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
You are here
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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Judge James E. Massey (Retired)
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
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
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
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
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
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
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
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
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