Creditor moved to dismiss case in May 2003, and the Court orally granted the motion at a hearing held on June 3, 2003. The Order granting the motion was entered on June 9, 2003. Between those dates, the creditor ran its first advertisement. In July 2003, the creditor foreclosed. Debtor now contends that the foreclosure was void because running the ad prior to the entry of the order violated the automatic stay. Creditor moved to reopen the case to obtain an annulment of the stay. Held: Motion denied. Court lacks power under section 350 to reopen dismissed case to entertain motion as if case had never been dismissed.
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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)
In their Chapter 13 plan Debtors proposed to pay two nondischargeable educational debts in full but to pay only 1% of other nonpriority unsecured debts. The Chapter 13 Trustee objected to confirmation. Held: Confirmation denied. Plan unfairly discriminates against class of dischargeable unsecured claims in violation of section 1322(b)(1).
The Court denied a motion for entry of a default judgment. What are the questions a court considers in deciding whether or not to grant a motion for a default judgment? This decision provides those questions and some of the analytic framework for answering them.
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In response to complaint asserting that Plaintiff was exclusive owner of technology developed while he was employed by Defendant, Defendant objected to Defendant’s claim, sought to subordinate it, and demanded injunctive relief against Plaintiff. Defendant moved for summary judgment to which Plaintiff did not respond. Earlier, U.S. District Court followed this Court’s recommendation (see posted order dated 04/25/05) to grant Defendant’s motion as to its ownership rights in the technology. In this order, the Court granted the balance of the motion.
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Trustee moved for turnover of assets located outside of United States and an accounting of those assets. Debtors opposed motion on the ground that property of the estate did not include such assets. Motion Granted. Congress intended the words “wherever located” in section 541 to include assets located outside the U.S. in which a debtor has an interest.
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Plaintiff served Defendant by U.S. Mail at his address in Ontario, Canada. Defendant did not respond, and Plaintiff moved for entry of a default judgment. Motion Denied. Bankruptcy Rule 7004(b) permits service by mail only within the U.S.
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Lender refinanced two loans secured by the Debtors’ residence with the understanding of Debtors that Lender’s security deed would be a first priority lien. Lender delayed in recording security deed until approximately one month after making loan. Debtors filed bankruptcy 89 days after security deed was recorded. Trustee sued to avoid recording of security deed as a preference. Lender’s motion for summary judgment granted and Plaintiff’s motion denied. Lender was equitably subrogated to the lien positions of the prior lenders when it paid off those loans; recording the security deed did not improve its perfected first priority position. Obtaining those liens with Debtors’ consent constituted the transfer, which was made outside the 90-day preference period
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Unsecured Claims Administrator sought disallowance of proof of claim that included punitive damages on ground that punitive damages were not allowed in bankruptcy. Objection Denied. The inclusion of punitive damages is not a ground for disallowing a claim under section 502(b).
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Plaintiff moved to amend the complaint but did not include a copy of the proposed amendment with the motion or otherwise file the proposed amendment. Motion Denied. It is impossible to determine whether unfiled amendment would be in the interests of justice as required by Civil Rule 15.
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Plaintiff moved for summary judgment on its claim that a debt owed by Defendant/Debtor arose from fraud and was nondischargeable under section 523(a)(2). The only evidence that Plaintiff justifiably relied on the alleged false representations of Defendant was supplied by an affidavit of an officer having no apparent personal knowledge of the transaction. Motion Denied. Affiant’s conclusion that bank relied was based on critical facts not in evidence – that the persons who approved the loan knew what the application stated and would have made a different decision had they known that the application was inaccurate. The fact that company policy would have prohibited the loan had the loan application been accurate does not show reliance.
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