Supplemental Judgment holding division of property by state superior court in post-divorce decree contempt order, upheld on appeal by Georgia Supreme Court, dischargeable under 11 U.S.C. Section 523(a)(5), since 11 U.S.C. Section 1328(a)(2) omits any reference to 11 U.S.C. Section 523(a)(15), and distinction between alimony, maintenance, and support payments and property division remains relevant in cases under Chapter 13, as well as analysis of intent of state court order.
NOT INTENDED FOR PUBLICATION
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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.
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.
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Judge Robert E. Brizendine (Retired)
Court granted Trustee's Motion to Approve Compromise and Settlement Agreement, despite objections filed by the Bank of North Georgia, finding that the agreement fell within the range of reasonableness pursuant to a review of the relevant factors established in Wallis v. Justice Oaks II, Ltd., 898 F.2d 1544 (11th Cir. 1990).
NOT INTENDED FOR PUBLICATION
Default judgment; Debt arising from willful theft is nondischargeable under 523(a)(6)).
FOR PUBLICATION
Court granted Defendant's Motion to Dismiss Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (but provided the Trustee an opportunity to amend), finding that the Trustee failed to sufficiently plead that transfers made prepetition, ostensibly by the Debtor's incorporated business, satisfied all elements of 11 U.S.C. § 547; specifically the Trustee failed to satisfactorily plead that the properties transferred were interests of the Debtor and that the transfers were made for or on account of an antecedent debt of the Debtor.
NOT INTENDED FOR PUBLICATION
Court granted the Federal Deposit Insurance Corporation's Motion to modify the 11 U.S.C. § 524 discharge injunction in order for the FDIC to nominally name the Debtor as a defendant in order to proceed against an insurance company in an insurance policy liability matter provided that any judgment obtained against the Debtor shall not be collectible out of any property of the Debtor and shall not be recorded against him.
NOT INTENDED FOR PUBLICATION
Subsequent bankruptcy case does not stay an adversary proceeding arising in a prior bankruptcy case in the same court.
FOR PUBLICATION
Judge James E. Massey (Retired)
Plaintiff sued for a determination that a debt owed by the Debtor and embodied in a state court judgment arose from fraud and was not dischargeable under section 523(a)(6). The issue on Plaintiff’s motion for summary judgment was whether the state court judgment collaterally estopped the Debtor from contesting the fraud claim. The state court judgment was “against Defendants as to all claims asserted by Plaintiff,” which included a fraud count, and awarded damages for breach of contract and punitive damages but no damages for fraud. Held: Collateral estoppel did not apply because the failure to award damages for fraud made it impossible to determine the basis for the punitive damage award. More importantly, a determination of damages is a necessary element to prove fraud in Georgia.
Honorable Mary Grace Diehl (Recall)
The Chapter 7 Trustee was entitled to a judgment as a matter of law. The Complaint sufficiently alleged facts to avoid an improperly attested deed to secure debt under section 544 of the Bankruptcy Code and U.S. Bank v. Gordon, 709 S.E.2d 258 (Ga. 2011).
Chapter 7 Debtor sought to avoid a lien on and claim an exemption in funds paid into the court pursuant to a summons of garnishment. The garnishing creditor objected to Debtor’s claim of exemptions. Funds that had already been disbursed from the clerk of court to the creditor pre-petition were not property of the estate and therefore were not subject to exemption by the Debtor. This would not prevent Debtor from filing an avoidance action and claiming an exemption in funds ultimately returned to the estate. Under Georgia law, Debtor retained a right to file a traverse in the garnishment proceeding as to funds that were still held in the court’s registry when the case was filed, and thus, Debtor retained an exemptible interest in those funds.
Honorable James R. Sacca
The Court partially granted the Chapter 7 Trustee's Application for Compensation, which was filed after the Debtor converted her case from Chapter 7 to Chapter 13 and before the Chapter 7 Trustee distributed any funds to parties in interest. The Court found that the Chapter 7 Trustee performed substantial services on behalf of the estate (including liquidating $91,062.50 in assets) and concluded that he was entitled to reasonable compensation but that any compensation to the Chapter 7 Trustee could not exceed $7,803.13, which is the amount of the cap on trustee fees under 11 U.S.C. Section 326(a) applied to the total amount of funds the Court authorized him to distribute to parties in interest, including administrative claimants and the successive Chapter 13 Trustee. The Court further looked to Section 326(c)--which caps the total amount payable when multiple trustees serve in the same case--and, despite concluding that Section 326(c) does not necessarily apply when a case is converted from Chapter 7 to 13, nevertheless limited the Chapter 7 Trustee's fee to the amount capped by Section 326(a) minus any commissions the Chapter 13 Trustee earns under Section 326(b).