Using strong-arm powers (11 U.S.C. Sections 544(a)(3) and 551), Trustee sought to avoid Bank's security interest on grounds of failure to file security deed in proper county as required by Georgia law. See O.C.G.A. Sections 44-2-1, 44-14-67(c), 14-14-4, and 14-14-67(b)(3). Court rejected Bank's arguments concerning inquiry notice and equitable subrogation. Bank's motion for summary judgment denied and judgment granted for Trustee.)
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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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Judge Robert E. Brizendine (Retired)
In Chapter 13 case, Court overruled objections to claim, finding that creditor had filed sufficient proof of assignment of underlying debt from originating lender. Court also concluded that standard under Federal Rule of Bankruptcy Procedure 3001 according prima facie validity to claim that is in substantial compliance with said Rule takes precedence over asserted state evidence law standard regarding assignment chain of title, which impermissibly heightens creditor's evidentiary burden in connection with such claim. Based on review of authentication and other documentation filed with the claim and Debtor's arguments challenging same, Court concluded Debtor did not rebut presumption of validity. This Order is currently on appeal.
NOT INTENDED FOR PUBLICATION
In Chapter 13 case, Court granted Trustee's motion to dismiss case for various reasons including debtor's pattern of failing to disclose fully and timely information pertaining to increases in income, including that of his spouse whom he married shortly after filing his bankruptcy case, and who played substantial role in contributing to, and management of, their household finances. In addition, Debtor's proposed post-confirmation modification of plan evidenced lack of good faith under 11 U.S.C. Section 1325(a)(3). See also 11 U.S.C. Section 1329(a) & (b)
NOT INTENDED FOR PUBLICATION
In Chapter 13 case, Court denied debtors' motion to avoid liens and determine value of security where debtors offered new appraisal and sought retroactive revision of valuation of underlying property serving as collateral that had been fixed fiver years earlier in their confirmed plan. Court found debtors did not present sufficient reasons to outweigh strong interest in finality of confirmation order under 11 U.S.C. Section 1327(a) and treatment of lender's claim therein, and, therefore, debtors could not modify valuation or have claim reclassified at such late date.
NOT INTENDED FOR PUBLICATION
Supplemental Judgment holding division of property by state superior court in post-divorce decree contempt order, upheld on appeal by Georgia Supreme Court, dischargeable under 11 U.S.C. Section 523(a)(5), since 11 U.S.C. Section 1328(a)(2) omits any reference to 11 U.S.C. Section 523(a)(15), and distinction between alimony, maintenance, and support payments and property division remains relevant in cases under Chapter 13, as well as analysis of intent of state court order.
NOT INTENDED FOR PUBLICATION
(In Chapter 11 case, Court denied Plaintiff's motion to disqualify counsel for Defendants on grounds of impermissible conflict of interest under Rules 1.7 and 1.9 of the Georgia Rules of Professional Conduct.)
In Chapter 13 case, Court denied Plaintiff-Debtor's motion to amend order dismissing his complaint, concluding that Debtor failed to establish excusable neglect in filing amended complaint on timely basis when confronted with motion to dismiss.
(In Chapter 7 case, Court denied motion for summary judgment on complaint asserting cause of action under 11 U.S.C. Section 523(a)(2)(A) finding issues of fact existed regarding Debtors' knowledge and intent in connection with presentment of photocopy of check that Plaintiff bank paid.)
Following trial in Chapter 7 case, Court held that Plaintiffs failed to prove grounds for denial of discharge under 11 U.S.C. Section 727(a)(4)(A) (knowingly making false oath) or 727(a)(5) (failing to explain satisfactorily losses or deficiencies of certain alleged assets). Court further held Plaintiffs did not establish basis for holding that state court judgment awarding damages for breach of reimbursement agreement, made following allegations of Plaintiff former business associates that Debtors misdirected monies of joint business entity, should be excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) in terms of required showing of Debtors' fraudulent intent with respect to same. Court held as well that Plaintiffs did not make case under Section 523(a)(4), since relationship of parties in LLC did not offer basis for finding necessary fiduciary relationship as required under federal standard.
In Chapter 13 case, Court determined whether certain obligations set forth in divorce decree constituted non-dischargeable award of alimony or dischargeable division of property under 11 U.S.C. Section 1328(a)(2), which makes reference to 11 U.S.C. Section 523(a)(5), which in turn refers to domestic support obligations as defined in 11 U.S.C. Section 101(14A). Court made inquiry into evidence of state court's intent regarding nature of each debt at issue by examining overall structure of award and other factors because 11 U.S.C. Section 1328(a)(2) does not incorporate 11 U.S.C. Section 523(a)(15) and its inclusion of property settlement obligations arising in marital dissolution proceedings as coming within an exception to discharge.