The debtor and the creditor consented to judgment in the District Court and to a finding of fact that the debtor had "wrongfully and knowingly" converted creditor's property. The consent judgment does not have issue preclusive effect in dischargeability litigation under 11 U.S.C. section 523(a)(6) because the finding of fact does not establish that the debtor acted without just cause or excuse, which is necessary in order for conduct to be "willful and malicious."
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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
Court denies motion for protective order with regard to request for second deposition under Rule 30(b)(6) where second deposition involves subject matter outside the knowledge of first Rule 30(b)(6) deponent and party opposing discovery declined to identify employee with such knowledge; party opposing discovery required to show cause why court should not award expenses, including attorney’s fees, to party opposing motion for protective order.
Order granting motion to dismiss 523(a)(2), (3), (4), (6) complaint pursuant to Rule 12(b)(6) for failure to state claim upon which relief may be granted.
Watson, Ch. 7 Trustee v. Powell, et. al. - Adversary Proceeding No.: 10-6349-PWB,
Chapter 7 Trustee’s amended complaint seeks to recover allegedly fraudulent transfers and the Defendants moved to dismiss it for failure to state a claim on which relief can be granted because it did not allege existence of creditor with a claim arising prior to transfers. O.C.G.A. § 18-2-74(a)(2)(A) permits a post-transfer creditor to avoid, as constructively fraudulent, a transfer for less than reasonably equivalent value that occurs when the debtor was engaged or was about to engage in a business or transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. Motion to dismiss denied.
NOT INTENDED FOR PUBLICATION
Chapter 13 Debtors failed to give notice of filing to Pawnbroker to which they had pawned two motor vehicles. After the Pawnbroker, without knowledge of the bankruptcy case, repossessed them, Debtors sought return of the vehicles and damages on the ground that the Pawnbroker violated the automatic stay. The Court concluded that the pawned vehicles were no longer property of the estate at the time of their repossession because the Debtors had not taken affirmative steps to redeem them in accordance with Georgia’s pawnshop laws and that, consequently, the Pawnbroker did not violate § 362(a)(3)’s prohibition on obtaining possession of property of the estate. Section 362(a)(3) also prevents an entity from obtaining possession of property from the estate. The Court declined to decide whether this provision applies when a Chapter 13 debtor is in possession of non-estate property with no legal basis for such possession because, in the circumstances of this case, the Pawnbroker was entitled to annulment of the stay retroactively to the date the Pawnbroker repossessed the pawned vehicles. Consequently, the debtors were not entitled to return of the vehicles or to any damages.
Based on credible and uncontroverted evidence of value of real estate, court confirms chapter 11 plan providing "dirt for debt" treatment of one secured creditor over its objection pursuant to the "cram-down" provision of 11 U.S.C. section 1129(b).
Chapter 7 discharge does not affect lien on debtor’s residence. Lender did not violate discharge injunction by proceeding with foreclosure; by sending a letter to “occupant” providing information about imminent foreclosure and procedures for an occupant to apply to continue to live in the property; or by advising debtor that she is not eligible for the Home Affordable Mortgage Program because her personal liability for the debt was discharged. Court denied Debtor’s motion to reopen the case to assert claims against the lender because she had shown no colorable basis for the grant of any relief if the court reopened it. NOT INTENDED FOR PUBLICATION
Individual, who had brought postdischarge lawsuit against debtor and mortgage lender sought to reopen the debtor’s bankruptcy case to obtain reconsideration of stay relief order. In denying the motion, the Court noted that the stay relief order did not determine any substantive rights or have any preclusive effect in the pending litigation. The court also questioned whether the debtor’s attorney could properly decline to discuss with her the effect of her bankruptcy case on the individual’s actions in bringing the lawsuit against the debtor. NOT INTENDED FOR PUBLICATION
Trustee’s complaint sought to avoid fraudulent or preferential transfers of $18,700, together with additional transfers made within applicable time periods and“reserved” the right to amend to assert additional claims. The Court concluded that because the complaint put the defendant on notice of the trustee’s intent to recover all avoidable transfers, the trustee did not have to amend the complaint to assert avoidance claims in excess of those originally stated. Alternatively, any amendment to the complaint would relate back. Because the defendant had not timely moved to dismiss the complaint for failure to state a claim on which relief can be granted, the court did not decide whether it met requisite pleading standards. NOT INTENDED FOR PUBLICATION
The Court avoided a creditor’s judgment lien under 11 U.S.C. § 522(f) only to the extent that it impaired an exemption in the one-half interest originally titled in the debtor’s name. The Court determined the amount of the lien that was not avoidable with regard to that one-half interest and ruled that the lien was fully enforceable against the one-half interest titled of record in the name of the debtor’s deceased wife. The Debtor did not provide information from which the court could determine whether the debtor inherited some or all of his deceased wife’s interest. NOT INTENDED FOR PUBLICATION