Order granted judgment on the pleadings making state court judgment for slander of title nondischargeable under 11 U.S.C. § 523(a)(6)
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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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Judge Joyce Bihary (Retired)
Honorable Mary Grace Diehl (Recall)
Denying Defendant’s motion to dismiss when Plaintiffs had insufficient notice of Defendant’s bankruptcy case and was therefore not limited by the Rule 4007(c) deadline for filing complaints.
Granting Plaintiff’s motion to amend complaint. Permitting Plaintiff to join additional defendants when Plaintiff alleged that the proposed defendants received proceeds from fraudulent transfers made by the original defendants. Permitting Plaintiff to amend and add claims when there was no prejudice to Defendants because Plaintiff still had time to initiate new proceedings against Defendants.
Granting in part and denying in part Plaintiff’s motion for summary judgment. Granting Plaintiff’s motion for summary judgment when the undisputed evidence showed that Defendant had received payments on a debt properly owed to Plaintiff and that Plaintiff, as a co-obligor, paid off debts that were traceable to Defendant’s use of credit. Denying Plaintiff’s motion for summary judgment when Plaintiff’s exhibits did not demonstrate the amount of inter-company debt Plaintiff claimed.
Denying Creditor’s motion for relief from stay when Creditor failed to establish a prima facia case showing that Creditor held a valid security interest in Debtors’ property. The Creditor’s only evidence of a possible security interest included an unsigned security agreement marked “copy,” a signed loan agreement that referred to the existence of separate documents creating security interests, and the loan officer’s testimony that he remembered the Debtors signing the security agreement. The Court found insufficient evidence of the Debtors’ intent to create a security interest in favor of Creditor in Debtors’ personal property.
Honorable Paul W. Bonapfel
Retroactive Rejection of Unexpired Lease and Amount Due Under 365(d)(3). Held: (1) Equitable considerations permit retroactive approval of an unexpired lease as of a date when the landlord is in substantially the same position that it would be if the bankruptcy court had approved rejection on that date. A landlord is ordinarily in such a position on the date when it has received unequivocal notice of the estate’s intent to reject the lease and when it has the opportunity to obtain possession of the premises and to commence the reletting process. In this case, that date is ten days after the filing of the motion, in the absence of any indication that the debtor in possession had affirmatively indicated that the landlord could have possession at an earlier time. (2) The pro rata approach best reflects the Congressional purpose of § 365(d)(3) and, therefore, rent is due on a pro rata basis through April 20.
Order denying plaintiff’s motion for summary judgment on 523(a)(4) claim. Plaintiff’s Michigan default judgment (for violation of Michigan Building Contract Fund Act) not entitled to issue preclusive effect in dischargeability proceeding because neither federal law nor Michigan law would give preclusive effect to a default judgment based on a “true default” where there was no participation by the defendant. As to merits of the 523(a)(4) claim, the Plaintiff had failed to establish necessary element of MBCFA in order for court to determine that debt was a trust fund debt. As a result, summary judgment inappropriate at this time.
Order denying Debtor’s amendment to petition. Individual chapter 7 debtor’s amendment denied to extent it seeks to substitute corporation as a debtor in this case. Although Bankruptcy Rule 1009 permits liberal amendment to pleadings, a bankruptcy case cannot be amended to change the identity of a debtor after the entry of the order for relief.
(granting defendant's motion to compel debtor to respond to discovery regarding her postdischarge financial condition, as such information is relevant to a determination of whether the debtor's student loan should be discharged as an undue hardship).
Judge Robert E. Brizendine (Retired)
(11 U.S.C. 523(a)(6), Fed.R.Bankr.P. 7012, nondischargeability of debt (applicability re breach of contract claim))