"Order Denying Parties' Cross Motions for Summary Judgment. The Court found that it did not have adequate facts to rule on a section 523(a)(2)(A) and (a)(6) claim, as there were material issues of fact in dispute and the attached documents were not properly authenticated, such that the record did not contain sufficient evidence to support a judgment."
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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 Barbara Ellis-Monro, Chief Judge
Debtor’s proposed treatment of FDIC, as receiver’s, debt constituted a claim which was subject to FIRREA limitations. Because Debtor did not exhaust all remedies under FIRREA, Debtor was barred from seeking any further rights or remedies with respect to the claim. As such, Debtor’s plan is not confirmable.
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Order on Cross Motions for Summary Judgment addressing the collateral estoppel effect of an arbitrator’s award of attorney’s fees pursuant to O.C.G.A. § 13-6-11 on a non-dischargeability claim. Plaintiff argued the attorney-fee award was non-dischargeable under 11 U.S.C. § 523(a)(6) and collateral estoppel barred the Debtor from relitigating the arbitrator’s findings of “bad faith” conduct by the Debtor that supported the arbitration award. Debtor contended that collateral estoppel was inapplicable to the adversary proceeding because the elements had not been met, or if the elements were present, the arbitrator’s findings were insufficient to render the debt non-dischargeable. The Court found the award of attorney’s fees was non-dischargeable. Collateral estoppel applied to the arbitration award and the findings in the award demonstrated the Debtor willfully and maliciously injured Plaintiff, thus the debt was excepted from discharge under Section 523(a)(6).
Order on Cross Motions for Summary Judgment. The Court held that the security deed to Wells Fargo was avoidable under 11 U.S.C. § 544(a)(3). The instrument was patently defective because the deed lacked an unofficial witness signature. The signatures on the Waiver of Borrower’s Rights and Attorney’s Affidavit are not attestations as to the execution of the deed and are thus insufficient to meet the signature requirement. Further, even if the signatures were attestations to the execution of the deed, they may not be incorporated into the deed to satisfy the missing signature requirement. Therefore, under Georgia law, the Wells Fargo deed did not provide constructive notice to a bona fide purchaser. See O.C.G.A. §§ 44-2-14, 44-16-61.
Court denied the Defendant's Motion to Dismiss the Complaint on the grounds that the Chapter 7 Trustee's Complaint for Fraudulent Transfer of Property pled sufficient allegations of actual and constructive fraud, in compliance with Federal Rules of Civil Procedure 8(a) and 9(b), to allege claims of fraudulent transfer under 11 U.S.C. § 548(a)(1)(B) and O.C.G.A. § 18-2-74(a)(2)
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Honorable Mary Grace Diehl (Recall)
The parties disputed who was entitled to keep the deposit paid in connection with a contract to sell real property. Plaintiff filed a motion for summary judgment and Defendant filed a cross motion for summary judgment. Despite Plaintiff’s assertion to the contrary, the Court found that the contractual language was clear and that Defendant’s obligation to transfer a franchise agreement had been waived by Plaintiff. Additionally, Defendant provided sufficient notice of default pursuant to the contract. Thus, Defendant was not in breach of the contract. Plaintiff, on the other hand, had breached the contract by failing to provide evidence of financing. Finally, the deposit, which constituted less than ten percent of the purchase price, was reasonable and enforceable as a liquidated damages provision. Summary judgment was denied as to Plaintiff and the cross motion was granted as to Defendant.
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Debtor’s Chapter 7 case was filed on January 11, 2010. Debtor received a discharge and his case was closed on April 21, 2010. On November 1, 2013, Debtor’s case was reopened for the purpose of filing a motion to avoid lien. The creditor asserted laches as a defense to the motion to avoid lien. Debtor’s attorney’s error did not prevent his failure to timely file the motion to avoid lien from being an unreasonable delay. The creditor was prejudiced by the late filing because it would have to procure a historical appraisal, conduct discovery, and incur attorney’s fees. However, it was possible for Debtor to cure the prejudice by paying these costs.
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Plaintiff’s motion for default judgment was granted. Plaintiff’s complaint established that it held a non-dischargeable claim under section 523(a)(2)(A), (a)(2)(B) and (a)(6). In default, the complaint’s factual allegations – except those relating to the amount of damages – are deemed admitted. FED. R. BANKR. P. 7008.
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Judge Robert E. Brizendine (Retired)
(In Chapter 11 case, Court denied Plaintiff's motion to disqualify counsel for Defendants on grounds of impermissible conflict of interest under Rules 1.7 and 1.9 of the Georgia Rules of Professional Conduct.)
Honorable James R. Sacca
The Court denied Debtor-defendant's motion to dismiss adversary proceeding, in which creditor-plaintiff alleged the Debtor is not entitled to a discharge pursuant to 11 U.S.C. Sections 727(a)(2)(A), 727(a)(2)(B), 727(a)(3), and 727(a)(5), because the plaintiff alleged sufficient facts--namely that the Debtor allegedly transferred certain cars and granted his friend a security interest in his home without satisfactorily explaining what happened to the proceeds of those transactions or producing records in support--to state a claim for transferring or concealing assets with intent to hinder, delay, or defraud a creditor; for concealing, destroying, mutilating, falsifying, or failing to keep or preserve records relating to his financial condition; and for failing to satisfactorily explaining any loss of assets.