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.
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Honorable Paul W. Bonapfel
Because the Plaintiff’s request for entry of money judgment was founded on the avoidance of transfers, entry of default judgment must be made by court under Rule 55(b)(2), and not clerk under Rule 55(b)(1), but default judgment could not entered presently due to failure to comply with Servicemembers Civil Relief Act.
Order denying the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(8). Debtor had prior case, filed over seven years earlier as a chapter13 and converted and discharged as chapter 7. Debtor contended that, because she filed the prior case under a chapter 13, § 727(a)(8) is inapplicable. The court concluded that this argument ignores the plain language of both § 727(a)(8) and § 348(a). Section 727(a)(8) does not require that the prior case be commenced under chapter 7; it only requires that the debtor has been granted a discharge under chapter 7 in a case commenced within the previous 8 years. Secondly, courts have construed § 348(a) to mean that a case that has been converted to chapter 7 from chapter 13 relates back to initial filing date for purposes of discharge.
Based on finding that the Debtor did not authorize the filing of a Chapter 13 petition, the Court vacates earlier order of dismissal and dismisses the case as a fraudulent and unauthorized filing for which the Debtor was not responsible. Court cannot direct credit reporting company to change records but authorizes the reporting of the petition as being fraudulent and without the debtor’s authority. Court directs copies of the Order to be sent to the U.S. Attorney,. U.S. Trustee, and State Bar of Georgia for further investigation as to whether conduct of lawyer and person who submitted the petition was fraudulent, criminal, or otherwise improper.
The Internal Revenue Service filed a proof of claim for unpaid taxes for the years 2001 through 2007. The proof of claim indicates that tax returns were filed for all years except 2007. The Debtors filed an objection to the claim, asserting that they have now filed tax their tax return for 2007 and that they received a tax refund of $950 that the IRS applied to the unpaid balance of other taxes. For some unexplained reason, they conclude that this set of circumstances entitles them to disallowance of the entire proof of claim. Although IRS did not respond to the objection or appear at the hearing, no basis for disallowance of the claim exists. The objection is denied, without prejudice to the rights of the debtors to renew the objection and to seek allowance of the IRS’s claims in the proper amount.
A Chapter 13 debtor must act in good faith in connection with the claims resolution process. IRS filed a proof of claim for taxes for 2005 through 2007, noting that the Debtors had not filed returns for those years. Debtors objected to the claim on the ground that they have now filed tax returns. Disallowance is not proper given that debtors known their tax liabilities. Objection denied, without prejudice to renew objection and to show seek allowance of claim only in amount that Debtors actually owe according to their tax returns.
Order allowing $1,500 of $3,500 chapter 13 fee request, without prejudice to the attorney’s right to seek further compensation if circumstances warrant or to file a renewed application for the currently disallowed portion. The Court concluded that the Debtor’s attorney failed to demonstrate that a fee of $3,500 for this case was reasonable, taking into account all of the factors that are relevant to determination of a reasonable fee under § 330, Rule 1.5(a) of the Georgia Rules of Professional Conduct, and the Johnson factors. The court reasoned that “Fair compensation is a function of objective factors and subjective factors unique to each case. It is the role and responsibility of the debtor’s attorney to consider such factors in calculating her fee, and articulate such factors if the fee is challenged.” (Order at 13).
When attorney declines to make certifications required in connection with reaffirmation, attorney’s responsibility is to assist client in presenting (but not advocating) the agreement to the court for review. The attorney does not have to withdraw as a condition to the court’s review of the agreement.
A plaintiff cannot voluntarily dismiss an objection to discharge without providing notice of the proposed dismissal to the trustee, the Unites States Trustee, and other parties as the Court directs. Fed. R. Bankr. P. 7041. Moreover, when a claim that a debt is nondischargeable is joined with an objection to discharge, the Court ordinarily does not permit settlement of the dischargeability matter unless the discharge objection is first resolved. Kay v. Parker (In re Parker), 2003 WL 21703528 (Bankr. N.D.Ga. 2003)
The Court has the discretion to determine whether information is “required” under § 521(a)(1), even when such inquiry occurs after the 45 day deadline. Court scheduled hearing to determine whether debtor, whose schedules reflect that she is self-employed is required to file “copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor” or whether, to the extent the Debtor was exclusively self-employed during this time period, the Court may “order otherwise” and excuse this filing requirement