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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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Order denying Defendant’s Motion for summary judgment and granting in part and denying in part Plaintiff’s cross motion for summary judgment.
Plaintiff-trustee initiated an adversary proceeding in this chapter 7 case seeking to recover either the avoided security deed or its value from Defendant as a subsequent transferee under §550(a)(2).  Defendant filed a motion for summary judgment, arguing that the trustee’s prior avoidance judgment was insufficient because Defendant was the initial transferee, not a subsequent transferee; therefore, the subsequent transferee action under § 550 is improper.  Plaintiff filed a cross motion for summary judgment. First,  as to the initial transferee issue, the Court denied Defendant’s motion for summary judgment and granted Plaintiff’s motion in part, concluding that federal law controls the issue, and under § 101(54), Plaintiff was entitled to judgment as a matter of law. Second, the Court denied Plaintiff’s cross motion in part, concluding that a genuine issue of material fact remains regarding whether Defendant took  “for value, including satisfaction or securing of a present or antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided” for the purposes of determining whether the good faith defense contained in §550(b) is applicable in this case.  

The Creditor filed a Motion for Relief from Stay because it did not believe its interests were adequately protected. The Creditor held a purchase-money security interest in the Debtor’s vehicle. The Debtor’s proposed plan called for $15 per month adequate protection payments. The Creditor alleged it should receive $78 per month adequate protection payments. The Debtor contended the Creditor was not entitled to any pre-confirmation adequate protection payments pursuant to § 1326(a)(1)(C). Section 1326(a)(1)(C) states that a debtor is only required to provide pre-confirmation adequate protection payments to creditors holding purchase-money security interests. On the other hand, §362(d)(1) provides that a creditor whose interest is not adequately protected has the right to seek relief from the stay. The Court held that § 1326(a)(1)(C) and 362(d) are not mutually exclusive, and that simply because a debtor is not required to provide adequate protection, that does not preclude lifting the automatic stay when a creditor’s interest is nevertheless not adequately protected. The Court found the Debtor’s payments of $15 per a month did not constitute adequate protection. The Court held the Debtor would pay $50 per month to ensure the Creditor was adequately protected and denied the Creditor’s Motion for Relief from the Stay.

Order granting Plaintiff’s Amended Consolidated Pretrial Order and the Debtor’s Request to File Motion for Summery Judgement. To show the Plaintiff’s claims for damages should have been excepted from discharge pursuant to 523(a)(2)(A), (a)(4), and (a)(6) of the Bankruptcy Code, the Plaintiff requested a Amend Pretrial Order pursuant to the Federal Rules of Civil Procedure 16(e) to include the Debtor’s recently acquired bank records. The Debtor did not oppose the Plaintiff’s Motion. The Court held the Plaintiff’s Amended Consolidated Pretrial Order should be granted. The Debtor filed a request to file an untimely Motion for Summary Judgement pursuant to Rule 56(e). The Court granted the request because the motion could be more efficient than proceeding to trial.

The Court granted the Defendant’s Motion for Summary Judgment in an adversary proceeding concerning the dischargeability of debts pursuant to § 523(a)(2)(A), § 523(a)(4), and § 523(a)(6) of the Bankruptcy Code. The Plaintiff entered into a contract with the Defendant, who was the sole owner of a construction company, for a construction project. The Defendant was required to submit periodic payment applications to the Plaintiff in order to receive funds for the project from the Plaintiff. The Plaintiff’s complaint contended that the Defendant misappropriated the funds. The Defendant asserted (1) the Defendant intended to use the funds for the construction project and (2) all the funds were used for the construction project. The Plaintiff did not file a response so the Defendant’s facts in the Motion were deemed admitted. First, the Court held the Defendant was entitled to judgement under § 523(a)(2)(A) because the Defendant’s facts stated the funds were requested for the construction project and were used for the construction project. Next, the Court held the Defendant was entitled to judgement on the Plaintiff’s claim under § 523(a)(4) because the Defendant requested the funds in good faith and intended to use them for project-related expenses. Finally, the Court held the Defendant was entitled to judgement on the Plaintiff’s claim under §523(a)(6) because there was no evidence of conversion.

Order denying the Motion to Consolidate Adversary Proceedings under Rule 42(a). The Plaintiff filed five adversary proceedings, naming various defendants. Two of the Defendants, one of which was named in all five of the complaints, sought to consolidate the proceedings. The Court concluded that even though the proceedings dealt with similar questions, they each concerned different parcels of real property and different defendants. The Court denied the motion because the consolidation of the cases would not promote judicial efficiency.

Honorable Barbara Ellis-Monro, Chief Judge

Plaintiff filed a complaint to discharge student loans. Defendant filed a motion to dismiss. Plaintiff failed to allege he owed a debt to Defendant or that Defendant had any interest in Plaintiff’s student loans. In addition, the complaint failed to allege any facts to show repayment of the student loans would be an undue hardship. Therefore, the Court found Plaintiff failed to state a claim upon which relief may be granted, and dismissed the proceeding.

Debtor sought to reopen the Chapter 11 case for purposes of enforcing a settlement agreement that resolved an adversary proceeding and effected a business divorce. First, the Court found abstention from the underlying issues would not be appropriate because the settlement agreement had been incorporated into a court order and because the settlement agreement resolved core matters. Second, the Court considered whether to reopen the case. Because Debtor sufficiently stated a claim for enforcement of the settlement agreement, the potential defenses raised by Respondents were not certain to succeed, the settlement agreement implicates resolutions of multiple disputes in the bankruptcy case, and the settlement agreement is part of an order of the Court, the Court granted the motion to reopen.

Honorable James R. Sacca

Order granting chapter 13 trustee's objection to debtor's claimed real property exemption.  Court held that debtor could not apply extraterritorially the Florida homestead exemption to real property situated in Georgia, but purchased with proceeds from the sale of real property situated in Florida. 

Honorable Wendy L. Hagenau

Order after Trial.  In an order following trial, the Court concluded that Plaintiff had not carried his burden of proving his debt was non-dischargeable under Section 523(a)(2)(A) because the Plaintiff had not established deceit.  The Court also ruled that Plaintiff's post-trial argument for a new theory of recovery under Section 523(a)(6) was not permitted under Fed. R. Civ. P. 15, as incorporated into Fed. R. Bankr. P. 7015.

Order Denying Discharge and Denying Recovery Under Section 362.  Court denied Debtor a discharge under 11 U.S.C. section 727(a)(2) when Debtor cashed a check made out to dissolved corporation and lender and used proceeds without lender's consent or court permission.  Corporation was dissolved over 10 years prior and was no longer in existence and therefore the check and proceeds were property of the estate.  Court denied Trustee's complaint for recovery of the funds as damages under 11 U.S.C. section 362(k).  Even if Trustee had standing to assert such a claim, the lender, not the estate, was the injured party.