The Court granted the motion to dismiss the Chapter 7 Trustee’s complaint objecting to Debtor’s discharge under 11 U.S.C. 727(a). The Complaint was not timely filed pursuant to F.R.B.P. 4004. Defendant did not waive her time bar defense. The gap period either did not exist or was not a valid basis for allowing the untimely complaint. The equities did not favor equitable tolling of the deadline. Trustee also did not meet its burden to show that Debtor acted with the requisite intent to hinder, delay or defraud a creditor.
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Opinions
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Honorable Mary Grace Diehl (Recall)
Plaintiff was a judgment creditor of Debtor and moved for summary judgment as to the nondischargeability of its debt under § 523(a)(2)(A). Debtor had been found liable of concealment under California law and the Court found that the California standard for issue preclusion had been established by Plaintiff. Therefore, Debtor was precluded from relitigating issues relating to the nondischargeability claim. Using the findings of fact from the California state court judgment and the undisputed facts, Plaintiff was entitled to a nondischargeability determination on summary judgment. Additionally, Plaintiff was awarded judgment on its claim for declaratory judgment – seeking judgment that identified funds in Debtor’s exempted IRA accounts were not property of the estate. The California state court had imposed a constructive trust on identified funds with Plaintiff as beneficiary when it found Debtor liable for concealment. Based on the imposition of the constructive trust, § 541 did not extend to Debtor’s interest in the funds because there was no equitable interest in the funds, merely bare legal title.
The Court ruled that the chapter 7 Debtor was entitled to “strip off” a wholly unsecured junior lien on real property pursuant to § 506, following the Eleventh Circuit’s unpublished decision in In re McNeal, 477 Fed. Appx. 562 (11th Cir. 2012) (per curium). The Court gave great weight to the McNeal decision, yet identified how the reasoning used in McNeal to determine whether a creditor held an “allowed secured claim” for purposes of § 506(d) contradicted the prescribed analysis inDewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).
Liens; Subtopic: defective security deed and inquiry notice.
(Court denied Plaintiff's Motion to Reconsider, finding that the Court's previous order dismissing Plaintiff's Complaint as untimely under Federal Rules of Bankruptcy Procedure 4007(c) and 9006(b) had not committied manifest error of law in holding that Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988) was not abrogated by the Supreme Court's case of Kontrick v. Ryan, 540 U.S. 443 (2004) and the District Court's opinion in Choi v. Promax Investments, LLC 2012 U.S.Dist Lexis 183453 (N.D.Ga. 2012); and finding that the Court had not committed manifest error of law or fact in finding that the Plaintiff failed to qualify for equitable relief, in the event that Byrd was not good law.)
(Topic: Automatic Stay; Subtopic: Creditor may file adversary proceeding against third party to obtain relief for violation of the automatic stay)
Opinion on motions related to rights of Debtor and purchaser at tax sale.
Chapter 13 Debtor filed bankruptcy after tax sale purchaser of Debtor’s rental property served Debtor with Notice of Foreclosure of Equity of Redemption but prior to expiration of Debtor’s statutory right to redeem. In lieu of redeeming within 60 days after expiration of the redemption period pursuant to 11 U.S.C. §108(b), Debtor filed a plan on the petition date while still within the original redemption period and proposed to pay the tax sale purchaser the redemption price in full over the applicable commitment period with additional interest. Tax sale purchaser sought relief from the automatic stay, and the debtor sought to determine the amount of claim and to pay the purchaser. The Court held (1) Debtor’s right to redeem under O.C.G.A. § 48-4-40 et sec was property of the estate, (2) tax sale purchaser held a claim under 11 U.S.C. § 101 because Debtor’s underlying obligation was enforceable against Debtor’s property and tax sale purchaser’s right was translatable into monetary terms as established by the redemption price, (3) Debtor could modify the claim of tax sale purchaser under 11 U.S.C. §1322(b) notwithstanding 11 U.S.C. §§108(b) or 1322(c) because §108(b) does not limit other rights afforded to Chapter 13 debtors by the Bankruptcy Code and §1322(c) is inapplicable to rental property, and (4) since the time for Debtor to pay the redemption price under 11 U.S.C. §108(b) had expired, Debtor could only pay the redemption price pursuant to a confirmed plan.
Honorable Paul W. Bonapfel
Court grants motion to compel Defendants in adversary proceeding to execute Form 4506 to request Internal Revenue Service to furnish copies of returns for relevant years in which amount Defendants paid as rent is at issue.
Court dismisses third involuntary petition against individual, enjoins petitioning creditors from filing future involuntary petitions against alleged debtor, grants prospective in rem relief from stay with regard to condominium unit, and retains jurisdiction to permit investigation by U.S. Attorney and U.S. Trustee.
Honorable Barbara Ellis-Monro, Chief Judge
"Order Granting Trustee's Motion to Dismiss Chapter 13 Case. Debtor's "chapter 20" case filed for the sole purpose of stripping a second mortgage lien on which she was current and paying attorneys fees warranted dismissal, as Debtor had previously discharged almost $40,000 in unsecured debt in her chapter 7 case, scheduled only $1,412 in unsecured debt in the instant case, and reported an increase in income of $127 since her previous filing."