Automatic stay of 11 USC s 362(a) applies to garnishment action in its entirety, including any independent claim of the garnishing creditor against the garnishee based on the garnishee's failure to comply with garnishment summons, unless unmodifiable judgment against garnishee has been entered prior to filing of the case. Because the case was filed before the time for the fiilng of the answer to the garnishment summons, the garnishee is not in default. Because it is now undisputed that the garnishee employee failed to withhold prepetition wages from the debtor-employee, the stay is properly modified to permit creditor to pursue employer for failure to withhold wages because the claim does not involve the debtor, the debtor's property, or property of the estate. The debtor has no property interest that he can exempt and therefore cannot avoid the garnishment lien under 11 USC s 522(f) to the extent that the creditor seeks to enforce its claim against the employer.
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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 Paul W. Bonapfel
Debtors who live in Atlanta Division filed case in Rome Division and moved for an order retaining the case in the Rome Division. BLR 1017-1(b) requires filing in proper division, and it is improper to file the case in the wrong division. The judge assigned to the case in the proper division should consider a transfer motion. Court orders transfer of case to Atlanta Division.
Honorable Barbara Ellis-Monro, Chief Judge
Order Denying the Defendants' Motion to Dismiss for failure to state a claim. Plaintiff's allegations that Defendants concealed assets by failing to disclose future employment information and incorrectly valuing assets on Debtor's Schedules in addition to receiving payments in cash, when construed in favor of Plaintiff, were sufficient to state a claim under section 727(a)(2)(A) and (b), (a)(3), (a)(4), and (a)(5).
(Discharge: Debtor's motion for summary judgment on Trustee's objection to discharge granted in part and denied in part);
(Dismissal: Stern v. Marshall does not require dismissal of proceeding in which bankruptcy court cannot enter final order );
(Dismissal: Stern v. Marshall does not require dismissal of proceeding in which bankruptcy court cannot enter final order or in which defendant seeks jury trial);
(Sanctions: Rule 9011 sanctions denied);
(Notice: entry of default denied and case dismissed based on improper service);
Honorable Mary Grace Diehl (Recall)
Chapter 7 Trustee’s motion to approve sale and assignment of the debtor’s and estate’s interest in a ground lease with City of Atlanta was granted. The Trustee met its burden of proof in showing the proposed sale maximized returns for creditors, despite substantially higher offers. Key to the Trustee’s business judgment in proposing the sale to a certain entity and to the Court’s approval of such sale were the consent by the lease holder, City of Atlanta, and the secured creditor - State Bank of Texas’- consent on the sale to be free and clear of its security interest in the ground lease. The particular facts of this case made sale of the estate’s interest in the ground lease to any party other than the owner of the hotel that used the land tracts at issue untenable since the ground lease was not severable and required certain grants to be fulfilled by the City of Atlanta. The Trustee’s explanation on cross examination regarding the bank’s security interest and the requirements under the ground lease satisfied the business judgment standard.
Additionally, at the hearing, the Court denied unsuccessful bidders from objecting to the Trustee’s Motion since they were not parties in interest and lacked standing.
Judge James E. Massey (Retired)
The Barton doctrine required the Defendant to obtain leave of the Court prior to filing suit against the chapter 11 Trustee where the claim was related to and would adversely affect the bankruptcy case. The Court held parties initiating suit against Trustee without Court approval in contempt for violating the Barton doctrine and ordered them to dismiss cases in federal court that attempted to re-litigate issues decided by the Court’s denial of the motion to remove the Trustee.