Case No. G11-23744-REB, (Richard J. Steffy v. State of Arkansas ex rel., Dustin McDaniel, Attorney General), Adversary Proceeding No. 12-2041; entered on 2012-11-21; Docket No. 20. (In Chapter 7 case, Defendants filed motion for partial summary judgment on Plaintiff-Debtor's complaint seeking determination of dischargeability concerning claims for restitution and civil penalties arising in state court litigation. Court decided Defendants' pursuit of its claims came within exception to automatic stay under 11 U.S.C. Section 362(b)(4) in the enforcement of state consumer protection laws. Court also decided Defendants entitled to preclusive effect on their claim pertaining to civil penalties as awarded, and same were excepted from discharge under 11 U.S.C. Section 523(a)(7). Court further determined that portion of award relating to restitution was not excepted from discharge.
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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)
(Anthony T. Bergalowski v. Military Star),(Court granted Defendant's motion to dismiss Plaintiff-Debtor's complaint alleging involuntary preferential transfer via post-petition garnishment of federal income tax refund, concluding Defendant entitled to exercise right of setoff. Defendant's operating entity (AAFES) and I.R.S. considered single entity for purposes of exercising right of setoff as preserved under 11 U.S.C. Section 553(a), and Defendant's post-petition action regarding same is excepted from automatic stay under Section 362(b)(26)).
(Margie Lynn Wellborn v. Georgia Dep't of Revenue),(Court granted summary judgment in favor of Defendant on grounds that 2008 tax return was unfiled as of petition date and thus excepted from discharge under 11 U.S.C. Section 523(a)(1)(B)(i), and that although 2007 income tax liability could be discharged, Defendant's associated tax lien survives and cannot be stripped down to the value of property standing as security for said claim.)
(Eric E. Harris v. Georgia Dep't of Revenue),(Court granted Defendant's motion to dismiss in part concluding that because Debtor failed to file certain state income tax returns as due after three years before petition filing date and said tax liability was, therefore, entitled to priority treatment under 11 U.S.C. Section 507(a)(8)(A)(i), the claim was excepted from discharge under Section 523(a)(1)(A)).
(Court sustained objection to exemption claim holding that joint Debtor spouse could not exempt an interest in certain property using her rights under 'wildcard' provision of O.C.G.A. Section 44-13-100(a)(6), because said property constituted sole inheritance of other joint debtor. Debtors could not show demonstrative action taken to convert same to marital property as required under Georgia law. Thus, exemption limited to the inheriting debtor's right alone of $5,600.00.)
(Gregory Blosser v. James D. Boggus, Jr.),(Plaintiff sought determination that indemnification claim should be excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) and 523(a)(6). Court denied Defendant-Debtor's motion to dismiss, finding that the facts were stated with sufficient particularity to support plausible claim for relief. Court also denied Defendant-Debtor's motion for summary judgment on count regarding Section 523(a)(2)(A), concluding that Plaintiff showed existence of a fact issue on requisite intent to defraud in connection with breach of promise in obtaining a release in a settlement agreement between the parties. In addition, Court concluded sufficient issues existed concerning legal effect of merger clause in interpreting the agreement and in the admissibility of evidence of pre-contractual negotiations. Court granted summary judgment in favor of Defendant-Debtor on count relating to Section 523(a)(6), concluding allegations were too remote to create fact issue of willful and malicious injury. Claim under Section 523(a)(2)(A) was set for trial, but matter was subsequently dismissed via consent order.)
(Timothy D. Wilson and Penny D. Wilson v. Brian Durant), Contested Matter; (Court granted motion to avoid judicial lien under 11 U.S.C. Section 522(f), concluding that even if Debtors could not claim homestead exemption in certain property because it was not their residence at time of filing of their bankruptcy case, they were still entitled to claim their 'wildcard' exemption in underlying property.)
(First Financial Services, Inc. v. Corey Benjamin Tallant),(Movant filed motion for reconsideration of Court's prior Order entered on 2011-12-06, Docket No. 19, denying Movant's motion for relief from stay and granting Debtor's motion to avoid judicial lien. Court denied motion for reconsideration reaffirming its earlier conclusion that perfecting judicial lien on motor vehicle under Georgia law (O.C.G.A. Section 40-3-53) does not thereby change the legal character of same into a consensual security interest or statutory lien that is not subject to avoidance. Movant misreads Court's ruling in (In re: Brian Edward Fox), Case No. G07-20069-REB (Fox v. Lakeview Publishing.com, Inc.), Contested Matter; entered on 2009-09-29, Docket No. 63).
(Charles Jordan Hawkins and Nathaniel Hawkins v. Steven Thomas),(Plaintiffs sought determination that state court damages award was nondischargeable under 11 U.S.C. Section 523(a)(4), based on findings of state court that in turn, established Debtor's defalcation while acting in a fiduciary capacity as a co-trustee. After trial and submission of additional briefs, Court held that damages award would be excepted from discharge on grounds as alleged. The Court concluded that as consistent with Eleventh Circuit's recent ruling in Bullock v. Bank-Champaign, N.A. (In re Bullock), _ F.3d _, (2012), proof of fraud is not necessary, and defalcation is shown by evidence of willful neglect of duty to oversee and protect trust funds, which rises above mere negligence. This Order is currently on appeal.)
(Anne Wilson Parham and Lawrence Neil Parham v. Suzanne Harris-Onaxis and Lee Harris-Onaxis),(Court denied Debtors' motion for reconsideration of Order entered on 2011-12-08 (Docket No. 16 ) granting summary judgment in favor of Plaintiffs under 11 U.S.C. Section 523(a)(2). Court reaffirmed its conclusion that preclusive effect accorded findings in Alabama state court order was appropriate to establish entitlement to relief by Plaintiffs. This Order is currently on appeal before the U.S. District Court).