The Court ruled that Fannie Mae was entitled to relief from the automatic stay. This matter was remanded from District Court upon Debtor’s appeal of an Order granting Fannie Mae relief from the automatic stay relating to certain real property. Fannie Mae, by assignment of a 2006 security deed, held a senior interest to the interest purportedly conveyed to Debtor in 2010. Fannie Mae foreclosed on its interest prior to the petition date thereby extinguishing all junior interests. Debtor, therefore, did not have a secured interest in the property. Debtor also did not have a possessory interest in the property, as Debtor did not reside there. To the extent that Debtor claimed wrongful foreclosure, the Court did not have subject matter jurisdiction over that claim.
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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)
Plaintiff filed suit to determine nondischargeability of debts under 11 U.S.C. § 523(a)(2), (4) and (6). Defendants filed a Motion to Dismiss Counts 1 and II, related to the § 523(a)(2) and (4) claims, and a Motion for Summary Judgment as to Defendant, Kristy Presley. The Court denied both Motions. Plaintiff alleged sufficient facts to satisfy Rule 12(b)(6) and Rule 9(b). Summary judgment was not appropriate because material facts were in dispute.
NOT INTENDED FOR PUBLICATION
Debtor objected to various claims pursuant to 11 U.S.C. § 502(e)(1)(B), arguing that the claims should be disallowed because they were for contribution or reimbursement, there was co-liability on the claims, and the claims were contingent. Several claimants responded that their claims for indemnification for defense costs did not meet the requirements of § 502(e)(1)(B) because there was no co-liability and the claims were not contingent. The Court held that the noncontractual claims for indemnification for defense costs, for which there was no settlement or adjudication of the underlying lawsuit, would be disallowed. These claims were contingent because liability had not been determined in the underlying lawsuit. There was co-liability as a result of the broad statutory language and the interconnectedness of the indemnification claim with the defense costs related to that claim.
Judge James E. Massey (Retired)
The Court denied a motion seeking recusal of the judge. Movant’s allegations were conclusory, wholly unsupported by facts, and failed to show any bias or prejudice against Movant. If dissatisfied with the Court’s ruling, Movant’s remedy was to appeal. Dissatisfaction with the Court’s ruling was not a basis for recusal.
Judge Robert E. Brizendine (Retired)
Case No. G10-21618-REB, (Albert F. Nasuti, Trustee v. Constance Susan Avery and William Chase Avery), Adversary Proceeding No. 12-2050; entered on 2013-03-05; Docket No. 15. Chapter 7 Trustee brought action to recover value of certain real property on grounds Debtor fraudulently transferred same in violation of 11 U.S.C. Section 548(a)(1)(A) and/or (a)(1)(B). Court granted summary judgment concluding Trustee established absence of fact issue pertaining to Debtor's intent to hinder, delay, or defraud creditors, as well as in Debtor's transfer of property for no consideration at a time when she was insolvent. Court ordered recovery against transferee family member under Section 550(a), who received property as a gift, based on statutory provision whereby lack of knowledge of transferee regarding intent or circumstances of debtor-transferor is not legally relevant when transferee does not take for value
(Teresa G. Thomason v. Chestatee Community Association, Inc.), Contested Matter; entered on 2013-03-05; Docket No. 86. (Debtor filed motion for damages and sanctions for alleged violation of automatic stay. Court found Respondent liable for willful violation of automatic stay under 11 U.S.C. Section 362(k) through its agents' intentional actions in sending letter regarding past due homeowner's assessment and in confronting Debtor at its swimming pool. Even though first agent sent letter in error, and second agent did not recognize Debtor's identity at time he challenged her right to use the pool, such acts were still intentional. Further, Respondent did have knowledge in its possession that Debtor had converted her bankruptcy case from a case under Chapter 13 to a case under Chapter 7. Although a principal's undisclosed knowledge is not imputed to its agent, in view of fundamental nature of the automatic stay, Respondent, who acted through its agents, should have shared this knowledge with its agents. Willful stay violation requires only knowledge of the stay and an intent to do the act in question -- not a specific intent by the actor to produce a violation of the stay. Court awarded reasonable attorney's fees and costs as limited to addressing the violations at issue, and nominal damages in compensation for emotional distress suffered by Debtor. Court further determined that Debtor did not establish basis for awarding punitive damages.
(The Court denied the Chapter 7 Trustee's Motion to Disallow Debtors' exemption after finding that half of the funds received through a pension plan death benefit were held in a constructive trust in favor of Debtor's sister and, therefore, not property of the bankruptcy estate in accordance with section 541(d) of the United States Bankruptcy Code. The Court further held that the Debtors were entitled to exempt their half of the proceeds from the pension plan in accordance with O.C.G.A. § 44-13-100(a)(2)(E), as these payments were reasonably necessary for the support of the Debtors and their Dependents).
(Adversary proceeding dismissed as untimely filed; Plaintiff's assertion of inaccessibility of Clerk's Office rejected)
Honorable James R. Sacca
Court denied Debtor's objection to claim transfer because only the purported transferor of a claim has standing to object to the transfer under rule 3001(e)(2).