The Chapter 7 Trustee obtained judgments against the principals of the Debtor. Subsequently, the Trustee sought to collect on those judgments by filing a separate adversary proceeding seeking to avoid transfers made by the judgment debtors to non-debtor third parties, asserting that F.R.B.P. 7069 provided the procedural mechanism for the action. Noting that the Court’s subject matter jurisdiction over the proceeding was questionable, the Court analyzed the twelve factors relevant to discretionary abstention. The Court concluded that abstention was appropriate where the Trustee asserted purely state law causes of action that did not affect the administration of the bankruptcy estate.
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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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Honorable Mary Grace Diehl (Recall)
The Court retained jurisdiction over this dismissed case for a period of 30 days to allow Movant to file a motion regarding the alleged conduct of the Debtor and its purported Trustee, citing 11 U.S.C. § 349; e.g., Iannini v. Winnecour, 487 B.R. 434, 439-40 (W.D. Pa. 2012).
The Court retained jurisdiction over this dismissed case for a period of 30 days to allow Movant to file a motion regarding the alleged conduct of the Debtor and its purported Trustee, citing 11 U.S.C. § 349; e.g., Iannini v. Winnecour, 487 B.R. 434, 439-40 (W.D. Pa. 2012).
Defendant’s motion to dismiss for failure to state a section 523(a)(2)(A) dischargeability claim was granted and Plaintiff was given leave to amend. The complaint failed allege sufficient facts to allow the Court to make a reasonable inference that Defendant had made any misrepresentation or material omission to support a false pretenses or false representation claim. The Complaint also failed to allege facts to infer Defendant’s design, artifice, or intent to deceive
the Plaintiff under the actual fraud theory. Defendant’s lack of personal income, execution of a Personal Loan Agreement, and petition for relief under Chapter 7 alone are insufficient to support any plausible inference that the Defendant intended to deceive the Plaintiff when incurring the debt.
Honorable Barbara Ellis-Monro, Chief Judge
Order Denying Motion to Set Aside Judgment. The Court denied Debtor's Motion to Set Aside a Georgia Magistrate Court Judgment, because the Magistrate Court had both subject matter and personal jurisdiction to adjudicate the eviction proceeding, and the bankruptcy court had no jurisdiction to exercise appellate review of a state court order.
NOT INTENDED FOR PUBLICATION
Proposed Debtor's counsel filed an application to employ but did not disclose payment of fees by a third party related to Debtor. After United States Trustee objected to the application, counsel amended the application to include the source of the funds. An unintentional omission of a relationship formed by payment of retainer by a third party does not create a de facto adverse interest and immediate disqualification of proposed counsel.
NOT INTENDED FOR PUBLICATION
Order sustaining Debtor's objection to priority unsecured claim filed by former spouse. The Court held that the language used in the state court divorce settlement decree demonstrates that the debt owed to former spouse was in the nature of a property settlement rather than in the nature of alimony, maintenance or support.
NOT INTENDED FOR PUBLICATION
Court overruled the Chapter 13 Trustee's Objection to confirmation of the Debtors' Chapter 13 Plan, given that the Chapter 13 Trustee failed to carry his burden proving that the Debtors' residential exemption in accordance with Official Code of Georgia Annotated (O.C.G.A.) section 44-13-100(a)(1) was improper, finding that the debtors use of the property contingent to their residence was consistent with its being a part of the residence.
NOT INTENDED FOR PUBLICATION
Order dismissing Debtor’s Chapter 13 case with a 180-day bar to refiling on creditor’s motion to dismiss with prejudice. Following a hearing on the motion, the Court found sufficient cause to dismiss with prejudice as to refiling pursuant to Sections 109(g), 349(a), and 105. Debtor’s prior three Chapter 13 cases were unsuccessful. The current and the prior Chapter 13 cases demonstrated a pattern of failure to prosecute. Additionally, the current case was filed with no bankruptcy purpose.
Honorable Paul W. Bonapfel
(Order granting plaintiff’s motion for summary judgment and concluding that debtor’s divorce-related debts are excepted from chapter 7 discharge pursuant to 523(a)(5) and (a)(15))
NOT INTENDED FOR PUBLICATION