(11 U.S.C. § 1325(b)(1)(B); Chapter 13 Trustee objected to confirmation of Debtor's Amended Plan because the Debtor’s Plan proposed to contribute zero dollars to his general unsecured creditors even though his actual income and expenses, as reflected on Schedules I and J, indicated that the Debtor could afford to pay his general unsecured creditors a dividend greater than zero dollars. Holding: Court sustained the objection. Citing to authority holding that a Chapter 13 debtor’s “projected disposable income”, as employed in 1325(b)(1)(B), should be determined by reference to the debtor’s Schedules I and J to prevent manipulation of the system, the Court ordered that Debtor submit an amended Chapter 13 Plan within 15 days of entry of the Order providing for payment of general unsecured creditors based on Schedules I and J.)
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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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Denying motion to dismiss dischargeability complaint and setting case for trial.
17 C.F.R. section 240.14(c); Ad Hoc Committee sought an order compelling Debtors to convene annual shareholders’ meetings for 2006 and 2007 for the purpose of electing directors. SEC regulations require than a corporation that solicits proxies from shareholders must send an annual report with each proxy statement, and that the annual report must include, inter alia,audited financial statements for each of the three most recent fiscal years. Contrary to the arguments made by the Ad Hoc Commitee, even in situations when debtors do not solicit proxies, SEC regulations require that every shareholder who is entitled to vote receive information substantially similar to that found in a financial statement at least twenty calendar days before an annual meeting. Ordered that the Ad Hoc's Motion was denied to the extent it requested Debtors to convene shareholders’ meetings without complying with 17 C.F.R. section 240.14(c).
Granting motion for relief to permit creditor to dispossess debtor from property foreclosed upon prior to bankruptcy filing.
Ch13T's Motion to Deem Mortgage Current should have been filed as an adversary proceeding, but failure to do so is insufficient grounds to reconsider the order entered granting Ch13T's motion. Also, notice to creditor's attorney who filed a notice of appearance in the bankruptcy case is sufficient notice under Rule 7004.
The general release executed by the parties in settlement w/Debtor's insurance company released Debtor from all liability to Plaintiff, depriving Plaintiff of any claim that could be held nondischargeable
Judge Joyce Bihary (Retired)
(11 U.S.C. § 704(a)(11); Chapter 7 Trustee’s motion for authorization to serve as independent fiduciary to administer and terminate debtor Brookstone Fine Wood Products, Inc.’s ERISA-covered employee benefit plan is denied. Section 704(a)(11) provides that the Chapter 7 Trustee shall continue to perform the duties of a debtor if such debtor, at the commencement of the case, served as administrator of an ERISA-covered employee benefit plan. This provision does not appear applicable as the Chapter 7 Trustee failed to show that any debtor served as the administrator of the plan in question. The motion also seeks to pay “related expenses” from assets of the employee benefit plan, but the Chapter 7 Trustee has not indicated what these related expenses might be and has not served affected parties, such as the plan participants.
Honorable Paul W. Bonapfel
Although it may be appropriate to object to a claim that includes unmatured interest, it is not appropriate to seek its complete disallowance on that ground; the proper remedy is allowance of the claim in the proper amount. Further, it is not appropriate to disallow a claim, without a hearing, if a response to an objection has been filed, even if the claimant fails to appear at the hearing. If the debtor has an actual objection to a claim on the merits, the court will, of course, hear it. But the court will not disallow a claim, in whole or in part, in the absence of a showing that the debtor has a valid objection that requires its disallowance under 11 U.S.C. §§ 502(b). In re Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004). Moreover, if the claim is secured by collateral that the debtor desires to retain, disallowance of the claim other than because it is not owed would not seem to affect the holder’s lien. Thus, the lien might survive the bankruptcy case under Universal American Mortgage Co. v. Bateman (In re Bateman), 331 F.3d 821 (11th Cir. 2004). If the Debtor’s objective is to retain collateral, disallowance of the claims for a procedural defect would not appear to be in the Debtor’s interest.
Honorable Mary Grace Diehl (Recall)
Order Granting in part and Denying in part Debtor’s objection to the claim of Countrywide Home Loans.
Judge James E. Massey (Retired)
Plaintiff’s motion seeking a default judgment that defendant’s debt in the amount of $1,914 for retail charges is non-dischargeable pursuant to 11 U.S.C. § 523(a)(2) is denied. The allegations in the complaint which are deemed admitted by defendant’s failure to answer and the insufficient specificity of the factual allegations do not support a finding in plaintiff’s favor. If plaintiff does not amend its complaint within 30 days, the Court will schedule this adversary proceeding for trial.