Order confirming plan providing for flat fee is res judicata, requiring denial of fee application of Chapter 13 debtor’s attorney based on alleged hourly rate contract.
NOT INTENDED FOR PUBLICATION
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Opinions
Effective January 1, 2017, Orders in the United States Bankruptcy Court for the Northern District of Georgia designated by the Court as "opinions" will be transmitted to the Government Publishing Office (GPO) and made available to the public at no cost. To view these opinions, click HERE to be transferred to GPO site.
Orders designated as Opinions and issued between January 1, 2004 and December 31, 2016 are maintained on this website. Many of these Opinions are not intended for publication and are so designated. Each entry includes the style of the matter, the case number, the date entered on the docket, and a short parenthetical expression of the issue(s) raised. The most recent opinions appear first.
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Judge James E. Massey (Retired)
Debtor owned stock in corporation that owned grocery business and promised Chapter 7 trustee that if the business were sold, he would notify the trustee. Two years later without telling trustee, debtor caused corporation to sell the business and hired an attorney to close the transaction. Among others, trustee sued attorney for breach of fiduciary duty to corporation and negligent failure to discover the bankruptcy. Attorney’s motion for summary judgment was granted. Trustee lacked standing to pursue claim of breach of duty to corporation, failed to allege facts showing the existence of such duty, and failed to show that attorney’s acts or omissions caused any damage to the estate.
NOT INTENDED FOR PUBLICATION
Debtors’ motion to reopen case to amend schedules to show previously unlisted cause of action was granted over objection of defendant in state action. An undisclosed cause of action belongs to bankruptcy estate until abandoned by the trustee; section 350 permits reopening a case to administer assets. Reopening the case does not answer the question whether debtors deliberately omitted the cause of action from their schedules.
NOT INTENDED FOR PUBLICATION
Credit card issuer’s motion for default judgment was denied where complaint alleged legal conclusion that plaintiff’s reliance on false representation was justified but alleged no facts that if true would show justifiable reliance.
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Defendant’s motion to dismiss preference complaint because it was not served within two years of petition date was denied. The date the complaint was filed is the relevant date.
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A trustee is not authorized based on a private communication to pay an unfiled unsecured claim to a creditor that holds an allowed fully secured claim. Creditor sought payment of funds paid into registry but failed to show that it had any interest in those funds.
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Holder of administrative expense claim moved for order allowing her to file a late claim on the ground she had not received the notice of the deadline. Reorganized debtors contended that there was a presumption of delivery of the notice based on affidavit of employee of servicing agent concerning mailing. Held: Affidavit was insufficient to created a presumption of delivery. Movant proved that she did not receive notice and that even if she had, her failure to file timely was due to excusable neglect.
NOT INTENDED FOR PUBLICATION
Court granted motion for summary judgment on complaint seeking to determine debt to be non-dischargeable based on state court judgment.
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Landlord’s motion for payment of rent pursuant to section 365(d)(2) granted in part and denied in part. Court found that landlord failed to prove that obligation in lease to pay rent for the month during which debtor filed bankruptcy arose after the first day of the month.
NOT INTENDED FOR PUBLICATION
Creditor moved for order allowing a late filed claim in a Chapter 7 case on the ground that she had not received proper notice of the bar date. Held: Motion denied. Court lacks authority to extend bar date under applicable rules.
NOT INTENDED FOR PUBLICATION