Fed. R. Civ. P. 12(b)(6); 11 U.S.C. § 524(a); O.C.G.A. §§ 13-6-10, 13-6-11; plaintiffs filed a complaint alleging breach of a settlement agreement and violation of discharge injunction, seeking declaratory judgment, punitive damages, and attorneys’ fees. Defendant filed a motion to dismiss all counts except that for declaratory judgment. Defendant’s motion to dismiss the counts for breach of the settlement agreement and for attorneys’ fees must be denied as both allege a cause of action and sufficient supporting facts to survive a 12(b)(6) motion. With respect to dismissal of the counts for violation of the discharge injunction and punitive damages, defendant’s motion is granted. The discharge injunction only operates against a discharged debt, and the debt at issue was held to be nondischargeable. Punitive damages cannot be recovered on a breach of contract action under Georgia law.
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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)
(Fed. R. Civ. P. 54(b); In a case involving defaults by some but not all of the defendants, a request to stay default judgments is granted. Under the Frow doctrine, it is proper to stay default judgments in an adversary proceeding with multiple defendants when there is a possibility that inconsistent judgments will result upon final adjudication)
(O.C.G.A. § 53-12-175(d); Defendant Gibson’s objection to Plaintiff’s motion for default judgment against defendant Hamblen Family Irrevocable Trust (“HFIT”) for failure to properly serve the trust is overruled. Serving a trustee of a trust is, generally, sufficient service on the trust. Plaintiff served the amended complaint and summons on the trustees of HFIT. Although the trustees resigned, the resignations did not take effect for 30 days under the terms of the Trust Agreement, and under O.C.G.A. § 53-12-175(d), a trustee’s resignation is not effective unless there is a successor trustee in place)
Honorable Paul W. Bonapfel
Creditor who acquired, by assignment from an affiliate, a real estate mortgage executed by the debtor alleged that the debtor had committed fraud in connection with the mortgage and sought determination that its deficiency claim was excepted from discharge. Default judgment is denied because a fraud claim cannot be assigned and no fraud was committed against creditor.
Trustee objected to reasonableness of attorney’s fees of $4,200 in chapter 13 case. Based on modification of fee agreement to provide that the flat fee encompassed substantially all legal services that the debtor would likely require during the life of the case, the Court allowed the fee.
At trial, court determined that the debt of the debtor to the plaintiff for insurance fraud was nondischargeable and determined the amount of the debtor’s liability. The plaintiff is also entitled to attorney’s fees as an element of damages under O.C.G.A. § 13-6-11, punitive damages under O.C.G.A. 51-12.5.1, and prejudgment interest at seven percent under O.C.G.A. § 7-4-2. Bankruptcy court has jurisdiction under 28 U.S.C. § 157(c)(2), with consent of the parties, to enter money judgment on the nondischargeable claim.
(granting motion for reinstatement to practice before the Court).
striking power of attorney file by an individual
who signed the petition and other documents on behalf of the debtor
(denying cross motions for summary judgment on trustee's action to avoid preferential transfer of security interest).
Judge Robert E. Brizendine (Retired)
motion for summary judgment, 11 USC Section 523(a)(2));