(Timothy D. Wilson and Penny D. Wilson v. Brian Durant), Contested Matter; (Court granted motion to avoid judicial lien under 11 U.S.C. Section 522(f), concluding that even if Debtors could not claim homestead exemption in certain property because it was not their residence at time of filing of their bankruptcy case, they were still entitled to claim their 'wildcard' exemption in underlying property.)
You are here
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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Judge Robert E. Brizendine (Retired)
(First Financial Services, Inc. v. Corey Benjamin Tallant),(Movant filed motion for reconsideration of Court's prior Order entered on 2011-12-06, Docket No. 19, denying Movant's motion for relief from stay and granting Debtor's motion to avoid judicial lien. Court denied motion for reconsideration reaffirming its earlier conclusion that perfecting judicial lien on motor vehicle under Georgia law (O.C.G.A. Section 40-3-53) does not thereby change the legal character of same into a consensual security interest or statutory lien that is not subject to avoidance. Movant misreads Court's ruling in (In re: Brian Edward Fox), Case No. G07-20069-REB (Fox v. Lakeview Publishing.com, Inc.), Contested Matter; entered on 2009-09-29, Docket No. 63).
(Petition dismissed because filed by attorney in fact who lacked authority under the power of attorney);
(order denying motion to dismiss case and finding case and plan filed in good faith where debtor was proposing to commit all disposable income to payment of debt that would otherwise have been nondischargeable under Chapter 7).
(Trustee may abandon property of the estate irrespective of possible tax consequences to Debtor)
Honorable Paul W. Bonapfel
Where judgment lien on exempt property is partially avoided under section 522(f) in a Chapter 7 case, the creditor is entitled to recover the amount of the debt that remains enforceable under the portion of the lien that is not avoided, even if the creditor enforces the lien through a judicial sale that does not result in the realization of replacement value such that the debtor does not receive the full amount of the exemption from the proceeds. A judgment creditor is not entitled to recover interest or expenses of sale except to the extent that sales proceeds exceed the sum of the enforceable debt and the debtor's exemption. Interest runs from the date of the bankruptcy petition on the amount of the debt that remains enforceable by virtue of the unavoided lien.
In non-core proceeding, the Trustee for a debtor who been engaged in a Ponzi scheme sought coverage under an investment management insurance policy, claiming that the insured debtor had invested money of investors in risky index options rather than in common stocks of U.S. companies, that investors had claims against the Debtor as a result, and that the insurance policy covered the Debtor's liability to the investors. The Trustee requested a jury trial.
The defendant insurer filed motions for summary judgment and to exclude the testimony of an expert witness.
Court enters proposed findings of fact and conclusions of law with regard to all pending issues to insure that District Court has jurisdiction to conduct de novo review of all appropriate issues pursuant to 28 U.S.C. s 157(c)(1) and Bankruptcy Rule 9033. Court proposes that the District Court grant defendant insurer's motion for summary judgment on one issue and deny it on all others and that the District Court deny defendant's motions relating to exclusion of expert testimony. The basis for the Court's proposed entry of summary judgment in favor of the defendant is that an insurer is entitled to rescind an investment management insurance policy because of the Debtor insured's omission or misrepresentation of a material fact when the insured was operating a Ponzi scheme.
Judge James E. Massey (Retired)
The U.S. Trustee objected to the fee application of the law firm representing the Chapter 7 Trustee. The Court distinguished services performed by a trustee pursuant to 11 U.S.C. § 704 from legal services, awarding fees for services legal in nature and denying fees for work performed that did not require a license to practice law.
Honorable Mary Grace Diehl (Recall)
The Court determined the value of real property for purposes of Debtor’s motion to strip down a first mortgage lien and confirmation. The Court did not adopt the value from the lender or Debtor’s appraisals, but, instead, used the evidence introduced at the hearing to determine the value of the real property using a income based valuation approach. The Court also determined that an apartment building, in which Debtor acts as the property manager and lives on-site, does not protect the lender’s security interest under § 1322(b)(2)’s anti-modification provision.
Defendants were awarded summary judgment because the stipulated facts for each debtor showed that they could not meet the undue hardship standard applicable in this circuit - the Brunner test. Plaintiffs did not contest the facts but sought an equitable exception to the application of Brunner and the Court’s previously ruling that these debts qualified as student loan debts under § 523(a)(8)(A)(I). (Docket No. 61). Plaintiffs asserted that a material dispute of fact existed as to the amount of the debt owing, but Defendants did not seek a sum certain judgment. Instead, Defendants merely sought a non-dischargeability determination.