Mortgage holder did not violate section 524 discharge injunction when it sent a variety of informational letters, some responsive to Debtor's requests, and mandatory FHA notices to borrower after her chapter 7 case was closed.
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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.
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Honorable Barbara Ellis-Monro, Chief Judge
Honorable Paul W. Bonapfel
The financial advisor to the Committee of Equity Security Holders is entitled to a "Completion Fee," calculated as a percentage of a "Shareholder Recovery" under the terms of its engagement that the Court approved pursuant to 11 U.S.C. § 328(a). The confirmed plan provides for a cancellation of existing shares and for shareholders to receive beneficial interests in a Liquidation Trust, from which they receive cash payments funded from the net proceeds of liquidation of the Debtor's assets. Because "Shareholder Recovery" is defined by consideration that is distributed to shareholders, the Shareholder Recovery is properly determined by reference to the cash the shareholders actually receive, i.e., that is distributed to them, not the preconfirmation average share price of the publicly traded shares.
NOT INTENDED FOR PUBLICATION
Former Chapter 13 debtors are entitled to unclaimed funds where creditor and debtor have postbankruptcy payment arrangement that is current, creditor did not take unclaimed funds into account in determining amount of debt, and creditor does not appear at hearing to show basis for distribution of funds to creditor.
NOT INTENDED FOR PUBLICATION
In an earlier chapter 11 case of a corporation, its principal formed a new corporation that acquired the claim of a bank secured by substantially all of the corporation’s assets. After dismissal of the corporation’s chapter 11 case, the new corporation accepted all of the old corporation’s assets in full satisfaction of the secured debt. The value of the assets was substantially less than the amount of the secured debt. In the current chapter 11 case of the new corporation, the landlord of the old corporation filed a claim for rent due under a lease rejected in the old corporation’s case on the ground of successor liability under Georgia law. Noting that the landlord had no effective remedy against the assets of the old corporation in view of the fact that the secured debt substantially exceeded the value of the assets, the court concluded that successor liability did not apply in the circumstances of this case.
Judge Robert E. Brizendine (Retired)
(John Paul Hedley v. The United States, Internal Revenue Service, et al.), Adversary Proceeding No. 12-2125; Docket No. 22. (In Chapter 13 case, Court considered, among other things, motion to dismiss case on grounds of failure to state a claim upon which relief can be granted. Construing F.R.C.P. 8(a)(2) (F.R.B.P. 7008(a)) and F.R.C.P. 12(b)(6) (F.R.B.P. 7012(b), Court granted motion ruling that Plaintiff-Debtor had failed to put forth sufficient allegations of facts to create plausible issue that would support an entitlement to relief on claims as purportedly alleged.)
(Eamonn Foley and Christy Foley v. Grant S. Smereczynsky), Adversary Proceeding No. 10-2064; Docket No. 23. (Plaintiffs sought relief in form of ruling that arbitration award arising in connection with certain state court litigation was excepted from discharge under 11 U.S.C. Section 523(a)(2)(A). Court applied collateral estoppel to findings of arbitrator regarding false representations, and found findings sufficient to establish entitlement to relief on Plaintiffs' claim in view of claims asserted in state court and function of arbitration award to satisfy same in full.)
(Charles N. Crew and Lora Yvonne Crew v. Georgia Department of Revenue (AP No. 12-2126); Docket No. 6. (In Chapter 7 case, Defendant filed motion for summary judgment on complaint of Plaintiff-Debtors regarding nondischargeability of certain state income tax indebtedness under 11 U.S.C. Section 532(a)(1). Court granted motion finding debt in question for certain tax years variously excepted from discharge under Section 523(a)(1)(A) with the associated tax return being due within three years of filing bankruptcy petition, and Section 523(a)(1)(B) for failure to file amended state income tax return based on upward adjustment in federal income tax liability by I.R.S.)
Judge James E. Massey (Retired)
Debtor moved for an order authorizing its counsel to apply retainers to previously awarded fees and expenses, which the Court denied. When the Debtor delivered the retainer check prepetition, it was not a transfer of an interest in property because it did not give the holder any claim on the property of the issuer other than enforcing the check. When the check was honored postpetition, however, the payment of the check was a transfer of property of the estate.
Honorable Mary Grace Diehl (Recall)
Plaintiff’s motion for certification and entry of final order under Federal Rule of Civil Procedure 54(b) was granted. Plaintiff was previously award summary judgment as to selected claims. The claim at issue was isolated from the bulk of the Plaintiff’s claims against Defendants. Given the distinct nature of the claim, the Court determined that the judgment as to that count was final and there was no just reason for delay.
Honorable James R. Sacca
Court granted Debtor's motion for exemption from credit counseling because exigent circumstances--primarily that an interruption in internet service (among other factors) prevented her from completing her credit counseling prior to her petition being filed--merited a waiver under Code Section 109(h)(3)(A) of the requirement to obtain credit counseling before filing her petition required by 109(h)(1).