Order granting Motion to Dismiss in part. A writ of possession was issued against Debtor pre-petition and Debtor failed to take steps necessary to invoke the stay under § 362(l). Defendants' alleged eviction of Debtor from the subject property was not stayed pursuant to 11 U.S.C. § 362(b)(22); therefore, the alleged conduct could not give rise to a claim for violation of the automatic stay.
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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.
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Order dismissing adversary proceeding for lack of jurisdiction. Plaintiff's complaint raised causes of action against various defendants for violations of the automatic stay, fraud, breach of contract, infliction of emotional distress, and negligent representation. Defendants raised counterclaims for breach of contract, breach of fiduciary duty, and defamation. The Chapter 7 Trustee filed a report of no distribution, Debtor received a Chapter 7 discharge, and the case was closed. Subsequently, Plaintiff's cause of action for violation of the automatic stay was dismissed for failure to state a claim. None of the remaining causes of action arose under title 11 or in a case under title 11 so as to be "core" matters for adjudication by the bankruptcy court, nor could the causes of action be considered "non-core" matters which may affect the administration of the bankruptcy estate because the estate was closed. Because the bankruptcy court lacked jurisdiction to enter a final order or propose findings of fact and conclusions of law, the adversary proceeding was dismissed.
Motion for Summary Judgment granted in part. Debtor, an officer of a Georgia Lottery retailer, committed defalcation in her fiduciary capacity by failing to comply with Georgia state law in handling lottery proceeds; however, Debtor raised issues of material facts with respect to some of the proceeds. MSJ denied for debts arising during a period when Debtor asserts she was physically locked out of the retailer premises, apparently preventing compliance with her fiduciary duties.
Following entry of an order finding that the petitioning creditor (lessor) held valid claims against the debtor, the Court entered an order that determined the lessor’s state law contractual lease termination damages and ruled on legal issues related to the “rent cap” statute in section 502(b)(6). Under applicable North Carolina law, the lessor’s postpetition decision to convey the property at issue through a deed in lieu of foreclosure, cut off its property and contractual rights against debtor. Lessor’s claim was limited to the loss of rents prior to the conveyance. Additionally, the “time approach” was applied to section 502(b)(6)’s calculations and the court adopted the McSheridan test to evaluate whether charges beyond fixed minimum rent were included in the allowable, capped claim.
The Court granted the motion to dismiss a Chapter 11 case filed by an individual debtor with no creditors solely for the purpose of using the Chapter 5 avoidance powers to prevent the secured lender from seeking reformation in state court of a deed to secure debt.
Order granting judgment on the pleadings. Defendants did not violate the discharge injunction of Plaintiff's company's bankruptcy case because no discharge was entered in that case, and the alleged crime was reported against Plaintiff, not the company. Defendants did not violate the discharge injunction or automatic stay of Plaintiff's personal case because Defendants took no action during or after Plaintiff's personal bankruptcy case. Post-petition investigation was State criminal prosecution, not subject to the automatic stay or discharge injunction. Plaintiff made no allegations to support a finding of bad faith prosecution for the purposes of collecting a debt. The State is not barred by judicial estoppel in the criminal prosecution for Defendants failure to object to discharge in Plaintiff's bankruptcy case.
Order denying Trustee’s Motion for Summary Judgment; though Plaintiff’s possible claim of implied trust is invoked “sparingly” in a bankruptcy context, factual issues remain such that the remedy could not be precluded
Honorable Barbara Ellis-Monro, Chief Judge
Defendant filed a motion to dismiss the complaint for failure to state a claim for which relief could be granted. The complaint sought a determination that debt owed to plaintiff was non-dischargeable pursuant to 11 U.S.C. §§ 523(a)(2), (a)(4), (a)(6) and denial of discharge under §§ 727(a)(2)-(5). The claims arise from Debtor’s alleged diversion of accounts receivable and a financial statement that Plaintiff alleges was intentionally inaccurate. The Court analyzed each of the claims under Fed.R.Civ.P. (8)(a)(2) and 9(b) and concluded that, although the facts alleged in the Complaint were scarce, they were sufficient to support claims under §§ 727(a)(2), (a)(4) and 523(a)(2)(A), (a)(4) and (a)(6).
NOT INTENDED FOR PUBLICATION
Plaintiff filed a motion for discovery sanctions under FRBP 7037 and FRCP 37(d), seeking to strike Defendant’s answer, entry of default judgment, and attorney fees. The Court declined to strike the answer and grant default judgment but did award costs, including attorney fees.
NOT INTENDED FOR PUBLICATION
Honorable Wendy L. Hagenau
Order denying Defendant’s Motion to Dismiss. Plaintiff brought action seeking determination that professional fees awarded to her for conducting evaluations related to custody and visitation in the Debtor’s divorce proceedings were non-dischargeable under Section 523(a)(5) as domestic support obligations. Defendant moved to dismiss the complaint, arguing the fees were not in the nature of support because the divorce court ordered the fees to be paid directly to Plaintiff, as opposed to a spouse, former spouse, child, legal guardian, or other entity set out in Section 101(14A). The Court denied the Motion to Dismiss because the identity of the payee does not determine the dischargeability of the debt. The Court must determine whether the award was “in the nature of alimony, maintenance or support”, irrespective of the payee.