Default judgment on creditor’s fraud claim does not have issue preclusive (collateral estoppel) effect in later dischargeability under Colorado law. Even if it does, bankruptcy court is not required to give issue preclusive effect to a state court default judgment under the full faith and credit clause, 28 U.S.C. § 1738, in dischargeability matters that must be brought in bankruptcy court under § 523(c)
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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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Honorable Paul W. Bonapfel
Judge Joyce Bihary (Retired)
Fed. R. Civ. P. 37(b)(2)(c), 11 U.S.C. § 523(a)(2)(A) and (a) (6); Plaintiff’s motion to strike Defendant’s pro se answer is granted. Defendant failed to serve responses to Plaintiff’s discovery requests even after Plaintiff’s motion to compel was granted. Plaintiff was entitled to a default judgment declaring that Plaintiff’s Superior Court judgment is non-dischargeable.
( 11 U.S.C. §§ 109(h), 521(a)(1), Fed. R. Bankr. P. 1006, 1007, 1017); Debtor’s motion to reopen his case is denied as debtor failed to timely pay his filing fee installment, failed to file explanation of exigent circumstances and submit certification of completion of budget and credit counseling briefing, and failed to file required schedules and statement of financial affairs within 45 days after date of filing petition.
Pursuant to earlier Order of Court requiring debtor’s ex-wife to obtain pre-approval before seeking affirmative relief against debtor’s employer, she must supplement current motion to hold employer in contempt by providing certain specific information and affidavits.
(11 U.S.C. §§ 727(a), 523(a)(2), (c); Fed. R. Bankr. P. 4004(a), 4007(c); O.C.G.A. §44-12-24); Defendant’s motion for summary judgment is granted. Plaintiff was assignee of a state court consent judgment, entitling original plaintiff, among other things, to assert a right of action for fraudulent inducement to extend credit if defendant ever filed personal bankruptcy. Georgia law does not permit assignee to bring action arising from injuries to another based on fraud and no other evidence of fraudulent misrepresentation was produced. With regard to the objection to discharge, plaintiff’s complaint was time barred and facts do not support an exception to discharge.
Finding portion of debt nondischargeable under section 523(a)(2)(A) and remainder of debt dischargeable.
NOT INTENDED FOR PUBLICATION
Granting motion for sanctions for violation of automatic stay.
Judge James E. Massey (Retired)
Former officer and shareholder of Chapter 11 debtor moved for allowance of administrative claim for unpaid wages. Trustee moved to disqualify law firm representing former officer because that firm had also represented the Chapter 11 debtor on discrete matters. Held: Motion to disqualify denied. Trustee failed to show at evidentiary hearing that law firm’s former representation of the Debtor was substantially related to dispute over administrative claim within meaning of Rule 1.9(a) of the Georgia Rules of Professional Conduct.
Secured creditor filed proof of claim and later employed an attorney who filed a motion for relief from stay. Subsequently, debtor objected to proof of claim and served the creditor but not the creditor's attorney. The Court denied the objection in part because service on the creditor's attorney was required by the Court's local rules.
Honorable Mary Grace Diehl (Recall)
Order Denying Debtor’s Application for Waiver of the Filing Fee. The Judicial Conference Procedures Regarding Fee Waivers in Chapter 7 cases do not define whether the income which is to be compared to the poverty level is before tax income or after tax income. Given the purpose of the fee waiver, after-tax income seems the most appropriate standard since only after-tax income is available to the Debtor to pay the filing fee. According to the figures calculated using Debtors’ Pay Advices, Debtors’ annual after-tax income is at least $5,000 higher than 150% of the official poverty line for a family of 3, thereby making Debtors ineligible for a waiver of the filing fee.