Motion for summary judgment denied where there were disputed factual issues. The chapter 7 Trustee sought to include in property of the estate rental property purchased by the Debtor’s mother in the name of herself and her 2 children. The filings of both parties raised an issue of the extent of an equitable interest in or potential gift to Debtor of the property.
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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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Judge James E. Massey (Retired)
Judge Robert E. Brizendine (Retired)
(Court sustained objection to exemption claim holding that joint Debtor spouse could not exempt an interest in certain property using her rights under 'wildcard' provision of O.C.G.A. Section 44-13-100(a)(6), because said property constituted sole inheritance of other joint debtor. Debtors could not show demonstrative action taken to convert same to marital property as required under Georgia law. Thus, exemption limited to the inheriting debtor's right alone of $5,600.00.)
Honorable Mary Grace Diehl (Recall)
The Court granted in part and denied in part defendant’s motion to dismiss. Plaintiff’s complaint objected to the dischargeability of debts for damages resulting from personal injury, in accordance with 11 U.S.C. § 1328(a)(4). The defendant filed a motion to dismiss on the grounds that plaintiff failed to state a claim for relief. In its ruling, the Court first found that the judgment for damages did not have to be awarded pre-petition. Next, the defendant’s conduct, as plead in the complaint, rose to the level of willful or malicious conduct under § 1328(a)(4). Finally, the Court ruled that “personal injury” in § 1328(a)(4) included nonphysical injuries such as defamation and emotional distress, and that damages for these injuries could be excepted from discharge. But “personal injury” in § 1328(a)(4) did not include business or financial torts that are injuries to property. Thus, the Court granted the motion to dismiss to the extent plaintiff’s complaint was based on damages for business or financial torts, and denied the motion to dismiss to the extent plaintiff’s complaint was based on damages for defamation and emotional distress.
The Court overruled the objection to confirmation of Debtor’s plan filed by American Servicing Company (ASC). ASC filed a claim secured by Debtor’s non-residential real property. ASC objected to Debtor’s plan on the basis that the interest rate on the secured claim was too low and that the plan did not provide for the contract-required Private Mortgage Insurance (PMI) payments. The parties ultimately stipulated to an interest rate. As to PMI, the Court ruled that, pursuant to 11 U.S.C. §§ 1322(b)(2) and 1322(d), a debtor is allowed to modify the rights of a mortgage creditor whose interest is not secured by the debtor’s primary residence.
The Court granted the Defendant’s motion to dismiss Plaintiffs’ claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs initiated the adversary proceeding by filing a complaint seeking turnover of their tax refund and to hold Defendant in contempt for violating the automatic stay. Under the facts as alleged, Plaintiffs could not obtain relief under existing law. The facts alleged that Defendant was exercising its right to setoff, and 11 U.S.C. § 362(a)(26) expressly allows Defendant to setoff an overpayment against existing tax liabilities without violating the automatic stay.
The Court granted in part and denied in part Defendant’s motion for summary judgment. Plaintiff’s complaint asserted claims of conversion under state law, fraudulent transfer under state law, and an unauthorized post-petition transfer under 11 U.S.C. § 549. The Court granted Defendant’s motion with respect to the conversion and fraudulent transfer claims, ruling that Defendant was entitled to judgment as a matter of law. Defendant’s motion for summary judgment was denied as to the unauthorized post-petition transfer, as the Court found that issues of material fact existed on this claim.
(Recusal: Allegations in motion insufficient to support a finding of bias)
(Dismissal: pre-confirmation motion to dismiss denied as moot following confirmation of Chapter 13 plan to which creditor did not object)
(order granting motion to modify permanent injunction for purposes of proceeding against insurer only).
(Obligation to pay former spouse's attorneys fees arising in divorce decree is nondischargeable domestic support obligation and entitled to priority under §507(a)(1));