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.
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Opinions
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Judge James E. Massey (Retired)
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).
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.
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).
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.
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).
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
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
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
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.