The Court denied Plaintiff’s motion for summary judgment. Plaintiff initiated an adversary proceeding to object to Defendant’s discharge pursuant to 11 U.S.C. § 727. Plaintiff then moved for summary judgment with respect to its objections under 11 U.S.C. §§ 727(a)(2) and (a)(4). The Court found that material issues of fact were in dispute as to whether Defendant intended to hinder, delay, or defraud creditors by transferring property to her daughter. And the Court found that issues of material fact were in dispute as to whether Defendant knowingly made a false statement of fact that was material to the bankruptcy proceeding. Thus, summary judgment was inappropriate on Plaintiff’s objection to discharge under § 727(a).
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Opinions
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Honorable Mary Grace Diehl (Recall)
The Court denied Plaintiff’s motion for a Rule 2004 Examination. Plaintiff sought a Rule 2004 Examination after initiating an adversary proceeding against the Defendant. The Court held that the “pending proceeding” rule barred Plaintiff from obtaining a Rule 2004 Examination. Under the pending proceeding rule, once an adversary proceeding is commenced, the Federal Rules of Bankruptcy Procedure supplant Rule 2004 and a party to the adversary proceeding must pursue depositions in accordance with the Federal Rules of Civil Procedure.
Order granting creditor’s motion for comfort order. Creditor filed a motion seeking confirmation that the automatic stay did not impact its completed foreclosure sale. The precise issue before the Court was whether a foreclosure sale that occurred nineteen minutes before the Debtor filed bankruptcy terminated the Debtor’s equitable right of redemption. The Court found that, under Georgia law, the Debtor’s equity of redemption expired when the high bid was received at the foreclosure sale. Consequently, the Debtor had no interest in the subject property when it filed bankruptcy.
Order denying Debtor’s Amended Motion for Reconsideration but setting out findings of fact and conclusions of law on Debtor’s “Motion to Set Aside an Order Due to ‘Unclean Hands’” which was previously denied. The Court explained that the order granting relief from stay which Debtor sought to set aside only determined whether the movant had a colorable claim. It did not determine the validity of the creditor’s claim or the security deed or any of the debtor’s defenses thereto. Therefore, the order granting stay relief is not res judicata as to those issues and does not prohibit the Debtor from raising his defenses in state court. The Motion to Set Aside was denied under Rule 60(b) and Fed. R. Bankr. P. 9024 because, inter alia, (1) the Motion was brought more than one year from entry of the order on relief from stay; (2) the stay relief order was not void because the Court had both subject matter and personal jurisdiction to enter the order lifting stay, and the Debtor was provided due process; (3) the Debtor’s Chapter 13 plan had been fully performed prior to filing the Motion to Set Aside so therefore could not be modified to treat any claim of the creditor; and (4) Debtor could obtain full relief in state court since the order granting relief from stay was not res judicata as to the Debtor’s defenses. Debtor’s Motion to Reconsider the denial of the Motion to Set Aside is denied because, inter alia, sufficient newly discovered evidence does not exist to set aside the Court’s decision denying the debtor’s Motion to Reconsider because the facts discovered after the hearing were discoverable prior to the hearing and would not have changed the outcome. Finally, the Court directed the Clerk to leave the case open for a period of time so the Debtor could seek sanctions against the creditor and its counsel under Fed. R. Bankr. P. 9011.
(granting debtor's motion for partial summary judgment; claim of debtor's former in-laws for repayment of funds loaned to the debtor and his former wife were not in the nature of support and, therefore, were dischargeable in a Chapter 13 case).
(Attorney's suspension not lifted because proof of CLE inadequate); entered 2012-05-25 (Doc. No. 75); Notice of Appeal filed 2012-06-04 (Doc. No. 81).
(following a trial, valuing the debtors' interest in their home for purposes of determining whether second lien is void).
(following a trial, denying trustee's complaint to avoid transfer of debtor's interest in marital residence to his former spouse, as transfer was pursuant to a divorce decree, under which former spouse was to receive a set amount of money from the debtor and received the transfer of the property in satisfaction of that debt).
Judge Robert E. Brizendine (Retired)
(Gregory Blosser v. James D. Boggus, Jr.),(Plaintiff sought determination that indemnification claim should be excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) and 523(a)(6). Court denied Defendant-Debtor's motion to dismiss, finding that the facts were stated with sufficient particularity to support plausible claim for relief. Court also denied Defendant-Debtor's motion for summary judgment on count regarding Section 523(a)(2)(A), concluding that Plaintiff showed existence of a fact issue on requisite intent to defraud in connection with breach of promise in obtaining a release in a settlement agreement between the parties. In addition, Court concluded sufficient issues existed concerning legal effect of merger clause in interpreting the agreement and in the admissibility of evidence of pre-contractual negotiations. Court granted summary judgment in favor of Defendant-Debtor on count relating to Section 523(a)(6), concluding allegations were too remote to create fact issue of willful and malicious injury. Claim under Section 523(a)(2)(A) was set for trial, but matter was subsequently dismissed via consent order.)
Honorable Paul W. Bonapfel
"Mailbox rule" applies such that paper filed by prisoner, construed as a motion containing a request for determination of dischargeability of debt subject to 11 U.S.C. 523(c), that the prisoner delivered to prison authorities for mailing to the Court prior to expiration of the deadline of Fed. R. Bankr. P. 4007(c) is timely filed, even though the Clerk's office did not receive and docket it until after expiration of the deadline. Court grants the creditor 30 days to convert the motion into an adversary proceeding by filing a complaint and paying the filing fee.