(Court granted Movant's Motion to Dismiss or Convert, finding that cause existed under 11 U.S.C. 1112(b)(4) because (1) the Debtor failed to file a disclosure statement or plan of reorganization within reasonable period of time; (2) the Debtor failed to make substantive progress toward confirmation of a plan; and (3) the Debtor was unable to effectuate a plan of reorganization. Moreover, pursuant to 11 U.S.C. 1112(b)(2), the Debtor was unable to satisfy the Court that unusual circumstances existed, establishing that it was in the best interest to remain in Chapter 11, and that the deficiencies could be remedied in a reasonable period of time.).
You are here
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.
(Divorce attorney's postpetition action to collect attorneys fees violated automatic stay; attorneys fees were not domestic support obligation);
(Court granted Defendant's Motion to Dismiss Complaint as untimely, holding that the time period for filing a complaint pursuant to section 523(a)(2) of the Bankruptcy Code could not be equitably tolled and concluding that (a) under Federal Rules of Bankruptcy Procedure 4007(c) and 9006(b)(3), the time set forth for filing a complaint under 11 U.S.C. § 523(a)(2) is 60 days from the first date set for the meeting of creditors, and that the Rules only authorize the Court to extend the deadline as prescribed within the Rules; (b) under Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988), which was not abrogated by the Supreme Court case of Kontrick v. Ryan, 540 U.S. 443 (2004), the Bankruptcy Court is without discretion to the granting of a late filed complaint; and (c) even if Byrd v. Alton was not good law, the Plaintiff failed to show that it qualified under the limited recognizable exceptions for equitable relief.).
Honorable Mary Grace Diehl (Recall)
The Court granted Chapter 7 Trustee leave to wind up a dissolved limited liability limited partnership, in which the estate held a 70% interest, as determined by prior order. The Court declined to order wind up of the Partnership under O.C.G.A. § 14-9-803(a). The Debtor’s partnership interest and Debtor’s rights and obligations under the Partnership were property of the estate, yet the Debtor’s bankruptcy filing did not necessarily give the Court jurisdiction over the Partnership’s assets.
Debtor sought to pay pre-petition debts of certain creditors alleged to be critical vendors. In order to be granted such relief, a debtor must provide a sufficient evidentiary basis showing that the payments are necessary for reorganization, the vendors will otherwise refuse to do business with the debtor, and the disfavored creditors will be as well off with the critical vendor order than they would be without it. Debtor did not provide sufficient evidence to satisfy the stringent Kmart test.
Honorable James R. Sacca
Court granted Fannie Mae's motion for relief from automatic stay so it could proceed with state court dispossessory proceedings because Fannie Mae showed cause for relief pursuant to Code Section 362(d) by virtue of the fact that it had obtained a writ of possession in state court; the Court also held that Fannie Mae had standing to seek relief from the stay because its writ of possession indicated that it was a party in interest with a colorable claim to the subject property.
Debtor's motion for examination of creditor under Rule 2004 was granted in part and limited to the purpose of determining the extent to which Debtor's personal property contained in bed and breakfast facility may or may not have been foreclosed on.
Judge James E. Massey (Retired)
The Court abstained from hearing an adversary proceeding brought by the Debtor to recover property allegedly stored prepetition with Defendant. The Trustee has abandoned the claim, the case was closed, and the Debtor had received a discharge. Hence, the relief sought would benefit only the Debtor, not the estate, and served no bankruptcy purpose.
Judge Robert E. Brizendine (Retired)
(Pauline Pinnock Dunn v. Pauline Elizabeth Whyte), Adversary Proceeding No. 12-2091; Docket No. 18. (In Chapter 7 case, Defendant-Debtor sought summary judgment on Plaintiff's complaint objecting to discharge under 11 U.S.C. Section 727(a)(2), and seeking determination of nondischargeability of debt under 11 U.S.C. Section 523(a)(2)(A) & (B), and Section 523(a)(4). Debtor argued that Plaintiff was precluded from asserting fraud claims since she elected remedy of breach of contract in prior state court action where she obtained award at issue. Court rejected Debtor's argument, concluding that Plaintiff's fraud claim was not precluded in subsequent bankruptcy action, but held for Debtor since Plaintiff failed to put forward evidence in support of such claim and did not respond to motion for summary judgment.)
Honorable Barbara Ellis-Monro, Chief Judge
Order granting complaint seeking to compel marshaling. Junior creditor with lien against certain real estate sought to compel senior creditor with lien against the same real estate and an additional collateral source, a revenue stream that had been partly collected, to satisfy its claim from the collateral in which junior creditor did not have a lien. Marshaling requires that: 1) the creditors are creditors of the same debtor, 2) there are two funds belonging to that debtor, and 3) one of the creditors has the right to resort to both funds. In addition the Court must consider whether marshaling will impair the senior lienholder’s right to complete satisfaction or cause injustice to third parties. The Court determined that under Georgia law the senior creditor’s claim must be satisfied proportionally from each fund and that the senior creditor, as well as the creditors with liens in the non-real estate collateral, were sufficiently over secured so that marshaling did not impair the senior creditor’s right to complete satisfaction and was not unfair to the other junior lien holders.