(Order denying motion to dismiss for failure to state a claim. Complaint alleging credit card debt excepted from discharge pursuant to section 523(a)(2) states claim for relief on assertion that debtor engaged in credit card kiting scheme. To extent complaint relies on implied representation theory, however, complaint does not state a claim for relief.)
You are here
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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Honorable Paul W. Bonapfel
(Order denying Defendant’s motion to dismiss. While BLR 7041-1(a) permits dismissal for want of prosecution if proceeding has been pending for more than six months without any substantial proceedings having been taken, court declines to exercise discretion to dismiss since Plaintiff indicates it is ready to proceed to trial. No basis for dismissal on the merits because there is factual dispute and defendant’s unverified assertions in the motion are not evidence.)
(Bankruptcy court abstains pursuant to 28 USC 1334(c)(1) from hearing claims asserted by debtor regarding foreclosure and eviction asserted in adversary proceeding and dismisses complaint. Abstention warranted because chapter 7 debtor did not list claims as assets, all claims asserted are under non-bankruptcy law and have no bearing on administration of chapter 7 estate, there has been extensive prepetition litigation between the parties, and automatic stay has been terminated).
"Mailbox rule" applies such that paper filed by prisoner, construed as a motion containing a request for determination of dischargeability of debt subject to 11 U.S.C. 523(c), that the prisoner delivered to prison authorities for mailing to the Court prior to expiration of the deadline of Fed. R. Bankr. P. 4007(c) is timely filed, even though the Clerk's office did not receive and docket it until after expiration of the deadline. Court grants the creditor 30 days to convert the motion into an adversary proceeding by filing a complaint and paying the filing fee.
Where judgment lien on exempt property is partially avoided under section 522(f) in a Chapter 7 case, the creditor is entitled to recover the amount of the debt that remains enforceable under the portion of the lien that is not avoided, even if the creditor enforces the lien through a judicial sale that does not result in the realization of replacement value such that the debtor does not receive the full amount of the exemption from the proceeds. A judgment creditor is not entitled to recover interest or expenses of sale except to the extent that sales proceeds exceed the sum of the enforceable debt and the debtor's exemption. Interest runs from the date of the bankruptcy petition on the amount of the debt that remains enforceable by virtue of the unavoided lien.
In non-core proceeding, the Trustee for a debtor who been engaged in a Ponzi scheme sought coverage under an investment management insurance policy, claiming that the insured debtor had invested money of investors in risky index options rather than in common stocks of U.S. companies, that investors had claims against the Debtor as a result, and that the insurance policy covered the Debtor's liability to the investors. The Trustee requested a jury trial.
The defendant insurer filed motions for summary judgment and to exclude the testimony of an expert witness.
Court enters proposed findings of fact and conclusions of law with regard to all pending issues to insure that District Court has jurisdiction to conduct de novo review of all appropriate issues pursuant to 28 U.S.C. s 157(c)(1) and Bankruptcy Rule 9033. Court proposes that the District Court grant defendant insurer's motion for summary judgment on one issue and deny it on all others and that the District Court deny defendant's motions relating to exclusion of expert testimony. The basis for the Court's proposed entry of summary judgment in favor of the defendant is that an insurer is entitled to rescind an investment management insurance policy because of the Debtor insured's omission or misrepresentation of a material fact when the insured was operating a Ponzi scheme.
Based upon prepetition foreclosure and extensive litigation between parties, Court abstains from hearing chapter 7 debtor’s nonbankruptcy claims against lender pursuant to 28 U.S.C. 1334(c)(1).
Order granting motion for default judgment determining that debtor’s obligation to pay attorney’s fees for former spouse pursuant to divorce decree is “support” and excepted from discharge pursuant to 523(a)(5).
Court denies, without prejudice, application for unclaimed funds in Chapter 13 case paid on account of claim secured by motor vehicle in absence of showing that debt still exists and an accounting with regard
to any disposition of the collateral.
Court denies, without prejudice, application for unclaimed funds in Chapter 13 case paid on account of claim secured by motor vehicle in absence of showing that debt still exists and an accounting with regard
to any disposition of the collateral.