The Court denied a motion to dismiss the chapter 7 Trustee’s complaint seeking to recover property under 11 U.S.C. § 550(a) after avoiding a transfer under §548. The Trustee was not required to plead the absence of an affirmative defense under §550(b) to successfully state a claim for recovery under §550(a).
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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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Judge James E. Massey (Retired)
Plaintiffs held a state court judgment against the Debtor, initiated a garnishment proceeding, and the garnishee had paid funds into the state court, all prior the petition date. Plaintiffs never requested the state court to distribute the funds to them. Debtor filed bankruptcy and Plaintiffs sought a declaratory judgment that the funds in the hands of the state court clerk belonged to them Held: the garnishment proceeds, became property of the estate when the Debtor filed his bankruptcy petition, subject to Plaintiff’s lien. But Debtor’s motion to avoid that lien was unopposed, leaving Plaintiffs without a remedy.
Honorable Barbara Ellis-Monro, Chief Judge
"Order Denying Debtor's Motion to Extend the Automatic Stay. Extension of the automatic stay was unavailable when the case was the debtor's third individual bankruptcy case, and second pending within the year, and the hearing was not held within the 30-day period stipulated in 11 U.S.C. Section 363(c)(3)(B). Further, Debtor failed to prove the elements necessary for reimposition of the stay under 11 U.S.C. Section 105, as the court could not determine the success of Debtor's pending adversary proceeding challenging wrongful foreclosure, there was no threat of irreparable harm, and the property at issue served no bankruptcy purpose in the chapter 7 estate. Reimposing the stay would be contrary to public policy, as Debtor and her husband had filed seven cases between them to prevent foreclosure of real property, which had been purchased by a third-party prior to the filing of the instant case."
Order sustaining Debtor’s objection to priority unsecured claim filed by former spouse. The Court found that lump sum alimony owed to former spouse was in the nature of a property settlement rather than in the nature of alimony, maintenance or support.
Honorable Mary Grace Diehl (Recall)
Plaintiffs, whose interest in the estate arose from a pre-petition judgment, filed a complaint against Debtor in this Chapter 13 case, asserting objections to discharge and dischargeability and requesting a determination of their lien validity and priority. Plaintiffs asserted five claims as to non-dischargeability. The Court dismissed three of these claims and left the other two open to amend, while noting the inapplicability of a § 523(a)(6) claim in a chapter 13 case.
Movant asked the Court to reconsider its Order entering Final Judgment against Movant and in favor of the Chapter 7 Trustee. The Court construed the Motion as one under F.R.C.P. 59(e) and 60(b). Movant was not successful under Rule 59(e) because he did not assert any newly-discovered evidence or manifest errors of law or fact. Movant did not prove fraud, as required under Rule 60(b)(3) by clear and convincing evidence. Relief under Rule 60(b)(6) was also unwarranted because Movant failed to demonstrate that circumstances were sufficiently extraordinary to warrant relief.
Honorable Paul W. Bonapfel
Order denying USA’s motion for summary judgment on the issue of dischargeability of taxes under section 523(a)(1)(B) and rejecting the IRS position that a late-filed tax return does not qualify as a “return” for purpose of clause (i) of this section. The Court concluded that a late-filed tax return may qualify as a “return” for purposes of section 523(a)(1)(B)(i) if it satisfies the four prong test of Beard v. Commissioner, 793 F.2d 139 (6th Cir. 1986).
NOT INTENDED FOR PUBLICATION
Order on Plaintiff’s Motion for Default Judgment on Complaint to determine the dischargeability of credit card debt on grounds of false pretenses, false representations, or actual fraud under Section 523(a)(2)(A). The Court held that implied representations do not establish false pretenses or representations under 523(a)(2)(A). In considering the allegations of actual fraud, the Court considered the totality of the circumstances. Although Defendant more than doubled its balance by incurring 145 charges over a two and a half month period, such activity constituted a sudden change in Defendant’s spending habits, and some of the charges appeared questionable as necessities, Defendant had a six‐year history with American Express, the Court found no indication the card was used in anticipation of bankruptcy, and Defendant’s bankruptcy schedules contradicted Plaintiff’s assertions that Defendant was unemployed at the time the charges were incurred. In light of Plaintiff’s failure to establish by a preponderance of the evidence that Defendant possessed the subjective intent necessary to establish actual fraud under Section 523(a)(2)(A), and because entry of default judgment is discretionary, the Court denied Plaintiff’s Motion.
Order on Plaintiff's Motion for Default Judgment on Complaint to determine dischargeability of debt pursuant to 11 U.S.C. §523(a)(6). Plaintiff filed a Motion for default judgment arising from a loan made by Plaintiff to Defendant and secured by various items of collateral. The Court held that Plaintiff's failure to move for entry of default created a procedural deficiency. It further held default judgment could not be granted as the allegations in the Complaint were legal conclusions and lacked sufficient detail to establish willful and malicious action under Section 523(a)(6) including the source or content of Plaintiff’s allegations, when, to whom, or why the collateral was transferred, or Defendant's conscious intent to violate the property rights of Plaintiff. Moreover, Plaintiff failed to clarify how Defendant's purported transfer of some but not all of the collateral justified damages in the full amount of the loan.
Order denying in part and granting in part pro se Defendant's Motion for Summary Judgment. Plaintiff filed a Complaint to determine the dischargeability pursuant to Section 523(a)(2)(A) of $3,900 in cash advances and $2,399 in retail charges arising from Defendant's use of a credit card prior to filing Chapter 7 bankruptcy. The Court found Plaintiff's implied representation argument was insufficient to meet the Eleventh Circuit Standard required to establish nondischargeability of credit card debt as false pretenses or representations under Section 523(a)(2)(A). Accordingly, the Court granted Summary Judgment on that issue. As to the Section 523(a)(2)(A) actual fraud claim, the Court found material issues of disputed fact existed regarding Defendant's subjective intent in light of the allegations pled in Plaintiff's Complaint and Defendant's Answer thereto. The Court denied summary judgment as to the 523(a)(2)(A) actual fraud claim.