Order granting Defendant’s motion to dismiss. Plaintiff, acting pro se, filed an adversary complaint in her Chapter 7 case seeking to discharge her student loan. Defendant moved to dismiss the complaint based on insufficient service because Plaintiff failed to mail the summons and complaint to the U.S. Department of Education, the civil process clerk of the United States attorney for the district in which the action was brought, and the Attorney General of the United States, as required by F.R.B.P. 7004(b)(4) and 7004(b)(5). The Court entered an order denying the original motion to dismiss and gave Plaintiff an additional 30 days to obtain an alias summons and serve same along with a copy of her complaint to all of the required parties. Two days before the deadline, Plaintiff filed a Certificate of Service which did not specify exactly what was served, and failed to obtain and serve the required alias summons. The Court noted that while the required provisions for service may be complex and therefore challenging for pro se litigants, the rules governing service cannot be waived and proper service is necessary for the Court to have jurisdiction.
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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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Order dismissing Debtor’s counterclaims without prejudice, remanding the case back to the Magistrate Court of Clayton County, Georgia. Case originated in state trial court from a Dispossessory Action that sought eviction of Debtor post-foreclosure sale of his property. Pro se Debtor filed a voluntary Chapter 13 Petition, later converted to a Chapter 7. Debtor then removed the Dispossessory Action from the Magistrate Court of Clayton County to the Bankruptcy Court of the Northern District of Georgia. The Court determined that it did not have “related to” jurisdiction in accordance with 28 U.S.C. § 1334(b) because Debtor’s Chapter 7 case had been discharged on findings that the estate contained no assets and had been fully administered, and therefore the adversary proceeding could not have any conceivable effect on Debtor’s bankruptcy estate.
Order granting Debtor’s motion for leave to file amended complaint. Debtor’s proposed amended complaint removed Federal Student Loans Held by Fed Loan Servicing Credit, who was admittedly misjoined, and added the United States Department of Education as the correct defendant. The Court approved the amendment, noting that under Federal Rule of Bankruptcy Procedure 7021, the proper remedy for misjoinder is not dismissal, but rather dropping of the misjoined party and adding of the nonjoined party.
Order denying Debtor’s motion to vacate order and dismissal of case. Debtor filed a motion to reconsider a previous order that (1) denied Debtor’s motion to strip lien, (2) denied Debtor’s motion for reconsideration of claim, (3) denied confirmation of plan, and (4) dismissed the Chapter 13 case. The Court held that under Eleventh Circuit law, the only grounds for granting a motion for reconsideration is in light of new evidence or previous errors of fact. Under this standard, Debtor impermissibly sought to relitigate issues the Court already decided. Similarly, the Court held that relief from a judgment or order of the Bankruptcy Court may only be sought under one of the specific provisions of Federal Rule of Civil Procedure 60(b), and such a motion may not be used as grounds to relitigate issues that have been decided by the Court.
Order denying Debtor’s post-confirmation Modification and Objection to claim. Respondent’s secured claim arose from a motor vehicle retail installment contract, valued at $11,236.69. In her Third Amended Chapter 13 plan, Debtor proposed to pay Respondent’s claim at 8.0% interest. Based on Debtor’s failure to insure the vehicle, Respondent obtained relief from the automatic stay, repossessed the vehicle, and sold it at auction for $1,560. Debtor filed a Modification that sought to reduce Respondent’s claim amount to $0.00 and eliminate the interest owed, effectively relieving Debtor of payments on the claim. Debtor also filed an Objection to Respondent’s claim based on Respondent’s disposition of the vehicle after receiving relief from the stay. Respondent offered to reduce the claim by the $1,560 received from selling the vehicle, but asserted that the terms of a confirmed plan bind the debtor as to amount and secured status of the secured claim. The Court did not reach the issue of whether a post-confirmation modification or objection to claim could change the secured status of a claim provided for by a confirmed plan because it found that both the Modification and Objection impermissibly sought to disallow Respondent’s claim entirely without treating the claim as unsecured.
Honorable Wendy L. Hagenau
Order after trial on the dischargeability of Debtor’s obligation to pay mortgage debt on the marital home under 11 U.S.C. § 523(a)(5). Under the terms of a divorce settlement agreement, the Debtor was solely responsible for mortgage payments on the marital home. The Court found that the Debtor’s obligation to make mortgage payments was not intended for the support of the Debtor’s wife because among other reasons she did not live at the property at the time of divorce and had quitclaimed the property to the Debtor following their divorce. As a result, the Court held that the Debtor’s obligation to make mortgage payments on the marital home did not fall under the definition of “domestic support obligation” and was therefore dischargeable under 11 U.S.C § 523(a)(5).
Honorable James R. Sacca
The Court granted the Defendant's motion for summary judgment and dismissed the Plaintiffs' Complaint alleging that the Defendant violated the discharge injunction. The Court concluded that the Defendant, the servicer of a mortgage secured by real property owned by the Plaintiffs, did not violate the discharge injunction when after the Plaintiffs received their discharge it: (a) sent five purely informational letters and two hazard insurance notices to the Plaintiffs, (b) reported the loan to the credit bureaus with a balance of zero and as being included in their chapter 7 bankruptcy case, and (c) participated in phone calls that the Plaintiffs initiated. These acts neither individually nor overall violated the discharge injunction.
Honorable Barbara Ellis-Monro, Chief Judge
The Trustee filed a multi-count complaint based on the alleged improper foreclosure of Debtor’s real property on which Defendants foreclosed after allegedly agreeing not to foreclose and continued billing Debtor as though no foreclosure had occurred. On Defendants’ motion to dismiss, the Court found as follows: (1) Plaintiff sufficiently stated a claim for wrongful foreclosure by alleging an agreement to stop the foreclosure, a subsequent foreclosure, and receipt of post-foreclosure payments; (2) Plaintiff sufficiently stated a claim for violation of the Georgia RICO statute by alleging Defendants sent post-foreclosure account statements to Debtor, Debtor made payments to Defendants based on those statements, and Defendants sent post-foreclosure default notices to Debtor stating that failure to cure the default may result in foreclosure; (3) Plaintiff failed to state a claim for false and misleading representations under the FDCPA because he failed to allege that the debt at issue was incurred for personal, family, or household purposes; (4) Plaintiff failed to state a claim under the Georgia Fair Business Practices Act because he failed to allege the debt arose from a consumer transaction; (5) Plaintiff sufficiently stated a claim for money had and received by alleging that Defendants foreclosed after agreeing not to do so and receiving post-foreclosure mortgage payments; (6) Plaintiff sufficiently stated a claim for unjust enrichment by alleging that Defendants received post-foreclosure mortgage payments when they could not legally enforce a deficiency claim; (7) Plaintiff sufficiently stated a claim for quantum meriut by alleging that Debtor incurred costs to maintain and repair the property post-foreclosure, that he believed he was doing so for his own benefit, and that Defendants were collecting amounts for taxes and insurance from Debtor even though they knew he no longer owned the property; (8) and, (9) Plaintiff sufficiently stated a claim for fraudulent transfer under 11 U.S.C. § 548 and O.C.G.A. § 18-2-75(a) by alleging Debtor transferred post-foreclosure mortgage payments to Defendants when they could not legally enforce their deficiency, alleging the dates of the transfers, and alleging insolvency as shown by Debtor’s default on the mortgage loans and subsequent bankruptcy.
NOT INTENDED FOR PUBLICATION
The perfection of IRS liens is governed by federal law. Consequently, an IRS tax lien on personal property was perfected as to Debtor’s vehicle when it was filed in the manner required by federal statute, even though the lien was not noted on the certificate of title as is required for perfection under Georgia law. Therefore, the lien took priority over a subsequent creditor’s non-PMSI lien on the vehicle. As a result, the creditor’s claim was unsecured.
NOT INTENDED FOR PUBLICATION
Attorney for Debtor who owned an unencumbered house with sufficient value to pay his debts in full erroneously filed an unsigned Chapter 7 petition and thereafter sought dismissal. The trustee opposed dismissal on the basis that Debtor either authorized the filing or ratified it. The Court found no authorization where Debtor frequently contacted counsel for status updates on his case but testified that he expected to meet with counsel to go over the schedules before the case was filed. The Court found no ratification where Debtor did not actively participate in the case other than attending the meeting of creditors and where a motion to dismiss had been filed shortly after the filing and Debtor believed the case would be dismissed.
NOT INTENDED FOR PUBLICATION