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.
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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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Denying confirmation of Chapter 13 plan that contained provision permitting surrender in full satisfaction of secured claim.
Ds sought to recover amounts paid to GMAC as secured creditor after the judicial lien was avoided.
Honorable Paul W. Bonapfel
(Order denying Defendant’s motion to dismiss for failure to state a claim. Whether the plaintiffs were independent contractors or employees under Fair Labor Standards Act and, thus, whether they were creditors for purposes of bringing a 523 or 727 action, was a fact-intensive determination inappropriate for a Rule 12(b)(6) motion. The court declined to treat the Rule 12(b)(6) motion as a motion for summary judgment since the parties had engaged in no discovery in this proceeding and where discovery had not been completed in the district court case which was pending at the time of the bankruptcy filing.)
(Order granting Defendant’s motion to dismiss for failure to state a claim for relief under 523(a)(2)(A). The Plaintiff’s oral statement regarding the unencumbered value of real property was a statement regarding his financial condition and, thus, was not actionable under 523(a)(2)(A) under either the broad interpretation or narrow interpretation of “statement respecting the debtor’s or an insider’s financial condition.”).
In earlier order in this preference action brought by the chapter 7 trustee, the court concluded that the security deeds held by a purchase money lender on the Debtor’s property were perfected within the meaning of § 547(e)(1)(A) at the time they were executed and delivered because, under Georgia law, a bona fide purchaser would have had inquiry notice of them at all times prior to their recordation based on the Debtor’s absence of record title and the existence of a cancelled security deed on the property in favor of another lender. On reconsideration, the court ruled that, when established by reference to a bona fide purchaser standard, the rights of a bankruptcy trustee are determined on a hypothetical basis and without regard to what an actual purchaser actually did or did not know about the facts as they actually existed. A bankruptcy trustee’s rights based on a hypothetical bona fide purchaser’s rights are neither diminished nor augmented by attributing actual knowledge or its absence to the trustee In other words, the facts cannot be changed, and the bankruptcy trustee’s rights, i.e., the legal consequences of those facts, are determined on the basis of those actual facts.
Judge James E. Massey (Retired)
Plaintiff’s motion to amend its complaint to determine dischargeability of its debt pursuant to 11 U.S.C. § 523(a)(2) and (a)(6) is granted. Defendant, appearing pro se, did not respond to plaintiff’s motion. Fed. R. Civ. P. 15(a) allows a court to freely grant leave to amend, and Plaintiff filed the motion within four months of the answer, prior to the entry of a pre-trial order, does not appear to be filed to cause undue delay, and it will not prejudice defendant.
Plaintiff’s motion for summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A) is granted and defendant’s debt is non-dischargeable. Plaintiff alleged that defendant and her husband made fraudulent representations which deceived plaintiff and caused it to make various investments. Defendant-debtor’s amended response that she lacks sufficient information to deny most of plaintiff’s factual allegations and stating under oath that her statements were true and correct to the best of her information and belief are insufficient to challenge a motion for summary judgment. Plaintiff demonstrated that defendant made false representations with an intention to deceive, that plaintiff relied on the misrepresentations, that the reliance was justified, and that plaintiff sustained a loss as a result of the misrepresentations.
Honorable Mary Grace Diehl (Recall)
Order finding that attorney fee of $4200 was reasonable based on the facts and circumstances of the case provided that the 2016 disclosure statement and plan are amended to include the language: “The fee set out above will cover all customary and usual work required during the course of this case. In the event that circumstances not presently known require more than the customary and usual services, the Debtor’s attorney reserves the right to file a fee application for additional fees.
Order Granting Crawford’s Motion for Summary Judgment on Dierkes’ Section 362 Claims and Denying Crawford’s Motion for Summary Judgment on its Promissory Note Action and Dierkes Counterclaim for Breach of Contract and Abstaining from and Remanding Claims to State Court. There was no willful violation of the stay where Crawford complied with the Court’s order for turnover. The promissory note action and the related counterclaim are state law claims, originally brought in state court, which have been abandoned by the trustee. The Court no longer has subject matter jurisdiction over these claims, but to the extent that the Court may retain jurisdiction over the claims, abstention and remand are appropriate.