Order (1) denying Litton Loan Servicing, LP’s motion to declare tax sale void and (2) retroactively annul the stay. During the pendency of the Debtors’ case, Rockdale County Georgia conducted a tax sale as to the Debtors’ residence at which American Lien Fund, LP was the purchaser. Neither Rockdale County nor ALF had notice of the bankruptcy case. The Debtors had not opposed stay relief by Litton. Litton, the holder of a deed to secure debt on the Debtor’s residence, requested that the Court set aside the tax sale as being void in violation of the stay. ALF sought retroactive annulment of the stay. Held: (1) Litton has standing to seek a determination that an act in violation of the stay is void; (2) the tax sale was not excepted from the automatic stay pursuant to section 362(b)(24) because ALF was not a “good faith purchaser” as contemplated by 549(c); (3) retroactive annulment of the stay to validate the tax sale to the extent valid under state law was warranted. The Court found that the Debtor had no interest in the property and it was of no value to the estate; neither Rockdale County nor ALF had notice of the bankruptcy; and Litton had failed to protects legal and financial interest in the property by recording its interest. Had Litton recorded its assignment, it would have received notice of the tax lien by Rockdale County. Litton’s remedy remained redemption in accordance with Georgia law.
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 Paul W. Bonapfel
Chapter 7 trustee sought excess proceeds resulting from foreclosure of debtors’ residence which were the subject of an interpleader action in Cobb County, Georgia. Cobb County Superior Court attempted to transfer case and interpleader funds to bankruptcy court. Trustee asserted interest derived from stay relief order which provided that excess proceeds from foreclosure should be paid to the chapter 13 trustee for the benefit of the estate. Held: Registry funds retained, but file returned to Cobb County because bankruptcy court lacks jurisdiction since no party sought removal of the action. Court found that it was appropriate to permit the superior court, which has concurrent jurisdiction with regard to disputes concerning the funds, to adjudicate issues of entitlement to funds if it deems it appropriate to do so. Court questioned advisability of provision in the stay relief order which provided for excess proceeds to be paid to the [chapter 13] trustee for the benefit of the estate which the chapter 7 trustee relied on for a basis for seeking the funds, noting that even if the trustee had received the surplus funds from the foreclosure sale, the trustee would have had the responsibility to hold them for the benefit of whoever was entitled to them under applicable law; the surplus funds could not become unencumbered property of the estate.
Judge James E. Massey (Retired)
Plaintiff moved to compel discovery because Defendants’s response was a copy that did not include their original signatures. The Court denied the motion because revised Civil Rule 34 also does not specifically state that the answers must bear the original signatures and BLR 7026-3(a) directs that the party making discover “shall also retain original discovery material . . . .”
NOT INTENDED FOR PUBLICATION
Attorney moved for reconsideration of order in which Court denied application for attorney’s fees on ground that Movant and Debtor did not comply with Bankruptcy Rule 9011(c)(a)(A). In denying motion for reconsideration, the Court held that Movant had not alleged or shown any factual basis for imposing sanctions for filing adversary proceeding based on Court’s inherent authority to sanction misconduct.
NOT INTENDED FOR PUBLICATION
In reopened case, Debtor moved to vacate a consent order allowing claim of Ga. Dept. of Revenue on the ground that the amount allowed was wrong due to an error made by Debtor’s accountant. The Court granted the motion, overruling the position of the GADoR that the motion was untimely under Bankruptcy Rule 9024. Because the consent order merely allowed an agreed sum that the Court did not determine, there was no contest for purposes of Rule 9024.
NOT INTENDED FOR PUBLICATION
After Court granted Defendant’s motion for summary judgment, Defendant’s attorney filed an application for attorney’s fees on the ground that Plaintiff’s claim had no merit. The Court denied the application because (1) Defendant, not his attorney, was the real party in interest and should have been the movant, (2) Defendant had not complied with the safe harbor provision of Bankruptcy Rule 9011(c)(1)(A) and (3) the motion had not been properly served on Plaintiff.
NOT INTENDED FOR PUBLICATION
Defendants’ motion for reconsideration of an order denying Defendants’ motion to disqualify Plaintiff’s counsel was denied because Defendants failed to show a change in controlling law, new evidence, or the need to correct clear error or manifest injustice. Further the motion was untimely.
NOT INTENDED FOR PUBLICATION
Plaintiff’s motion in limine to bar Defendant from introducing evidence on solvency in preference dispute was denied where the pre-trial order showed no issue on solvency, making the motion unnecessary. Defendant’s motion in limine to bar testimony of expert witness because his deposition testimony cast doubt on the extent of his knowledge was denied; such an objection should be made at trial (based on evidence about witness’s qualifications).
NOT INTENDED FOR PUBLICATION
Judge Joyce Bihary (Retired)
(11 U.S.C. §§ 547, 548; Fed. R. Civ. P. 56; Trustee’s motion for partial summary judgment on fraudulent conveyance claims (both factual and constructive fraud) and preference claims denied as there are material facts in dispute)
(denying motion to dismiss for lack of service).