Court denied the Debtors' Motion to strip the lien of second lien holder as the Debtors' Chapter 13 plan had been confirmed by order of the Court and the lien strip process set forth in In re Tanner, 217 F.3d 1357 (11th Cir. 2000) is not proper post-confirmation, given the res judicata effect of a confirmed chapter 13 plan; and, the Court denied the Debtors' Motion to Strip under a theory applying section 502(j) of the Bankruptcy Code; additionally, the Court denied the Debtors' corresponding request to modify their plan to reflect the proposed post-confirmation lien strip, given the res judicata effect of the confirmed plan.
NOT INTENDED FOR PUBLICATION
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“Household” defined for the purposes of waiver of Filing Fee
FOR PUBLICATION
Court sustained creditor-trustee's objection to claim of Talon DN Investments I, LLC, finding that additional language in a note purporting to cross-collateralize Talon's loan with the Debtor with that of another of Talon's loans with a third-party borrower was insufficient, due to the statute of frauds' suretyship provision, to establish a valid third-party pledge or hypothecation agreement, so as to bring the third-party's deficiency within the purview of the Debtor's and Talon's Deed's dragnet clause.
NOT INTENDED FOR PUBLICATION
whether appointment of a patient care ombudsman is needed); March 5, 2014 (Doc. No. 39)
FOR PUBLICATION
Judge Robert E. Brizendine (Retired)
In Chapter 13 case, Court overruled objections to claim, finding that creditor had filed sufficient proof of assignment of underlying debt from originating lender. Court also concluded that standard under Federal Rule of Bankruptcy Procedure 3001 according prima facie validity to claim that is in substantial compliance with said Rule takes precedence over asserted state evidence law standard regarding assignment chain of title, which impermissibly heightens creditor's evidentiary burden in connection with such claim. Based on review of authentication and other documentation filed with the claim and Debtor's arguments challenging same, Court concluded Debtor did not rebut presumption of validity. This Order is currently on appeal.
NOT INTENDED FOR PUBLICATION
In Chapter 13 case, Court granted Trustee's motion to dismiss case for various reasons including debtor's pattern of failing to disclose fully and timely information pertaining to increases in income, including that of his spouse whom he married shortly after filing his bankruptcy case, and who played substantial role in contributing to, and management of, their household finances. In addition, Debtor's proposed post-confirmation modification of plan evidenced lack of good faith under 11 U.S.C. Section 1325(a)(3). See also 11 U.S.C. Section 1329(a) & (b)
NOT INTENDED FOR PUBLICATION
In Chapter 13 case, Court denied debtors' motion to avoid liens and determine value of security where debtors offered new appraisal and sought retroactive revision of valuation of underlying property serving as collateral that had been fixed fiver years earlier in their confirmed plan. Court found debtors did not present sufficient reasons to outweigh strong interest in finality of confirmation order under 11 U.S.C. Section 1327(a) and treatment of lender's claim therein, and, therefore, debtors could not modify valuation or have claim reclassified at such late date.
NOT INTENDED FOR PUBLICATION
Honorable James R. Sacca
The Court granted relief from the automatic stay for a title pawn company to repossess two vehicles from the Debtor, which had been pledged as collateral on two loans. Although the Debtor proposed in her Chapter 13 plan to cure her default and arrearage as to the amounts owed, the Court concluded that the title pawn company was not bound by her plan because she had no legal rights in the vehicles at the time she filed her bankruptcy petition, which was after her right of redemption had expired. The vehicles were not property of the Debtor’s estate because her legal title in the vehicles was divested upon expiration of the statutory grace period for her to cure her default and redeem the vehicles under Georgia law, and title to the vehicles automatically transferred to the title pawn company upon expiration of that grace period.
Honorable Mary Grace Diehl (Recall)
The Court approved the Chapter 7 Trustee’s motion for compromise and settlement over Debtors’ objection. Without determining whether Debtors had standing to object because the settlement was approved despite the issues raised in Debtors’ opposition, the Court found that Trustee had satisfied the Justice Oaks factors and the proposed settlement was reasonable.
Debtor sought to exempt an IRA and an annuity under O.C.G.A. § 44-13-100(a)(2.1)(D). A judgment creditor objected to these exemptions and the Chapter 7 Trustee joined in the Annuity objection. The Court overruled the objection to the IRA on the basis that the judgment creditor had failed to establish that Debtor engaged in prohibited transactions under section 4975 of the Internal Revenue Code to disqualify the IRA under section 408 of the Internal Revenue Code. The judgment creditor’s objection to the Annuity was sustained. Interpreting the Georgia exemption statute broadly, the Court inferred that a qualified annuity under section 408(b) of the Internal Revenue Code could be covered by the claimed exemption. Here, however, the contribution amounts and the structure of the Annuity disqualified it under either subsection of 408 of the Internal Revenue Code. Debtor’s argument regarding his subjective intent and the factors enumerated in Silliman v. Cassell, 292 Ga. 464 (2013) were not applicable to Debtor’s claimed exemption.