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