Order denying the Debtor’s motion to dismiss her chapter 13 case pursuant to 1307(c). Because the debtor previously converted from chapter 7, she was not permitted to voluntarily dismiss her case. The court denied the debtor's motion under 1307(c) for cause because the court must consider what is in the best interests of creditors and the estate, not the debtor.
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Opinions
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Honorable Paul W. Bonapfel
(Order granting Defendant’s motion to dismiss pursuant to Rule 12(b)(3) based on improper venue. Based on BAPCPA’s changes to 28 USC § 1409(b), venue in Northern District of Georgia is improper because defendant’s non-consumer, non-insider debt is less than $10,000.)
In calculating projected disposable income, the debtors are entitled to deduct ownership expense with regard to motor vehicle under IRS Standards, without regard to whether any debt is owed on the vehicle.
At the originally scheduled confirmation hearing, the Debtor’s chapter 13 case was put on “ten day status” for the debtor’s attorney to provide notice to creditors of a re-scheduled § 341 meeting and confirmation hearing. The § 341 meeting could not be conducted because of a conflict the attorney had. After counsel failed to renotice the meeting and hearing, the trustee submitted a report requesting dismissal, and the case was dismissed. The attorney timely moved to reinstate the case, but did not schedule a hearing on it in accordance with the court’s self-calendaring procedures. Several months after dismissal, when the motion came to the court’s attention, the court directed the attorney to schedule a hearing on the motion. In the meantime, the attorney had filed another motion to reinstate the case, for which the Clerk’s office charged a $235 filing fee, which the debtor paid. The attorney still did not schedule a hearing on either motion. The court scheduled a hearing on reinstatement and also directed the attorney to show cause why notice had not been served as directed, why fees should not be disgorged, and why the filing fee should not be refunded. By separate order, the Court reinstated the case. In this Order, the Court required the attorney to refund the filing fee and disgorge fees he had received and directed payment of the money to the trustee. The Court referred the matter to the State Bar of Georgia for consideration of whether discipline was appropriate.
(Order denying debtor’s motion to disqualify judge denied. The debtor has shown no evidence of partiality or bias to warrant recusal under 28 USC § 455. Existence of pending lawsuit brought by debtor against judge based on the judge’s rulings in a prior case does not serve as basis for recusal.)
A claims locator, acting as attorney-in-fact for a creditor with a claim in a chapter 13 case secured by a motor vehicle, sought to recover unclaimed funds on behalf of the creditor. The application was signed by a person as “general counsel” for the claims locator who is not admitted to practice in the Court. The Court denied the application without prejudice because (1) a person not admitted to practice before the Court cannot sign a pleading on behalf of an entity and (2) the application did not establish that the claim had not been satisfied through foreclosure or payment following conclusion of the case. The Court noted that it is not necessary for an attorney to be admitted to the Court’s bar for purposes of filing a proof of claim and that it had permitted a corporate or other entity to retrieve unclaimed funds without the necessity of engaging counsel, but that an attorney could not file a pleading on behalf of another entity without being admitted unless the attorney did so in the capacity of an officer.
Chapter 13 trustee objects to confirmation of the debtor’s plan on the ground that continuation of direct payments on student loans results in failure to pay all disposable income to unsecured creditors under § 1325(b)(1)(B). The court concludes that the plan is potentially confirmable for two reasons. First, § 1322(b)(5) permits continuation of payments on long-term unsecured debt, and the Debtor’s use of PDI to make such payments results in all PDI being paid to unsecured creditors. Second, although the student loan payments do not qualify as a “reasonably necessary” expenditure under § 707(b)(2)(A)(ii)(I) in view of its specific exclusion of payments on debts, the circumstances surrounding the Debtor’s student loans, including their nondischargeable nature, may qualify as a “special circumstance” under § 707(b)(2)(B) that may justify a downward adjustment of PDI if the Debtor properly documents and explains them under § 707(b)(2)(B)(ii) and (iii).
Trustee seeking to recover voidable preference under § 547(b) and defendant filed cross-motions for summary judgment. The Court grants partial summary judgment to the Trustee that all elements of a preference have been established but concludes that there are disputed issues of fact that preclude entry of summary judgment on the defendant’s ordinary course of business defense under § 547(c)(2).
Order denying the Defendant’s motion to exclude issue from proposed pretrial order. If the Plaintiff had failed to properly plead the issue and thus deprive the Defendant of the ability to prepare a defense in anticipation of trial, the Defendant would have a basis for objecting the inclusion of the issue in the pretrial order. However, the Plaintiff’s complaint sufficiently set forth the claim. A factual dispute as to whether the Plaintiff can prove the claim is not a basis for exclusion of the claim from the pretrial order.
Order granting summary judgment on the Plaintiff’s preference action. The Plaintiff established all elements of a preference action under 11 U.S.C. § 547 and set forth facts in its Statement of Material Facts which negated the applicability of Defendant’s affirmative defenses. Although the Defendant pled a number of affirmative defenses in its answer, it did not file a response to the Plaintiff’s motion for summary judgment and failed to carry its burden of establishing any affirmative defense.