Proposed Findings of Fact and Conclusions of Law with respect to the Debtor’s non-core Truth in Lending Act claim for review de novo by the District Court. Court found that the creditor’s disclosure of the contract’s payment schedule (semi-monthly payments with only the starting date of the semi-monthly payments)does not comply with the requirement to disclose “the number, amount, and due dates or period of payments scheduled to repay the total of payments” as required by 15 U.S.C. § 1638(a)(6). However, the court found the defendant in good faith relied on Regulation Z, 12 C.F.R. § 226.18(g), and the accompanying Commentary of the Federal Reserve Board in its disclosure of payment terms and that based upon the defendant’s reliance on Regulation Z and the Board’s Commentary, it is shielded from liability pursuant to the good faith defense of 15 U.S.C. § 1640(f).
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Honorable Paul W. Bonapfel
The Defendant admitted receipt of preferential transfers under 11 U.S.C. § 547(b) and raised the ordinary course of business defense of § 547(c)(2). The payments were later than 88% of the payments in the prepreference period, but not as late as a few. Under the pre-BAPCPA law that applies in this proceeding, the Defendant must show that the transfers were in the ordinary course of business as between the debtor and the transferee, § 547(c)(2)(B), and that the transfers were made according to ordinary business terms, § 547(c)(2)(C). The Court found that the payments at issue were made according to ordinary business terms in the industry and thus met the (c)(2)(C) requirement. With regard to the (c)(2)(B) requirement, the Court determined that preferential payments within the historical range that vary significantly from the typical payment pattern during the historical period are ordinary for purposes of § 547(c)(2)(B) only if the reasons for the variation in both the historical and preference periods are similar. Because the defendant had not shown the reasons for the variations from the typical pattern, the Court determined that the defendant could not invoke the ordinary course defense. The Court exercised its discretion to deny prejudgment interest requested by the trustee based on the defendant’s credible, good faith affirmative defense that, although not successful, nevertheless presented a close and difficult question for resolution.
Chapter 7 Trustee avoided prepetition transfer of debtor’s undivided interest in real property and thereafter sought to abandon the interest because of the burden and expense of attempting to market the problem due to title difficulties. A judgment creditor objected. The court concluded that abandonment would not reverse the avoidance of the transfer, that the effect of abandonment is that abandoned property reverts to the debtor, and that the debtor could not claim an exemption in it because he had voluntarily transferred it, and that the judgment lien consequently would, upon abandonment, attach to the undivided interest. Because the judgment lien creditor held substantially all of the debts in the case and had a remedy that could be pursued without burdening the estate, the Court permitted the abandonment. The Order also discusses the effect of the judgment lien on other property of the debtor, concluding that it could not attach to property acquired by the debtor after the filing of the petition or to exempt property.
Court discussed duties of attorney with regard to credit briefing requirements of § 109(h).
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.
(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.