Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment; Defendant’s security interest in property was avoided as a preference. In September of 2003, Defendant obtained a default judgment against Debtor in the State Court of Gwinnett County and requested that the Clerk of the State Court issue a Writ of Fieri Facias. The Clerk’s office did not timely process Defendant’s request and the Fi. Fa. was not recorded until December of 2003. Under Georgia law, the transfer of real property occurs when the transfer is perfected against bona fide purchasers. Defendant’s security interest, therefore, was perfected on December 5th when the Fi. Fa. was recorded, not when the default judgment was entered on September 19th. So while Defendant obtained its default judgment against Debtor outside the preference period, the perfection fo Defendant’s security interest occurred within the preference period and is thus avoidable.
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Honorable Mary Grace Diehl (Recall)
Order Denying Plaintiff’s Motion for Default Judgment. Chapter 7 Trustee’s Motion for Default Judgment is denied because Trustee failed to serve the complaint in a proper manner and appears to have named as Defendant a non-existent corporation.
Order Granting Plaintiff Trustee’s Motion to Amend Complaint. Trustee filed a complaint against Debtor’s wife seeking to recover $175,000.00. Trustee moved to amend the complaint to add counts seeking to avoid any purported interest Defendant claims in the funds. The Court granted Trustee’s Motion to Amend on the basis that Defendant established no grounds upon which the Court could deny the Motion and the statute of limitations within which Trustee could bring avoidance actions had not run.
Judge Joyce Bihary (Retired)
(Debtor’s former wife has supplemented her motion for contempt against Debtor’s former employer as required by previous Order. Because the Settlement Agreement and Release signed by the parties on December 23, 2004 bars Debtor’s former wife from raising any claim which arose before that date, Debtor’s former employer is directed to respond only to those claims alleged to have occurred after that date)
Honorable Paul W. Bonapfel
Court will not disallow proof of claim based on chapter 7 trustee’s objection for lack of documentation in absence of showing of some basis to suspect that claim is not owed.
Complaint seeking exception of debt under § 523(a)(2) dismissed on motion of debtor because creditor filed it one day beyond 60 day limit of Fed. R. Bankr. P. 4007(c).
Third party plaintiff’s claim for recovery based on a theory of unjust enrichment is fairly raised by the pleadings, and the record in the case demonstrates that it has been argued and determined with fair notice to the adverse party that it was before the Court. There is no basis for entry of summary judgment on the ground that the unjust enrichment theory had not been properly pleaded.
Presumption of nondischargeability under 523(a)(2)(C) does not apply to balance transfers on a credit card account. To the extent that the presumption applies, it does not establish nondischargeability, but shifts the burden of going forward to the debtor. The ultimate burden of proof remains with the debtor. Creditor's motion for summary judgment denied.
Judge James E. Massey (Retired)
Debtor’s motion to reopen Chapter 7 case after receiving discharge in order to execute a reaffirmation agreement is denied as a reaffirmation agreement is not enforceable unless it was made prior to debtor’s discharge. 11 U.S.C. § 524(c)(1).
Only issue at trial on plaintiff’s action to avoid preferential transfer pursuant to 11 U.S.C. § 547(b) was whether the $13,876.73 transfer which defendant received belonged to debtor or another entity. Defendant did not appear at trial. Plaintiff proffered evidence showing that the transfer was made from an account debtor operated under a trade name and not from a separate corporation, entitling plaintiff to avoid the transfer and recover the funds for the estate.