Third party plaintiff’s claim for recovery based on a theory of unjust enrichment is fairly raised by the pleadings, and the record in the case demonstrates that it has been argued and determined with fair notice to the adverse party that it was before the Court. There is no basis for entry of summary judgment on the ground that the unjust enrichment theory had not been properly pleaded.
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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.
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Honorable Paul W. Bonapfel
Presumption of nondischargeability under 523(a)(2)(C) does not apply to balance transfers on a credit card account. To the extent that the presumption applies, it does not establish nondischargeability, but shifts the burden of going forward to the debtor. The ultimate burden of proof remains with the debtor. Creditor's motion for summary judgment denied.
Order on Debtor’s Motion for Summary Judgment, (§ 523(a)(2)(A): To establish actual fraud in the use of a credit card, the Plaintiff must show a debtor’s actual subjective intent not to pay)
Order Denying Debtor’s Motion to Reopen, Motion to Vacate Foreclosure Sale and Remanding Case to State Court, (Order denying debtor’s motions in closed case and remanding the debtor’s attempted removal of a state court dispossessory proceeding (which had been removed multiple times to District Court) to DeKalb County State Court and noting that such remand is not reviewable by appeal pursuant to 28 U.S.C. § 1452(b))
The Debtor’s chapter 13 plan, as amended, met all the requirements for confirmation under 11 U.S.C. § 1325, but the Trustee objected to its confirmation, and requested dismissal of the case, because Debtor was not eligible because he did not receive the credit briefing required by 11 U.S.C. § 109(h) until three days after the filing of his petition. § 109(h) is not jurisdictional and may be waived. Because the Trustee did not timely pursue dismissal of the case due to the Debtor’s ineligibility, the Court declined to dismiss the case and confirmed the plan.
The Opinion considers whether the District Court, under principles of supplemental jurisdiction codified in 28 U.S.C. § 1367, has subject matter jurisdiction of, and if so, whether a bankruptcy judge may hear, a third-party claim for which no independent basis of jurisdiction exists under 28 U.S.C. § 1334(b). The Opinion notes that courts generally agree that a district court has supplemental jurisdiction under § 1367 with regard to its bankruptcy jurisdiction under § 1334 but that they disagree over whether a bankruptcy judge may or may not hear a matter within a district court’s supplemental bankruptcy jurisdiction under§ 157(a). The Opinion concludes that the better view is that the system for the allocation of bankruptcy jurisdiction between a district court and its bankruptcy unit, comprised of the bankruptcy judges, authorizes the referral to a bankruptcy judge of a third-party claim within a district court’s bankruptcy jurisdiction, as supplemented by § 1367, that is asserted in response to a claim arising under the Bankruptcy Code. Thus, although the third-party claim had no independent jurisdictional basis, the Opinion determines that the District Court had supplemental jurisdiction of it and that it was properly referable to a bankruptcy judge under § 157(a) and LR 83.7, NDGa, to hear as a non-core matter, subject to de novo review by the District Court, under § 157(c
Heartwood purchased lien for ad valorem taxes due on the Debtor’s hotel property from DeKalb County under former O.C.G.A. § 48-3-19(a)(1). Debtor filed adversary proceeding against Heartwood under former 11 U.S.C. § 505 to reduce the amount of the tax lien, alleging that the hotel was worth less than the assessed value and that the tax should be reduced. Heartwood filed a third-party complaint against DeKalb County. Heartwood and the Debtor settled, stipulating to the value of the hotel. Based on the stipulation and the absence of other evidence, the Court in its January 10, 2006 Order directed the entry of judgment in favor of Heartwood for the difference in what it paid for the tax lien and its allowed amount based on the stipulated value. On remand from the District Court on DeKalb County’s appeal, the Court vacated the January 10 Order because it had improperly made final determinations in a non-core matter, contrary to 28 U.S.C. § 157(c). The Court then issued its opinion that Heartwood is entitled to partial summary judgment on the legal defenses raised by DeKalb County and scheduled a trial on the remaining issue of the value of the hotel. Following the trial, the Court will issue proposed findings of fact and conclusions of law on all issues.
The Order directs entry of final judgments in adversary proceedings brought by the Trustee to avoid prepetition transfers by the debtor under former O.C.G.A. § 18-2-22 and by judgment creditors seeking a determination that their judgment lien had priority over a postpetition security deed executed by the Debtor with regard to his interest in one of the properties that he had reacquired after the filing of the bankruptcy petition. One transfer was set aside as a voluntary conveyance under § 18-2-22(3). The other was not avoidable because the Court determined the Debtor was not insolvent at the time of the transfer. In this regard, the Court determined that the evidence had not established that the Debtor was actually liable to the judgment creditors, who had obtained their judgment by default. The default judgment was not binding on the transferee because she was not a party to the lawsuit. The Court determined that the judgment lien did not attach to the property prepetition because the Debtor had not owned it and that it did not attach to the interest he acquired postpetition by operation of 11 U.S.C.§ 524.
Court has jurisdiction to rule on Debtor’s motion for reconsideration notwithstanding filing of notice of appeal
Debtor filed chapter 13 petition after his bank placed a hold on his bank account due to suspicion that funds wired into the account did not belong to the debtor. The Debtor filed motions seeking turnover of the property and damages, including damages for violation of the stay. The Court denied the motions because they were improperly served, because an adversary proceeding is required to recover property of the estate, and because the question of whether the stay had been violated determined on whether the bank had acted properly, an issue that the Court would abstain from deciding. The Court granted the motion of the banks for relief from stay to permit determination of issues relating to the account. The Court denied confirmation of the plan because it did not meet confirmation requirements. Finally, because the debtor’s purpose in filing was to obtain a forum for seeking turn-over of the bank account and the assertion of claims against the banks, rather than debt relief, the Court dismissed the case