(Dischargeability: Obligations arising from state court judgment regarding Debtor's conduct of siphoning corporate funds and redirecting them to another corporate entity owned by Debtor and co-conspirators were nondischargeable under §523(a)(2) and (a)(6)); entered 3/18/2009; motion to extend time to file appeal entered 3/18/2009; order entered 3/31/2009 extending time for Defendant to file notice of appeal.
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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 Joyce Bihary (Retired)
Motion to reopen denied. Required documents not filed pursuant to § 521(a) and §521(i).
Judge James E. Massey (Retired)
Debtor moved for a waiver of the requirement that he complete a course on financial management on the ground of a disability under section 109(h)(4) – he is in prison and unable to take such a course. The Court denied the motion. Being unable is not the same thing as being disabled. “‘[D]isability’ refers to a medical condition and not to a law of physics that prevents Mr. Goodwin from walking through walls and iron bars.”
NOT INTENDED FOR PUBLICATION
Motion for default judgment denied service was made in one envelope addressed to:
Mr. Tom Martin
Mrs. Judy Martin
Mrs Martin was entitled to her own copy of the summons and complaint. She was not served, since the first name on the envelope was her husband’s, and therefore the Court lacked jurisdiction over her.
NOT INTENDED FOR PUBLICATION
The Court dismissed the case on the Trustee’s motion but denied a creditor’s motion to dismiss with prejudice for the following reasons. (1) the motion was coupled with an objection to confirmation and counsel for movant announced a “109(g) objection” at the calendar call; (2) counsel for debtor announced no opposition to the “objection,” but no one referred to the motion; and (3) counsel failed to present an order for over two months.
NOT INTENDED FOR PUBLICATION
In a Chapter 11 case, a bank moved for stay relief with respect to property that may have significant equity. The debtor and the bank then presented a consent order compromising the dispute pursuant to which the stay would be lifted if Debtor failed to make certain payments. Because the movant failed to serve notice of the proposed compromise (or the motion) on creditors as required by Bankruptcy Rule 4001(a), the Court denied the motion.
The Court limited no-look compensation to Debtors' counsel in case 2 filed a few days after case 1 was dismissed based on a "surprise" that counsel should have anticipated. Because case 2 was merely a much simpler version of case 1, counsel's efforts to obtain even greater compensation in case 2 required proof of value of services.
NOT INTENDED FOR PUBLICATION
Honorable Paul W. Bonapfel
Order granting motions to transfer venue to the Bankruptcy Court for the Southern District of West Virginia pursuant to 28 USC 1412 based on interest of justice and convenience of the parties. Substantial pending litigation in West Virginia, location of real estate in West Virginia, involvement of local state agencies, and the lack of contacts with Georgia warranted transfer of venue.
Order setting hearing on Plaintiff’s motion for default judgment. Although the statement in the affidavit of counsel that the Defendant “may have Alzheimer’s Disease” raises the possibility that the Defendant may be incompetent, this possibility alone does not preclude a finding of competency for purposes of Rule 55(b)(2). Instead, in the absence of evidence of competence, the proper inquiry is whether a conservator or guardian has been appointed for the Defendant by a probate court because the absence of such an appointment raises a presumption of competency under Georgia law. Although the Court concluded that Rule 55(b)(2) does not impose upon a moving party an independent duty to investigate a defendant’s competency, the Plaintiff has raised the issue of the defendant’s competency. To demonstrate the existence of the presumption in this proceeding in which the Plaintiff has raised the issue of the Defendant’s mental status, the Plaintiff may establish that, in the appropriate probate court, no record of guardianship or conservatorship proceedings with respect to the Defendant exists
Duties of attorney representing debtor in case filed in improper venue upon transfer of case. Where attorney filed chapter 13 case for GA resident in Chattanooga and case was subsequently transferred to Northern District of Georgia, attorney sought to withdraw and debtors sought substitution of new counsel. The Court granted both motions, noting that the motion to withdraw would not have been filed absent client consent to substitution. The Court further observed that if a lawyer files a case for a debtor in an improper district, the lawyer mus be prepared to deal with the consequences of transfer to the proper district if it occurs. If the lawyer who files a case transferred to this district is not a member of the Court’s bar and the client does not retain substitute counsel who promptly appears in the case, the lawyer must file an application to appear pro hac vice in the Northern District of Georgia. Further, the provisions of 11 U.S.C. § 329(b) permit the Court to inquire as to the reasonableness of fees charged by an attorney for a debtor who files a case in a district in which venue is not proper.