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).
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Opinions
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Honorable Paul W. Bonapfel
The Court submits proposed findings of fact and conclusions of law to the District Court in a non-core proceeding pursuant to 28 U.S.C. § 157(b)(2) and Fed. R. Bankr. P. 9033. In the proceeding, third-party plaintiff Heartwood asserts an unjust enrichment claim against third-party defendant DeKalb County based on Heartwood’s purchase of a tax fi. fa. for ad valorem taxes on real property owned by the plaintiff Debtor for more than the amount allowed in the Debtor’s bankruptcy case under the provisions of former 11 U.S.C. § 505(a). The Debtor and Heartwood had earlier settled this issue as between themselves, with court approval. The proposed findings of fact and conclusions of law deal with issues raised at trial and incorporate earlier opinions with regard to motions for summary judgment and the motion of third-party defendant DeKalb County for judgment as a matter of law at the conclusion of third-party plaintiff Heartwood’s evidence at trial. Based on its proposed findings of fact and conclusions of law, the Court proposes that the District Court, after consideration and de novo review of them: (1) conclude that it has subject matter jurisdiction of Heartwood’s third-party claim that it should properly exercise; (2) grant Heartwood’s motion for partial summary judgment against DeKalb County (determining that Heartwood has a claim for unjust enrichment); (3) deny DeKalb County’s motion for summary judgment against Heartwood (determining that DeKalb County has no legal defenses to the claim); (4) deny DeKalb County’s motion at trial for judgment as a matter of law pursuant to Fed. R. Civ. P. 52(a); (5) accept the Court’s findings of fact and conclusions of law with regard to the proper amount of the tax due under § 505(a) based on a proper valuation of the property; and (6) enter judgment in favor of Heartwood and against DeKalb County in the amount of $59,853.07 (being the difference in the amount Heartwood paid for the tax fi. fa. and its proper amount based on a proper valuation of the property), plus post-judgment interest and costs.
Although Internal Revenue Service was properly served with objection to proof of claim and notice of hearing and did not appear at the hearing, its proof of claim, as amended after the time for the hearing, is allowable as a secured claim to the extent of the value of the Debtors’ property as scheduled, net of secured claims with priority over the IRS’ liens. A tax lien is a statutory lien that is not avoidable under § 522(f)(1), and a debtor cannot exempt property from a properly filed tax lien under § 522(c)(2)(B).
Chapter 7 trustee seeks to avoid under § 547(b) two security deeds that were recorded weeks after they were executed and delivered. The debtor’s warranty deed was recorded after one security deed was recorded and at the same time as the other. The Court rules that, under Georgia law, the absence of record title in the debtor imposed a duty of inquiry that would have put a subsequent purchaser from the debtor on notice of the unrecorded security deeds. Therefore, the security deeds were perfected within the meaning of § 547(e)(1)(A) at the same time they were executed and delivered, and the transfers were effective as of that date under § 547(e)(2)(B). As such, the transfers were not on account of an antecedent debt as required by § 547(b)(3), and the trustee may not recover.
(Order granting Defendants’ motions to dismiss and denying Plaintiff’s motion for default judgment and motion to intervene. The Debtor has failed to set forth a factual or legal basis for any alleged violation of the discharge injunction by any of the Defendants. Further, the Court lacks subject matter jurisdiction over what is essentially a dispute between the Debtor’s spouse (who was not a debtor in the bankruptcy case) and the various non-debtor Defendants.)
Judge James E. Massey (Retired)
Plaintiff's motion for reconsideration of Court’s order denying summary judgment on her 11 U.S.C. § 523(A)(2)(A) claim is denied. Plaintiff did not demonstrate any change in controlling law, new evidence, or clear error, the acknowledged reasons for granting a motion to reconsider, and it was untimely as it was not filed within the ten day period following the entry of the judgment. Fed. R. Civ. P. 59(e).
Movant’s objection to attorneys’ fees portion of respondent’s unsecured claim is granted. Respondent failed to show the reasonableness of its attorneys’ fees request as it had admittedly not been billed and had not paid attorneys’ fees in connection with its pre-petition claim.
Approving Debtor’s Chapter 13 plan providing for payment of student loans directly under §1322(b)(5), while paying other unsecured creditors 1%
Confirming that the parties’ contractual choice of California law to apply to the terms of repayment of a note secured by real estate located in Georgia
Order granting Plaintiff's motion to consolidate a fraudulent transfer proceeding with an objection to discharge.