denying plaintiff's motion for contempt and discovery sanctions
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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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sustaining debtor's objection to the United States Trustee's notice of presumed abuse; section 707(b)(2) permits debtor to subtract payments on secured debts, notwithstanding the debtor's intent to surrender the collateral securing the debt
(denying creditor's motion for order confirming lack of stay in accordance with section 362(c)(4)(A)(ii))
(granting motion for relief to pursue litigation against the debtor to the extent of insurance coverage)
Honorable Paul W. Bonapfel
(Order granting Defendant’s motion for summary judgment and dismissing 523(a)(2)(A) and (a)(2)(C) dischargeability claim. Plaintiff failed to allege facts to support claim under 523(a)(2)(A) and (C) and admitted absence of factual basis when it failed to respond to Defendant’s requests for admission.)
Although bankruptcy court ordinarily should decline to relinquish its jurisdiction to permit arbitration of dischargeability issues arising under § 523(a)(2), (4), or (6) that the bankruptcy court must determine under § 523(c), this principle does not apply to a proceeding to except a debt from discharge under § 523(a)(19), relating to violations of federal and state securities law or common law fraud, deceit, or manipulation in connection with the purchase or sale of a security. § 523(c) does not require the bankruptcy court to determine dischargeability under § 523(a)(19). Because the debtor agreed to arbitrate, it is appropriate to lift the stay to permit the parties to arbitrate in accordance with the provisions of the Federal Arbitration Act and to stay the dischargeability proceeding pending conclusion of the arbitration.
Judge James E. Massey (Retired)
Prior to bankruptcy, debtors refinanced residential mortgage loan with existing lender after creditor obtained a judgment against one debtor. Debtors exempted residence. Judgment creditor sued lender contending that its lien had priority over lender’s lien with respect to the increase in the amount of mortgage debt. Lender’s motion for summary judgment was denied as moot because the Court lacked jurisdiction under 28 U.S.C. § 1334(b). The outcome could not affect the estate because Debtors exempted the residence and could not affect Debtors because they had not sought to avoid the judgment lien. Hence, the proceeding was not related to the bankruptcy case.
NOT INTENDED FOR PUBLICATION
Order confirming plan providing for flat fee is res judicata, requiring denial of fee application of Chapter 13 debtor’s attorney based on alleged hourly rate contract.
NOT INTENDED FOR PUBLICATION
Judge Joyce Bihary (Retired)
Debtor filed pro se motion to reimpose stay after foreclosure sale of her residence. Her former counsel and creditor’s counsel, after two different hearings, were directed but failed to prepare an Order granting relief to Debtor by keeping the stay in effect. After mortgage loan was transferred, second creditor foreclosed on property and evicted Debtor. Debtor had made mortgage payments to former counsel, but he had not sent the funds to the mortgage company. Counsel must promptly return to Debtor the $2,200 in funds and file a report evidencing the return
(Debtor’s failure to file schedules, statement of financial affairs, copies of payment advices, and statement of monthly net income pursuant to § 521(i)(1) results in automatic dismissal of his Chapter 7 case, effective on the 46th day after filing petition.)