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.
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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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Honorable Mary Grace Diehl (Recall)
Honorable Paul W. Bonapfel
(Debtor’s complaint to determine that unsecured debt owed to ex-spouse arising from divorce decree is dischargeable fails to state a claim for relief. While the Debtor’s debt to the ex-spouse may not be a domestic support obligation as contemplated by § 523(a)(5), it is nevertheless a debt to a former spouse incurred by the Debtor in connection with the divorce decree and, therefore, falls within the category of debts described in § 523(a)(15) which are now excepted from discharge based upon changes made to § 523(a)(15) under BAPCPA).
Guardian ad litem fees awarded in custody dispute excepted from discharge pursuant to 11 U.S.C. § 523(a)(5).
Defendant’s motion to dismiss fraudulent transfer claims denied because actual fraud claims stated with sufficient particularity for purposes of Rule 9(b). Motion for more definite statement of constructive fraudulent transfer claims denied as claims are not “vague or ambiguous.” Motion to strike immaterial matters denied because defendant has not shown that the allegations at issue have no bearing on the litigation or will cause it prejudice. 548(a)(1)(A) and (B); O.C.G.A. §§ 18-2-74, 18-2-75; FED. R. CIV. P. 8, 9, 12(e), 12(f).
Judge Joyce Bihary (Retired)
(Plaintiff’s motion for summary judgment for non-dischargeability of its debt pursuant to Defendant’s fraud or defalcation while acting in a fiduciary capacity, under 11 U.S.C. § 523(a)(4), is denied. Plaintiff failed to show that its state court judgment was entitled to collateral estoppel effect and its statement of undisputed material facts failed to demonstrate the necessary trust and fiduciary relationship. Plaintiff’s claim under § 523(a)(2)(A) will be tried. Defendant’s request for dismissal denied as it was unaccompanied by law or facts allowing the Court to dismiss this adversary proceeding in its entirety);
Judge James E. Massey (Retired)
Case filed pro se by ineligible individual on behalf of fictitious “trade name” was dismissed.
NOT INTENDED FOR PUBLICATION
Movants’ motion to avoid judgment liens pursuant to 11 U.S.C. § 522(f)(1)(A) after case was reopened is granted. Respondent Taylor did not file a response or indicate opposition to movants’ motion. Respondent Central Pet’s arguments are without merit. Debtors may amend their schedule of exemptions after a case has been reopened. The correct date for valuing debtors’ interest in their property is the date the petition was filed, and the liens in question, when added to all other liens and to the amount of the debtors’ exemptions, exceeded the value of the debtors’ interest in property and impaired the debtors’ claimed exemptions.
Movant’s motion to dismiss Chapter 11 bankruptcy case on ground bankruptcy filing was improperly authorized and Court lacks jurisdiction is denied. Movant and his wife were each 50% stockholders and directors of debtor corporation and having marital and business problems. Movant’s wife and third board member authorized the filing of this bankruptcy filing. Movant filed this motion almost eleven months following the filing of the bankruptcy petition, claiming that he did not vote for filing bankruptcy and third board member who voted for filing was not properly elected as director. It is unnecessary for Court to reach the issue of whether third board member was duly elected as Court finds Movant ratified the bankruptcy filing post-petition through his participation in, his acquiescence to, and his acceptance of benefits from this bankruptcy case. Such ratification relates back to the authorization for filing as of the time it was made. O.C.G.A. § 10-6-52.
11 U.S.C. section 1102(a)(2); Ad Hoc Committee sought the appointment of an official committee of equity security holders to represent the interests of the holders of publicly traded shares of the Debtors. Proponents of an equity committee have the burden of proof to show that equity holders are not adequately represented and the debtor is not “hopelessly insolvent”. Ad Hoc failed in its burden to prove that shareholders are not being adequately represented. Ad Hoc witness testified that Debtors' board regularly met to discuss Debtors and it was his belief that the board was doing a “good job” of representing shareholders. Motion Denied.
Judge Robert E. Brizendine (Retired)
(11 U.S.C. Section 523(a)(2)(A), collateral estoppel).