Chapter 7 Trustee sought to avoid Defendant’s security deed under section 544(a)(3) and Defendant moved for summary judgment. Defendant’s motion for summary judgment was denied because the Trustee created a genuine issue of material fact by submitting into evidence an admissible certified copy of the security deed which called into question the form of the original security deed at the time of recordation. Specifically, the certified copy did not include a visible notary seal, as required by applicable Georgia law. Defendant did not submit any evidence which invalidated the certified copy submitted by the Trustee and thus failed to satisfy its burden of proof that the Trustee could not make his claim as a matter of law. It was inappropriate for the Court to weigh or infer facts regarding the form of the security deed at the summary judgment stage and Defendant’s motion was therefore denied.
NOT INTENDED FOR PUBLICATION
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Honorable Mary Grace Diehl (Recall)
Santa Ana School District’s objection to exemption, motion for summary judgment, and motion to strike were denied. In a related adversary proceeding, the Court determined that certain funds Debtor sought to exempt were not property of the estate and, therefore, not exemptible. The remaining funds in an IRA account were permitted as exempt under section 522.
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Plaintiff’s motion for summary judgment was granted finding that collateral estoppel applied to prevent Chapter 11 Debtor from re-litigating whether his acts constituted a “willful and malicious injury” under section 523(a)(6). Plaintiff had obtained a judgment against the Debtor on claims of cybersquatting, trademark infringement, and false advertising and moved for the nondischargeability of the related debt. In those previous proceedings, a jury necessarily determined the issue of Debtor’s perpetrating a willful and malicious injury. The jury verdict was a final judgment which was not overturned on appeal, and the party against whom collateral estoppel was being asserted was a defendant in the prior proceeding. Accordingly, the debt was nondischargeable under 523(a)(6).
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Honorable Paul W. Bonapfel
Creditor with unrecorded judgment has rights under Georgia law to perfect the lien of the judgment on nonexempt property that survive the debtor's Chapter 7 bankruptcy case when the trustee does not administer the property. Because the debtor has not exempted the property, the lien is not avoidable under section 522(f).
Gordon v. Ameritrust Mortgage Company, LLC (In re Nesbitt); Order on Cross Motions for Summary Judgment. The Court held that the security deed to Ameritrust was avoidable under 11 U.S.C. § 544(a)(3). The instrument was patently defective because the deed lacked an unofficial witness signature. The additional word on the signature block was the notary’s county of residence and not a mark or an illegible signature. Therefore, under Georgia law, the Ameritrust deed did not provide constructive notice to a bona fide purchaser. See O.C.G.A. §§ 44-2-14, 44-14-61.
Honorable James R. Sacca
The Court scheduled the continuation of a trial after concluding that recusal was unwarranted where one defendant's testimony conflicted with information the Court discovered while performing research for another case; the Court concluded that recusal was not appropriate because the information it discovered was obtained in its judicial capacity and thus did not stem from an extrajudicial source.
Judge Robert E. Brizendine (Retired)
Court sustained objection to claim concluding that claim had been filed out of time under Federal Rule of Bankruptcy Procedure 3002 and must be disallowed under 11 U.S.C. Section 502(b)(9). Court also ruled claimant did not establish basis for applying informal proof of claim theory to assert claim had been timely filed, and further, that claim was not entitled to allowance by virtue of Federal Rule of Bankruptcy Procedure 5005(c) on grounds of mistaken transmission
Court granted in part and denied in part Defendants' motion to dismiss as converted to motion for summary judgment, concluding that Defendants established absence of fact issue on their entitlement to use statute of limitations defense such that complaint was deemed untimely under 11 U.S.C. Section 546. Court also concluded Trustee did not establish fact issue for trial regarding exercise of due diligence in relation to his right to rely on equitable tolling doctrine. Issue remains pending concerning existence of binding settlement agreement
Honorable Barbara Ellis-Monro, Chief Judge
Order Denying Defendant's Motion to Dismiss. Plaintiff set forth specific facts in her complaint that when taken as true, meet the pleading standards set by Iqbal and Twombly and stated a claim upon which relief can be granted under 11 U.S.C. § 727(d).
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Order Denying Request for Default Judgment in post judgment proceedings. A request for a default judgment against a garnishee was denied as the request was not accompanied by a motion or memorandum of law as required by Bankruptcy Local Rule 7007-1, and it was not clear that movant had complied with state law in requesting and issuing a garnishment summons with the information required by Georgia statute. The prior Writ of Execution did not constitute a garnishment and could not form the basis for issuance of a default judgment.
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