge under § 157(a) and LR 83.7, NDGa, to hear as a non-core matter, subject to de novo review by the District Court, under § 157(c).

AP 03-6596 Doc#145
01.04.2007 PWB

Hospitality Ventures/LaVista v. Heartwood 11, L.L.C., et al., v. DeKalb County, et al.

Heartwood purchased lien for ad valorem taxes due on the Debtor’s hotel property from DeKalb County under former O.C.G.A. § 48-3-19(a)(1). Debtor filed adversary proceeding against Heartwood under former 11 U.S.C. § 505 to reduce the amount of the tax lien, alleging that the hotel was worth less than the assessed value and that the tax should be reduced. Heartwood filed a third-party complaint against DeKalb County. Heartwood and the Debtor settled, stipulating to the value of the hotel. Based on the stipulation and the absence of other evidence, the Court in its January 10, 2006 Order directed the entry of judgment in favor of Heartwood for the difference in what it paid for the tax lien and its allowed amount based on the stipulated value. On remand from the District Court on DeKalb County’s appeal, the Court vacated the January 10 Order because it had improperly made final determinations in a non-core matter, contrary to 28 U.S.C. § 157(c). The Court then issued its opinion that Heartwood is entitled to partial summary judgment on the legal defenses raised by DeKalb County and scheduled a trial on the remaining issue of the value of the hotel. Following the trial, the Court will issue proposed findings of fact and conclusions of law on all issues.

AP 03-6596 Doc#146
01.03.2007 CRM

Discover Bank, Issuer of the Discover Card, v. Gregory L. Howard (In re Gregory L. Howard);

11 U.S.C. section 523(a)(2)(A); credit card issuer's default judgment denied because issuer's complaint failed to sufficiently allege facts that established false pretenses, false representation or actual fraud. Nondischargeability based on false pretenses, false representation, or actual fraud requires a showing of actual, subjective fraudulent intent which is not established solely by the fact than an insolvent debtor used a credit card and made implied representations concerning the ability to pay or ultimately did not have the ability to pay the debt.

AP 05-6033 Doc#14
01.03.2007 CRM

Carolyn Dockery v. Pamela Tashay Patterson (In re Pamela Tashay Patterson);

11 U.S.C. section 523(a)(6) and 11 U.S.C. section 727(a)(4); Five days after Plaintiff’s motion for default judgment was entered, the Debtor filed an answer. The answer was construed as a motion to vacate default judgment. Therefore, even though Debtor did not respond to the motion for default judgment, plaintiff's default judgment was denied and a clerk's entry of default was vacated because Debtor showed a sufficient and expeditious interest in correcting the default.

AP 05-06381 Doc# 17)
01.03.2007 PWB

Thurmond, et al. v. Turner, et al.

The Order directs entry of final judgments in adversary proceedings brought by the Trustee to avoid prepetition transfers by the debtor under former O.C.G.A. § 18-2-22 and by judgment creditors seeking a determination that their judgment lien had priority over a postpetition security deed executed by the Debtor with regard to his interest in one of the properties that he had reacquired after the filing of the bankruptcy petition. One transfer was set aside as a voluntary conveyance under § 18-2-22(3). The other was not avoidable because the Court determined the Debtor was not insolvent at the time of the transfer. In this regard, the Court determined that the evidence had not established that the Debtor was actually liable to the judgment creditors, who had obtained their judgment by default. The default judgment was not binding on the transferee because she was not a party to the lawsuit. The Court determined that the judgment lien did not attach to the property prepetition because the Debtor had not owned it and that it did not attach to the interest he acquired postpetition by operation of 11 U.S.C.§ 524.

AP 02-6433 Doc# 87
12.29.2006 PWB

In re Dean,

Court has jurisdiction to rule on Debtor’s motion for reconsideration notwithstanding filing of notice of appeal

BK 06-71654 doc.#52
12.26.2006 MHM

Blue Ridge Investers, II, LP v. Wachovia Bank, NA (In re Aerosol Packaging, LLC)

The terms of a prepetition subordination agreement between debtor's two primary secured creditors, Wachovia and Blue Ridge, provided inter alia that Blue Ridge authorized Wachovia, as the senior secured party, to take certain actions in Wachovia’s own name and in the name of Blue Ridge, including the right to vote both claims in a Chapter 11 bankruptcy case. Wachovia's right to vote Blue Ridge's claim was upheld.

BK 06-67096
12.26.2006 WHD

In re Arnell,

Finding bank in violation of section 362(a)(6) for freezing debtor's bank account without a valid right of setoff.

BK 05-12444 Doc#78
12.22.2006 JEM

In re Leaks

Debtor proposed plan seeking to surrender a car in full satisfaction of debt and thereby deprive secured creditor of an unsecured claim. Plan was based on the hanging paragraph at the end of section 1325(a) of the Bankruptcy Code. Held: Confirmation denied as not being in compliance with section 1325(a)(5)(B).

NOT INTENDED FOR PUBLICATION

BK 06-69445 Doc#37
12.22.2006 WHD

In re Freeman,

Overruling trustee's objection to confirmation of debtor's chapter 13 plan and permitting debtor to make direct payments of long-term student loan debt in accordance with contract term.

BK 06-10651 Doc#22
12.20.2006 JB

Hays v. Hamblen Family Irrevocable Trust et. al. (In re Hamblen);

O.C.G.A. 53-12-1 et. seq.; Defendant Gibson’s assertion that he, as a non-attorney trustee, can represent the defendant trusts in this litigation is denied. Defendant recognizes that business trusts must be represented by an attorney licensed to practice in this Court, but argues that these defendant trusts are land trusts organized as such under Article 3 of the Georgia Trust Act and can be represented by a non-attorney trustee. Defendant’s reliance on the Georgia Trust Act is misplaced. Trusts created under Article 3 are like business trusts and require a licensed attorney to appear in court. His other legal arguments are also without merit. Defendant Gibson, as a non-lawyer, is permitted to represent himself individually, but may not represent any other entity in court.

AP 06-6394 (Doc#29)
12.18.2006 PWB

In re Dean;

Debtor filed chapter 13 petition after his bank placed a hold on his bank account due to suspicion that funds wired into the account did not belong to the debtor. The Debtor filed motions seeking turnover of the property and damages, including damages for violation of the stay. The Court denied the motions because they were improperly served, because an adversary proceeding is required to recover property of the estate, and because the question of whether the stay had been violated determined on whether the bank had acted properly, an issue that the Court would abstain from deciding. The Court granted the motion of the banks for relief from stay to permit determination of issues relating to the account. The Court denied confirmation of the plan because it did not meet confirmation requirements. Finally, because the debtor’s purpose in filing was to obtain a forum for seeking turn-over of the bank account and the assertion of claims against the banks, rather than debt relief, the Court dismissed the case

BK 06-71654 (Doc #40)
12.14.2006 JB

Hays v. Hamblen Family Irrevocable Trust et. al. (In re Hamblen);

Fed R. Civ. P. 8(a) and 12(e); Defendant Gibson’s pro se motion for more definite statement is denied. Defendant argued that Plaintiff’s amended complaint contained only conclusory allegations and failed to provide facts enabling him to frame a responsive pleading. Plaintiff’s ten count complaint lays out the claims made and relief sought and is not so ambiguous or unintelligible that Defendant cannot frame a response. To the extent Defendant lacks information regarding the allegations in the complaint, he will have the opportunity to acquire such information through the discovery process.

AP 06-6394 (Doc#28)
12.14.2006 PWB

In re Pamela Barton;

“Hanging paragraph” following § 1325(a)(9) that makes § 506 inapplicable to treatment of secured claims under § 1325(a)(5) does not permit plan to provide for surrender of 910 car in full satisfaction of claim.

BK 06-41283 doc. no. 35
12.14.2006 PWB

In re Davis;

“Hanging paragraph” following § 1325(a)(9) that makes § 506 inapplicable to treatment of secured claims under § 1325(a)(5) does not permit plan to provide for surrender of 910 car in full satisfaction of claim.

BK 06-40692 doc. no. 33
12.13.2006 JEM

In re Patterson. Patterson v. Ga. Dept. of Rev.

Defendant supported motion for summary judgment on debtor’s complaint to determine dischargeability of tax debt with affidavit stating that IRS revised debtor’s tax liability upward. This fact, Defendant asserted, meant that Debtor was required to file an amended state return, thereby rendering tax debt nondichargeable under section 523(a)(1)(B). Held: Motion denied. O.C.G.A. § 48-7-82(e)(1) requires amended return when taxpayer’s “net income,” not tax liability, is changed by the IRS. There was nothing in the record to show Debtor’s net income had changed.

NOT INTENDED FOR PUBLICATION

AP 06-9058 Doc#8
12.13.2006 WHD

Powell v. Shealey,

Holding non-support, marital debt dischargeable under section 523(a)(15)

AP 05-1021 Doc#24
12.13.2006 MGD

In re SLOCUM, , and In re SILVERS,

Order Directing Debtors to File a Post-confirmation Amendment, Dismiss the Chapter 13 Case, or Take Other Appropriate Action: The Court adopts the reasoning set forth in In re Zehrung,351 B.R. 675 (W.D. Wisc. 2006), and determines that the Court will not confirm a debtor’s plan over the objection of a secured creditor where a debtor proposes to surrender collateral in full satisfaction of a claim pursuant to 11 U.S.C. §1325(a)(5)(C) and the parties agree that the collateral is worth less than the amount of the debt it secures. (Order on appeal)

BK 06-41162, 06-41198
12.05.2006 WHD

In re Eger,

Denying motion to reopen for purpose of filing a reaffirmation agreement, as reaffirmation agreement would not have been effective because it was executed after the entry of the debtor's discharge.

BK 05-12074 Doc#13
12.04.2006 JEM

In re Apyron Technologies, Inc.

Trustee’s motion for reconsideration of order denying Trustee’s motion to disqualify former officer’s attorney in litigation over administrative claim was denied because Trustee showed no fact or law overlooked by the Court.

NOT INTENDED FOR PUBLICATION

BK 02-74350 Doc#517
12.01.2006 PWB

Colorado West Transportation Co., Inc., vs. Arthur H. McMahon, Jr.,

Default judgment on creditor’s fraud claim does not have issue preclusive (collateral estoppel) effect in later dischargeability under Colorado law. Even if it does, bankruptcy court is not required to give issue preclusive effect to a state court default judgment under the full faith and credit clause, 28 U.S.C. § 1738, in dischargeability matters that must be brought in bankruptcy court under § 523(c)

AP 05-6027 doc. no. 37
11.29.2006 JB

Lumpkin County Bank v. Collins (In re Collins),

Fed. R. Civ. P. 37(b)(2)(c), 11 U.S.C. § 523(a)(2)(A) and (a) (6); Plaintiff’s motion to strike Defendant’s pro se answer is granted. Defendant failed to serve responses to Plaintiff’s discovery requests even after Plaintiff’s motion to compel was granted. Plaintiff was entitled to a default judgment declaring that Plaintiff’s Superior Court judgment is non-dischargeable.

AP 05-6468 (Doc#32)
11.28.2006 JB

In re Kelly;

( 11 U.S.C. §§ 109(h), 521(a)(1), Fed. R. Bankr. P. 1006, 1007, 1017); Debtor’s motion to reopen his case is denied as debtor failed to timely pay his filing fee installment, failed to file explanation of exigent circumstances and submit certification of completion of budget and credit counseling briefing, and failed to file required schedules and statement of financial affairs within 45 days after date of filing petition.

BK 06-71019 (Docket #23)
11.28.2006 JB

In re Burton;

Pursuant to earlier Order of Court requiring debtor’s ex-wife to obtain pre-approval before seeking affirmative relief against debtor’s employer, she must supplement current motion to hold employer in contempt by providing certain specific information and affidavits.

BK 03-92191 (Docket #95)
11.28.2006 WHD

BancorpSouth Bank v. Callaway,

Finding portion of debt nondischargeable under section 523(a)(2)(A) and remainder of debt dischargeable.

NOT INTENDED FOR PUBLICATION

AP 05-1113, doc#58
11.28.2006 JEM

In re Apyron Technologies, Inc.

Former officer and shareholder of Chapter 11 debtor moved for allowance of administrative claim for unpaid wages. Trustee moved to disqualify law firm representing former officer because that firm had also represented the Chapter 11 debtor on discrete matters. Held: Motion to disqualify denied. Trustee failed to show at evidentiary hearing that law firm’s former representation of the Debtor was substantially related to dispute over administrative claim within meaning of Rule 1.9(a) of the Georgia Rules of Professional Conduct.

BK 02-74350 Doc#514
11.20.2006 WHD

In re Combs,

Granting motion for sanctions for violation of automatic stay.

BK 06-10872 Doc#33
11.14.2006 JB

Cadlerock Joint Venture, L.P. v. Pittard (In re Pittard);

(11 U.S.C. §§ 727(a), 523(a)(2), (c); Fed. R. Bankr. P. 4004(a), 4007(c); O.C.G.A. §44-12-24); Defendant’s motion for summary judgment is granted. Plaintiff was assignee of a state court consent judgment, entitling original plaintiff, among other things, to assert a right of action for fraudulent inducement to extend credit if defendant ever filed personal bankruptcy. Georgia law does not permit assignee to bring action arising from injuries to another based on fraud and no other evidence of fraudulent misrepresentation was produced. With regard to the objection to discharge, plaintiff’s complaint was time barred and facts do not support an exception to discharge.

AP 05-6394 (Docket #38)
11.09.2006 MGD

In re Liebl,

Order Denying Debtor’s Application for Waiver of the Filing Fee. The Judicial Conference Procedures Regarding Fee Waivers in Chapter 7 cases do not define whether the income which is to be compared to the poverty level is before tax income or after tax income. Given the purpose of the fee waiver, after-tax income seems the most appropriate standard since only after-tax income is available to the Debtor to pay the filing fee. According to the figures calculated using Debtors’ Pay Advices, Debtors’ annual after-tax income is at least $5,000 higher than 150% of the official poverty line for a family of 3, thereby making Debtors ineligible for a waiver of the filing fee.

BK 06-73560
11.09.2006 JEM

In re Marshall

Secured creditor filed proof of claim and later employed an attorney who filed a motion for relief from stay. Subsequently, debtor objected to proof of claim and served the creditor but not the creditor's attorney. The Court denied the objection in part because service on the creditor's attorney was required by the Court's local rules.

BK 06-69516 Doc#34
10.31.2006 JEM

In re Jenkins. EDS Acquisition v. Jenkins

Parties sought court approval of compromise in suit to determine dischargeability of debt. Held: Motion denied because the Bankruptcy Code does not provide for approval of such compromises. Moreover, a motion to approve a compromise, when appropriate, should be filed in the main case, not the adversary.

NOT INTENDED FOR PUBLICATION

AP 06-6054 Doc#15
10.30.2006 JEM

In re Spejcher. Hays, Trustee v. Wellborn Forrest Products, Inc., et. al.

Trustee moved for a default judgment on a complaint to avoid liens either as a violation of section 362 or as a preference under section 547. According to the complaint, one of the defendants held a mechanics lien recorded during the preference period. Held: Motion denied as to Defendant holding mechanics lien. Section 547(c)(6) bars avoidance of a statutory lien not avoidable under section 545, and complaint alleged no facts to show that lien was avoidable under section 545. Mention of statutory lien in complaint eliminated need for defaulted Defendant to prove affirmative defense under section 547(g).

NOT INTENDED FOR PUBLICATION

AP 06-6347 Doc#25
10.30.2006 JEM

In re Ngo

This case illustrates two points: (1) once a motion is denied, it cannot be amended to cure whatever led to its denial, and (2) a second motion for reconsideration is almost always improper and violates BLR 9023-1.

NOT INTENDED FOR PUBLICATION

BK 04-90427 Doc#26
10.26.2006 JB

Miller, Trustee v. Brown (In re Brown);

Trustee’s motion for settlement and compromise is granted. Objecting creditor filed bankruptcy, and her claim belongs to her bankruptcy estate. The Chapter 7 Trustee of the objecting creditor's estate agrees with terms of settlement and compromise, U.S. Trustee does not oppose it, and settlement and compromise meet Justice Oaks II, Ltd factors.

AP 04-6575 (Docket #98)
10.25.2006 JB

In re Parker;

(11 U.S.C. §§ 704, 726, 541(a)(1)); Debtor’s objection to employment of real estate agent overruled. Court is without authority to permit debtor to keep unencumbered home valued at $125,000 as Bankruptcy Code requires Chapter 7 Trustee to liquidate debtor’s property and pay creditors.

BM 06-65216 (Docket #29)
10.20.2006 JEM

In re Patterson. Patterson v. Ga. Dept. of Rev.

The complaint filed by debtor seeking to determine that tax debt was dischargeable referred to the debt as “payroll taxes.” Defendant Revenue Department moved to dismiss for failure to state a claim, arguing that a debt for payroll taxes falls squarely within the exception to discharge under § 523(a)(1)(A). Held: Motion denied. “Payroll taxes” is imprecise and could refer to taxes owed by Plaintiff for wages, as opposed to withholding taxes not paid over to Defendant.

NOT FOR PUBLICATION

BK 06-9058 Doc#5
10.18.2006 JB

Morris v. Cunningham (In re Cunningham)

Plaintiff filed a motion for partial summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A). Defendant did not dispute Plaintiff’s statement of undisputed material facts, but argued that Plaintiff’s judgment was “void” because venue had “vanished” in Fulton County. Plaintiff’s Fulton County Superior Court judgment, which was based on Defendant’s fraudulent conduct, meets the test for collateral estoppel, or issue preclusion, under Georgia law, and Plaintiff’s judgment is determined to be non-dischargeable. Defendant had waived any argument concerning venue as he had not raised it at the earliest opportunity or appealed the superior court judgment

AP 06-6086 Doc#17
10.17.2006 WHD

Brown v. MAWAL, Inc.

Resolving issue as to escrowed settlement funds.

NOT INTENDED FOR PUBLICATION

AP 03-1043 Doc#76
10.13.2006 JEM

In re Newton

Postconfirmation modification of Chapter 13 plan proposing to surrender vehicle in satisfaction of debt may not be approved under section 1329 of the Bankruptcy Code.

BK 05-73817 Doc#33
10.12.2006 WHD

Mutual Savings Credit Union v. Mathis,

Deferring ruling on motion for sanction under Rule 9011 until such time as the Court resolve the substance of the parties' dispute.

NOT INTENDED FOR PUBLICATION

AP 06-1005 Doc#47
10.12.2006 WHD

In re Williford

Denying motion to avoid lien held by the Internal Revenue Service for failure to state a claim and lack of proper service.

NOT INTENDED FOR PUBLICATION

BK 06-11428 Doc#19
10.12.2006 WHD

In re Harman,

Granting in part and denying in part application for compensation filed by real estate professional.

NOT INTENDED FOR PUBLICATION

BK 04-17195 Doc#220
10.12.2006 WHD

In re Robinson,

Denying motion to avoid lien on the basis that no liens existed; liens were created in violation of the automatic stay and were void.

NOT INTENDED FOR PUBLICATION

BK 02-17467 Doc#29
10.11.2006 MHM

WOW! Factor Desserts, Inc. V. Anderson (In re Johnson & In re Innocentia, Inc.)

Automatic stay will not be modified to allow prosecution of claims pending in litigation in Canada.

BK 04-74452, 04-74454
10.11.2006 CRM

In re Allied Holdings, Inc

Denying motion to annul automatic stay and finding imposition of sanctions appropriate for willful, post-petition violation of the stay.

BK 05-12515 Doc#2147
10.11.2006 WHD

Looney v. Owens,

Denying motion to quash subpoena filed on behalf of a corporation by other than a licensed attorney.

NOT INTENDED FOR PUBLICATION

AP 05-1706 Doc#83
10.11.2006 WHD

Looney v. Owens,

Denying motion to amend complaint.

NOT INTENDED FOR PUBLICATION

AP 05-1706 Doc#84
10.11.2006 WHD

In Tara Sheet Metal, Inc.

Denying motion for order confirming termination of stay under section 362(j); debtor is a corporation, and the automatic stay termination provisions of section 521(a)(6) and 362(h)(1) apply only to individual debtors.

NOT INTENDED FOR PUBLICATION

BK 06-11261 Doc#37
10.06.2006 PWB

Kaye v. World International Trading, Inc. (In re Value Music Concepts, Inc.)

Defendant's motion to vacate default judgment denied. The plaintiff's service of the summons and complaint complied with requirements of Rule 7004 and constitutional requirements of due process. In addition, the defendant failed to set forth a basis for relief under Rule 60(b). The time for raising "excusable neglect" as a ground had expired and the defendant failed to meet the higher burden of "extraordinary circumstances" required by Rule 60(b)(6).

AP 04-6042 Doc# 22
10.04.2006 JEM

In re Michal. McComb v. Michal;

Adversary dismissed pursuant to Fed. R. Civ. P. 4(m) , made applicable by Fed. R. Bankr. P. 7004, for failure to serve summons and complaint within 120 days of filing of adversary.

AP 06-9036
09.29.2006 PWB

Hutchins v. Temples

Agreement made as part of settlement of state court litigation including language that “the judgment including claims for fraud which may not be dischargeable in a bankruptcy proceeding” does not provide sufficiently detailed findings of fact that would entitle consent judgment to issue preclusive effect under Florida law. Summary judgment to plaintiff in § 523(a)(2) dischargeability action is denied.

AP 05-9134 Doc#15
09.29.2006 MHM

Acuff-Rose Music, Inc. v. May

Dischargeability: Copyright infringement does not constitute willful and malicious injury.

AP 04-9177
09.29.2006 MHM

Ampel v. Ampel

Automatic Stay: Amounts withheld postpetition from alimony payable to Debtor to reimburse former spouse for mortgage payments on the marital residence is not recoupment, violated the automatic stay, and must be repaid to D; withholding amounts from alimony to reimburse for fees payable to a guardian ad litem incurred in connection with a child custody proceeding does, however, constitute recoupment.

BK 05-94878
09.29.2006 JEM

In re Parker

Portion of Debtor’s emergency motion to reimpose stay seeking expedited hearing denied where motion was served by mail and failed to allege any facts to show the existence of an emergency.

BK 06-68928 Doc#31
09.28.2006 MHM

Aero Housewares, LLC v. Interstate Restoration Group, Inc.

Claim: implied trust in insurance proceeds; Valuation: value of lease assignment in sale of assets.

BK 05-60451
09.27.2006 MHM

Ampel v. Ampel;

(dischargeability of guardian ad litem's fees)

AP 05-6462
09.27.2006 PWB

Downey v. State of Georgia Department of Revenue,

Claim for non-priority taxes subject to a lien is allowed as secured to the extent of the value of the debtors’ property. The tax lien is a statutory lien that is not avoidable under § 522(f)(1). Under O.C.G.A. § 48-2-56(a), a tax lien covers all property in which the taxpayer has an interest. A debtor cannot exempt assets that are subject to a tax lien, notice of which is properly filed, under § 522(c)(2)(B). In the absence of a showing that the tax lien was not properly filed, the claim is allowable as a secured claim.

BK 05-44526, doc no. 27
09.26.2006 REB

JPI Partners, L.L.C. v. Korie Dion Dixon (In re Korie Dion Dixon)

11 USC Sections 523(a)(2) and 523(a)(4), collateral estoppel.

AP 06-6124
09.26.2006 JB

In re JAC Family Foundation

11 U.S.C. §§ 109(e); 101(41), (15). Chapter 13 Trustee filed motion to dismiss on grounds of ineligibility. Only an individual with regular income may be a debtor in a Chapter 13 case. Plain meaning of “foundation” as organization or institution is inconsistent with plain meaning of “individual” as single human being or natural person. Other sections of Bankruptcy Code and of creation of Chapter 13 relief support interpretation that foundation is ineligible to be Chapter 13 debtor. Trustee’s motion granted and case dismissed.

BK 06-69360 Doc#20
09.26.2006 WHD

In re Dan River, Inc.

Denying motion to compel payment of administrative expense or, in the alternative, for stay pending appeal or for posting of supersedeas bond.

BK 04-10990 Doc#1709
09.25.2006 MGD

In re DANIEL DAVID DELPIANO

Order Denying Debtor’s Motion for a Preliminary Injunction and Reimposition of the Stay. (1) Debtor is not entitled to relief simply because he did not personally receive notice of the progress and changes in his case. Under BLR 9007-3(b), each party has the burden of filing a change of address with the Court and a party shall not be entitled to notice at the new address in the absence of complete compliance with the Rule. (2) The automatic stay terminated when Debtor waived his discharge and conceded that he was prepared to defend himself in any state court action against his creditors’ claims. Debtor cannot at the same time agree to waive his discharge to allow creditors to pursue collection of their claims and expect to reap the benefits of the protection of the automatic stay.

BK 03-82293
09.25.2006 MGD

In re CYNTHIA NEVELS

Order Denying Debtor’s Application for Waiver of the Filing Fee. The Judicial Conference Procedures Regarding Fee Waivers in Chapter 7 cases do not define whether the income which is to be compared to the poverty level is before tax income or after tax income. Given the purpose of the fee waiver, after-tax income seems the most appropriate standard since only after-tax income is available to the Debtor to pay the filing fee. According to the figures calculated using Debtor’s Pay Advices, Debtor’s annual after-tax income is almost $3000.00 higher than 150% of the official poverty line for a family of 2, thereby making Debtor ineligible for a waiver of the filing fee.

BK 06-71129
09.22.2006 PWB

Lubin v. Guyton (In re CHC Venture Properties, LLC)

(Order denying Plaintiff’s motion for summary judgment because there was a dispute of fact as to whether trustee materially breached real estate sale agreement by failing to provide notice of bankruptcy approval and, if there was a breach, whether the defendant waived breach by requesting an extension of closing).

AP 04-6469, Doc. No. 34
09.21.2006 PWB

Thurmond v. Turner,

In trustee’s action under former O.C.G.A. § 18-2-22 to set aside two fraudulent conveyances, the court determined after trial that the conveyances were made without consideration, but not with actual intent to defraud. However, with regard to the first conveyance to the debtor’s wife, the entry of a default judgment against the debtor on a disputed claim after the conveyance does not preclude the debtor’s wife from challenging the claim and the default judgment does not establish the debtor’s liability on the claim for purposes of the fraudulent conveyance action against her. Absent proof beyond the default judgment of the debtor’s liability on the claim, the trustee has not established that the debtor was insolvent at the time of the conveyance. The court reopened the evidence to permit the parties to introduce additional evidence on the question of the debtor’s insolvency at the time of the conveyance.

AP 02-6433, doc no. 58
09.20.2006 MGD

In re LAURA BUCHANAN PRICE;

Order Sustaining Trustee’s Objection to Debtor’s Exemptions and Granting Trustee’s Motion for Turnover by Debtor of Property of the Estate. (1) To allow Debtor to amend her claim of exemption after the Trustee has filed an objection and after the property, which she now claims is not exempt, has been destroyed would clearly be inequitable and would hinder the diligent administration of the bankruptcy estate by the Trustee. (2) When the debtor no longer has possession of the property or its value, the appropriate remedy available to the trustee is a money judgment, which can be obtained only through an adversary proceeding.

BK 06-62721
09.18.2006 JB

In re Hamblen

11 U.S.C. § 521(a)(3), (4); Fed. R. Bankr. P. 4002. Trustee filed motion to hold Debtors in contempt for failure to fully comply with specific discovery provisions in Court’s August 17, 2006 Order and, if Debtors could not locate required documents or information both Debtors were to execute and file affidavit with explanation. Upon Trustee’s evidentiary showing of Debtors’ failure to comply by clear and convincing evidence, Debtors should be prepared to show cause why they should not be held in civil contempt. Court has power to find Debtors in civil contempt and order sanctions, including incarceration and payment of fines and fees.

BK 05-95215 Doc#283
09.15.2006 JEM

In re Premji (Ga. Lottery Corp. v. Premji)

Failure to account for proceeds of sales of lottery tickers is a defalcation while acting in a fiduciary capacity and debt related thereto is not dischargeable under 11 U.S.C. § 523(a)(4).

NOT INTENDED FOR PUBLICATION

AP 05-6588
09.15.2006 WHD

United States Trustee v. Powell

Granting summary judgment and denying debtor's discharge pursuant to section 727(a)(8).

AP 06-1076 Doc#7
09.15.2006 WHD

United States Trustee v. Hays

Granting summary judgment and denying debtor's discharge pursuant to section 727(a)(8).

AP 06-1077 Doc#7
09.15.2006 WHD

United States Trustee v. Wamsley

Granting summary judgment and denying debtor's discharge pursuant to section 727(a)(8).

AP 06-1008 Doc#9
09.15.2006 WHD

United States Trustee v. Dent,

Granting summary judgment and denying debtor's discharge pursuant to section 727(a)(8).

AP 06-1032 Doc#8
09.13.2006 MGD

In re GEORGE ALLEN PARKER;

Order Denying Debtor’s Motion to Dismiss. Chapter 7 debtor attempted to use the eligibility and automatic dismissal provisions of BAPCPA to abuse the bankruptcy system by moving to dismiss his case on the grounds that he is ineligible to be a debtor under Section 109(h) due to his failure to receive credit counseling from an approved agency. Debtor waived the protections of that statute by filing a Motion to Extend Time for Credit Counseling and by actively participating in his Chapter 7 case after becoming aware of the Section 109(h) issue. Debtor is therefore judicially estopped from arguing his ineligibility at this stage of the proceedings. Similarly, dismissal because of the absence of payment advices where there is no evidence that payment advises exist would be contra to BAPCPA.

BK 06-61224
09.13.2006 JB

In re Hamblen

Fed. R. Bankr. P. 4002(5). Debtors are ordered to comply with bankruptcy law and this Order to provide a new address to Trustee and to file same with Clerk’s office.

BK 05-95215 Doc#274
09.08.2006 MHM

In re Om;

(Consideration of good faith requirement for Chapter 13 confirmation)

BK 03-72513
09.07.2006 MHM

Ward v. Claims Accounting;

(Dismissal of pro se Debtors' 19 adversary proceeding filed to enforce the automatic stay )

AP 06-9070
09.05.2006 MHM

Thompson v. SFC of GA, LP

(Order vacating dismissal for want of prosecution)

AP 05-6516
09.05.2006 JEM

In re Jordan

Fee application in Chapter 11 case was denied in part primarily because the work was not necessary.

NOT INTENDED FOR PUBLICATION

BK 04-78994
09.05.2006 PWB

In re Blackwell,

(includes doc no. 44 (OrDer entered July 6, 2006))(A lawyer retained by the Chapter 13 debtor to represent her in an action for the wrongful death of their son settled the action for policy limits, deducted his one-third contingent fee, and disbursed the balance to the debtors, who spent over half of the proceeds. The Debtor’s bankruptcy counsel then filed an application for approval of the employment of special counsel, approval of the settlement, payment of special counsel’s fee, and disbursement of the net proceeds to the chapter 13 trustee. These applications did not disclose the prior disbursement of the funds. After the court approved the applications in the absence of objection, the chapter 13 trustee filed a motion to vacate the orders and to dismiss the case when she discovered that the funds were not available. The court vacated its prior orders and ordered bankruptcy counsel and special counsel to show cause why their fees should not be disallowed or disgorged and why sanctions should not be imposed.)

BK 04-41655, doc no. 47
09.05.2006 JB

In re Hamblen

11 U.S.C. §§ 522(d); 541(c)(2); O.C.G.A. § 44-13-100. Chapter 7 Trustee filed objection to Debtors’ claims of exemptions and motion to surcharge the exemptions. Surcharge against a debtor’s exemption appropriate where debtor has underreported assets or has engaged in exceptional misconduct in order to protect integrity of bankruptcy process and creditors of the estate. Debtors’ motion to surcharge homestead and vehicle exemption granted. Debtors allowed their exemptions in household goods, furnishings and jewelry, but personal property valued in excess of those amounts must be turned over to the Trustee. Trustee’s surcharge request with regard to the IRA accounts is denied unless the Trustee demonstrates such accounts are not excluded from property of the estate.

BK 05-95215 Doc# 268
09.01.2006 JEM

In re Resendez

Pursuant to 28 U.S.C. § 1408,Trustee moved to dismiss for improper venue where Debtor filed the case in the Atlanta Division when it should have been filed in the Newnan Division. Motion denied. The venue under § 1408 was proper in this District. The Court has the authority to permit a case filed in the wrong Division to be administered there.

NOT INTENDED FOR PUBLICATION

BK 06-67436
08.31.2006 MGD

In re BONNIE S. HOLLIDAY;

Order granting Trustee’s motion for court determination that pre-petition judgments held by Debtor were an asset of the bankruptcy estate. Judgements arising from a pre-petition cause of action held by Debtor, that was disclosed in Debtor’s Statement of Financial Affairs, but was not included on Debtor’s Schedules, were not abandoned to Debtor by operation of law at the close of Debtor’s case pursuant to 11 U.S.C. § 554. Only property “scheduled” under § 521(1) is abandoned to the debtor, if not otherwise administered, at the close of the case.

BK 03-90612
08.23.2006 MHM

Wells Fargo v. Alexander

(D's motion for stay pending appeal is denied)

BK 06-67957
08.23.2006 MHM

Bramlett Plumbing Inc. v. Nugent

(Default opened because of Defendant's attorney's abandonment)

AP 05-6492
08.18.2006 WHD

In re Owens,

denying creditor's motion to dismiss Chapter 7 case for bad faith pursuant to section 707(a)

BK 04-17420
08.17.2006 JB

In re Hamblen;

Chapter 7 Trustee’s motion to compel Debtors to deliver property and cooperate with the Trustee and to vacate their residence granted with specific instructions

BK 05-95215
08.17.2006 WHD

In re Mims,

granting in part debtor's objection to claim

BK 05-12118
08.15.2006 MHM

In re Turner

(Ch13T's motion regarding disbursement of excess foreclosure proceeds)

BK 02-90898
08.11.2006 MHM

Vaughn v. Citizens Trust Bank

(Mo to open default granted because Defendant was not properly served)

AP 05-6552
08.11.2006 JEM

In re Tran (Wells Fargo Financial Georgia, Inc. v. Tran)

Motion for default judgment granted in part. Facts alleged in the complaint satisfied the elements of a claim under 11 U.S.C. § 523(a)(2)(c).

NOT INTENDED FOR PUBLICATION

AP 06-6078
08.11.2006 JEM

In re Walden

Creditor sought stay relief for violation of consent order, which was presented and entered just a few days before the creditor claimed a default that preceded the entry of the consent order. The Court vacated the consent order, stating that “To present a consent order that purports to settle a dispute but is in fact a time bomb that will go shortly after it is entered based on acts or omissions that occurred prior to its entry is to undermine confidence in the use of consent orders to settle disputes.”

NOT INTENDED FOR PUBLICATION

BK 05-72465
08.08.2006 WHD

Collins Brothers Corporation v. Perrine,

denying motion for summary judgment on whether debt arose under the Perishable Agricultural Commodities Act and whether the debt is nondischargeable under section 523(a)(4)

AP 05-1118
08.08.2006 WHD

First National Bank of Griffin v. Frizzell,

granting summary judgment in favor of plaintiff as to nondischargeability of a debt under section 523(a)(2)(A) and 523(a)(6)

AP 06-1019
08.03.2006 WHD

In re Combs,

denying motion for modification of pre-confirmation adequate protection payments for lack of evidence regarding rate of depreciation of vehicle

BK 06-10872
08.03.2006 MGD

In re DNA RACING & CUSTOMS, INC.;

Order denying Movants’ motion to modify order lifting stay and denying Debtor’s motion for contempt. Debtor was not entitled to a finding of contempt or damages where any stay violation by Movants was not wilful and any damages were speculative and not casually related to Movants’ actions.

BK 05-45053
07.31.2006 MHM

Ragsdale Ragsdale v. Michas (In re Five Star Design & Builders, LLC)

Ch7T's motion to transfer case of affiliate filed in another district granted

04-67820
07.28.2006 MHM

Unifund Financial Corp. v. Hughes;

Ch. 7 Debtor's pro se objections to claims and motions to overturn state court criminal contempt orders denied

BK 04-98206
07.28.2006 MHM

Overton v. Boral Bricks, Inc.;

(§522 motion to avoid Mechanic's lien denied)

BK 06-64325
07.25.2006 JB

In re Brown;

(11 U.S.C. §§ 1325(a), (a)(5)(B)(ii),(a)(9); 1326(a)(1)(A), (a)(1)(C), (a)(2), (a)(3); 361). Under BAPCPA, secured car creditor objected to confirmation of Debtor’s Chapter 13 plan because Debtor’s adequate protection payments were not being paid directly to creditor but were paid to Chapter 13 Trustee and because they were not being applied to both principal and interest, but were being applied to reduce principal only. Objections overruled. With regard to the adequate protection payments made to the Chapter 13 Trustee, the statutory scheme allows Chapter 13 Trustee to administer such adequate protection payments; the administrative lien on the adequate protection payments protects the creditor if the case is dismissed prior to confirmation; and practical considerations, including accounting difficulties and record keeping, favor administration by the Chapter 13 Trustee. With regard to adequate protection payments being applied to principal and interest, creditor’s analysis is unconvincing. Application of the payment to an interest component would effect a significant change in bankruptcy law unsupported by legislative history and contradicts fundamental bankruptcy principles.

BK 05-86731
07.21.2006 MHM

Ragsdale v. Michas (In re Five Star Design & Builders, LLC)

denial of motion to recuse

BK 04-67820
07.17.2006 JEM

Know Thy Self, Inc.

Case filed pro se by ineligible individual on behalf of fictitious “trade name” was dismissed.

NOT INTENDED FOR PUBLICATION

BK 06-62628
07.13.2006 MHM

WOW! Factor Desserts, Inc. v. Anderson (In re Johnson and In re Innocentia, Inc.)

Relief from stay to proceed with litigation in Canada denied

BK 04-74454, BK 04-74452
07.13.2006 PWB

In re Dover,

An application for unclaimed funds paid into the court’s registry by a trustee pursuant to 11 U.S.C. § 347(a) must show that the creditor has a present entitlement to the funds. An applicant seeking unclaimed funds due to distributions made on account of a secured claim must show that the debt has not been satisfied through payment or foreclosure and that an amount is currently due and payable to which the unclaimed funds may lawfully be applied. Because the applicant has not done so, the application is denied without prejudice. Any future application must be served on the debtors, their counsel, and the trustee.

BK 02-41840, doc no. 33
07.11.2006 MGD

Roche v. Pep Boys, Inc.;

Order denying defendants’ motion for approval of signature bond and granting motion for stay contingent upon defendants posting appropriate supersedeas bond.

AP 05-09040
07.11.2006 PWB

In re Scott,

An application for unclaimed funds paid into the court’s registry by a trustee pursuant to 11 U.S.C. § 347(a) must show that the creditor has a present entitlement to the funds. An applicant seeking unclaimed funds due to distributions made on account of a secured claim must show that the debt has not been satisfied through payment or foreclosure and that an amount is currently due and payable to which the unclaimed funds may lawfully be applied. Because the applicant has not done so, the application is denied without prejudice. Any future application must be served on the debtors, their counsel, and the trustee.

BK 02-62305, doc no. 27
07.10.2006 JEM

Crowder v. Altegra Credit Company (In re Crowder)

Motion of plaintiff to dismiss answer of defendant filed by attorneys lacking authorization to file answer for that defendant was granted where defendant had not ratified the answer. Motion to fine lawyers who filed unauthorized answer was denied. Sanctions payable to the Clerk are the province of the Court and could not be imposed based on a state statute urged by plaintiff.

NOT INTENDED FOR PUBLICATION

AP 06-6067
07.10.2006 MGD

In re Fowler;

Order disallowing claim for fees under O.C.G.A. § 9-15-14 and disallowing the purported amended claim under O.C.G.A. § 51-7-80 as a late filed new claim.

BK 03-92256
07.07.2006 JEM

In re Brown

Asserting that debtors assumed a lease, vehicle lessor moved for allowance of administrative claim based on excess mileage. Neither an order reimposing stay nor the order confirming debtors’ amended plan approved assumption of the lease, where plan provided only that debtors would to “continue post-petition lease payments” and would increase plan payment to trustee by amount of lease when lease ended. Lessor failed to show that the lease provided any benefit to the estate.

NOT INTENDED FOR PUBLICATION

BK 02-66158
07.07.2006 MGD

Gingold v. Lemmons;

Order finding transfers by Debtor of his residence and ninety percent of the stock in his business fraudulent under O.C.G.A. § 18-2-22(2) and § 18-2-22(3) and ordering Defendants to turnover the property to the Trustee and to pay the Trustee for the value of the stock.

AP 01-6452
07.07.2006 MGD

Anderson v. Peterson;

Order denying cross motions for summary judgment and denying Defendants’ motion to amend the answer. If the debtor’s employer had a policy or practice of paying terminated employees for unused vacation upon termination, then the debtor’s contingent right to payment belongs to the bankruptcy estate and if the contingency occurs post-petition, the funds received belong to the Trustee.

AP 05-6520
07.07.2006 WHD

In re Smith;

(denying motion for confirmation of termination of automatic stay)

BK 06-10571
07.07.2006 PWB

In re Pennington,

The fact that the chapter 7 debtor is not entitled to a discharge in a case filed in 2005 because of the receipt of a chapter 7 discharge in an earlier case filed in 2004 does not result in dismissal of the current case or eliminate the need to sell property and administer the case. Creditors are entitled to be paid, if possible, from the liquidation of assets, and the debtor has an interest in the liquidation of assets, where feasible, to reduce her debt burden and realize the value of her exemption.

BK 05-96478, doc no. 54
06.30.2006 PWB

Pincus v. Long (In re Long),

(Order on Plaintiff’s motion to strike reference to corporation and Defendant’s motion to dismiss. It is not inappropriate for debtor to list a Corporate name, to extent it is a trade name or a name under which the debtor may have incurred some personal liability, in the caption of the petition. Nevertheless, corporation is not a debtor in the bankruptcy case. Motion to dismiss denied because complaint sets forth 523(a)(4) and (a)(6) claims in sufficient detail for defendant to answer and defend)

AP 05-6292 Doc. No. 19
06.21.2006 CRM

In re Grady;

(11 U.S.C. 1325(b)(1)(B), BAPCPA. Chapter 13 Trustee's Objection to Confirmation was denied and Debtors' Chapter 13 plan was confirmed. Debtors will pay unsecured creditors according to the projected disposable income on Schedule J and not the disposable income on the Current Monthly Income Form)

BK 06-60726
06.20.2006 PWB

Pettigrew v. Sullivan (In re Sullivan),

(Order granting Trustee’s motion for default judgment, denying debtor’s discharge pursuant to 727(a)(2) and 727(a)(5))

AP 06-6239
06.19.2006 JEM

In re Beckhom

Debtor’s application for payment of funds in Court’s registry unclaimed by a creditor was denied where debtor failed to show that the debt had been paid or otherwise satisfied. The mere fact that the funds have not been claimed is irrelevant.

NOT INTENDED FOR PUBLICATION

BK 99-77458
06.16.2006 PWB

MBNA v. Horrocks (In re Horrocks),

(Order granting Defendant’s motion for attorney’s fees and costs under 523(d) and Bankruptcy Rule 9011(b)(3))

AP 05-6571, Doc. No. 13
06.13.2006 JEM

In re Sheppard

The automatic stay does not stay a defendant’s motion to dismiss an action brought by a debtor. The question of whether the postpetition dismissal of a prepetition action brought by a debtor binds the trustee is noted but not decided.

NOT INTENDED FOR PUBLICATION

BK 06-65467
06.13.2006 PWB

Carson v. Rhodes (In re Carson),

(Order granting Debtor/Plaintiff’s motion for default judgment, finding no valid lien or valid assignment of litigation proceeds exists and that defendant holds unsecured claim)

AP 05-4018, Doc. No. 23
06.09.2006 WHD

Watts v. Stone Crushers, Inc

denying motion to compel discovery

AP 05-1130
06.09.2006 WHD

In re Huckeba;

denying motion to dismiss case pursuant to section 109(g)(1)

BK 05-17339
06.08.2006 JB

In re Sumner;

Court denied Debtor’s motion to reopen her Chapter 7 case to add a previously unlisted claim against a former husband. Chapter 7 Trustee opposed reopening the case as administration of the claim would be unduly burdensome and of no benefit to the estate

BK 01-71678
06.08.2006 JB

In re Simmons;

11 U.S.C. §§ 1325(a)(4); 1326(a), (a)(2); Fed. R. Bankr. P. 3015(b)). Chapter 13 Trustee’s objection to confirmation sustained and his motion to reconvert case to Chapter 7 case granted. Debtor’s case been pending over one year without any payment to unsecured creditors; Debtor has failed to propose a confirmable Chapter 13 plan; he has failed to keep payments to the Chapter 13 Trustee current and failed to keep his mortgage payments current. Creditors will receive more value through a Chapter 7 Trustee’s liquidation of assets than under a Chapter 13 plan. Debtor’s counsel’s argument that Chapter 13 plan should not have to be proposed or funded until after claims bar date is without merit

BK 05-92328
06.06.2006 JB

In re Hamblen;

(11 U.S.C. § 707(b)). Debtors’ pro se motion to dismiss three jointly administered cases denied. Chapter 7 Trustee, formerly the Chapter 11 Trustee, the United States Trustee, and numerous creditors opposed Debtors’ motion to dismiss. Testimony at the hearing raised questions regarding certain transactions, and Debtors failed to provide cause for dismissal.

BK 05-95215
06.05.2006 WHD

In re Cliftondale Oaks, LLC

denying claim for administrative expense where insider of debtor had paid loan fees on behalf of the debtor without the debtor's authorization and without court approval, and the debtor never obtained the loan

BK 04-95161
06.01.2006 JEM

In re Clemons

One joint debtor lost her job early in case, thereby reducing debtors’ actual income well below their prepetition “current monthly income.” Chapter 13 trustee objected to confirmation, asserting that debtors’ plan failed to propose to pay their projected disposable income (based on prepetition CMI) to unsecured creditors. Court denied objection. Section 1325(b) permits a bankruptcy court to adjust CMI to approximate the income a debtor will receive during the plan term in order to better insure that a debtor pays what the debtor is able to pay but is not required to pay what is impossible to pay.

NOT INTENDED FOR PUBLICATION

BK 05-85163
06.01.2006 WHD

In re Cobb

compelling child support recovery office to reinstate debtor's drivers license, notwithstanding the fact that such action was not automatically stayed by the filing of the bankruptcy petition; debtor's Chapter confirmed Chapter 13 plan provided for full payment of both pre and post petition child support obligations and payments on both were current

BK 05-15204
06.01.2006 WHD

Mutual Savings Credit Union v. Mathis

dismissing defendant/debtor's counterclaims for lacking of standing, as claims arose pre-petition and were part of the debtors' bankruptcy estate

NOT INTENDED FOR PUBLICATION

AP 06-1005
05.31.2006 WHD

In re McCarver;

excusing debtor from filing missing pay advices

BK 06-10603
05.22.2006 WHD

Transportation Alliance Bank v. Owens;

denying plaintiff's motion for summary judgment on section 523(a)(2)(B) claim

AP 05-1020
05.18.2006 REB

In re Pearl Puplampu;

(order amending confirmation order re denial of discharge based on previous filing and receipt of discharge) (11 U.S.C. Section 1328(f)(2))

BK 06-62184
05.17.2006 MGD

Roche v. Pep Boys, Inc.;

Order awarding Plaintiff actual damages, damages for emotional distress, and attorneys fees pursuant to section 362(h) where Defendants’ willfully violated the automatic stay.

AP 05-09040
05.15.2006 JEM

In re Palmer

Pro se debtor’s fourth case in five years was dismissed with prejudice under section 109(g) where debtor raised issue adjudicated in third case and failed to attend meeting of creditors.

NOT INTENDED FOR PUBLICATION

BK 06-62439
05.09.2006 WHD

Looney v. Owens;

denying plaintiff's motion for contempt and discovery sanctions

AP 05-1706
05.05.2006 PWB

MBNA v. Horrocks (In re Horrocks)

(Order granting Defendant’s motion for summary judgment and dismissing 523(a)(2)(A) and (a)(2)(C) dischargeability claim. Plaintiff failed to allege facts to support claim under 523(a)(2)(A) and (C) and admitted absence of factual basis when it failed to respond to Defendant’s requests for admission.)

AP 05-6571, Doc. No. 10
05.04.2006 JEM

Williams v. Taylor (In re Taylor)

Prior to bankruptcy, debtors refinanced residential mortgage loan with existing lender after creditor obtained a judgment against one debtor. Debtors exempted residence. Judgment creditor sued lender contending that its lien had priority over lender’s lien with respect to the increase in the amount of mortgage debt. Lender’s motion for summary judgment was denied as moot because the Court lacked jurisdiction under 28 U.S.C. § 1334(b). The outcome could not affect the estate because Debtors exempted the residence and could not affect Debtors because they had not sought to avoid the judgment lien. Hence, the proceeding was not related to the bankruptcy case.

NOT INTENDED FOR PUBLICATION

AP 05-09140
05.04.2006 jb

In re Calloway;

Debtor filed pro se motion to reimpose stay after foreclosure sale of her residence. Her former counsel and creditor’s counsel, after two different hearings, were directed but failed to prepare an Order granting relief to Debtor by keeping the stay in effect. After mortgage loan was transferred, second creditor foreclosed on property and evicted Debtor. Debtor had made mortgage payments to former counsel, but he had not sent the funds to the mortgage company. Counsel must promptly return to Debtor the $2,200 in funds and file a report evidencing the return

BK 04-94266
05.01.2006 WHD

In re Walker;

sustaining debtor's objection to the United States Trustee's notice of presumed abuse; section 707(b)(2) permits debtor to subtract payments on secured debts, notwithstanding the debtor's intent to surrender the collateral securing the debt

BK 05-15010
04.26.2006 JB

Isaac v. Wachovia et al. (In re Isaac)

CASE SEALED

AP 05-9169
04.26.2006 JB

Isaac v. Wachovia et al. (In re Isaac)

CASE SEALED

AP 05-9169
04.25.2006 WHD

In re Mapp;

(denying creditor's motion for order confirming lack of stay in accordance with section 362(c)(4)(A)(ii))

BK 06-10353
04.24.2006 WHD

In re Andersen 2000, Inc.;

(granting motion for relief to pursue litigation against the debtor to the extent of insurance coverage)

BK 04-14155
04.19.2006 PWB

Holland v. Zimmerman (In re Zimmerman)

Although bankruptcy court ordinarily should decline to relinquish its jurisdiction to permit arbitration of dischargeability issues arising under § 523(a)(2), (4), or (6) that the bankruptcy court must determine under § 523(c), this principle does not apply to a proceeding to except a debt from discharge under § 523(a)(19), relating to violations of federal and state securities law or common law fraud, deceit, or manipulation in connection with the purchase or sale of a security. § 523(c) does not require the bankruptcy court to determine dischargeability under § 523(a)(19). Because the debtor agreed to arbitrate, it is appropriate to lift the stay to permit the parties to arbitrate in accordance with the provisions of the Federal Arbitration Act and to stay the dischargeability proceeding pending conclusion of the arbitration.

AP 06-6047 doc no. 19
04.17.2006 JB

In re Crawford

(Debtor’s failure to file schedules, statement of financial affairs, copies of payment advices, and statement of monthly net income pursuant to § 521(i)(1) results in automatic dismissal of his Chapter 7 case, effective on the 46th day after filing petition.)

BK 06-61637
04.14.2006 JEM

In re Darnell Lee Carter

Order confirming plan providing for flat fee is res judicata, requiring denial of fee application of Chapter 13 debtor’s attorney based on alleged hourly rate contract.

NOT INTENDED FOR PUBLICATION

BK 00-75939
04.12.2006 MHM

American Express v. Chowdhury

(default judgment granted in credit card case)

AP 05-6548
04.11.2006 WHD

In re Barkley;

(denying default motion for relief for failure to comply with requirements of consent order providing for default relief)

BK 05-12644
04.10.2006 MHM

Anderson v. Sandstone Estates LLC (S&W International Food Specialties, Inc.)

(applying §550, real estate closing attorney was financial conduit, not agent for principal)

AP 04-6185
04.06.2006 MHM

Ryan v. Reynolds

(application of collateral estoppel)

AP 05-9078
04.06.2006 JB

In re Causey © U.C.C. 1-308

(United States Trustee’s motion to dismiss with prejudice Debtor’s pro se Chapter 11 case pursuant to § 1112(b), (b)(4)(F), and (b)(4)(H), granted on the grounds that Debtor failed to satisfy timely filing requirement; failed to provide certain information and attend meeting with United States Trustee; and for filing case not in good faith. Debtor’s request for recusal is denied)

BK 06-61237
04.05.2006 MHM

In re Champion-Lee

(Chapter 7 Trustee's objection, on good faith grounds, to Debtor's motion to convert to Chapter 13 overruled)

BK 05-65635
04.05.2006 JEM

Anderson v. Kataria et al

Debtor owned stock in corporation that owned grocery business and promised Chapter 7 trustee that if the business were sold, he would notify the trustee. Two years later without telling trustee, debtor caused corporation to sell the business and hired an attorney to close the transaction. Among others, trustee sued attorney for breach of fiduciary duty to corporation and negligent failure to discover the bankruptcy. Attorney’s motion for summary judgment was granted. Trustee lacked standing to pursue claim of breach of duty to corporation, failed to allege facts showing the existence of such duty, and failed to show that attorney’s acts or omissions caused any damage to the estate.

NOT INTENDED FOR PUBLICATION

AP 05-6082
04.04.2006 JB

Secretary of Veterans Affairs, as successor in title to Suntrust Mortgage, Inc., v. Adams, Chapter 13 Trustee (In re Adams)

(Movant’s amended motion for relief from stay to complete dispossessory proceedings against Debtor acting pro se granted. Amended motion accurately recited history of foreclosure and dispossessory proceedings between parties, including affirmation by Georgia Court of Appeals of state trial court’s grant of writ of possession. Bankruptcy Court has no authority to review state court judgment, and Debtor has presented no factual or legal basis to deny relief from automatic stay.)

BK 05-97399
04.04.2006 JEM

In re Sudderth

Debtors’ motion to reopen case to amend schedules to show previously unlisted cause of action was granted over objection of defendant in state action. An undisclosed cause of action belongs to bankruptcy estate until abandoned by the trustee; section 350 permits reopening a case to administer assets. Reopening the case does not answer the question whether debtors deliberately omitted the cause of action from their schedules.

NOT INTENDED FOR PUBLICATION

BK 04-63227
03.31.2006 MGD

Advantage Leasing Corp. v. Moss;

Order denying Plaintiff’s motion for summary judgment, sections 727(a)(2) and 727(a)(4).

AP 05-06077
03.29.2006 JB

Ogier v. Upshur (In re Upshur)

Trustee’s motion to disallow Debtor’s amended exemption claim in reopened Chapter 7 case granted based on Debtor’s intentional concealment of employment claims in her schedules, statement of financial affairs, and at § 341 meeting of creditors. Trustee’s second motion to approve settlement and compromise of litigation employment claim granted.

BK 03-82229;
03.27.2006 MHM

In re Perry

(Granting Debtor's motion to set aside foreclosure sale that occurred in the period between dismissal and entry of order vacating dismissal)

BK 03-66133
03.27.2006 MGD

GUERRESO v. GUERRESO;

Order Granting Defendant’s Motion for the Court to Consider Defendant’s Out of Time Response to the Plaintiff’s Motion for Summary Judgment. Though Plaintiff wishes to keep costs down and an unopposed motion for summary judgment may be in Plaintiff’s best interests, federal policy favors resolution of disputes on the merits as opposed to disposition on technicalities. The delay experienced by Plaintiff of a couple of days in an adversary proceeding that has been pending since May 2004, does not rise to the level of material prejudice sufficient for the Court to refuse to consider Defendant’s response to the motion for summary judgment.

AP 04-06238
03.24.2006 PWB

In re Mark Kavanaugh

(as matter of first impression, court scheduled hearing on Creditor's request for dismissal under 521(i)(2) based upon the Debtor's failure to file Form B22. )

BK 06-60874
03.23.2006 JEM

Citibank(South Dakota), N.A. v. Ahn Iin re Ahn)

Credit card issuer’s motion for default judgment was denied where complaint alleged legal conclusion that plaintiff’s reliance on false representation was justified but alleged no facts that if true would show justifiable reliance.

NOT INTENDED FOR PUBLICATION

BK 05-06458
03.22.2006 PWB

Strong Industries, Inc. v. McKenzie (In re McKenzie)

(Order denying Plaintiff's motion for summary judgment: state court judgment for conversion not entitled to collateral estoppel effect as to 523(a)(6) because under Georgia law a negligent or reckless act can give rise to conversion. No evidence of willfulness or intentionality to support entry of summary judgment on 523(a)(6) claim.)

AP 05-5008
03.20.2006 MHM

Warner, Mayoue, Bates, Nolen & Collar, PC v. Cook

(law firm who represented Debtor in prepetition divorce lacks standing under §523(a)(5) and (15))

AP 05-9023
03.17.2006 JB

In re Andrews;

Court granted Chapter 7 Trustee’s motion to sell Debtor’s one-half interest in certain real estate free and clear of liens with liens to attach to proceeds, pursuant to § 363(b) and (f). The motion was granted over Debtor’s pro se objection, and Debtor’s sister, who owned other one-half interest in property and supported sale, was allowed payment of one-half the amounts she had advanced in property taxes to preserve property of the estate. § 503(b)(2)(B).

BK 05-66411
03.13.2006 MGD

In re Lewis;

Order denying Trustee’s motion to reopen bar date. While the bankruptcy court lacks the authority to extend the time or reopen the bar date, creditors recently added by amendment may seek recourse under section 726(a)(2)(C).

BK 05-61605
03.09.2006 MHM

In re Myles

(exempt income is nevertheless disposable income under §1325)

BK 05-92125
03.07.2006 JB

Isaac v. ZOM Residential Services, Inc. d/b/a Belcourt Apartment Homes (In re Isaac)

CASE SEALED

AP 06-9004
03.07.2006 JEM

Goodman v. Highwinds Software, LLC (In re Webusenet, Inc.)

Defendant’s motion to dismiss preference complaint because it was not served within two years of petition date was denied. The date the complaint was filed is the relevant date.

NOT INTENDED FOR PUBLICATION

AP 05-6532
03.03.2006 MGD

In re Wright;

Order denying Trustee’s motion to reopen bar date. The bankruptcy court lacks the authority to extend the time or reopen the bar date except under the conditions stated in Fed. R. Bankr. P. 9006(b) and 3002(c).

BK 05-92866
03.02.2006 JB

Turner, United States Trustee v. Touray (In re Touray)

Court denied discharge under § 727(a)(8) which prevents a debtor from receiving a discharge if the debtor has previously received a discharge in a case filed within the last 6 years.

AP 05-6609
02.28.2006 WHD

In re Foster

(denying debtor's motion to extend time to comply with order permitting debtors to redeem property at a specified value; holding that debtor's failure to redeem vehicle within time specified by section 521(B) did not extinguish their right to redeem)

BK 05-13797, docket number 18
02.28.2006 REB

In re Jon David Reed and Regina Hilton Reed

(motion to re-impose stay, 11 USC Sections 362(c)(3), 105(a))

BK G05-25051-REB
02.10.2006 MGD

In re Thrasher;

Upon conversion of a bankruptcy case from Chapter 13 to Chapter 7, property of the Chapter 7 estate includes property of the estate as of the filing of the Chapter 13 petition, only to the extent that such property remains in the debtor’s possession, custody or control on the date of conversion.

BK 04-93810
02.08.2006 WHD

In re Cliftondale Oaks, LLC

(denying debtor's objection to unsecured claim of real estate agent)

BK 04-95161, docket number 239
02.08.2006 MHM

In re Middlebrooks

(Trustee's objection to late-filed claim sustained); entered 2/8/06; notice of appeal filed 2/17/06; motion to approve settlement pending.)

BK 03-71937
02.03.2006 WHD

Looney v. Owens

(denying defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment on dischargeability claim; denying motion for discovery sanctions)

AP 05-1706, docket number 64
01.31.2006 WHD

McLain v. Brown

(granting motion to open default, denying motion for additional pre-trial conference, and setting trial date)

AP 02-1770
01.25.2006 WHD

R & L Dist., Inc. v. MacPherson

(granting motion for summary judgment as to section 523(a)(2) claim)

AP 05-1701
01.18.2006 JEM

In re Roxanne Turner

A trustee is not authorized based on a private communication to pay an unfiled unsecured claim to a creditor that holds an allowed fully secured claim. Creditor sought payment of funds paid into registry but failed to show that it had any interest in those funds.

NOT INTENDED FOR PUBLICATION

BK 98-80469
01.06.2006 WHD

In re Cliftondale Oaks, LLC

(sustaining in part and denying in part debtor's objection to secured claim; allowing default interest on secured debt where Chapter 11 estate is solvent, but disallowing late fees in addition to default interest)

BK 04-95161
01.06.2006 MGD

Roche v. Pep Boys, Inc.;

Order denying Defendants’ motion for stay pending appeal since the prior order denying Defendants’ motion for summary judgment and granting Plaintiff’s cross motion for summary judgment was not a final order and the appeal will likely be dismissed.

AP 05-09040
01.03.2006 WHD

Peachtree National Bank v. Lee

(denying defendants' motion to dismiss complaint for failure to state a claim)

AP 05-1155
12.30.2005 MGD

Roche v. Pep Boys, Inc. (In re Roche)

(Order denying Defendants' motion for summary judgment and granting Plaintiff's cross-motion for summary judgment. Defendants found to be in willful violation of the automatic stay by merely staying and not releasing bank garnishment which had been instituted pre-petition against Debtor. Defendants, although notified of the bankruptcy case, elected to take no action such as seeking relief from the stay or for adequate protection within a reasonable time period)

AP 05-9040
12.28.2005 JEM

Centennial HealthCare Corporation

Holder of administrative expense claim moved for order allowing her to file a late claim on the ground she had not received the notice of the deadline. Reorganized debtors contended that there was a presumption of delivery of the notice based on affidavit of employee of servicing agent concerning mailing. Held: Affidavit was insufficient to created a presumption of delivery. Movant proved that she did not receive notice and that even if she had, her failure to file timely was due to excusable neglect.

NOT INTENDED FOR PUBLICATION

BK 02-74974
12.23.2005 REB

In re Cotton

(denial of motion to dismiss and conversion of case to case under chapter 7; 11 U.S.C. Section 1307(b) & (c))

BK 05-79109
12.20.2005 MGD

The Estate of Nelle Bowen Newton v. Lemmons (In re Lemmons)

(Order granting Plaintiffs' motion for summary judgment. State court judgment on "all claims" satisfies Plaintiffs' dischargeability action due to collateral estoppel)

AP 00-6828
12.19.2005 MHM

An v. An

(Sanctions against attorney)

AP 05-6277
12.19.2005 WHD

In re Allied Holdings;

Docket Nos. 829 and 905 (exhibit B) (granting in part debtor's motion for approval of a key-employee retention program)

BK 05-12515
12.19.2005 JB

Turner, United States Trustee v. Stuart @UCC1-207 (In re Stuart)

(United States Trustee’s motions to dismiss with prejudice Debtor’s two pro se Chapter 11 cases granted. United States Trustee has standing to file motions to dismiss. Case discusses distinction between U.S. Trustee and case trustees. Washington Mutual Bank F.A.’s motion to validate foreclosure sale at time debtor’s third case was filed denied. Third party purchaser of Debtor’s property objected to creditor’s motion to annul automatic stay and validate foreclosure sale. 11 U.S.C. §§ 105(a), 307, 341, 343, 349, 702, 1104, 112(b))

BK 05-95809 and BK 05-96715
12.14.2005 JEM

In re Damiano

Creditor moved for order allowing a late filed claim in a Chapter 7 case on the ground that she had not received proper notice of the bar date. Held: Motion denied. Court lacks authority to extend bar date under applicable rules.

NOT INTENDED FOR PUBLICATION

BK 04-98349
12.08.2005 MHM

Johnson v. Engel

(Mandatory abstention)

AP 05-9067
12.02.2005 JEM

Stinson v. Morris (In re Morris)

Court granted motion for summary judgment on complaint seeking to determine debt to be non-dischargeable based on state court judgment.

NOT INTENDED FOR PUBLICATION

AP 05-9031
12.02.2005 MHM

Vaughn v. Pipkin

(Continuation of the automatic stay)

BK 05-85295
12.02.2005 JB

Mortgage Electronic Registration Systems, Inc. V. Armeka Michelle Townsend (In re Townsend)

(debtor filed pro se emergency motion to reconsider Order of dismissal pursuant to § 109(g), to shorten time, and to permit case refiling due to previous extreme hardships and current positive change of circumstances. Previous Order of dismissal appropriate and debtor’s failure to make Chapter 13 plan payments and post-petition mortgage arrearage payments within additional time given warrants denial of debtor’s emergency motion)

BK 04-98268
11.30.2005 JB

In re Bill J. Miller

Debtor’s pro se motion “to retain home,” which was treated as a motion for reconsideration of two Orders, one dismissing his Chapter 13 case and the other validating a foreclosure sale of his residence, was denied as Debtor had filed previous cases and had opportunities to propose a feasible Chapter 13 plan

BK 04-90866
11.28.2005 MHM

Point Center Financial, Inc. v. Gold Rush II, Inc.

(dismissal of Chapter 11 case filed in bad faith)

BK 05-60412
11.25.2005 MHM

Ogum v. Om

(sua sponte dismissal of pro se complaint that fails to state a claim)

AP 05-9010
11.18.2005 WHD

In re Tucker

(denying debtor's motion to impose stay to prevent eviction that was excluded from the automatic stay by virtue of section 362(b)(22)

NOT INTENDED FOR PUBLICATION

BK 05-15001
11.17.2005 PWB

Nasuti v. Woodward (In re Woodward)

(Order granting Trustee's motion for default judgment and denying Debtor's discharge pursuant to sections 727(a)(2)(B), 727(a)(3), 727(a)(4)(A), 727(a)(4)(D), and 727(a)(5))

AP 05-6305, Doc. #15
11.17.2005 JEM

In re Rhodes, Inc.

Landlord’s motion for payment of rent pursuant to section 365(d)(2) granted in part and denied in part. Court found that landlord failed to prove that obligation in lease to pay rent for the month during which debtor filed bankruptcy arose after the first day of the month.

NOT INTENDED FOR PUBLICATION

BK 04-78434
11.17.2005 JB

Isaac v. ZOM Residential Services, Inc. d/b/a Belcourt Apartment Homes (In re Isaac)

CASE SEALED

BK 05-95374
11.17.2005 JB

In re Isaac

CASE SEALED

BK 05-95374
11.17.2005 MHM

In re Stenson

(construction and reconsideration of pro se pleadings)

BK 05-93978
11.15.2005 MGD

In re Gibson;

Order sustains debtor's objection to deficiency claim due to car creditor's admitted failure to fully comply with applicable non-bankruptcy law when liquidating collateral after obtaining relief from the automatic stay;

BK 05-40782
11.09.2005 PWB

Carson v. Rhodes (In re Carson)

(Order denying debtor's motion for default judgment to set aside assignment of interest in wrongful death suit proceeds because the complaint does not allege sufficient facts to determine whether the creditor's interest in proceeds via an assignment is invalid because it does not comply with the requirements of Georgia law)

AP 054018
11.03.2005 REB

In re David Hilton

11 USC Sec. 523, F.R.B.P. 4007(c), denying extension of time to file complaint objecting to dischargeability

BK 05-63964
11.01.2005 MGD

Gordon v. ABN Amro Mortgage Group, Inc.

Order granting Defendant’s motion for summary judgment and denying Plaintiff’s cross motion for summary judgment. Under Georgia law of equitable subrogation Debtor’s transfer of a security deed to Defendant was a contemporaneous exchange for new value and therefore excepted from avoidance as a preference.

AP 04-06438
10.31.2005 JB

In re Bland

(Individual filed bankruptcy case after new eligibility requirement of 11 U.S.C. §109(h) went into effect. To be a debtor now requires individual to obtain credit counseling briefing before filing case unless there are exigent circumstances and individual requested the counseling but was unable to obtain it during 5 day period from the request [§ 109(h)(3)] or individual is exempted from counseling due to mental incapacity, physical disability, or on active military duty in combat zone [§109(h)(4)]. This individual did not submit certification of exigent circumstances supporting waiver request or statement supporting exemption from counseling. A hearing will be held to allow presentation of factual basis for waiver request and to determine whether individual is eligible to be a debtor.)

BK 05-85009
10.31.2005 JB

In re Monteiro

Individual filed bankruptcy case after new eligibility requirement of 11 U.S.C. §109(h) went into effect. To be a debtor now requires individual to obtain credit counseling briefing before filing case unless there are exigent circumstances and individual requested the counseling but was unable to obtain it during 5 day period from the request [§ 109(h)(3)] or individual is exempted from counseling due to mental incapacity, physical disability, or on active military duty in combat zone [§109(h)(4)]. This individual’s certification of exigent circumstances is insufficient, but if she files supplement that appears to justify a waiver and obtains counseling within 30 days of filing the petition, Court will hold hearing to determine whether waiver request is satisfactory and she is eligible to be a debtor. Otherwise case must be dismissed

BK 05-85018
10.25.2005 JEM

In re Peachtree Statford, LLC

Creditor moved to dismiss case in May 2003, and the Court orally granted the motion at a hearing held on June 3, 2003. The Order granting the motion was entered on June 9, 2003. Between those dates, the creditor ran its first advertisement. In July 2003, the creditor foreclosed. Debtor now contends that the foreclosure was void because running the ad prior to the entry of the order violated the automatic stay. Creditor moved to reopen the case to obtain an annulment of the stay. Held: Motion denied. Court lacks power under section 350 to reopen dismissed case to entertain motion as if case had never been dismissed.

NOT INTENDED FOR PUBLICATION

BK 01-65822
10.14.2005 MHM

In re Bramlett Plumbing, Inc

(Directs return of prepetition retainer paid to professional who was not employed by Debtor)

BK 05-73925
10.03.2005 PWB

Broadfoot v. Belford (In re Nationwide Warehouse & Storage)

(Order granting Trustee's request for turnover of documents, ruling defendant's invocation of the attorney-client privilege was inapplicable)

AP 03-6550, Doc. #191
10.03.2005 REB

In re CLC of Dahlonega LLC;

(deferring objection to claims for punitive damages)

BK 04-21769
10.03.2005 MHM

Ballew v. Smith

(collateral estoppel effect of state court contempt order regarding child support)

AP 03-6184
09.30.2005 WHD

In re Dan River, Inc

(granting application for compensation)

BK 04-10990, doc. # 1585
09.30.2005 MGD

Ogier v. Trautman (In re Express Factors, Inc.)

( Order granting in part and denying in part cross motions for summary judgment addressing the Trustee's action to recover preferential transfers and the applicability of the ordinary course of business defense)

AP 04-06076, doc # 49
09.29.2005 MHM

Oliver v. Samadi

(allowance of postpetition and postdischarge interest on oversecured claim)

AP 00-6893
09.29.2005 MHM

The Cit Group v. Kim

(dischargeabilty under §523(a)(2)(A): loan nondischargeable because obtained by misrepresentations regarding use of motorhome)

AP 04-6521
09.28.2005 JEM

In re Mulkey

In their Chapter 13 plan Debtors proposed to pay two nondischargeable educational debts in full but to pay only 1% of other nonpriority unsecured debts. The Chapter 13 Trustee objected to confirmation. Held: Confirmation denied. Plan unfairly discriminates against class of dischargeable unsecured claims in violation of section 1322(b)(1).

BK 04-81390
09.27.2005 MHM

Ogum v. Murphy

(recusal from proceeding naming presiding judge as defendant)

AP 05-9127
09.27.2005 JEM

Pioneer Credit Co. v. Detamore (In re Detamore)

The Court denied a motion for entry of a default judgment. What are the questions a court considers in deciding whether or not to grant a motion for a default judgment? This decision provides those questions and some of the analytic framework for answering them.

NOT INTENDED FOR PUBLICATION

AP 05-6079
09.26.2005 MHM

Kennesaw Drywall & Supply, Inc. v. Davis

(Default judgment denied because attorney negligence does not constitute defalcation under §523(a)(4))

AP 04-9209
09.20.2005 WHD

In re Respert

(denying creditors request for attorney's fees in connection with filing motion for relief from stay pending submission of additional documents)

NOT INTENDED FOR PUBLICATION

BK 05-90606, doc # 23
09.19.2005 WHD

Summit United Service, Inc. v. Meijer, Inc., et al

(denying defendant's motion for summary judgment)

NOT INTENDED FOR PUBLICATION

AP 03-6247, doc # 97
09.13.2005 JEM

Ponder v. Apyron Technologies, Inc. (In re Apyron Technologies, Inc.

In response to complaint asserting that Plaintiff was exclusive owner of technology developed while he was employed by Defendant, Defendant objected to Defendant’s claim, sought to subordinate it, and demanded injunctive relief against Plaintiff. Defendant moved for summary judgment to which Plaintiff did not respond. Earlier, U.S. District Court followed this Court’s recommendation (see posted order dated 04/25/05) to grant Defendant’s motion as to its ownership rights in the technology. In this order, the Court granted the balance of the motion.

NOT INTENDED FOR PUBLICATION

AP 04-6443
09.08.2005 MHM

Glass v. Lister

(motion to open default granted)

AP 05-6246
09.07.2005 MHM

In re Hendrix

(Debtor's motion to reopen to adjudicate post-discharge claim regarding her coop in NYC denied)

BK 99-71718
09.07.2005 MHM

In re Harris

(Extending time for creditor added by amendment near or after the bar date)

BK 05-66166
09.06.2005 REB

Tynes v. Lowell (In re Lowell)

(11 U.S.C. Section 523(a)(5) & (a)(15))

BK 04-30598-REB, AP 05-2014
09.06.2005 MHM

Burns v. Hassan

(Substitution denied because movant lacks standing)

AP 04-9205
09.02.2005 JEM

Thurmond v. Rajapakse (In re Rajapakse

Trustee moved for turnover of assets located outside of United States and an accounting of those assets. Debtors opposed motion on the ground that property of the estate did not include such assets. Motion Granted. Congress intended the words “wherever located” in section 541 to include assets located outside the U.S. in which a debtor has an interest.

NOT INTENDED FOR PUBLICATION

BK 03-81065
09.01.2005 JEM

Gordon v. Toon (In re Inline Orthodontics, LLC)

Plaintiff served Defendant by U.S. Mail at his address in Ontario, Canada. Defendant did not respond, and Plaintiff moved for entry of a default judgment. Motion Denied. Bankruptcy Rule 7004(b) permits service by mail only within the U.S.

NOT INTENDED FOR PUBLICATION

AP 04-6631
08.31.2005 JEM

Gordon v. NovaStar Mortgage, Inc. (In re Hedrick)

Lender refinanced two loans secured by the Debtors’ residence with the understanding of Debtors that Lender’s security deed would be a first priority lien. Lender delayed in recording security deed until approximately one month after making loan. Debtors filed bankruptcy 89 days after security deed was recorded. Trustee sued to avoid recording of security deed as a preference. Lender’s motion for summary judgment granted and Plaintiff’s motion denied. Lender was equitably subrogated to the lien positions of the prior lenders when it paid off those loans; recording the security deed did not improve its perfected first priority position. Obtaining those liens with Debtors’ consent constituted the transfer, which was made outside the 90-day preference period

NOT INTENDED FOR PUBLICATION

AP 04-6420
08.30.2005 PWB

Chase Manhattan Bank USA, N.A. v. Abram (In re Abram)

(Order granting Defendant's motion to dismiss dischargeability complaint on grounds that it was not timely filed and the Plaintiff offered no defense, legal or equitable, to the motion to dismiss.)

AP 05-6310
08.29.2005 WHD

Rutherford v. Auto Cash, Inc.

(granting debtor's motion for sanctions for violation of automatic stay)

AP 04-6679
08.29.2005 JEM

In re Centennial Healthcare, Inc.

Unsecured Claims Administrator sought disallowance of proof of claim that included punitive damages on ground that punitive damages were not allowed in bankruptcy. Objection Denied. The inclusion of punitive damages is not a ground for disallowing a claim under section 502(b).

NOT INTENDED FOR PUBLICATION

BK 02-74974
08.26.2005 WHD

In re Stephens:

(granting motion to avoid lien)

NOT INTENDED FOR PUBLICATION

BK 05-10320
08.25.2005 CRM

Mosley v. ECMC (In re Mosley)

(523(a)(8), student loan discharged as undue hardship)

AP 04-9139
08.23.2005 JEM

Truslow v. Brown (In re Brown)

Plaintiff moved to amend the complaint but did not include a copy of the proposed amendment with the motion or otherwise file the proposed amendment. Motion Denied. It is impossible to determine whether unfiled amendment would be in the interests of justice as required by Civil Rule 15.

NOT INTENDED FOR PUBLICATION

AP 04-9210
08.23.2005 MHM

In re Stenson

Denying in forma pauperis status and dismissal for failure to pay filing fee

BK 05-93978
08.22.2005 PWB

Kaye v. Word Entertainment (In re Value Music Concepts, Inc.)

The Chapter 11 plan description of avoidance actions, including preference claims, as the type or category of causes of action of the estates to be retained and prosecuted by the Creditor Representative is sufficient to expressly reserve them from any possible res judicata effect of the confirmation order and to expressly identify them for postconfirmation prosecution under § 1123(b)(3) by the Creditor Representative. Furthermore, the Court concludes that the Settlement Agreement was not an executory contract; therefore, the fact that assumption and payment may have been made pursuant to it does not provide a defense to the preference actions.

AP 04-6207
08.19.2005 MGD

The Cadle Company v. Taras (In re Taras)

Denying Debtor's discharge pursuant to section 727(a)(4)

AP 04-06240
08.19.2005 MGD

Wilson & Associates, Attorneys, P.C. v. Parker (In re Parker)

Denying Defendant's request to vacate consent judgment

AP 03-09029
08.16.2005 JEM

Indymac Bank v. Mitchell (In re Mitchell)

Plaintiff moved for summary judgment on its claim that a debt owed by Defendant/Debtor arose from fraud and was nondischargeable under section 523(a)(2). The only evidence that Plaintiff justifiably relied on the alleged false representations of Defendant was supplied by an affidavit of an officer having no apparent personal knowledge of the transaction. Motion Denied. Affiant’s conclusion that bank relied was based on critical facts not in evidence – that the persons who approved the loan knew what the application stated and would have made a different decision had they known that the application was inaccurate. The fact that company policy would have prohibited the loan had the loan application been accurate does not show reliance.

NOT INTENDED FOR PUBLICATION

AP 04-6555
08.12.2005 PWB

Richardson, Trustee v. Pilgrim (In re Pilgrim)

Order granting Trustee's motion for default judgment and denying Debtors' discharges under 727(a)(5) based on Debtors' failure to explain disposition of $41,000 in settlement proceeds received pre-petition.

AP 04-4054
08.12.2005 REB

Bellows v. Froug (In re Froug)

(11 U.S.C. 523(a)(5), dischargeability of obligations arising from divorce decree)

AP 05-2009
08.09.2005 WHD

Wright v. Wright:

order directing defendant to produce certain documents in response to discovery requests)

AP 04-9156
08.09.2005 CRM

General Time Corporation v. Schneider Atlanta, L.P. (In re General Time Corporation)

Plaintiff's motion for partial summary judgment of a preferential transfer denied and Defendant's cross-motion for summary judgment granted based on Defendant's defense of contemporaneous exchange for new value

AP 03-6315
08.09.2005 CRM

In re Chewning & Frey Security, Inc., f/k/a McLaughlin-Frey Security, Inc.

Granting In Part, Denying In Part Application for Compensation filed by Special Counsel for the Chapter 7 Trustee

BK 96-77872
08.08.2005 MGD

Citibank (South Dakota), N.A. v. Han (In re Han)

Granting in part Plaintiff's second motion for default judgment, section 523(a)(2)(A)

AP 04-06478
08.05.2005 PWB

Gordon v. Vongsamphanh (In re Phongsavath)

In avoidance action, where insider status is based on a pseudo-familial relationship, the Court's task is to distinguish between friendship alone, which does not give rise to insider treatment, and a de facto family relationship, which does. Because the undisputed facts are also consistent with mere friendship, the Court cannot make inferences to conclude that they establish, as a matter of law, that Defendant was a de facto relative with insider status, resulting in denial of summary judgment.

AP 04-6529
08.04.2005 WHD

In re Kenard:

(granting motion to validate foreclosure and dismissing debtor's case for failure to pay filing fee)

NOT INTENDED FOR PUBLICATION

BK 05-94380
08.04.2005 WHD

In re Kenard:

(granting motion to validate foreclosure and dismissing debtor's case for failure to pay filing fee)

NOT INTENDED FOR PUBLICATION

BK 05-94380
08.03.2005 WHD

In re Bush:

(denying debtor's motion for stay pending appeal)

NOT INTENDED FOR PUBLICATION

BK 05-93104
08.03.2005 MGD

In re Michael

Sustaining Trustee's objection to Debtor's claim of exemption on her variable life annuity

BK 04-80726
08.03.2005 MHM

In re Dunbar

suspension of attorney for failure to provide her clients with competent legal representation/abandonment

BK 03-96395
07.29.2005 WHD

In re Harris

(granting motion for relief from stay and dismissing debtor's case due to ineligibility under section 109(g)(2))

NOT INTENDED FOR PUBLICATION

BK 05-12216
07.28.2005 PWB

In re Michalski

(Order regarding conduct of debtor's attorney and the professional responsibilities of an attorney representing a chapter 7 debtor)

NOT INTENDED FOR PUBLICATION

BK 04-95667
07.28.2005 CRM

In re Trusted Net Media Holdings, LLC;

(Sections 502(a), 704(5); Bankruptcy Rule 3007. Denying Motion to Allow Filings of Motions for Summary Judgment)

BK 02-93973
07.19.2005 PWB

Hahlbohn v. Georgia Department of Revenue (In re Hahlbohn)

(Order granting Georgia Department of Revenue's motion for summary judgment, finding tax debtor 2000 and 2001 is excepted from discharge under 523(a)(1).

NOT INTENDED FOR PUBLICATION

AP 05-6145
07.19.2005 PWB

Turner v. Unifund CCR Partners Assignee of Providian National Bank (In re Turner)

Order denying motion to avoid lien and amended motion to avoid lien without prejudice due to improper service of motion and notice

NOT INTENDED FOR PUBLICATION

BK 05-67195
07.14.2005 WHD

In re Bush

(granting motion for relief from stay to permit creditor to continue eviction proceedings and denying debtor's motion for refusal)

NOT INTENDED FOR PUBLICATION

BK 05-93104
07.14.2005 JB

Broadfoot, as Trustee, v. United Furniture Industries, Inc. (In re Nationwide Warehouse & Storage, LLC)

Trustee moved to vacate Order approving a compromise and settlement. Trustee’s motion granted pursuant to Fed. R. Civ. P. 60(b)(1), (b)(3), and the failure to provide adequate notice pursuant to Fed. R. Bankr. P. 9019

AP 03-6531, BK 01-86600
07.13.2005 JEM

Evanston Ins. Co. v. Centennial Healthcare Corp.

The discharge injunction imposed by section 524 and by the confirmation order do not bar an insurance company from filing a complaint in the U.S. district court to obtain a declaratory judgment as to its rights and duties under an insurance policy covering Debtor for personal injuries. Court lacks jurisdiction to allow insurance company’s unfiled proof of claim; issue of whether its claim would be disallowed because it was filed after the bar date must await the filing of the claim and an objection on that ground.

NOT INTENDED FOR PUBLICATION

BK 02-74974
07.13.2005 MHM

Acuff-Rose Music, Inc. v. May

(motion to extend discovery granted because Debtor failed to show specific prejudice that would result from such extension)

AP 04-9177
07.12.2005 JEM

Natale, Trustee v. The Home Depot, Inc. ( In re Krause, Inc.)

Trustee sued Home Depot to recover balance due for postpetition sales of ladders. Home Depot moved for summary judgment, contending it could recoup or set off what it owed Debtor (Krause) against Krause’s debt to Home Depot arising out of failure to provide insurance and indemnity with respect to sales of defective ladders. Motion denied. Home Depot failed to show that Krause’s obligations to Home Depot arose from the same transaction as Home Depot’s obligation to Krause (thereby precluding recoupment) or that its claims and Krause’s claims were both prepetition obligations or both postpetition obligations (thereby precluding setoff).

NOT INTENDED FOR PUBLICATION

AP 01-6574
07.07.2005 JEM

Pioneer Credit Co. v. Roubieu (in re Roubieu)

In action to deny the Debtor’s discharge or, alternatively to determine dischargeability of debt, secured creditor contended that Debtor sold collateral within one year of bankruptcy in violation of security agreement with intend to defraud creditor and that Debtor fraudulently and falsely stated that he had transferred assets. Held: judgment for Debtor. Security Agreement did not unambiguously prohibit transfers of collateral. Plaintiff failed to prove Debtor deliberately lied, as opposed to being mistaken or negligent, in stating he had not transferred an asset within one year. [§§ 727(a)(2), (a)(4), 523(a)(6)]

NOT INTENDED FOR PUBLICATION

AP 04-6394
07.07.2005 REB

Gordon v. American Honda Finance Corp. (In re Vollmer)

(11 U.S.C. Section 547, voidable preferential transfer)

AP 04-6490
07.05.2005 JEM

Publix Super Markets, Inc. v. Rhodes (In re Rhodes, Inc.)

Landlord moved for payment as an expense of administration its legal fees incurred in opposing Debtor’s motion to extend time to assume or reject a sublease. Motion was denied because Landlord failed to show any benefit requested by or conferred on estate.

NOT INTENDED FOR PUBLICATION

BK 04-78434
07.05.2005 MHM

Lim v. Lee

(failure to serve Debtor's attorney within the 120 day time limit of FRBP 7004(m) does not render complaint untimely filed under FRBP 4007)

AP 04-9120
07.05.2005 MHM

In re Copeland

(Debtor's exemption claim denied due to Debtor's failure to disclose and then later unauthorized sale of the subject property)

BK 03-60407
07.05.2005 MHM

General Electric Capital Business Asset Funding Corp. v. Kabiri

(default judgment entered due to Defendant's failure in all respects, except filing an answer, to participate in the AP)

AP 04-6136
07.05.2005 MHM

Jones v. Ferdinand

(motion for reconsideration denied because insufficient grounds alleged for reconsideration)

AP 02-9226
07.01.2005 JEM

In re Lisa Bridgers

Petition filed in name of Debtor was signed by her husband, who was ineligible to file bankruptcy. Court modified stay to permit creditors to continue foreclosure efforts short of transferring title and required Debtor to appear at Clerk’s office with identification to execute petition.

NOT INTENDED FOR PUBLICATION

BK 05-94331
06.30.2005 WHD

Callaway v. IRS

(granting defendant's motion for summary judgment as to plaintiff's complaint to have the Court force the IRS to release a tax lien)

NOT INTENDED FOR PUBLICATION

AP 04-1705
06.28.2005 JEM

NAP Chesterfield LP v. Rhodes (In re Rhodes, Inc.)

Landlord sought payment of postpetition rent on premises leased by Debtor, which it subleased to third party. Third party, also in bankruptcy, paid Landlord directly after the petition date. Landlord applied such payments to prepetition rent due from Rhodes. Held: Landlord’s application of payments violated automatic stay as a an act to collect a debt. There was no evidence to show that subtenant was paying or could legally pay a prepetition debt owed by Rhodes.

NOT INTENDED FOR PUBLICATION

BK 04-78434
06.24.2005 REB

Gay v. Rabun County Bank, et al. (In re Gay)

(Fed.R.Bankr.P. 8005, stay pending appeal)

G04-30523
06.23.2005 MHM

In re Williams

(Reopening to change amount of claim is unnecessary and does not affect whether the claim is discharged)

BK 03-80594
06.23.2005 MHM

Wright v. Wright

(order authorizing alternative dispute resolution, specifically, an evaluative and directive settlement conference with another bankruptcy judge)

AP 03-6259
06.22.2005 PWB

In re McKee

(Despite failure to fill in box #4 on the proof of claim form, claimant attached sufficient documentation for court to determine amount of claim. Trustee properly objected to claim because, as filed, it was not capable of being administered)

NOT INTENDED FOR PUBLICATION

BK 05-60474
06.20.2005 JEM

Wilmann v. Alexander Properties Group (In re Hidden Point Properties, LP)

Creditors of Debtor brought claims against Wilmann in state court contending it was a de facto general partner of Debtor. Wilmann sued creditors, seeking benefit of automatic stay so as to enjoin the state court cases. Motion for preliminary injunction denied because Wilmann could not show any of the 4 prerequisites, and in particular any likelihood of success on merits.

NOT INTENDED FOR PUBLICATION

AP 05-6197
06.20.2005 JEM

Duval of Ga. v. Merrill Lynch Business Financial Services (In re Duval of Ga.)

Debtor sued its secured lender in an attempt to stop a foreclosure on property owned by Debtor’s principal in which Debtor conducts its business and with complaint filed a motion for “Expedited Hearing on Complaint.” Motion denied because motion sought immediate trial; proper procedure was to have filed motion for TRO or preliminary injunction. Motion alleged no facts to support injunctive relief.

NOT INTENDED FOR PUBLICATION

AP 05-6255
06.14.2005 PWB

Arnold v. Beneficial Mortgage Co. of Georgia,

(Chapter 13 Debtors' motion for default judgment on complaint to strip off a third priority lien set for hearing so that Debtor may put on evidence and address: (1) the appropriate date for valuation under section 506(a) and 1322(b)(2); and (2) whether Debtors are bound by the value in their schedules based on principles of res judicata or judicial estoppel)

AP 05-4001
06.13.2005 PWB

In re Shenika Maddox-Rhynes

(Order denying Debtor's motion to reopen case because there is no legal basis for relief requested. Having voluntarily reaffirmed a debt on a vehicle, Debtor cannot now add the deficiency claim based upon the surrender of the vehicle after the time for rescinding the reaffirmation agreement has expired.)

BK 03-81228
06.13.2005 MHM

In re Tant

(Even when the client terminates an attorney's employment, the attorney must file a motion to withdraw)

BK 04-74820
06.07.2005 WHD

Adams v. Rainwater (In re Rainwater)

(granting plaintiff's complaint, finding that a debt arising under a divorce decree is nondischargeable under section 523(a)(15))

NOT INTENDED FOR PUBLICATION

AP 03-1747
06.07.2005 MHM

CIS Corp. v. Williams

(Non-creditor lacks standing to object to discharge)

AP 04-9181
06.07.2005 MHM

In re Farris

(denies motion to proceed with appeal in forma pauperisbecause appeal lacks merit)

BK 95-77431
05.27.2005 REB

Stanley v. Carpenter, et al. (In re Stanley)

(11 U.S.C. Sections 523(a)(5) & (a)(15), dischargeability, summary judgment, collateral estoppel)

AP 05-2002
05.26.2005 REB

Black v. Franklin (In re Franklin)

(11 U.S.C. Section 523(a)(2)(A), dischargeability, collateral estoppel, apportionment challenge to state court award)

AP 04-9134
05.24.2005 WHD

Cofield v. Holcombe (In re Holcombe)

(striking defendant's answer as a sanction for failure to comply with Court's order compelling discovery and entering default judgment in favor of plaintiff)

NOT INTENDED FOR PUBLICATION

AP 04-1059
05.19.2005 REB

Gay v. Rabun County Bank, et al. (In re Gay)

(28 U.S.C. Section 1334(b), subject matter jurisdiction)

AP 05-2005
05.16.2005 REB

Barnes v. Cavalry Investments LLC (In re Barnes)

(O.C.G.A. Section 44-13-100(a), 11 U.S.C. Section 522(f), entitlement to exemption in real property by virtue of interest of non-filing spouse)

BK 04-23195
05.16.2005 WHD

Huffaker v. United States of America (In re Huffaker)

(granting defendant's motion to set aside entry of default on the basis that the plaintiff presented no evidence to the Court to permit entry of default against the United States of America)

NOT INTENDED FOR PUBLICATION

AP 04-1712
05.11.2005 JEM

In re Barron

Pro se Chapter 13 Debtor’s post-confirmation objection to proof of claim of secured creditor on ground that interest rate higher than 7% would make it impossible for debtor to perform plan denied.

NOT INTENDED FOR PUBLICATION

BK 04-90778
05.09.2005 WHD

Summit United Services LLC v. Amazon Imaging, Inc. (In re Summit United Services LLC)

(denying defendant's motion to extend time to answer on the basis that the pleading was not prepared and filed by a licensed attorney, and a corporate defendant may not proceed pro se)

NOT INTENDED FOR PUBLICATION

AP 04-6659
05.09.2005 JEM

Ogier v. Johnson (In re Healing Touch, Inc.)

Wife of president of Debtor was insider of the debtor within meaning of 11 U.S.C. § 101(31), whether or not she was related to her husband by affinity and even though she had no control over debtor, because she had a close relationship to her insider husband and loans she made to debtor and their repayment were not arms’ length transactions. Judgment on preference claim for trustee.

NOT INTENDED FOR PUBLICATION

AP 04-6051
05.05.2005 REB

Nasuti v. Stewart, et al. (In re Stewart)

(priority of liens, judgment lien and federal and state tax liens)

AP 04-2051
05.03.2005 JEM

Brewer v. Whirl (In re Whirl)

Court denied defendant’s motion for summary judgment in section 523(a)(2) case, rejecting contentions that note given to evidence the debt effected a novation thereby barring a claim that plaintiff had been defrauded and that note was an accord and satisfaction of fraud claim.

NOT INTENDED FOR PUBLICATION

AP 04-6497
04.28.2005 PWB

In re Carolyn Jacobs

(Order on Debtor's objection to proof of claim of Vineyards Condominium Association, Inc. Court concludes that only $2,127.25 of the $4,132.95 fees and expenses requested were allowable as "reasonable attorney's fees actually incurred" under OCGA 44-3-109(b))

BK 04-68654
04.25.2005 WHD

Maloney v. Weintraub (In re Weintraub)

(denying plaintiff's motion to amend complaint to add cause of action against additional defendants for avoidance of a fraudulent transfer because plaintiff lacked standing to pursue such claims and, therefore, amendment would be futile)

NOT INTENDED FOR PUBLICATION

AP 04-9207, BK 04-75671
04.25.2005 JEM

Miller v. Bratschi (In re Baita Real Estate, Inc.)

Plaintiff’s first amendment to the complaint, filed prior to any response by defendants, stated it superceded the original complaint in its entirety. Plaintiff then filed a withdrawal of the amendment. Defendant moved to dismiss on the ground that Plaintiff had withdrawn its only complaint. Motion Denied. Withdrawal of the amendment would have withdrawn the statement that the original complaint was superceded, thus would have restored the original complaint and hence was itself an amendment. Civil Rule 15, made applicable by Fed.R. Bank. P. 7015, required leave of court to withdraw the amendment in the absence of consent of defendants.

NOT INTENDED FOR PUBLICATION

AP 04-6678
04.25.2005 JEM

Builders Transport, Inc. v. Two Trees, et al. (In re Builders Transport, Inc.)

Plaintiff’s motion for order directing Clerk to certify judgment for filing in another district granted pursuant to 28 U.S.C. § 1963, notwithstanding that judgment was appealed, where defendants had no assets in this District but had assets in the New York.

NOT INTENDED FOR PUBLICATION

AP 99-6480
04.20.2005 pwb

In re Tricia Jordan

(Order continuing evidentiary hearing and notice to creditor's attorney and debtor's attorney to show cause. On the evening before specially set evidentiary hearing, creditor's attorney filed motion for continuance and left voicemail message "advising" the courtroom deputy of the continuance on the day of hearing. Court finds that professionalism dictates that parties contact court well in advance of hearing and that the presumption that other parties, including the Chapter 13 trustee and the court reporter, are not affected "illustrates an indifference to the value of other persons' time and schedules that the Court will not tolerate." Although motion for continuance granted, court directed attorneys to show cause why they should not be required to pay the fee incurred by the Court for the unnecessary services of a court reporter.)

BK 05-60156
04.20.2005 WHD

Carden v. Suddeth (In re Suddeth)

(denying plaintiff's motion for judgment on the pleadings because of improper service and granting defendant's motion to reopen default)

NOT INTENDED FOR PUBLICATION

AP 04-1050, BK 04-17273
04.19.2005 WHD

Chase Manhattan Bank v. Harrell (In re Harrell)

(denying plaintiff's motion for default judgment and allowing plaintiff an opportunity to amend complaint or submit additional evidence to support the plaintiff's claim)

NOT INTENDED FOR PUBLICATION

AP 05-1010, BK 04-13732
04.11.2005 JEM

In re Christine Webb

Chapter 13 debtor is not required to obtain court approval to employ an attorney in a child custody dispute but the debtor may not pay the attorney with estate property without court approval, but court granted application to employ.

NOT INTENDED FOR PUBLICATION

BK 04-74482
04.07.2005 REB

Miller v. Chappell (In re Shaw)

(F.R.C.P. 4(m), F.R.B.P. 7004, extending time for service of process)

AP 04-6259
04.05.2005 JEM

Turner v. Allen

Bankruptcy Court has jurisdiction over debtor who claimed to be beyond the Court’s power as a “sojourner with no ties to the land” and “an Indigenous Peoples (sic) in the lineage of the Olmec Civilization, with heritage upon the land, Muu Lan.”

NOT INTENDED FOR PUBLICATION

AP 04-6574
04.04.2005 WHD

Wright v. Wright (In re Wright)

(denying in part and granting in part plaintiff's motion for sanctions against defendant for failure to cooperate in discovery)

NOT INTENDED FOR PUBLICATION

AP 04-9156, BK 04-94519
04.04.2005 WHD

In re Brewer

denying motion to reopen

NOT INTENDED FOR PUBLICATION

BK 04-72039
04.04.2005 WHD

Fisher v. Quay (In re Quay)

(extending discovery over the objection of the defendant)

NOT INTENDED FOR PUBLICATION

AP 04-6065, BK 03-63644
03.31.2005 JEM

In re Stadler

Debtor is the sole member of a limited liability company known as Law Group of Georgia by Stadler, LLC. Prior to the bankruptcy, N.C.A. Systems of Illinois, Inc. sued Debtor and the LLC and later obtained a judgment against the LLC. N.C.A. allegedly continued to collect receivables of the LLC after Debtor’s bankruptcy. Zamora, a creditor of Debtor, moved to hold N.C.A. in contempt for violating the automatic stay. Held: Motion denied. Property of LLC is not property of Debtor’s estate, and Zamora lacks standing to enforce the automatic stay.

NOT INTENDED FOR PUBLICATION

BK 04-91944
03.30.2005 JB

In re Alexander

(on Debtor’s motion for stay pending appeal, Court denied Debtor’s motion but modified previous Order prohibiting Debtor from filing any bankruptcy case for 180 days to allow him to file a Chapter 7 case and allowed Homecomings Financial to foreclose but not record its deed without written consent of Chapter 7 Trustee or Court approval if Debtor filed a Chapter 7 before the foreclosure date)

BK 04-97724
03.29.2005 WHD

Fisher v. Quay

(denying motion for summary judgment as to creditor's section 523(a)(2)(A) and 727(a)(3) claims)

NOT INTENDED FOR PUBLICATION

AP 04-6065; docket number 25
03.29.2005 WHD

C & W Acquisition Asset, LLC v. Dayvolt (In re Dayvolt)

(denying plaintiff's motion to enforce settlement agreement where settlement required debtor to enter a reaffirmation agreement)

NOT INTENDED FOR PUBLICATION

AP 02-1021, docket number 18
03.29.2005 MHM

Decision One Mortgage Co. LLC v. Brantley

(dischargeability Defendants' motion to dismiss or abstain because of pending state court proceeding denied)

AP 04-9176
03.29.2005 MHM

CJH Capital Corp v. Yavuncu

(Debtor's presentation of a bad check was a false representation; Plaintiff entitled to dischargeability judgment under §523(a)(2)(A))

AP 03-9293,
03.29.2005 REB

Black v. Franklin (In re Franklin)

(11 USC 523(a)(2)(A), nondischargeability)

AP 04-9134
03.28.2005 WHD

McLain v. Brown

(denying motion to reconsider order denying motion for summary judgment)

NOT INTENDED FOR PUBLICATION

AP 02-1770
03.28.2005 MGD

Citibank (South Dakota), N.A. v. Han

(Order denying default judgment due to Plaintiff's failure to provide sufficient factual allegations to substantiate section 523(a)(2)(A) and 523(a)(2)(C) claims)

AP 04-06478
03.25.2005 JB

In re Kazem

(deadline for motion to revoke discharge under § 727(d)(1); filing, Fed. R. Bankr. P. 5001(a); proceeding to revoke a discharge should be adversary proceeding, 7001(4); court may construe pleading as complaint.)

BK 03-99076
03.23.2005 JEM

In re Project Time & Cost, Inc.

Alacrity Services, LLC, which was once owned by Debtor, moved to reopen Debtor’s Chapter 11 case to file “pleadings under seal” in connection with an unfiled motion to clarify meaning of prior Consent Order appointing an Estate Representative under 11 U.S.C. Section 1123(b)(3)(B). That Consent Order required Alacrity to give 60 days’ notice to the Estate Representative before Alacrity could sell, transfer or encumber its assets, while the Estate Representative was pursuing an equity holder of Alacrity to recover a fraudulent transfer. The Court granted the motion to reopen in part but denied the portion seeking to file documents under seal. Alacrity put the cart before the horse in seeking to seal documents before filing the operative motion to seek clarification of the consent order.

NOT INTENDED FOR PUBLICATION

BK 02-83002
03.23.2005 MHM

Howse v. Davis

(Motion for default judgment by creditor whose claim arises from a malpractice judgment against Debtor, who was Plaintiff's former attorney. Attorney malpractice does not constitute defalcation within the meaning of §523(a)(4)

AP 04-9218
03.22.2005 MGD

American Express Travel Related Services Co., Inc. v. McGarity (In re McGarity)

(Plaintiff's renewed motion for default judgment granted after incorporating a more detailed factual basis for establishing a claim of actual fraud under section 523(a)(2)(A))

AP 03-5041
03.22.2005 MGD

MicroFinancial, Inc. v. DelPiano (In re DelPiano)

(Judgment for fraud claim rendered by United States District Court in Massachusetts satisfies Plaintiff's section 523(a)(2)(A) claim because of collateral estoppel)

AP 04-06127
03.18.2005 JEM

Ponder v. Apyron Technologies, Inc. (In re Apyron Technologies, Inc.)

In Proposed Findings of Fact and Conclusions of Law in a non-core matter, the Court recommended to the U.S. District Court that it enter a judgment in favor of Defendant declaring that Plaintiff had no interest in technology developed while Plaintiff was employed by Defendant.

NOT INTENDED FOR PUBLICATION

AP 04-6443
03.15.2005 JB

Thompson v. Saxon Mortgage, Inc. (In re Thompson)

(15 U.S.C. §§ 1602, 1635; on cross motions for summary judgment, Court found assignment of note and security deed on day of closing does not trigger extended three year rescission period of Truth in Lending Act as long as loan proceeds not disbursed within three day rescission period; assignment does not terminate right of rescission under Truth in Lending Act against original lender as matter of law; if at trial there is proof of a violation of Truth in Lending Act, Court will reach issue of whether a rescission remedy can be fashioned against the sole Defendant sued as Plaintiff did not join current holder of note and security deed)

AP 4-9037
03.14.2005 MHM

Lewis v. Henry

(pro secreditor's motion construed as motion to allow late proof of claim with explanation that claim will be allowed unless Debtor objects)

BK 04-71646
03.14.2005 MHM

Citibank v. Kim

(Motion for default judgment by creditor whose claim arises from Debtor's use of credit card denied in part)

AP 04-6516
03.14.2005 MHM

Chase Manhattan Bank v. Kim

(Motion for default judgment by creditor whose claim arises from Debtor's use of credit card denied in part)

AP 04-9166
03.11.2005 MHM

n re Boyd

(Debtors contracted with special counsel Levinson; Levinson associated Mackie; Debtors signed no agreement directly with Mackie, but Mackie filed the application. Application denied.)

BK 04-70168
03.11.2005 MHM

Citibank v. Jo

(Motion for default judgment by creditor whose claim arises from Debtor's use of credit card denied)

AP 04-6542
03.11.2005 MHM

Citibank v. Jo

(Motion for default judgment by creditor whose claim arises from Debtor's use of credit card denied)

AP 04-6542
03.09.2005 WHD

Mann v. Bradshaw

(denying motion to reconsider order striking answer and entry of default judgment)

NOT INTENDED FOR PUBLICATION

AP 04-1003; docket number 24
03.09.2005 MHM

In re Smith

(construes pro se creditor's pleading as an incomplete attempt to commence a dischargeability complaint; also briefly explains the effect of a bankruptcy discharge on a secured claim);

BK 04-98519
03.08.2005 PWB

John Deere Company v. Roger Lee Fitzsimonds (In re Roger Lee Fitzsimonds and Doris Ellen Fitzsimonds)

(Scire Facias to Revive Dormant Judgment. Order granting Plaintiff's motion for Scire Facias and requiring defendant to appear and show cause why a judgment entered in 1992 should not be revived as provided in OCGA 9-12-61. Order directs Plaintiff to arrange for service of the Scire Facias by the Sheriff of the county where defendant resides in the manner set forth by OCGA 9-12-63)

AP. 91-6888, doc. #6
03.07.2005 PWB

In re Beverly Brown

(Order denying Debtor's motion to dismiss Chapter 7 case. Where "debtor proceeds without legal counsel and later finds out that the bankruptcy filing was a bad choice does not constitute a valid ground for voluntary dismissal of a case where prejudice to other parties will occur." While loss of house may cause hardship to debtor, such hardship is not sufficient to permit dismissal in face of prejudice to creditors. However, this is a factor to consider in administration of the case. Therefore, clerk is directed to issue bar notice so claims can be determined promptly.)

BK 04-98160, doc. # 24;
03.04.2005 JEM

Zhosul v. Zhosul (In re Zhosul)

A debt arising out of a property settlement in a divorce proceeding was not dischargeable because Debtor failed to prove elements of section 523(a)(15).

NOT INTENDED FOR PUBLICATION

AP 03-9385
03.03.2005 WHD

In re Springer

(sustaining Chapter 13 trustee's objection to confirmation and holding that exempt income may, nonetheless, constitute disposable income)

NOT INTENDED FOR PUBLICATION

BK 04-12747, docket number 35
03.02.2005 MGD

Pham v. Georgia Dept. of Revenue (In re Pham)

(Debtor's failure to file amended returns after the Internal Revenue Service revised his income upwards, renders his 1996 and 1997 state tax liabilities to be non-dischargeable pursuant to section 523(a)(1)(B)(i))

AP 04-06677
02.24.2005 WHD

In re Warren

(denying motion to reopen no-asset Chapter 7 case for purpose of adding omitted creditors)

NOT INTENDED FOR PUBLICATION

BK 01-10232; docket number 42
02.17.2005 JEM

In re Christopher S. Wathey and Heather L. Wathey

Debtors may not avoid effect of reaffirmation agreement after deadline for rescinding it has passed by seeking to reopen the case and to amend their statement of intentions.

NOT INTENDED FOR PUBLICATION

BK 04-92456
02.17.2005 MHM

Georgia Equipment Co. v. Hassan

(sole proprietorship may proceed without an attorney)

AP 04-9205
02.15.2005 MGD

Dierkes v. Crawford Orthodontic Care, P.C. (In re Dierkes)

(Order holding that dental equipment and furnishings repossessed prepetition were property of the estate and subject to turnover pursuant to section 542. Debtor able to use Chapter 13 plan to facilitate his right of redemption.)

AP 05-06022
02.14.2005 WHD

Choi v. Choi

(denying defendant's motion for summary judgment on plaintiff's 523(a)(5)/(a)(15) complaint)

NOT INTENDED FOR PUBLICATION

AP 04-6048; docket number 42
02.11.2005 JEM

In re Rhodes, Inc.

For purposes of section 365(d)(3) of the Bankruptcy Code, an obligation to pay rent, taxes or some other expense under an unexpired lease arises at the time that the tenant's liability on that obligation becomes fixed in an amount unalterable by subsequent events, such as the termination of the lease. If section 365(d)(3) does not apply, a landlord is entitled to payment of an administrative expense with respect to stub rent under section 503(b)(l) until rejection of an unexpired lease.

BK 04-78434
02.09.2005 MHM

Anderson v. HSN, LP (In re Donovan);

(bankruptcy court may hear Ch 7 Trustee's claims on behalf of Subchapter S corporation wholly owned by individual debtor against parties for breach of contract, fraud, et al.)

AP 03-9357
02.09.2005 MHM

BellSouth Telecommunications, Inc. v. Panjwany

(§523(a)(4) defalcation while acting in fiduciary capacity)

AP 03-9348
02.09.2005 MHM

Americredit Financial Services v. Smithey

(use of deposition transcript in lieu of defendant's live testimony; §523(a)(4) conversion of insurance proceeds)

AP 03-6350
02.09.2005 MHM

Welch v. Kentucky Higher Education Authority

(enforcement of settlement agreement)

AP 03-6209
02.07.2005 WHD

Choi v. Choi

(denying motion to compel discovery because movant had not diligently conducted discovery throughout the case and waited until the discovery period was about to expire to seek additional discovery)

NOT INTENDED FOR PUBLICATION

AP 04-6048; docket number 39
02.07.2005 WHD

Gordon v. Conkle

(denying motion for judgment on the pleadings as to Chapter 7 trustee's fraudulent conveyance action where transferee of property had voluntarily transferred the property back to the debtor, and staying litigation on trustee's objection to debtor's discharge because debtor had converted her case to Chapter 13)

NOT INTENDED FOR PUBLICATION

AP 04-6276; docket number 8;
02.04.2005 JB

In re Richard Kenneth Capps

(Chapter 7 Debtor’s motion for leave to sell real estate denied. Once Chapter 7 bankruptcy case is filed, all property in which Debtor had an interest becomes property of the estate. Furthermore, automatic stay already lifted for first mortgage holder and any excess funds recovered by mortgagee are to be paid to Chapter 7 Trustee)

BK 04-97732
02.04.2005 MGD

In re Parks

(Order granting validation of foreclosure sale conducted after Debtor filed motion to reinstate Chapter 13 case, but before no opposition order was submitted)

BK 04-41299
02.02.2005 MGD

Ogier v. Riner (In re Riner)

(Order denying Defendant's motion to dismiss for failure to state a claim due to the fact that Plaintiff's complaint sufficiently articulates a potential cause of action under section 523(a)(4))

AP 04-6562
02.02.2005 PWB

n re Harold A. Shaw

(Order denying Debtor's motion for recusal under 28 USC section 455. Debtor has failed to set forth with particularity any facts or circumstances which evidence bias by the court. Court has displayed no "deep-seated favoritism or antagonism" toward Debtor; adverse rulings do not establish bias for purposes of disqualification.)

BK 03-94997, doc. no. 64
02.02.2005 PWB

Stewart v. Lendmark Financial Services, Inc. (In re Stewart)

(Service of objection to claim on claimant at address listed on claim but not addressed to person who signed proof of claim is insufficient.)

BK 04-41969, doc. no. 45
02.02.2005 PWB

Chase Manhattan Bank USA, NA v. Muok (In re Muok)

(On debtor/defendant's motion to dismiss, Order for Plaintiff to show cause why dischargeability complaint should not be dismissed for failure to perfect service of the summons and complaint on the debtor. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, made applicable by Bankruptcy Rule 7004(a), plaintiff is directed to show "good cause" or some other basis why court should not dismiss action.)

AP 04-9144 , doc. # 7;
02.01.2005 MGD

In re Battle

(Order granting out of time extension for pro se debtor to file designated items on appeal, but denying motion to stay judgment pending appeal)

BK 04-98513
01.31.2005 WHD

In re Conkle

granting, over debtor's objection, application for compensation filed by former Chapter 7 trustee against debtor's Chapter 13 estate

NOT INTENDED FOR PUBLICATION

BK 04-66229
01.28.2005 MHM

Protos v. Silver

(Subject matter jurisdiction; core v. noncore)

Published

AP 04-6090
01.28.2005 MGD

National Service Direct, Inc. v. Anderson (In re National Service Direct, Inc.)

Defendant holds valid judgment lien in Plaintiff's personal property located in state of Georgia.

Published

AP 04-06479
01.27.2005 CRM

In re Kristi E. Taylor.

(O.C.G.A.§ 44-13-100(a)(1); 11 U.S.C. § 522; Sustaining Chapter 7 Trustee's Objection to Debtor's Exemption)

Published

BK 04-69185
01.27.2005 PWB

Parras v. Carter (In re Carter)

(Order denying plaintiff's motion to compel post-judgment discovery, motion to revive judgment, motion for contempt, and other motions. Federal Rule 69, made applicable by Bankruptcy Rule 7069, which permits post-judgment discovery is inapplicable in this proceeding because the judgment entered by the Bankruptcy Court in 1995 was not a money judgment. The Bankruptcy Court judgment found the state court order of restitution nondischargeable; any issues related to collection of the nondischargeable debt, including post-judgment discovery, should be addressed in proceedings to enforce the state court order in the appropriate nonbankruptcy court.)

Published

AP 94-6388
01.26.2005 JB

In re James.

Insurance company’s motion for relief from stay to file declaratory judgment action in this court against debtor and several non-debtor parties denied as no relief from stay needed to file adversary proceeding in same court where debtor’s bankruptcy case is pending and no relief from stay necessary to file adversary proceeding against non-debtor parties

BK 04-94649
01.19.2005 WHD

Clark v. Golloway

finding debts owed to debtor's former spouse were nondischargeable under sections 523(a)(5) and 523(a)(15)

NOT INTENDED FOR PUBLICATION

AP 04-1706
01.18.2005 PWB

In re Faulknor

(Order denying motion to redeem vehicle. Service of motion to redeem, to "Attn: President," without specifically naming the individual, does not comply with the requirements of Bankruptcy Rule 7004 and the constitutional requirements of due process.)

Published

BK 04-43921
01.17.2005 JEM

In re Rita Smith

Motion of creditor for order approving reaffirmation agreement with pro se debtor denied where creditor failed to provide copy of contract being reaffirmed and debtor’s schedules showed on their face that she could not afford the payments.

NOT INTENDED FOR PUBLICATION

BK 04-97665
01.13.2005 PWB

In re Alneta L. Stafford

(Judgment for Debtor in the amount of $1,825 against her former counsel for monies entrusted to him which were not paid to mortgage company and for attorney's fees incurred by new counsel. Court finds that counsel violated Georgia Rule 1.15(I) by failing to account to client for funds entrusted to him, and that reasonable grounds to believe that counsel also violated Georgia Rule 5.5(a), which prohibits a lawyer from assisting in the unauthorized practice of law; Georgia Rule 5.3 which requires proper supervision of legal assistants; Georgia Rule 3.3(a), which imposes a duty to be candid with the Court; and Georgia Rule 1.1, which requires a lawyer to provide competent representation to his client. Court referred matter to State Bar of Georgia for further investigation and proceedings)

NOT INTENDED FOR PUBLICATION

BK 00-74112
01.13.2005 JB

In re Kazem

11 U.S.C. § § 350(b), 727; Fed R. Bankr. P. 7001(4); creditor's motions to revoke discharge and reopen case denied as statutory deadline for filing revocation request had passed; no "cause" to reopen debtor's cases exists where it would serve no purpose; additionally, discharge revocation must be made through an adversary proceeding, not motion; and, Court docket reflects creditor failed to properly serve motions

BK 03-99076
01.10.2005 CRM

In re Alberta Diane Johnson, aka Diane Johnson;

Denying U.S. Trustee's Motion to Dismiss.

Published

BK 03-99063
01.10.2005 WHD

Mann v. Bradshaw

granting motion for sanctions for failure to comply with Court's order compelling defendant to respond to discovery requests, striking defendant's answer, and entering default judgment against defendant

NOT INTENDED FOR PUBLICATION

AP 04-1003, docket number 15
01.05.2005 JB

In re PAI Enterprises, Inc.

Insurance company’s motion for relief from stay to file declaratory judgment action in this court against debtor and several non-debtor parties denied as no relief from stay needed to file adversary proceeding in same court where debtor’s bankruptcy case is pending and no relief from stay necessary to file adversary proceeding against non-debtor parties

BK 04-66948
01.05.2005 MGD

Georgia Lottery Corp. v. McKibben (In re McKibben)

Order granting summary judgment in favor of Georgia Lottery Corp. holding debt to be nondischargeable pursuant to Section 523(a)(4)

Published

AP 04-04037
12.27.2004 REB

Froug v. Froug (In re Froug)

(11 USC 105, 362, extension of bar date under 11 USC 523, 727)

BK 04-30508
12.22.2004 MGD

Pittman v. Bank One, N.A. (In re Pittman)

(Order denying cross motions for summary judgment holding that whether Defendant provided Debtor two copies of the notice detailing the right to rescind as required under TILA is a factual issue to be decided at trial)

NOT INTENDED FOR PUBLICATION

AP 03-09155
12.22.2004 REB

Dacus v. Ga. Dept of Revenue (In re Dacus)

(11 USC 523(a)(1)(B), nondischargeability)

AP 04-2058
12.20.2004 MGD

Macleod v. First National Bank of Chatsworth (In re Sosebee Freight, Inc.)

(Pre-petition transfer of funds determined not to be avoidable as a preference under section 547 due to earmarking doctrine)

NOT INTENDED FOR PUBLICATION

AP 03-04024
12.20.2004 WHD

Callaway v. IRS

(denying motion to dismiss complaint)

NOT INTENDED FOR PUBLICATION

AP 04-1705; docket number 17
12.16.2004 WHD

Brown v. Woodbury Banking Co.

(granting in part motion to amend complaint; denying motion to amend complaint to add claim for violation of the FDCPA because the claim would have been time barred)

NOT INTENDED FOR PUBLICATION

AP 04-1012; docket number 16
12.07.2004 MGD

Brooks et al v. Ellis (In re Ellis)

(Chapter 7 debtor lacks standing to assert counterclaim until abandoned by trustee)

NOT INTENDED FOR PUBLICATION

AP 04-04065
12.02.2004 MGD

In re Clansy

(order denying attorney's request to withdraw)

NOT INTENDED FOR PUBLICATION

BK 03-82668
11.09.2004 WHD

In re Jeffrey Kele and Joy Elaine Sewell

(denying motion to reopen case for purpose of modifying the discharge injunction to allow movant to name debtor as defendant in medical malpractice suit where movant intended to recover any award solely from debtor's employer)

BK 03-10764, docket number 28
11.02.2004 JEM

Owens v CitiFinancial Services, Inc.

Debtor obtained judgment during Chapter 13 case that determined that mortgage creditor was deemed to be and would be treated as a general unsecured creditor in this case and for all purposes and not entitled to the protections of 11 U.S.C. § 1322(b)(2). Case was later converted to Chapter 7. Debtor sued creditor to avoid mortgage lien based on earlier judgment. Creditor defaulted. Held: Complaint failed to state a claim for relief because the determination that creditor was unsecured for purposes of section 1322(b)(2) did not affect lien.

NOT INTENDED FOR PUBLICATION

AP 04-6108
10.28.2004 JEM

Keith Brown and Victoria Brown

Prior to bankruptcy Debtor voluntarily gave a second mortgage to his father to secure a debt. Debtor did not claim an exemption in property, and property was worth no more than total mortgage debt. Trustee subsequently avoided the mortgage as a preference and preserved the lien for the estate. Debtor then amended Schedule C to claim full exemption. Trustee objected. Held: Trustee’s objection granted. Under section 551(g)(1), a debtor may claim exemption in property recovered by the trustee only if the debtor did not voluntarily make the transfer.

NOT INTENDED FOR PUBLICATION

BK 03-96149
10.27.2004 JB

Cobb v. Cobb (In re Cobb)

(Fed. R. Bankr. P. 9027; former debtor’s notice of removal of former husband’s state court motion alleging certain of debtor’s debts not dischargeable and wrongful prevention of his visitation rights with children remanded and remanded as debtor failed to comply with procedural requisites and state court has concurrent jurisdiction regarding marital debts and particular expertise with regard to visitation rights)

AP 04-6506
10.25.2004 MHM

Jones v. Ferdinand

(clarification of consent order)

AP 02-9226
10.25.2004 MHM

In re Rodgers/In re Dunbar

(imposition of sanction requiring attorney to offer to represent a debtor pro bono)

BK 03-90336/03-96395
10.22.2004 MHM

In re Cammack

(allowance of Chapter 13 case to continue beyond 60 months)

BK 97-70625
10.22.2004 MHM

In re Farris

(grounds for recusal)

BK 04-95802
10.17.2004 WHD

Georgia Lottery Corp. v. Akhawala (In re Akhawala)

(granting motion for summary judgment on creditor's section 523(a)(4) claim)

NOT INTENDED FOR PUBLICATION

AP 04-6079;docket number 17
10.15.2004 JB

In re Carolyn Denise Upshur

(debtor’s motion to reopen Chapter 7 case and add unadministered, pending, prepetition cause of action granted as otherwise asset remains unadministered in estate, is of potential benefit to creditors, and judicial estoppel argument is not relevant before bankruptcy court);

BK 03-82229
10.15.2004 MHM

In re Conley

(disbursement of unclaimed funds held Registry of Court)

BK 00-74652
10.08.2004 MHM

In re Griffin

(Debtor barred from refiling for 5 years.)

BK 0496711
10.04.2004 MHM

Gordon v. Marcinek (In re Marcinek)

(Close personal friend of Debtor can be “insider” under §101(31))

AP 03-6401
10.01.2004 MHM

American Express Travel Related Services, Inc. v. Scott

(denial of discharge)

AP 01-6117
10.01.2004 MHM

Thurmond v. Copeland

(timeliness of objection to exemption after conversion)

BK 03-60407
09.30.2004 WHD

McLain v. Brown (In re William McLain)

docket number 86; (granting motion for partial summary judgment on Chapter 7 trustee's section 549 claim)

NOT INTENDED FOR PUBLICATION

AP 02-1770
09.27.2004 MHM

Anderson v. HSN, LP (In re Donovan)

(abstention; intervention)

AP 03-9357
09.24.2004 JB

Centex Home Equity Company, LLC v. Hailey (In re Hailey)

(Lenders’ motions for relief from automatic stay moot as Debtor has received discharge and Chapter 7 Trustee has filed report that estate has no interest in the properties at issue)

NOT INTENDED FOR PUBLICATION

BK 04-94413
09.24.2004 JEM

PlayNation Play System, Inc. v Howard

Defendant falsely stated on his statement of financial affairs that he did not transfer any property outside the ordinary course of business during the one year period preceding the filing of the petition. He knew that statement to be false because he listed the transfer on the work papers provided to him by his bankruptcy attorney. He made the statement with fraudulent intent based on the inferences drawn from his course of conduct. Discharge Denied.

NOT INTENDED FOR PUBLICATION

AP 03-06101
09.23.2004 PWB

In re Harold Dene Amey

(Multiple filings; foreclosure; in rem relief; necessity of adversary proceeding for in rem relief against co-debtor)

Westlaw cite: In re Amey, 314 B.R. 864 (Bankr. N.D. Ga. 2004)

BK 04-62641
09.21.2004 JB

In re Hunt

(Lenders’ motions for relief from automatic stay moot as Debtor has received discharge and Chapter 7 Trustee has filed report that estate has no interest in the properties at issue)

BK 04-94398
09.13.2004 MHM

In re Living Word Faith Center, Inc

(debtor's attorney's application for compensation; quantum meruitcompensation for period prior to filing application for employment)

BK 04-91635
09.13.2004 MHM

Silver v. Protos

(state court arbitration award; denial of discharge; §727(a)(2), undisclosed transfer of security interest in debtor’s real estate to debtor’s prepetition nonbankruptcy attorney; §727(a)(3), debtor’s failure to produce records; §727(a)(4), false oath)

AP 03-6473
09.10.2004 MHM

Silver v. Protos

(motion to quash and motion for protective order granted preventing examination of special master)

AP 03-6473
09.10.2004 MHM

South Carolina State Credit Union v. Dunbar

(granting motion to reimpose automatic stay)

BK 03-96395
09.10.2004 MHM

Lockley v. Long

(motion for summary judgment granted because debtor failed to present any evidence to support opposition to motion for summary judgment)

AP 03-9230
09.09.2004 MHM

Odum v. Vesta Holdings

(11 U.S.C. §1305, postpetition claim)

BK 01-65200
08.23.2004 JB

In re Henderson

(Debtor’s request to reconsider dismissal of his case denied as he failed to file schedules and a Chapter 13 plan, to appear at the first meeting of creditors, and to respond to the Chapter 13 Trustee’s objections to confirmation or appear at the confirmation hearing; Debtor’s suggestion of a possible Fair Debt Collection Practices Act violation does not alter obligations of those filing for bankruptcy)

BK 04-92818
08.19.2004 JB

In re Bythwood

(Debtor’s case dismissed pursuant to § 109(g)(2) as Debtor had voluntarily dismissed her previous case after lender filed a motion for relief from stay)

BK 04-96156
08.18.2004 PWB

Hospitality Ventures/Lavista v. Heartwood 11, LLC et al. (In re Hospitality Ventures/Lavista)

(abstention; sec. 505(a); sec. 1334(c)(1). No permissive abstention under 28 usc 1334(c)(1) with regard to 11 USC 505(a) relief if there is no alternative forum to decide the dispute. Section 505(a) does not permit a bankruptcy court to decline to exercise jurisdiction other than under 1334(c)(1))

Westlaw cite: Hospitality Ventures/Lavista v. Heartwood 11, LLC (In re Hospitality Ventures/Lavista), 314 B.R.

AP03-6596
08.13.2004 JB

Seamon v. Seamon (In re Seamon)

(Debtor’s emergency motion to enjoin foreclosure sale of his house by his brother or, alternatively, to reimpose automatic stay denied as dispossessory proceeding is being litigated in state court; debtor’s schedules show no bankruptcy purpose served in this case; and no legal authority to grant relief sought)

BK 04-68797
08.09.2004 JEM

In re Ethel O. Harris

An attorney who does not represent debtor in a bankruptcy estate lacks authority to file a motion for approval to represent the debtor in non-bankruptcy matter. Such a motion must be filed by the debtor or the debtor’s bankruptcy attorney.

NOT INTENDED FOR PUBLICATION

BK 03-94415
08.03.2004 JB

Ogier v. Ashraf (In re Ashraf)

(Plaintiff is entitled to default judgment as allegations in complaint deemed admitted due to Debtor’s failure to answer or otherwise respond to complaint or to motion for default judgment)

BK 03-77569
07.29.2004 WHD

Brown v. Brown (In re Brown)

(trial on complaint objecting to dischargeability pursuant to sections 523(a)(5) and (a)(15))

AP 03-1022; docket number 39
07.26.2004 WHD

Pony Express Delivery Services, Inc. et al. v. Andreini & Company et al. (In re Pony Express Delivery Services, Inc.)

(motion for summary judgment on preferential transfer claim)notice of appeal docketed 8/02/2004.

NOT INTENDED FOR PUBLICATION

AP 02-6276; docket number 33
07.22.2004 MHM

Hickman v. Georgia Department of Revenue

(state tax lien is not lien that can be avoided under §522(f))

NOT INTENDED FOR PUBLICATION

BK 04-93236
07.21.2004 MHM

In re Diaz

(FRBP 4004(c)(2)), motion to defer entry of discharge)

NOT INTENDED FOR PUBLICATION

BK 04-92921
07.21.2004 MHM

In re Allen

(dismissal with one-year bar to refiling)

NOT INTENDED FOR PUBLICATION

BK 04-94386
07.20.2004 JB

Stephens v. Educational Credit Management Corporation

(Debtor’s notice of requirement of response to motion to discharge debt improper as motion referenced in notice not filed; discharge of student loan cannot be done by motion; and notice not authorized by court)

BK 98-90875
07.16.2004 WHD

In re The New Power Company, New Power Holdings, Inc., and TNPC Holdings, Inc

(application for payment of attorney's fees in accordance with section 503(b)(3)(D))

BK 02-10835; docket number 1302
07.13.2004 JEM

In re Michael Stephen Gillespie

Debtor's law firm sought refund of inadvertent payment of full filing fee after entry of Order granting motion to pay filing fee in installments. Debtor's schedules showed that Debtor had ample funds to pay filing fee in installments. Motion denied, Order authorizing installment payments vacated, and General Order No. 9 suspended so that law firm must file fee application to receive compensation.

NOT INTENDED FOR PUBLICATION

BK 04-70590
06.24.2004 PWB

FDS National Bank v. Mahabub Alam (In re Alam)

(Order Denying Motion for Default Judgment, dischargeability under section 523(a)(2)(A); 523(a)(2)(C); false representation; actual fraud; credit card; dinial of motion for default judgment)

AP 03-6465
06.24.2004 PWB

Fleet Credit Card Services, L.P. v. William Arnold Kendrick (In re Kendrick)

(Order Granting Plaintiff's Motion for Summary Judgment, dischargeability under section 523(a)(2)(A); elements of actual fraud; credit card; admissions under Rule 36; request for attorney's fees and compliance with OCGA13-1-11(a)(3))

AP 03-4030
06.22.2004 WHD

In re Greta Carter

(motion for reconsideration of order disallowing administrative expense claim for professional compensation)

NOT INTENDED FOR PUBLICATION

BK 00-12200;docket number 93
06.17.2004 REB

Woods v. Beneficial Mortgage Co. of Georgia (In re Woods)

(11 USC 506(a)&(d), avoidance of lien (strip off) on wholly unsecured debt in Chapter 7 case)

NOT INTENDED FOR PUBLICATION

AP 04-2010
05.24.2004 WHD

In re The New Power Company

(docket number 1271)(request for fees for substatial contribution under sections 503(b)(3)(D))

BK 02-10835
05.14.2004 JEM

In re Carla Renee Cotton

Motion to allow late claim to which no objection had been made denied as unnecessary because claim is deemed allowed notwithstanding it was filed after the bar date and the Court lacks power to declare that it was in fact timely filed.

NOT INTENDED FOR PUBLICATION

BK 03-60016
05.12.2004 JEM

In re Sarah Wideman

Motion to dismiss case with prejudice because Debtor missed mortgage payments is not a substitute for a motion for stay relief where Debtor was otherwise funding plan, notwithstanding that Debtor consented to supplemental confirmation order stating that Court may dismiss with prejudice if Debtor fails to cure post-petition default.

NOT INTENDED FOR PUBLICATION

BK 03-90949
05.10.2004 JEM

In re Michael Grier

An objection to a Chapter 13 Trustee’s Notice of Intent to Pay Late Filed Claim is not a substitute for objecting to the late claim.

NOT INTENDED FOR PUBLICATION

BK 03-91308
05.10.2004 JEM

In re Lytonia Michelle Watkins

Debtor filed two Chapter 13 cases on the same day using two different attorneys, voluntarily dismissed the first case and moved for a refund of the filing fee as a “duplicate case.” Motion denied.

NOT INTENDED FOR PUBLICATION

BK 04-63419
05.10.2004 JEM

In re Physicians Reliance Association, Inc.

Unsuccessful bidder for assets of debtor moved for payment of administrative expense labeled an “Unsettlement Fee.” Service of motion defective because movant served attorney for creditor who had not filed notice of appearance. Motion to allow administrative expense under sections 507(a)(1) and 503(b) must be served on creditor pursuant to Bankruptcy Rule 2002(a)(6) and (g).

NOT INTENDED FOR PUBLICATION

BK 93-72201
05.10.2004 JB

Elliott v. Griggin (In re Griffin)

(evidence that could have been obtained prior to trial does not meet stadard of newly discovered evidence under Rule 60(b)(2); when hearing on damages is required following entry of default under Rule 55, party who participates in bench trail without objection waives jury demand)

AP 02-9403
05.03.2004 JEM

In re Kimberly Jackson

Fee Application of Attorneys for Chapter 13 Debtor denied for failing to prove value of services pursuant to §330.

NOT INTENDED FOR PUBLICATION

BK 01-86978
04.28.2004 JB

Crescive Landscape Management, Inc v. PHDC, LLC (In re PHDC, LLC)

(appointment of Trustee under 1104(a)(1))

BK 03-93397
04.27.2004 PWB

Griggs v. Berke (In re Berke)

(denial of motion for default judgement 523(a)(17);523(a)(19))

AP 04-9003
04.26.2004 JEM

Smith v. Khalif

A prepetition address mentioned in a debtor’s statement of financial affairs, even if valid postpetition, is not and cannot be “the address shown in the . . . statement of affairs” to which FRBP 7004(b)(9) refers. A bare allegation that reliance was justifiable in a complaint seeking to declare a debt nondischargeable pursuant to section 523(a)(2)(A) is a conclusion of law and not admitted by a defendant’s failure to respond.

AP 03-9296
04.21.2004 MGD

In re Neary

(GA homestead exemption with separated, non-resident spouse)

BK 03-97808
04.07.2004 JB

In re Northside Bishop Trust

(trust is an artificial entity and must be represented by counsel)

BK 04-90152
04.02.2004 WHD

In re Rochester

(308 B.R.596(Bankr N.D. Ga. 2004));(motionj to repoen for purpose of adding an undisclosed cause of action and the impact of judicial estoppel)

BK 01-63424
04.01.2004 JEM

In re Griffin

Effective service by mail on joint debtors pursuant to FRBP 7004(b)(9) requires that each debtor receive a separate envelope containing the item being served.

NOT INTENDED FOR PUBLICATION

BK 03-65405
03.30.2004 MHM

Marzullo v. Smith (In re Smith)

(application of default judgment to collaterally estop dischargeability litigation; application of NY law regarding collateral estoppel effect of default judgment)