All Opinions by All Judges
Docket Date Description 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 01.04.2012 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 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 12.15.2011 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 12.06.2011 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 (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 08.29.2011 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 08.01.2011 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 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 05.25.2011 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#24 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 04.01.2011 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 03.30.2011 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.
09-67762 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
10-109 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#15 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#25 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; 09.18.2009 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
AP 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 (In re Denson) Benz;
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; 03.19.2009 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; 03.18.2009 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) 03.13.2009 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
09-62362 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 10.28.2008 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 06-06498 Doc #:46 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 10.13.2008 MHM In re Gish ;
Order directing DA to turnover prepetition retainer as property of the estate);
bankruptcy case No. 07-74427; 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 06-10130-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, bankruptcy proceeding no. , entered
(ordering granting motion to reconsider order disallowing claim).
07-11689-whd, docket number 30 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, , entered
(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#11 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 11.15.2007 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 11.13.2007 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 11.12.2007 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 11.08.2007 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 06-72831Doc#25 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 09.07.2007 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 09.07.2007 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 09.06.2007 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 08.03.2007 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 08.03.2007 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 08.01.2007 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 06.21.2007 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 05.25.2007 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 044052, BK 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 05.22.2007 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#95 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 04.18.2007 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 04.17.2007 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 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 6-41162, 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
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United States Bankruptcy Court Northern District of Georgia |
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C. Ray Mullins |
M. Regina Thomas |
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