"Order denying confirmation of competing plans for six Debtors; the Debtors' plan a reorganization, and the Creditor's plan a liquidation."
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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 Barbara Ellis-Monro, Chief Judge
Plaintiff filed a complaint to determine that a debt owed to it was nondischargeable pursuant to either 11 U.S.C. §§ 523(a)(2)(A) or (a)(6) or § 523(a)(2)(C). Plaintiff’s complaint failed to plead sufficient facts to state a plausible claim under § 523(a)(2)(A). Further, the Court concluded that Plaintiff’s complaint failed to allege the statutory elements necessary to avail itself of the presumption of nondischargeability in§ 523(a)(2)(C)(i)(I). The Court thus denied the Plaintiff’s motion for default judgment.
Honorable Mary Grace Diehl (Recall)
Plaintiff’s wrongful eviction action was dismissed on two occasions: once by court order and once by Plaintiff’s motion for voluntary dismissal. In its motion to dismiss, Defendant asserted that the second dismissal of the Plaintiff’s wrongful eviction action resulted in a dismissal with prejudice by operation of Rule 41(a)(1)(B). This is commonly referred to as the “two dismissal rule.” The Court found that the two dismissal rule asserted by the Defendant is not implicated when one dismissal is by Plaintiff’s motion and the other by court order. Thus, the Court concluded that the second dismissal by Plaintiff’s motion was not an adjudication on the merits under Rule 41(a)(1) and denied Defendant’s motion to dismiss.
Debtor, who is authorized to practice law and is a member of the Georgia Bar, filed an Appearance of Counsel in his own Chapter 11 case. 11 U.S.C. § 327(a) provides that only disinterested persons, as defined by 11 U.S.C. § 101(14), are permitted to be employed as professional persons in Chapter 11 cases. The Court concluded that because the Debtor is clearly not a disinterested person in his own Chapter 11 case, he cannot meet the requirements to be employed under 11 U.S.C. § 327(a) and thus is not permitted to serve as counsel or co-counsel in this case.
Plaintiff filed a complaint to determine that a debt owed to it was nondischargeable pursuant to either 11 U.S.C. §§ 523(a)(2)(A) or (a)(6) or § 523(a)(2)(C). Plaintiff’s complaint failed to plead sufficient facts to state a plausible claim under § 523(a)(2)(A). Further, the Court concluded that Plaintiff’s complaint failed to allege the statutory elements necessary to avail itself of the presumption of nondischargeability in§ 523(a)(2)(C)(i)(I). The Court thus denied the Plaintiff’s motion for default judgment.
Court granted a creditor's Motion to Reopen Case for the purpose of filing an adversary proceeding seeking declaratory relief as to the treatment of a prepetition lien the creditor held on certain real property of the Debtor sold either during the pendency of the case or through the Chapter 11 plan, finding that the reopening of a case is typically a ministerial function and that, although the Court finds a preliminary assessment of the merits of the underlying substance an inviting inquiry, such inquiry is inappropriate on a Motion to Reopen and that the Court may find the requisite cause upon finding that a bona fide question needs answering, which the Court is in the best position to determine.
Court granted the Chapter 7 Trustee's Motion for Summary Judgment, avoiding a preferential transfer of a security interest in an automobile received by the Defendant in violation of 11 U.S.C. § 547(b); however, the Court denied Trustee's request for attorney's fees, finding that the record failed to support a showing of bad faith, stubborn litigiousness, or unnecessary trouble and expense on the part of the Defendant.
(Order granting Georgia Department of Revenue's motion for summary judgment, finding tax debtor 2000 and 2001 is excepted from discharge under 523(a)(1).
Court determined the value, pursuant to section 506(a), of various residential real properties for purposes of confirmation of related debtors' Chapter 11 plan of reorganization.
Judge Robert E. Brizendine (Retired)
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.)