Heartwood purchased lien for ad valorem taxes due on the Debtor’s hotel property from DeKalb County under former O.C.G.A. § 48-3-19(a)(1). Debtor filed adversary proceeding against Heartwood under former 11 U.S.C. § 505 to reduce the amount of the tax lien, alleging that the hotel was worth less than the assessed value and that the tax should be reduced. Heartwood filed a third-party complaint against DeKalb County. Heartwood and the Debtor settled, stipulating to the value of the hotel. Based on the stipulation and the absence of other evidence, the Court in its January 10, 2006 Order directed the entry of judgment in favor of Heartwood for the difference in what it paid for the tax lien and its allowed amount based on the stipulated value. On remand from the District Court on DeKalb County’s appeal, the Court vacated the January 10 Order because it had improperly made final determinations in a non-core matter, contrary to 28 U.S.C. § 157(c). The Court then issued its opinion that Heartwood is entitled to partial summary judgment on the legal defenses raised by DeKalb County and scheduled a trial on the remaining issue of the value of the hotel. Following the trial, the Court will issue proposed findings of fact and conclusions of law on all issues.
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Honorable Paul W. Bonapfel
The Opinion considers whether the District Court, under principles of supplemental jurisdiction codified in 28 U.S.C. § 1367, has subject matter jurisdiction of, and if so, whether a bankruptcy judge may hear, a third-party claim for which no independent basis of jurisdiction exists under 28 U.S.C. § 1334(b). The Opinion notes that courts generally agree that a district court has supplemental jurisdiction under § 1367 with regard to its bankruptcy jurisdiction under § 1334 but that they disagree over whether a bankruptcy judge may or may not hear a matter within a district court’s supplemental bankruptcy jurisdiction under§ 157(a). The Opinion concludes that the better view is that the system for the allocation of bankruptcy jurisdiction between a district court and its bankruptcy unit, comprised of the bankruptcy judges, authorizes the referral to a bankruptcy judge of a third-party claim within a district court’s bankruptcy jurisdiction, as supplemented by § 1367, that is asserted in response to a claim arising under the Bankruptcy Code. Thus, although the third-party claim had no independent jurisdictional basis, the Opinion determines that the District Court had supplemental jurisdiction of it and that it was properly referable to a bankruptcy judge under § 157(a) and LR 83.7, NDGa, to hear as a non-core matter, subject to de novo review by the District Court, under § 157(c
The Order directs entry of final judgments in adversary proceedings brought by the Trustee to avoid prepetition transfers by the debtor under former O.C.G.A. § 18-2-22 and by judgment creditors seeking a determination that their judgment lien had priority over a postpetition security deed executed by the Debtor with regard to his interest in one of the properties that he had reacquired after the filing of the bankruptcy petition. One transfer was set aside as a voluntary conveyance under § 18-2-22(3). The other was not avoidable because the Court determined the Debtor was not insolvent at the time of the transfer. In this regard, the Court determined that the evidence had not established that the Debtor was actually liable to the judgment creditors, who had obtained their judgment by default. The default judgment was not binding on the transferee because she was not a party to the lawsuit. The Court determined that the judgment lien did not attach to the property prepetition because the Debtor had not owned it and that it did not attach to the interest he acquired postpetition by operation of 11 U.S.C.§ 524.
Court has jurisdiction to rule on Debtor’s motion for reconsideration notwithstanding filing of notice of appeal
11 U.S.C. section 523(a)(6) and 11 U.S.C. section 727(a)(4); Five days after Plaintiff’s motion for default judgment was entered, the Debtor filed an answer. The answer was construed as a motion to vacate default judgment. Therefore, even though Debtor did not respond to the motion for default judgment, plaintiff's default judgment was denied and a clerk's entry of default was vacated because Debtor showed a sufficient and expeditious interest in correcting the default.
11 U.S.C. section 523(a)(2)(A); credit card issuer's default judgment denied because issuer's complaint failed to sufficiently allege facts that established false pretenses, false representation or actual fraud. Nondischargeability based on false pretenses, false representation, or actual fraud requires a showing of actual, subjective fraudulent intent which is not established solely by the fact than an insolvent debtor used a credit card and made implied representations concerning the ability to pay or ultimately did not have the ability to pay the debt.
Finding bank in violation of section 362(a)(6) for freezing debtor's bank account without a valid right of setoff.
The terms of a prepetition subordination agreement between debtor's two primary secured creditors, Wachovia and Blue Ridge, provided inter alia that Blue Ridge authorized Wachovia, as the senior secured party, to take certain actions in Wachovia’s own name and in the name of Blue Ridge, including the right to vote both claims in a Chapter 11 bankruptcy case. Wachovia's right to vote Blue Ridge's claim was upheld.
Overruling trustee's objection to confirmation of debtor's chapter 13 plan and permitting debtor to make direct payments of long-term student loan debt in accordance with contract term.
Judge Joyce Bihary (Retired)
O.C.G.A. 53-12-1 et. seq.; Defendant Gibson’s assertion that he, as a non-attorney trustee, can represent the defendant trusts in this litigation is denied. Defendant recognizes that business trusts must be represented by an attorney licensed to practice in this Court, but argues that these defendant trusts are land trusts organized as such under Article 3 of the Georgia Trust Act and can be represented by a non-attorney trustee. Defendant’s reliance on the Georgia Trust Act is misplaced. Trusts created under Article 3 are like business trusts and require a licensed attorney to appear in court. His other legal arguments are also without merit. Defendant Gibson, as a non-lawyer, is permitted to represent himself individually, but may not represent any other entity in court.