In Chapter 13 case, Court denied Plaintiff-Debtor's motion to amend order dismissing his complaint, concluding that Debtor failed to establish excusable neglect in filing amended complaint on timely basis when confronted with motion to dismiss.
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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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Judge Robert E. Brizendine (Retired)
(In Chapter 7 case, Court denied motion for summary judgment on complaint asserting cause of action under 11 U.S.C. Section 523(a)(2)(A) finding issues of fact existed regarding Debtors' knowledge and intent in connection with presentment of photocopy of check that Plaintiff bank paid.)
Court granted Plaintiff's Motion for Summary Judgment and Denied Defendant's Cross-Motion for Summary Judgment, holding that the Debtor's pledge of an assignment of his tax-deferred annuity, which contained anti-alienation provisions, failed to establish a security interest in the Creditor, because under Georgia's version of the Uniform Commercial Code, for a security interest to attach to collateral, a Debtor must have rights in the collateral sufficient to assign or transfer it, and the Debtor did not have authority to assign his interest to the Creditor because the Georgia Supreme Court held in an analogous context that anti-assignment clauses, or the rights thereunder, should be enforced where such clauses were inserted to protect a party from a "material reduction in value of the contract."
NOT INTENDED FOR PUBLICATION
Court, finding that the Plaintiff's claims fail to "arise under" the Bankruptcy Code, "arise in" a case under the Bankruptcy Code, and fail to be "related to" a case under the Bankruptcy Code, granted Defendant's Motion for Judgment on the Pleadings requesting dismissal of Plaintiff's adversary proceeding (to the extent that the complaint contained core claims) and submitted its finding of fact and conclusions of law to the District Court and recommended that it grant the Defendant's Motion (to the extent that the complaint contained non-core claims.)
NOT INTENDED FOR PUBLICATION
Mootness; Does the Department of Education’s administrative discharge of student loans moot a dischargeability proceeding, where the administrative discharge is subject to review and reinstatement?
Honorable Mary Grace Diehl (Recall)
Trustee’s unopposed motion to consolidate actions under Federal Rule of Civil Procedure was granted based on finding that the Defendants and causes of action are identical and that the action involve the same facts related to the same transfers.
The Court dismissed Plaintiffs’ claim for violation of the automatic stay and abstained from the remainder of the claims. The Defendants’ filing of a proof of claim was not a violation of the stay because such a filing was expressly provided for in the Bankruptcy Rules and the stay does not operate against actions taken within the bankruptcy court forum. Permissive abstention under 28 U.S.C. § 1334(c)(1) as to the remainder of the claims was appropriate under the 12-factor test used in the 11th Circuit. The Court found, among other things, that the property at issue was not property of the estate because it was foreclosed on prior to the filing of the petition. Thus, issues relating to the foreclosure of that property would not affect the administration of the estate.
NOT INTENDED FOR PUBLICATION
The Court denied Movant’s emergency motion for order confirming no automatic stay is in effect. Movant was Debtor’s landlord and obtained a judgment for possession prior to the filing of Debtor’s Chapter 13 case. The confirmed plan treated the lease and Movant did not object to confirmation. Debtor did not comply with section 362(l), thus Movant sought affirmation from the Court that the stay did not apply to Movant’s interest in the property. The Court denied the motion because the confirmed plan, of which movant had notice, had res judicata effect and governed movant’s rights despite the fact that the stay was not in effect at confirmation.
NOT INTENDED FOR PUBLICATION
Honorable James R. Sacca
Following trial, the Court dismissed an ex-husband's complaint against his ex-wife seeking damages and a determination of nondischargeability regarding purported debts relating to a business they operated; the Court concluded that the exception to dischargeability contained in 11 U.S.C. Section 523(a)(15) did not apply because the ex-husband and ex-wife each were responsible for 50% of business debts both before and after their divorce--thus their divorce settlement did not create any new obligations, and thus the relevant debts were not incurred in the course of their divorce. Also, the Court held that the ex-husband violated the automatic stay by withholding a portion of his child support payments and claiming a setoff against the ex-wife's alleged debt to him because Georgia law rarely permits setoffs against child support and because any claims he may have had against her were discharged in her Chapter 7 bankruptcy.
The Court denied the Chapter 13 Trustee's objection to the Internal Revenue Service's claim that was filed after the claims bar date because the Internal Revenue Service was not listed as a creditor on the Debtor's bankruptcy petition and thus received no notice of the bankruptcy case or the claims bar date, and fundamental fairness requires that the Service not be deprived of the opportunity to participate in the Debtor's Chapter 13 plan when it had no notice of the bankruptcy filing.