Court denied Debtor's motion to dismiss because (1) Plaintiff did not fail to join a necessary party--Plaintiff acquired original lender's rights by virtue of a company merger--and (2) Plaintiff alleged sufficient facts related to Debtor's lack of intent to pay for credit card debts incurred to state a claim for fraud under Code Section 523(a)(2); however, the Court recognized that Plaintiff's theories based on implied misrepresentations, objective intent to pay, and credit card kiting do not state a claim under 523(a)(2).
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 James R. Sacca
Court denied Plaintiff's motion for summary judgment seeking nondischargeability due to alleged (1) fraud under Code Section 523(a)(2)(A) and/or (2) willful and malicious injury under 523(a)(6) because (1) Plaintiff did not show sufficient facts to support a fraud claim and merely relied on a state court judgment which did not address the fraud issue specifically and (2) questions of fact remained regarding whether Debtor's action of tearing up a check made out to him and Plaintiff jointly constituted a willful and malicious injury.
Court denied Defendant's motion for judgment on the pleadings because complaint--which alleged that Defendant garnished Debtor's wages post-petition--alleged sufficient facts to state a claim for violation of the automatic stay, possibly warranting damages under Code Section 362(k).
Court denied Plaintiff's motion to amend complaint and add count seeking denial of discharge under Code Section 727(a)(4) because the deadline for objecting to discharge under Rule 4004(a)had passed and new objection did not stem from the conduct, transactions, or occurrences pled in the original complaint.
Chapter 13 debtor-in-possession is the equivalent of the trustee for purposes of retaining special counsel under 11 U.S.C. section 327(e).
Untimely Rule 4007 motion for extension of time to file an objection to discharge under 11 U.S.C. section 523(a)(2), (4), and (6) denied. Equitable tolling was not justified. Movant did not support its assertions that Debtor actively misled it regarding the cause of action. Further, though a snowstorm prevented movant from filing its complaint on January 11, 2011, it should have filed the very next day the court was open, and filing eight days after the Court reopened was not sufficient. Though it based its decision on the abovementioned factors, the court also discussed whether equitable tolling of the time to file under Rule 4007 is permissible under any circumstance in the eleventh circuit (See Kontrick v. Ryan, 540 U.S. 443 (2004); Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988)).
Denial of discharge under 11 U.S.C. § 727(a)(4)(A) for Debtor's knowing and fraudulent failure to disclose on her SOFA and Schedules $480,000 of income in 2008, 2009 and 2010 and a Rolex watch, among other things.
At trial, Debtor admitted to failing to disclose $120,000 of rental income in 2008. She asserted that another $360,000 of undisclosed deposits into her personal accounts was not from income, but rather gifts and loan repayments. Because the definition of income for purposes of Questions 1 and 2 on the SOFA includes any receipt of money, the Court found the gifts and loan repayments should have been disclosed. Furthermore, in her 2009 divorce settlement agreement, Debtor acknowledged having sufficient income to support her children, but she disclosed no income for 2009 on her SOFA.
Debtor admitted to failing to disclose the Rolex, but testified she did not think she had to do so because it was "aftermarket" and, in her opinion, not worth anything. The Court found it was not Debtor's place to determine whether the watch was worth disclosing.
The Court found these and other omissions to be false oaths under § 727(a)(4)(A).
Order denying motion for relief from stay to complete proceeding under Georgia law to foreclose Debtor’s equity of redemption on residence in connection with a tax sale pursuant to O.C.G.A. §§ 48-4-40 to -48. Three days after Debtor filed her Chapter 13 bankruptcy petition, Creditor served its notice of foreclosure of right to redeem, pursuant to O.C.G.A. §§ 48-4-45 and -46. Because the stay was in place at the time the notice was served, action was void pursuant to Section 362(a). Redemption price was about $13,200 and Debtor scheduled property for $55,000: therefore, Court found Movant was adequately protected. In addition, confirmation of proposed plan had not yet come on for hearing and Movant did not provide evidence to show that the property was not necessary to an effective reorganization. Court also found that the deadline to redeem the property was determined by the state statutory scheme and the expiration of that deadline could only be stayed pursuant to Section 108 and not Section 362.
Order following trial, determining Plaintiff failed to prove Debtors incurred debt through fraud under 523(a)(2)(A). Plaintiff and a company owned by Debtors entered into a receivables financing agreement pursuant to which Debtors' company submitted invoices and requested funding on a recurring basis. Debtors, as officers and guarantors, made certain representations in writing concerning their company's financial condition at the time of the agreement and agreed, at that time, that those representations would also apply to future funding requests, but no written representations were made at the time of the future requests. Plaintiff claimed subsequent requests for funding were fraudulent because, at the time, Debtors did not disclose pending vendor lawsuits or a contemplated Chapter 11 filing. The Court found (1) Debtors representations at the time of the agreement were made in good faith, and the evidence did not show Debtors made any reaffirmations of those representations at the time of their subsequent funding requests; (2) Plaintiff failed to show that Defendants intended to deceive Plaintiff at the time the agreement was signed or at the time of subsequent requests; and (3) even if Debtors had made reaffirmations of their initial representations, they were not actionable under section 523(a)(2)(A) because they and the initial representations themselves were statements with respect to Debtors’ or an insiders' financial condition.
Debtors' Motion to Retain Tax Refund, filed by Joint Debtors, Mohammed Hraga and Renee Hraga, was granted to the extent Mr. Hraga could exempt the refund and denied to the extent he could not, and it was denied to the extent Mrs. Hraga sought an exemption in the refund. Agreeing with the analysis in In re Evans, No. 10-10077-WHD, 2010 WL 6612501 (Bankr. N.D. Ga. 2010), the Court found that because the entire refund was attributable to Mr. Hraga's income, the refund in its entirety was the sole property of Mr. Hraga at the time of the bankruptcy filing and that Renee Hraga was not entitled to an exemption.