Debtor’s Chapter 11 plan provided for deferral of payment to secured lender for six months in order to fund renovations to vacant apartment units. The Court held that a review of Debtor’s operations during the pendency of the case demonstrated that the proposed plan did not meet the feasibility requirements of 11 U.S.C. § 1129(a)(11).
You are here
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.
Honorable Barbara Ellis-Monro, Chief Judge
Denying Motion to Dismiss; Defendant did not properly show lack of due process
Denying Motion for Default Judgment; Plaintiff failed to state prima facie claim for relief
Debtor filed a motion to interpret a court-approved settlement agreement with lender with regard to the use of lender’s cash collateral. The agreement provided that Debtor would return lender’s collateral, including real property and “net cash collateral” in exchange for full satisfaction of certain claims. Debtor asserted the reference to “net” cash collateral meant net of expenses necessary to maintain the real property, including electricity and insurance. The lender pointed to an explicit provision in the agreement allowing for payment of property taxes from the cash collateral and noted the absence of any other express provisions for use of cash collateral. The court agreed with the Debtor, noting that the term “net” must have some meaning. The court based its construction of the word “net” as exclusive of necessary costs on three considerations: First, that it best reflected the intention of the parties to effectuate a clean break; second, that payment of the expenses preserved lender’s collateral and thus was in its interest; and third, that the court would have granted Debtor the right to use the cash collateral without lender’s consent had Debtor requested.
Creditor filed a complaint to determine dischargeability of a debt, and after Debtor failed to answer the complaint, the clerk entered default. Debtor moved to set aside entry of default, attaching affidavits sworn by Debtor and his attorney that neither had been served with the summons or complaint. Creditor’s attorney filed an affidavit in response swearing that the complaint had been served as shown in the filed certificates of service. The court granted Debtor’s motion, noting that the standard to set aside entry of default was liberal. The court held that the two certificates of service filed by Creditor were each procedurally deficient to prove service. The first was filed before the summons was issued and referenced an “Objection to Confirmation.” The second was filed nearly two months after the complaint and lacked the name and address of all persons served. The court concluded that absent proof of service, there was no basis to find that Debtor’s default was culpable or willful, particularly considering that Debtor acted promptly to cure the default and demonstrated his readiness to proceed by attaching an answer to his motion.
Order granting the Chapter 7 Trustee’s motion to disqualify counsel. The Court found that disqualification was warranted under Georgia Rule of Professional Conduct 1.9, which prevents attorneys from acting against the interests of a former client by later representing an adverse party in a matter involving substantially the same relevant facts. The law firm did not dispute that the matters were substantially related. Instead, it argued that the substantial relationship test did not apply in the case of prior joint representation. The Court found that even though the Trustee could not assert the attorney client privilege against the firm’s other clients, the substantially related test was still applicable. The matters in the bankruptcy case and related adversary proceeding were substantially related to the matters in which the law firm previously represented the Debtor because the matters involved the same transaction or legal dispute. The Court concluded that disqualification was required under Rule 1.9.
Denying Motion to Dismiss; filing a petition via a power of attorney/ ratification of a forged petition; representation of case law under Rule 9011
Order denying motion for stay pending appeal of Court's order denying motion to extend stay for want of prosecution.
Court granted creditor's motion to validate a foreclosure sale conducted before an order was entered by the Court reinstating the the debtor's case.
Honorable Wendy L. Hagenau
Order after trial on objection to discharge under Sections 727(a)(2) and (a)(4). Plaintiff argued, inter alia, the Debtor concealed assets through the use of a corporate form and through the creation of trusts. The Plaintiff argued the Debtor was the alter-ego of the trusts and corporation, such that all of their transactions should be viewed and disclosed as the Debtor’s transactions. The Court rejected Plaintiff’s contentions on the facts and the law, noting that reverse veil piercing has been rejected by the Georgia Supreme Court. The Court also discussed the continuing concealment doctrine. The Court found that the transfers of the Debtor, or the corporation or trusts, were not made with the requisite intent to hinder, delay or defraud, and any “false oaths” were immaterial or not made knowingly or with intent to deceive. The Court granted Debtor’s discharge.