Order Denying Motion for Rule 60 Relief. Debtor sought relief under Rule 60 from an order dismissing her bankruptcy case and barring her from refiling a bankruptcy case for a period of 180 days. The Court held that modification of the dismissal order was not warranted as the Debtor was not eligible for a discharge, had failed to file a plan, had failed to make any payments to the Chapter 13 Trustee, and had failed to appear at her meeting of creditors and her confirmation hearing.
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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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Honorable Wendy L. Hagenau, Chief Judge
Order on Debtor’s Motion to Recuse Presiding Judge and Trustee. Debtor sought the recusal of the Judge presiding over his bankruptcy case on the basis that the Judge exhibited bias and prejudice against him. The Court held the Debtor had not stated any facts to support the Judge’s recusal, noting that Debtor’s only allegations of bias and prejudice were that the Court had ruled against him. The Court ruled that such allegations were insufficient to demonstrate bias and denied the Debtor’s request for recusal. The Debtor also sought the removal of the Chapter 7 Trustee. The Court held that removal of a trustee under 11 U.S.C. § 324 required a notice and hearing, and entered a separate notice of hearing for the remaining portion of Debtor’s motion.
Order Denying Motion to Reopen Case. Debtor sought to reopen a chapter 7 case to add a claim for unpaid alimony, child support, and other items that was omitted from Debtor’s schedules when the case was filed. The Court held that reopening the case would benefit the Debtor, as she would be able to pursue her claim individually and would likely exempt nearly the entire claim, but it would have minimal benefit to creditors for the same reason. Moreover, the Court concluded that her failure to disclose the claim was not in good faith because she knew the claim existed at the time she filed the schedules and offered no explanation for her failure to truthfully answer the direct question about claims for support.
Honorable Barbara Ellis-Monro
Plaintiff filed motions to examine (and compel the examination of) Debtor/Defendant and his business associates. Defendant filed responses and motions for protective orders. The Court determined that the examination was related to a pending adversary proceeding and therefore any motion to examine should be brought under Fed. R. Bankr. P. 7030, and not under Fed. R. Bankr. P. 2004. As to Plaintiff’s standing to pursue the adversary and the discovery, the Court noted that Plaintiff potentially had standing because he alleged a personal interest in the actions of Defendant’s business. However, because the record was unclear as to the ownership of Defendant’s business, the Court could not find that Plaintiff was a creditor of Defendant. Defendant argued that judicial estoppel was a defense to Plaintiff’s claims because Plaintiff failed to schedule any claim against Defendant in a prior bankruptcy. However, Plaintiff’s intent in omitting the action was unclear because Plaintiff alleged that he only suspected Defendant engaged in wrongdoing after Defendant scheduled a claim held by Plaintiff’s wife and daughter. That being the case, the Court reserved judgement on the issues of standing and judicial estoppel and set the matter for an evidentiary hearing.
NOT FOR PUBLICATION
Plaintiff sought reconsideration of the oral ruling and order dismissing most of the Defendants and most of Plaintiff’s claims. The Court found the motion was not timely under Rule 59. The Court found no basis to revise the order under Rule 54 or 60 because (1) Plaintiff’s failure to understand the order is not a ground for relief; (2) Plaintiff failed to show the Court erred in its application of 11 U.S.C. § 362; (3) Plaintiff failed to show the Court disregarded relevant allegations of fact; (4) Plaintiff failed to show the court made any legal or factual error in application of 11 U.S.C. § 366; and (5) Plaintiff failed to show the Court erred in concluding that a claim for recovery of funds arose post-petition when the allegations in the complaint and Debtor’s bankruptcy schedules supported the Court’s conclusion.
NOT FOR PUBLICATION
Honorable W. H. Drake Jr.
The Defendant, acting pro se, alleged several reasons for the Court to reconsider its judgment denying the Defendant's discharge, including ineffective assistance of counsel. However, the Court, noting that "there is no constitutional right to effective assistance of counsel in a civil case," denied the motion.
Honorable Lisa Ritchey Craig
Dismissing counts of complaint for emergency injunctive relief, a declaration that the automatic stay is in effect, and that a foreclosure sale was "wrongful" for failure to state a claim upon which relief could be granted and abstaining from hearing all other counts pursuant to 28 USC 1334(c).
Granting default judgment against the State of California State Franchise Tax Board with regard to Debtor's request for a determination that certain taxes were not nondischargeable.
Honorable Paul W. Bonapfel
Order denying Defenant's motion to suspend proceedings pursuant to Bankr. Rule 8007(e) pending appeal. NOT INTENDED FOR PUBLICATION.
Honorable Paul M. Baisier
Interim Order on Motion of Chapter 13 Debtor to retain net proceeds from settlement of lawsuit to pay for various expenses. Chapter 13 Trustee objected asserting that the proceeds represented “disposable income” under 11 U.S.C. § 1325(b)(2), and that Debtor must establish these funds are reasonably necessary for the maintenance and support of Debtor or his dependents, regardless of whether they may be exempted. Trustee also asserted retention by Debtor would violate 11 U.S.C. § 1324(a)(4), citing In re Springer, 338 B.R. 515 (Bankr. N.D.Ga. 2005). Court concluded Section 1325(b), and thus Springer, did not apply since plan had been confirmed. Court next addressed proposed modification of plan with respect to Debtor’s proposed use of the subject proceeds and set evidentiary hearing on issue of claimed exemption under O.C.G.A § 44-13-100(a)(11)(D) for personal bodily injury.