The Court found automatic stay to not be in effect under § 362(b)(22) and allowed residential lessor to continue its eviction action in the appropriate state court. Debtor did not satisfy the requirements of § 362(l) and, therefore, was not entitled to the 30-day protection § 362(l) provides.
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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 Mary Grace Diehl (Recall)
Chapter 7 Trustee moved to avoid an alleged preferential transfer. Both the Trustee and Creditor filed cross motions for summary judgment. As well, the court considered Creditor’s motion to amend answer filed just before dispositive motions were due, alleging that the Creditor had made a scrivenor’s error. Trustee and Creditor agreed that the first four elements of a preferential transfer were satisfied, but they differed as to fifth element based on Trustee’s assertion that Creditor was not a secured creditor. The Court denied motions for summary judgment because conflicting evidence in the record showed there remained two genuine issues of material fact, making it inappropriate for the Court to grant the motions as it would have required weighing of the credibility of the evidence. The Court did grant Creditor’s motion to amend because it found no substantial reason to deny the motion.
Honorable James R. Sacca
The Court denied Plaintiff's request that Defendants' failure to respond to requests for admissions be deemed conclusive admissions of the matters set forth therein because--pursuant to Fed. R. Bankr. P. 7036, Fed. R. Civ. P. 36(b), and Perez v. Miami-Dade Cnty., 297 F.3d 1255 (11th Cir. 2002)--Defendants submitted and amended their responses to the requests for admissions, and the Court determined that allowing these amended responses would promote a presentation of the merits of the case and would not prejudice the Plaintiff.
The Court recommended that the District Court dismiss Defendants’ counterclaims for conversion, breach of contract, and fraud because (1) conversion claim could not lie where Defendants did not allege sufficient facts indicating that Defendants had title or right of possession to funds escrowed with Plaintiff and Plaintiff did not have any independent, non-contractual duty to release the funds; (2) breach of contract claim was not viable because although the parties’ loan agreement provided that Plaintiff would disburse funds within seven days, Plaintiff’s delayed payment was not a material breach, and the loan agreement precluded Defendants from recovering monetary damages for unreasonable delay and limited their remedies to specific performance, injunctive relieve, and/or declaratory judgment; and (3) fraud claim was unsustainable because Defendants did not allege any specific misrepresentations other than vague allegations that Plaintiff misrepresented its intent to perform under the loan agreement after that contract had already been formed.
The Court denied Defendants' motion to voluntarily dismiss its counterclaims pursuant to Fed. R. Bankr. P. 7041 and Fed. R. Civ. P. 41 because Plaintiffs had a motion for judgment on the pleadings pending--which was filed several months prior and which had been extensively briefed by both sides--and because allowing Defendants to dismiss their counterclaims at such a late stage of the proceedings would prejudice Plaintiff and likely cause it to suffer unnecessary delays and incur substantial additional costs.
Order on Defendant’s Motion for Summary Judgment. Upon the failure of the parties’ business venture within the child and teen talent industry, Plaintiffs brought an action alleging numerous causes of action and that such claims were nondischargable under 11 U.S.C. §523(a)(2)(A),(a) (4), and(a)(6). The Court (1) granted summary judgment to clarify which Plaintiff held which claim, (2) granted summary judgment against individual Plaintiff’s fraud, conversion, and breach of oral contract claims arising outside limitation period where Plaintiff failed to exercise reasonable diligence sufficient to toll limitation period, (3) granted summary judgment on most of the tortious interference claims, (4) granted summary judgment on usurpation of corporate opportunity claims arising after Defendant was no longer an officer because corporate Plaintiff had no “interest or expectancy” therein nor did corporate Plaintiff’s past relationships with talent amount to a “beachhead”, and (5) granted summary judgment that Defendant was not a fiduciary as used in 11 U.S.C. §523(a)(4). As to the remaining claims, the Court (6) denied summary judgment on certain fraud, conversion, and breach of contract claims, (7) denied summary judgment on tortious interference claims not precluded by the stranger doctrine and contingent upon Defendant’s breach of fiduciary duty while an officer, and (8) denied summary judgment on the usurpation of corporate opportunity claims falling within corporate Plaintiff’s line of business while Defendant was an officer.
(Court denied Movant's Motion for Summary Judgment and granted Respondent's Cross-Motion for Summary Judgment, finding that attorney's fees awarded pursuant to Georgia's abusive litigation statute, O.C.G.A.§ 9-15-14, is nondischargeable under 11 U.S.C. § 523(a)(15) where the award was acquired in connection with Respondent's defending against actions seeking to (1) modify child support and (2) set aside the parties' divorce decree.)
(Court imposed the following sanctions on the Debtor's attorney after finding that the Debtor's Attorney (a) aided and abetted the unauthorized practice of law; (b) failed to adequately represent his client in her bankruptcy proceedings; and (c) either intentionally or negligently manipulated the Bankruptcy Code: (1) a six month bar from filing new cases in the United States Bankruptcy Court, Northern District of Georgia; (2) a requirement to complete twelve hours of continuing legal education in the areas of Chapter 13 practice and procedure and Professional Responsibility; and (3) the disgorgement of all fees, received in both this case and the case that preceded it, to be remitted to the Debtor.)
Honorable Barbara Ellis-Monro, Chief Judge
Order finding debts owed to former spouse were dischargeable under section 1328. Amounts owed to former spouse were in the nature of a property settlement and not alimony and support under section 523(a)(5) when the terms of the divorce agreement did not tie payment of the obligations to any contingency such as death or remarriage, the terms of the agreement expressly waived alimony payments, and the agreement did not contain language that indicated the payment obligations were in the nature of support rather than an intention to divide marital debts.
Honorable Paul W. Bonapfel
Court denies application of secured creditor in Chapter 13 case for unclaimed funds because it does not show present entitlement to funds.