Motion to extend stay denied where time for doing so has expired. No circumstances exist whereby court can extend stay under 362(c)(3) where stay has statutorily expired.
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.
Honorable Paul W. Bonapfel
(Order denying motion to vacate order of dismissal and reopen case. One month after dismissal of chapter 13 case in which no meeting of creditors was held, debtors sought to vacate dismissal and reopen case. At hearing, debtors’ attorney and chapter 13 trustee agreed to consent order by which dismissal would be vacated and attorney would renotice 341 and confirmation hearing. Because seven weeks after hearing no order on the motion had been presented, court denied motion deeming failure to present order in timely manner an abandonment of the motion. Further, the Court observed that the motion stated no factual basis to warrant relief from the dismissal order under Rule 60(b) and, even if the motion had been brought timely as a motion for reconsideration under Rule 9023, the Debtors failed to assert that the dismissal order was based upon an error of fact or law that would warrant reconsideration.)
(Order denying motion for default judgment. Plaintiff’s allegation that within 174 days of the debtor’s bankruptcy filing, the debtor accumulated $6,900 in cash advances did not invoke 523(a)(2)(C)’s presumption of nondischargeability because the Plaintiff did not demonstrate or even allege that any of the advances were obtained on or within 70 days of filing. Further, no basis for entry of default judgment on the 523(a)(2)(A) claim existed because the complaint lacked specific factual allegations from which a finding of actual, subjective fraudulent intent to establish actual fraud could be inferred.)
After closing of Chapter 13 case prior to discharge, Debtors request disbursement of funds that car creditor did not claim on the ground that the creditor’s debt was paid. Court declines to order disbursement of funds. The Court cannot make a determination that the holder of a proof of claim does not have an interest in unclaimed funds unless either (1) the Application shows, with properly authenticated documentation, that an authorized representative of the entity acknowledges that fact or (2) the entity has had notice and an opportunity to be heard with regard to its interest in the unclaimed funds that complies with constitutional due process. Even if creditor is not entitled to the funds, the Trustee or unsecured creditors might have an interest in the funds. Therefore, they must also have notice of the application and opportunity to object and to be heard.
Order denying summary judgment on 523(a)(2)(A) and (C) claims. Court concluded that the Plaintiff had put forth no evidence nor cited any legal authority for the contention that a “convenience check” was a “cash advance” for purpose of § 523(a)(2)(C). Further, court cannot conclude that the execution of a convenience check to a third party, where there is no evidence that the debtor obtained cash or engaged in an intentional strategy with his wife who was not an obligor, constitutes a cash advance. Because the Plaintiff failed to offer evidence from which the court could draw an inference of the Debtor’s subjective fraudulent intent, summary judgment on the § 523(a)(2)(A) claim was denied as well.
Order denying motion to withdraw as counsel for the debtor. Although new attorney had filed entry of appearance, this fact alone insufficient to relieve original attorney of responsibility of complying with BLR 9010-5. Local rule contemplates does not require motion to withdraw if certificate of consent, signed by the client, the withdrawing attorney and substituting attorney is filed with court. Since parties had not filed certificate of consent, attorney who seeks to withdraw must comply with the procedural requirements of motion to withdraw. The court observed that existence of dual counsel complicates issue of fees because nothing in record to instruct court, creditors, or trustee as to how payment of fees is to be allocated. Court instructed original attorney to file fee application and new attorney to file Rule 2016(b) statement.
Court cannot disallow proof of claim when the objection to it seeks amendment of the claim. Further, citing In re Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004), court declines to require creditor to amend the claim. Debtor may amend objection to state the amount, if any, debt she contends she owes.
(Order denying Movant’s default motion for relief from stay. Proposed order on default motion provided for conversion of the case to chapter 7 and awarded movant fees and costs in conjunction with filing/prosecution of the motion. Default motion denied because (1) nothing in the consent order entitled the movant to conversion of the case without notice and hearing and, thus, motion failed to state a claim for relief (consent order only provided for termination of stay and opportunity for trustee to file motion to convert case); and (2) no legal or factual basis for award of fees asserted. In addition, court observed that inclusion of an award of fees in a routine order submitted to chambers on a default motion where there has been no consent and no hearing is inappropriate and improper.
Court denies objection to claim of IRS for improper service. Court also notes that notice did not comply with BLR 3007-1(c) and Official Form 3007-1(c) because it did not state a specific date for a response.
Application for unclaimed funds disbursed on claim for arrearage on note secured by security deed on debtor’s residence denied, without prejudice, in absence of showing that debt has not been satisfied through sale or foreclosure. Court notes discrepancies in the record concerning the holder to the claim and states, “The Court relies on lawyers to be accurate in their pleadings and proposed orders. The Court cannot possibly check the technical accuracy of every proposed order presented by consent or without opposition, but the Court will not knowingly enter orders such as the ones referenced to if they contain material unexplained discrepancies. For example, the Court will not knowingly enter an order on a motion for stay relief filed by a lender or servicer if the record shows that another entity holds the claim unless the lender or servicer shows good cause for doing so.” Application also denied because parent corporation is not authorized to obtain funds of its alleged subsidiary.