(Court denied Trustee's objection to confirmation and motion to dismiss concluding that in ascertaining the applicable commitment period under 11 U.S.C. § 1325(b)(4), the current monthly income of a non-debtor spouse can only be zero under 11 U.S.C. §§ 101(10A) & 101(13) and that only the amounts contributed regularly by the non-filing spouse toward household expenses of the debtor or debtor's dependents should be included in the debtor's current monthly income).
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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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(Res judicata/collateral estoppel: claim deemed allowed in prior bankruptcy proceeding is not preclusive in dischargeability proceeding in subsequent bankruptcy case; Dischargeability: §523(a)(15));
(Injunction: pro se Debtor enjoined from further filings);
Order granting Defendant’s motion to dismiss. The Debtor filed, and the Court granted, a motion to compel abandonment of property in his chapter 7 bankruptcy case. Debtor then filed a Complaint to determine the validity, priority or extent of liens. Defendant filed a motion to dismiss for lack of subject matter jurisdiction. The Court found that dismissal was appropriate because the adversary proceeding did not relate to Debtor’s bankruptcy case because the property at issue had been abandoned and was no longer part of the bankruptcy estate. Additionally, any issues relating to the extent and priority of the liens at issue could be resolved in another forum.
Honorable Paul W. Bonapfel
(Order denying motion to dismiss for failure to state a claim. Complaint alleging credit card debt excepted from discharge pursuant to section 523(a)(2) states claim for relief on assertion that debtor engaged in credit card kiting scheme. To extent complaint relies on implied representation theory, however, complaint does not state a claim for relief.)
(Order denying Defendant’s motion to dismiss. While BLR 7041-1(a) permits dismissal for want of prosecution if proceeding has been pending for more than six months without any substantial proceedings having been taken, court declines to exercise discretion to dismiss since Plaintiff indicates it is ready to proceed to trial. No basis for dismissal on the merits because there is factual dispute and defendant’s unverified assertions in the motion are not evidence.)
Judge Robert E. Brizendine (Retired)
(Anthony T. Bergalowski v. Military Star),(Court granted Defendant's motion to dismiss Plaintiff-Debtor's complaint alleging involuntary preferential transfer via post-petition garnishment of federal income tax refund, concluding Defendant entitled to exercise right of setoff. Defendant's operating entity (AAFES) and I.R.S. considered single entity for purposes of exercising right of setoff as preserved under 11 U.S.C. Section 553(a), and Defendant's post-petition action regarding same is excepted from automatic stay under Section 362(b)(26)).
(Margie Lynn Wellborn v. Georgia Dep't of Revenue),(Court granted summary judgment in favor of Defendant on grounds that 2008 tax return was unfiled as of petition date and thus excepted from discharge under 11 U.S.C. Section 523(a)(1)(B)(i), and that although 2007 income tax liability could be discharged, Defendant's associated tax lien survives and cannot be stripped down to the value of property standing as security for said claim.)
Honorable Mary Grace Diehl (Recall)
Defendants’ motion to dismiss was granted based on lack of subject matter jurisdiction. Plaintiffs sought to rescind a post-petition note sale and collateral assignment relating to liens on the debtor’s property. The Court held that it lacked subject matter jurisdiction over these rescission claims because the validity, extent, and priority of the liens was not in dispute, but rather the parties disputed which entity held the liens. The parties in dispute were non-debtor parties and the claims at issue were purely state law claims. The Court noted that to the extent it had jurisdiction, it abstained as to certain counts.
Defendants’ motion to dismiss under FRCP 12(b)(6) was denied in part and granted in part. The statute of limitations barred the claims brought under 11 U.S.C. §§ 544, 546, even though the issue was first raised in the motion to dismiss rather than the answer. This was because the motion was filed simultaneously with the answer, allowing it to be treated as the first responsive pleading, and because the time-bar was apparent from the face of the complaint. The Court held that the Trustee alleged sufficient facts to bring a veil-piercing claim on behalf of the Debtor against the Debtor’s principals, and that this claim was not time-barred because it arose under 11 U.S.C. § 541, and thus 11 U.S.C. § 546 did not apply. With regards to the claims for fraud, the pleading standard under FRCP 9(b) was not applied as stringently because the information necessary to support the claim was peculiarly within Defendants’ control. In the Trustee’s claims for relief for fraud, the Court found that the Trustee did not allege sufficient facts to support these claims. The Trustee also did not allege sufficient facts to show that Defendants were managing members of the Debtor, in order to support a claim for breach of fiduciary duty either owed to Debtor or to act for the benefit of Debtor’s creditors. The complaint alleged sufficient facts to support a claim for unjust enrichment under Georgia law.