Chapter 7 Trustee moved for order authorizing the Rule 2004 examination of a law firm that closed on behalf of the lender a real estate transaction to which Debtors were parties. The Trustee did not serve the Debtors with the motion and was not required to by the Bankruptcy Rules. The law firm objected, citing Ga. Code Ann. § 7-1-360 that requires a financial institution to provide its customer an opportunity to object to the production of confidential information. The Court granted the motion, directed service of the order on Debtors and delayed the examination for two weeks to give Debtors time to object.
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Opinions
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Judge James E. Massey (Retired)
Movants sought stay relief alleging only that Debtor had another case pending within one year of the filing of the present case and that they were entitled to an order under section 362(c)(3)(A). Motions denied. The condition that no stay exists with respect to property of the debtor is not congruent with the condition that no stay exists with respect to property of the estate. Argument that motions should be granted because Trustee did not oppose them was without merit. The motions failed to allege facts that entitled them to the relief requested.
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Defendants moved to dismiss the complaint seeking revocation of their discharges on the grounds that Court lacked subject matter jurisdiction because Plaintiff failed to alledge the proceeding was core and that Plaintiff lacked standing. Motion denied. Complaint alleged sufficient facts to show jurisdiction. Standing argument was based on assertion that Plaintiff is not a creditor of debtors, but Plaintiff alleges she is, and motion to dismiss cannot be granted unless a defendant can show the plaintiff can prove no set of facts entitling her to relief.
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Defendant moved to dismiss adversary proceeding objecting to his discharge on the ground it was “unfounded” and failed to state a claim for relief. Motion denied. “A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) ‘unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Defendant could not show from the complaint alone that Plaintiff could not prove facts to support the claim.
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Defendant’s motion to dismiss for failure to state a claim was denied, even though the complaint had only minimal factual allegations. All that is required is that the complaint contain a "statement calculated to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."
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Unopposed motion to vacate dismissal order was denied where debtor’s counsel waited over four months to present a proposed order granting the motion in disregard of BLR 9013-2(a).
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Movant submitted proposed order that included an award of attorney’s fees and costs, but the motion did not allege that Movant incurred such expenses and did not allege the amount of any fees. Further the contract attached to the motion contained no provision for attorney’s fees on the facts alleged. That portion of the motion was highly improper and the motion was DENIED in part with respect to fees and expenses.
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Motion to vacate dismissal order filed two months after dismissal denied as untimely.
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Objection to claim of Pension Benefit Guaranty Corporation on ground that amount of claim is overstated was denied. Claim is not for future payments but rather is presently due, such that court has no authority to recalculate the claim.
Section 521(i)(3) provides the only means by
which a debtor who has not complied with section 521(a)(1) may avoid automatic dismissal as of the 46th day following the petition date. Hence, Debtor’s motion for the Court to “order otherwise” after the 46th day had passed to permit late filing of pay stubs was DENIED.
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