Court declines to confirm Chapter 13 plan containing nonstandard provisions with regard to treatment of nonmodifiable mortgage that impose certain affirmative duties on lender. The Court concluded that the provisions were not appropriate because they were either surplusage, impermissibly modified the mortgage, or imposed procedural requirements that neither the Bankruptcy Rules nor the Court’s local rules and procedures contemplate.
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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.
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.
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Honorable Paul W. Bonapfel
Order dismissing complaint for failure to state a claim for relief. Challenges to Bank’s standing to seek relief from stay and validity of its lien did not state a claim for relief because the Bank had not sought stay relief in the case and the Bank had no lien since it was the owner of the property based on a foreclosure. Complaint, supported by a purported cease and desist order and “certified forensic loan audit,” is nonsensical.
Order denying plaintiffs’ motion for judgment on the pleadings. Order granting partial summary judgment entered in district court action not entitled to preclusive effect with respect to 523(a)(19)(A) because partial summary judgment order does not meet “finality” requirement for purposes of issue preclusion.
Creditor timely filed action to determine nondischargeability of debt under sections 523(a)(2), (a)(4), and (a)(6) based on consent judgment in the District Court in which the Debtor acknowledged that the debt would be excepted from discharge under those sections but failed for over two years to serve summons and the complaint. On the Debtor's motion to dismiss and the Creditor's motion to extend time for service under Fed. R. Civ. P. 4(m), applicable under Fed. R. Bankr. P. 7004(a), the Court concluded that good cause for an extension of time did not exist but that, in its discretion, it would extend the time for service for ten days in view of the fact that the Creditor's claim would otherwise be time-barred, the Debtor would not be prejudiced other than by having to defend the lawsuit,
and the Debtor should not be able to use a procedural deficiency to avoid defending on the merits when he had expressly agreed that the debt would not be dischargeable in the earlier litigation.
NOT INTENDED FOR PUBLICATION
Plaintiffs in a pending state court action in which the debtor and others are co-defendants obtained an order for the Rule 2004 examination of the debtor. The other defendants then filed a motion to prohibit the examination as an attempt to obtain discovery in the state court action after the time for discovery had expired. The Court denied the objection.
Although only a debtor may seek to defer entry of discharge under Rule 4004(c)(2), the court may enlarge the time to file a reaffirmation agreement under Rule 4008(a). The effect is the same since Rule 4004(c)(1)(J) provides that, upon expiration of deadlines for objecting to discharge or filing a motion to dismiss, a the court shall grant a discharge unless a motion to enlarge the time to file a reaffirmation agreement is pending.
Order granting chapter 13 debtor’s motion to strip wholly unsecured second priority deed to secure debt, but noting that because the property is owned jointly by the debtor and his non-filing spouse from whom he is separated, only his interest in the property is property of the estate. As a result, the lien continues to exist on the non-filing spouse’s interest in the property.
NOT INTENDED FOR PUBLICATION
Motion or complaint to strip off wholly unsecured junior lien in chapter 13 must be predicated on a chapter 13 plan that provides for such a modification. Because plan was silent as to treatment of claim, motion to strip off unsecured junior lien on residence in chapter 13 denied without prejudice.
NOT INTENDED FOR PUBLICATION
Chapter 13 debtor contends that he has funds in a bank account that have been attached by a creditor who may be a branch of the German government. The Court has exclusive jurisdiction of the debtor's property under 28 U.S.C. 1334(e)(1) and because the account is in the United States no question of the extra-territorial reach of this jurisdiction is presented. Because jurisdiction of the property of the estate is in rem, any sovereign immunity does not preclude exercise of jurisdiction. The bank is obligated under section 542(b) to pay the funds to the trustee; if the creditor has an interest in the funds, the funds constitute cash collateral that cannot be used without providing adequate protection. In order to facilitate administration of the case, the court orders payment of the funds in the account into the registry of the court, with any liens to attach to the funds, pending further order and enters a bar order requiring the bank and the creditor to assert any interest in the account, in the absence of which any such interest will be deemed waived and forever barred.
Order denying motion to dismiss for insufficient service of process and insufficient process. A motion asserting these defenses must be made before pleading and, because the defendant did not raise it and preserve it as an affirmative defense in answer filed 4 months earlier, the defenses were waived.