Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing.
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Honorable Paul W. Bonapfel
Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing.
Court issues show cause order to Chapter 13 debtor's attorney for failure to appear at hearing
Order granting Chapter 13 Debtor’s motion to dismiss 523(a)(6) complaint for failure to state claim. Section 523(a)(6) claim not excepted from a chapter 13 discharge and facts as alleged did not state claim under 1328(a)(4).
Order denying motion to stay post-judgment discovery and collection pending appeal.
Order (1) denying Litton Loan Servicing, LP’s motion to declare tax sale void and (2) retroactively annul the stay. During the pendency of the Debtors’ case, Rockdale County Georgia conducted a tax sale as to the Debtors’ residence at which American Lien Fund, LP was the purchaser. Neither Rockdale County nor ALF had notice of the bankruptcy case. The Debtors had not opposed stay relief by Litton. Litton, the holder of a deed to secure debt on the Debtor’s residence, requested that the Court set aside the tax sale as being void in violation of the stay. ALF sought retroactive annulment of the stay. Held: (1) Litton has standing to seek a determination that an act in violation of the stay is void; (2) the tax sale was not excepted from the automatic stay pursuant to section 362(b)(24) because ALF was not a “good faith purchaser” as contemplated by 549(c); (3) retroactive annulment of the stay to validate the tax sale to the extent valid under state law was warranted. The Court found that the Debtor had no interest in the property and it was of no value to the estate; neither Rockdale County nor ALF had notice of the bankruptcy; and Litton had failed to protects legal and financial interest in the property by recording its interest. Had Litton recorded its assignment, it would have received notice of the tax lien by Rockdale County. Litton’s remedy remained redemption in accordance with Georgia law.
Chapter 7 trustee sought excess proceeds resulting from foreclosure of debtors’ residence which were the subject of an interpleader action in Cobb County, Georgia. Cobb County Superior Court attempted to transfer case and interpleader funds to bankruptcy court. Trustee asserted interest derived from stay relief order which provided that excess proceeds from foreclosure should be paid to the chapter 13 trustee for the benefit of the estate. Held: Registry funds retained, but file returned to Cobb County because bankruptcy court lacks jurisdiction since no party sought removal of the action. Court found that it was appropriate to permit the superior court, which has concurrent jurisdiction with regard to disputes concerning the funds, to adjudicate issues of entitlement to funds if it deems it appropriate to do so. Court questioned advisability of provision in the stay relief order which provided for excess proceeds to be paid to the [chapter 13] trustee for the benefit of the estate which the chapter 7 trustee relied on for a basis for seeking the funds, noting that even if the trustee had received the surplus funds from the foreclosure sale, the trustee would have had the responsibility to hold them for the benefit of whoever was entitled to them under applicable law; the surplus funds could not become unencumbered property of the estate.
Order denying Plaintiff’s motion for summary judgment. Plaintiff’s objection to discharge claims under §§ 727(a)(2) and (a)(4) fail to state claims for relief. Complaint’s alleged facts that the debtor, behind on her mortgage payments, executed a warranty deed conveying her residence to the Plaintiff; that Plaintiff agreed to pay the past due mortgage balance; that the debtor agreed to lease the property back for twelve months; and that the debtor defaulted on rent payments to the Plaintiff and then filed a bankruptcy case on eve of eviction proceedings commenced by the Plaintiff, are insufficient to support a finding of intent to hinder, delay or defraud under § 727(a)(2). Debtor’s disclosure of incorrect social security number which was later corrected and multiple disclosures in schedules regarding residence do not support finding of “false oath” under § 727(a)(4) where Plaintiff has offered no evidence of intent.
Order and Notice directing eCast Settlement Corporation to file statement explaining why it failed to comply with Bankruptcy Rule 3001(e)(2); what procedures it follows to insure compliance with Rule 3001(e)(2); and the reasons that the amount it states in its unsecured proof of claim exceeds the amount in the alleged assignor’s claim.
Contract for purchase of debtor’s real estate pursuant to § 363, executed in accordance with bidding procedures by “stalking horse” bidder who was also successful bidder at auction sale, provided for earnest money of $ 1 million and for the debtor to retain the earnest money as liquidated damages if the stalking horse bidder defaulted. The stalking horse bidder failed to close, and the debtor sold the property to the back-up bidder for $100,000 less. The stalking horse bidder contends that the debtor is not entitled to retain the earnest money because the liquidated damages provision is an unenforceable penalty under Georgia law. On cross-motions for summary judgment, the court held that a bidder participating in a bankruptcy sale is bound by the orders governing the sale and that the liquidated damages provision is enforceable as a judicially approved material term of the sale. Alternatively, the court ruled that the liquidated damages provision is not a penalty under Georgia law. The court declines to decide, on motions for summary judgment, other issues relating to the debtor’s alleged defaults that, the stalking horse bidder contends, excused its performance.