Court grants motion to vacate order granting motion for summary judgment in multiple-party case where judgment has not been entered. This order is not intended for publication.
You are here
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.
Honorable Paul W. Bonapfel
Order denying Defendant’s Motion to Dismiss. Plaintiff, acting pro se, filed an adversary complaint in her Chapter 7 case seeking to discharge her student loan. Defendant moved to dismiss the complaint based on insufficient service. Plaintiff listed the U.S. Department of Education/ Nelnet as Defendant but only served process on Nelnet, the servicer of her student loan. Because the U.S. Department of Education is an agency of the United States, service is governed by F.R.B.P. 7004(b)(4) and 7004(b)(5), which require mailing a summons and complaint to the civil process clerk of the United States attorney for the district in which the action is brought, to the Attorney General of the United States in Washington, D.C., and to the affected officer or agency. Here, Plaintiff did not serve process on any of these three entities, and thus service was defective. The Court, however, denied Defendant’s Motion to Dismiss and allowed Plaintiff to properly serve process on the three entities in 30 days. The Court further ordered that should Plaintiff fail to perfect service in 30 days, Defendant’s Motion may be granted.
NOT INTENDED FOR PUBLICATION
Order granting default judgment. UST sought an order denying Debtor's discharge under § 727(a)(2)(B), (a)(3), (a)(4)(A), (a)(4)(D), (a)(5), and (a)(6). Debtor's failure to respond served to admit Plaintiff's allegations regarding Debtor's misstatements on her Schedules, Debtor's liquidation of certain assets without court approval, and distribution of the proceeds of that liquidation to third parties without court approval. The allegations established that Debtor transferred property of the estate with the intent to hinder, delay, or defraud creditors; accordingly, Debtor's discharge was denied under § 727(a)(2)(B).
Order denying confirmation of Debtors’ Chapter 11 Plan. Debtors filed plan treating holders of general unsecured claims through three sub-classes. Largest claim holder objected to confirmation because Debtors classified its claim in a separate subclass apart from other unsecured claim holders. Court held separate classification impermissible as attempt to gerrymander a vote for confirmation by creating an impaired, assenting class under 11 U.S.C. § 1129(a)(10) without effective participation of objecting creditor. Separate classification of unsecured claims is justified only when the claims are sufficiently dissimilar as bearing a legal difference, or when a debtor can prove a legitimate business reason for such separation. Here, even though objecting creditor held non-debtor guaranties that the other claim holders did not have, based on the facts presented, Court did not find such difference legally sufficient. Because the Court also did not find any underlying business purpose for the separation, the Court denied the confirmation of the plan.
The Court further held that the absolute priority rule as codified under § 1129(b)(2)(B)(ii) applies to debtors in Chapter 11 cases who are individuals. This provision also prescribes an exception to the rule in reference to the expanded definition of property of the estate in §1115(a) for such debtors. The Court narrowly construed the exception, concluding that in a plan not paying creditors in full, individual debtors may retain post-petition property as added to the estate by § 1115(a), but may not keep property already included in the estate through § 541. The Court further concluded that in the reorganization plan as presented, Debtors violated the absolute priority rule, and thus confirmation was also denied on that basis.
Order granting Motion for Summary Judgment: Complaint asserted violations of the discharge injunction, but Plaintiff conceded in subsequent pleadings that the subject debts were excepted from discharge. Plaintiff may not raise new theories for relief in response to a motion for summary judgment.
Order granting motion to annul automatic stay nunc pro tunc due to Debtor's abusive filing. Debtor was barred from filing cases under Chapter 13 by order of the court in a prior case, and, due to a prior discharge, was ineligible for relief under Chapter 7 by operation of § 727(a)(8). Case filed for the purpose of halting foreclosure sale was in bad faith where Debtor was ineligible for relief and made no effort to prosecute the case.
Honorable Wendy L. Hagenau, Chief Judge
Order denying in part plaintiff’s motion for summary judgment. The Court held that a provision in a consent order, which purported to deem an amount of damages non-dischargeable under Sections 523(a)(2)(A) or (a)(4), was ineffective as a matter of law. The remaining provisions in the consent order were also not binding on the Bankruptcy Court, because the consent order was not entitled to preclusive effect under Georgia law.
Honorable W. H. Drake Jr.
Court denied defendants' motion to quash subpoena, finding the request untimely under Rule 9016 where the motion was filed the day before the scheduled deposition.
Honorable Barbara Ellis-Monro
Creditor sought to obtain possession of Debtor’s vehicle based on a hand written contract. In the contract, Debtor authorized the creditor to drive her car until she had paid her debt to the creditor in full. The contract was not a security agreement because it did not show an intent to create a security interest. Therefore, the creditor was an unsecured creditor and was not entitled to possession of the car.
NOT INTENDED FOR PUBLICATION
Debtor and creditor informally agreed to extend the deadline for the creditor to object to discharge, but did not record the agreement on the docket. When the creditor filed a motion for further extension on the last day of the informal deadline, Debtor objected because the motion was untimely. The Court denied the motion to extend the deadline because the terms of the applicable Rules bar an untimely request for extension, and 11th Circuit precedent allows no exception to the Rules based on equity.
NOT INTENDED FOR PUBLICATION