Debtor whose case is properly filed in one division of Northern District may, under BLR 1070-1, file in another division in the District in which the case of an affiliate is pending.
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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.
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Honorable Paul W. Bonapfel
Order granting motions to transfer venue to the Bankruptcy Court for the Southern District of West Virginia pursuant to 28 USC 1412 based on interest of justice and convenience of the parties. Substantial pending litigation in West Virginia, location of real estate in West Virginia, involvement of local state agencies, and the lack of contacts with Georgia warranted transfer of venue.
Order setting hearing on Plaintiff’s motion for default judgment. Although the statement in the affidavit of counsel that the Defendant “may have Alzheimer’s Disease” raises the possibility that the Defendant may be incompetent, this possibility alone does not preclude a finding of competency for purposes of Rule 55(b)(2). Instead, in the absence of evidence of competence, the proper inquiry is whether a conservator or guardian has been appointed for the Defendant by a probate court because the absence of such an appointment raises a presumption of competency under Georgia law. Although the Court concluded that Rule 55(b)(2) does not impose upon a moving party an independent duty to investigate a defendant’s competency, the Plaintiff has raised the issue of the defendant’s competency. To demonstrate the existence of the presumption in this proceeding in which the Plaintiff has raised the issue of the Defendant’s mental status, the Plaintiff may establish that, in the appropriate probate court, no record of guardianship or conservatorship proceedings with respect to the Defendant exists
Duties of attorney representing debtor in case filed in improper venue upon transfer of case. Where attorney filed chapter 13 case for GA resident in Chattanooga and case was subsequently transferred to Northern District of Georgia, attorney sought to withdraw and debtors sought substitution of new counsel. The Court granted both motions, noting that the motion to withdraw would not have been filed absent client consent to substitution. The Court further observed that if a lawyer files a case for a debtor in an improper district, the lawyer mus be prepared to deal with the consequences of transfer to the proper district if it occurs. If the lawyer who files a case transferred to this district is not a member of the Court’s bar and the client does not retain substitute counsel who promptly appears in the case, the lawyer must file an application to appear pro hac vice in the Northern District of Georgia. Further, the provisions of 11 U.S.C. § 329(b) permit the Court to inquire as to the reasonableness of fees charged by an attorney for a debtor who files a case in a district in which venue is not proper.
Retroactive Rejection of Unexpired Lease and Amount Due Under 365(d)(3). Held: (1) Equitable considerations permit retroactive approval of an unexpired lease as of a date when the landlord is in substantially the same position that it would be if the bankruptcy court had approved rejection on that date. A landlord is ordinarily in such a position on the date when it has received unequivocal notice of the estate’s intent to reject the lease and when it has the opportunity to obtain possession of the premises and to commence the reletting process. In this case, that date is ten days after the filing of the motion, in the absence of any indication that the debtor in possession had affirmatively indicated that the landlord could have possession at an earlier time. (2) The pro rata approach best reflects the Congressional purpose of § 365(d)(3) and, therefore, rent is due on a pro rata basis through April 20.
Order denying plaintiff’s motion for summary judgment on 523(a)(4) claim. Plaintiff’s Michigan default judgment (for violation of Michigan Building Contract Fund Act) not entitled to issue preclusive effect in dischargeability proceeding because neither federal law nor Michigan law would give preclusive effect to a default judgment based on a “true default” where there was no participation by the defendant. As to merits of the 523(a)(4) claim, the Plaintiff had failed to establish necessary element of MBCFA in order for court to determine that debt was a trust fund debt. As a result, summary judgment inappropriate at this time.
Order denying Debtor’s amendment to petition. Individual chapter 7 debtor’s amendment denied to extent it seeks to substitute corporation as a debtor in this case. Although Bankruptcy Rule 1009 permits liberal amendment to pleadings, a bankruptcy case cannot be amended to change the identity of a debtor after the entry of the order for relief.
(Order denying Debtor’s Motion for Contempt for Violation of the Automatic Stay by the Internal Revenue Service/United States of America. IRS’ setoff of 2007 prepetition federal tax refund against 1996 prepetition federal income tax liability pursuant to 26 U.S.C. § 6402(a) did fell within the exception of 362(b)(26) and did not violate the automatic stay. Further, IRS has discretion to determine how such overpayments are applied.
(Order granting Plaintiff’s motion for summary judgment and denying Trustee’s motion for summary judgment. Debtor held legal title to loan in trust for the benefit of the Plaintiff, its equitable owner and, as a result, the loan is not property of the Debtor’s estate. Prepetition transaction did not effect a transfer of anything more than bare legal title to the Debtor for the purpose of permitting it to sell the loan to another purchaser on behalf of the Plaintiff and to remit the sales proceeds to the Plaintiff; it did not transform the Plaintiff’s ownership interest into a security interest.)
Employment and Compensation of R. Scott Cunningham as Counsel for Debtors in Pending Cases. Attorney convicted of felonies in the district court and sentenced to prison filed five new bankruptcy cases on the day his incarceration began and failed to withdraw from representation of debtors in 102 Chapter 13 cases, despite inability to represent clients while in prison. Court imposed sanctions in favor of Chapter 13 Trustee and the Clerk's office to compensate for time and expenses incurred on account of attorney's failure to comply with his professional duties.