Parties sought court approval of compromise in suit to determine dischargeability of debt. Held: Motion denied because the Bankruptcy Code does not provide for approval of such compromises. Moreover, a motion to approve a compromise, when appropriate, should be filed in the main case, not the adversary.
NOT INTENDED FOR PUBLICATION
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Judge James E. Massey (Retired)
Trustee moved for a default judgment on a complaint to avoid liens either as a violation of section 362 or as a preference under section 547. According to the complaint, one of the defendants held a mechanics lien recorded during the preference period. Held: Motion denied as to Defendant holding mechanics lien. Section 547(c)(6) bars avoidance of a statutory lien not avoidable under section 545, and complaint alleged no facts to show that lien was avoidable under section 545. Mention of statutory lien in complaint eliminated need for defaulted Defendant to prove affirmative defense under section 547(g).
NOT INTENDED FOR PUBLICATION
This case illustrates two points: (1) once a motion is denied, it cannot be amended to cure whatever led to its denial, and (2) a second motion for reconsideration is almost always improper and violates BLR 9023-1.
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The complaint filed by debtor seeking to determine that tax debt was dischargeable referred to the debt as “payroll taxes.” Defendant Revenue Department moved to dismiss for failure to state a claim, arguing that a debt for payroll taxes falls squarely within the exception to discharge under § 523(a)(1)(A). Held: Motion denied. “Payroll taxes” is imprecise and could refer to taxes owed by Plaintiff for wages, as opposed to withholding taxes not paid over to Defendant.
NOT FOR PUBLICATION
Postconfirmation modification of Chapter 13 plan proposing to surrender vehicle in satisfaction of debt may not be approved under section 1329 of the Bankruptcy Code.
Judge Joyce Bihary (Retired)
Trustee’s motion for settlement and compromise is granted. Objecting creditor filed bankruptcy, and her claim belongs to her bankruptcy estate. The Chapter 7 Trustee of the objecting creditor's estate agrees with terms of settlement and compromise, U.S. Trustee does not oppose it, and settlement and compromise meet Justice Oaks II, Ltd factors.
(11 U.S.C. §§ 704, 726, 541(a)(1)); Debtor’s objection to employment of real estate agent overruled. Court is without authority to permit debtor to keep unencumbered home valued at $125,000 as Bankruptcy Code requires Chapter 7 Trustee to liquidate debtor’s property and pay creditors.
Plaintiff filed a motion for partial summary judgment pursuant to 11 U.S.C. § 523(a)(2)(A). Defendant did not dispute Plaintiff’s statement of undisputed material facts, but argued that Plaintiff’s judgment was “void” because venue had “vanished” in Fulton County. Plaintiff’s Fulton County Superior Court judgment, which was based on Defendant’s fraudulent conduct, meets the test for collateral estoppel, or issue preclusion, under Georgia law, and Plaintiff’s judgment is determined to be non-dischargeable. Defendant had waived any argument concerning venue as he had not raised it at the earliest opportunity or appealed the superior court judgment
Resolving issue as to escrowed settlement funds
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Granting in part and denying in part application for compensation filed by real estate professional.