Failure to account for proceeds of sales of lottery tickers is a defalcation while acting in a fiduciary capacity and debt related thereto is not dischargeable under 11 U.S.C. § 523(a)(4).
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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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Judge James E. Massey (Retired)
Fee application in Chapter 11 case was denied in part primarily because the work was not necessary.
NOT INTENDED FOR PUBLICATION
Pursuant to 28 U.S.C. § 1408,Trustee moved to dismiss for improper venue where Debtor filed the case in the Atlanta Division when it should have been filed in the Newnan Division. Motion denied. The venue under § 1408 was proper in this District. The Court has the authority to permit a case filed in the wrong Division to be administered there.
NOT INTENDED FOR PUBLICATION
Judge Joyce Bihary (Retired)
Fed. R. Bankr. P. 4002(5). Debtors are ordered to comply with bankruptcy law and this Order to provide a new address to Trustee and to file same with Clerk’s office.
11 U.S.C. §§ 522(d); 541(c)(2); O.C.G.A.
§ 44-13-100. Chapter 7 Trustee filed objection to Debtors’ claims of exemptions and motion to surcharge the exemptions. Surcharge against a debtor’s exemption appropriate where debtor has underreported assets or has engaged in exceptional misconduct in order to protect integrity of bankruptcy process and creditors of the estate. Debtors’ motion to surcharge homestead and vehicle exemption granted. Debtors allowed their exemptions in household goods, furnishings and jewelry, but personal property valued in excess of those amounts must be turned over to the Trustee. Trustee’s surcharge request with regard to the IRA accounts is denied unless the Trustee demonstrates such accounts are not excluded from property of the estate.
Honorable Mary Grace Diehl (Recall)
Order Denying Debtor’s Motion to Dismiss. Chapter 7 debtor attempted to use the eligibility and automatic dismissal provisions of BAPCPA to abuse the bankruptcy system by moving to dismiss his case on the grounds that he is ineligible to be a debtor under Section 109(h) due to his failure to receive credit counseling from an approved agency. Debtor waived the protections of that statute by filing a Motion to Extend Time for Credit Counseling and by actively participating in his Chapter 7 case after becoming aware of the Section 109(h) issue. Debtor is therefore judicially estopped from arguing his ineligibility at this stage of the proceedings. Similarly, dismissal because of the absence of payment advices where there is no evidence that payment advises exist would be contra to BAPCPA.
(Consideration of good faith requirement for Chapter 13 confirmation)
(Dismissal of pro se Debtors' 19 adversary proceeding filed to enforce the automatic stay )
(Order vacating dismissal for want of prosecution)
Honorable Paul W. Bonapfel
(includes doc no. 44 (OrDer entered July 6, 2006))(A lawyer retained by the Chapter 13 debtor to represent her in an action for the wrongful death of their son settled the action for policy limits, deducted his one-third contingent fee, and disbursed the balance to the debtors, who spent over half of the proceeds. The Debtor’s bankruptcy counsel then filed an application for approval of the employment of special counsel, approval of the settlement, payment of special counsel’s fee, and disbursement of the net proceeds to the chapter 13 trustee. These applications did not disclose the prior disbursement of the funds. After the court approved the applications in the absence of objection, the chapter 13 trustee filed a motion to vacate the orders and to dismiss the case when she discovered that the funds were not available. The court vacated its prior orders and ordered bankruptcy counsel and special counsel to show cause why their fees should not be disallowed or disgorged and why sanctions should not be imposed.)