Order Granting Trustee’s Motion for Summary Judgment holding, inter alia, (1) under 11 U.S.C. § 544, the Trustee is a bona fide purchaser for value as of the petition date and may avoid the lien of a security deed where the prior security deed had been cancelled, nothing on the face of the cancellation suggested existence of another security deed, and no new deed was recorded as of the petition date; and (2) equitable subrogation does not give Wells Fargo priority over the Trustee because any subrogated rights of Wells Fargo were terminated when the prior security deed was cancelled and equitable subrogation does not allow for the prior deed to be revived where a bona fide purchaser for value exists.
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(denying defendant's motion to dismiss complaint).
(granting in part and denying in party plaintiff's motion for summary judgment as to its claim that two deeds to secure debt regarding two different properties should be reformed to provide the correct name of the grantor and finding that the Chapter 7 trustee of the estate of the true owners of the property had the rights of a bona fide purchaser for value without notice of the plaintiff's interest as to one of the properties, thus precluding the granting of relief as to that property).
Judge Robert E. Brizendine (Retired)
(Anne Wilson Parham and Lawrence Neil Parham v. Suzanne Harris-Onaxis and Lee Harris-Onaxis),(Court denied Debtors' motion for reconsideration of Order entered on 2011-12-08 (Docket No. 16 ) granting summary judgment in favor of Plaintiffs under 11 U.S.C. Section 523(a)(2). Court reaffirmed its conclusion that preclusive effect accorded findings in Alabama state court order was appropriate to establish entitlement to relief by Plaintiffs. This Order is currently on appeal before the U.S. District Court).
(Kevin E. Wren v. Alley Cassetty Companies, Inc.),(Debtor-Movant filed motion to hold Respondent in contempt for alleged violation of automatic stay and for an award of damages under 11 U.S.C. Section 362(k). Court granted motion concluding that although Respondent agreed to halt prosecution of state court law suit once it learned of Debtor's bankruptcy filing, it still had affirmative duty to file suggestion of bankruptcy in that action as opposed to forcing Debtor to do so. Since Respondent was not motivated by improper intent, there were no grounds for punitive damages, but actual damages in the form of reasonable attorney's fees were awarded).
(Inpahn Thavongsa and Christ Thavongsa v. Georgia Dep't of Revenue),(Defendant filed motion for summary judgment on Plaintiff-Debtors' complaint to determine dischargeability of certain income tax liability indebtedness. Court held Debtors' state income tax obligation for year in question based on upward adjustment to their income for that year by I.R.S. to be nondischargeable under 11 U.S.C. Section 523(a)(1)(B)(i)).
Honorable Mary Grace Diehl (Recall)
The Court granted the Bank’s timely filed motions to reconsider and set aside the confirmation order. Debtor’s plan treated the Bank’s claim in the personal property section, yet treated the Bank’s claims as partially secured under § 506 based of the purported value of real property. The Court also noted that the Debtor’s placement of the Bank’s claim in the personal property section of the plan raised concerns about the Bank having meaningful notice of the proposed treatment, especially given U.S. Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367 (2010). The Bank, although it did not oppose the motion to value its collateral, contested valuation in the motions to reconsider. Using its discretion under Rule 9023 and noting that the Court’s discretion is at its height before an order becomes final, the orders were set aside and confirmation and the motion were set for an evidentiary hearing.
In a consolidated action, Plaintiff’s motion for leave to amend and supplement pursuant to Fed. R. Civ. P. 15(a)(2) & (d) was denied. Plaintiff’s request followed the Court’s ruling on partial summary judgment and proposed amendments that were futile because they could not prevail under the summary judgment standard. The Plaintiff’s prior opportunities to amend, the timing of the request, and the proposed futile amendments justified the denial.
Joint Debtors in Chapter 7 each claimed an exemption in a promissory note inherited by Debtor wife, and the Trustee objected. The Court granted the Trustee’s objection as to the Debtor husband but denied it as to the Debtor wife. First, the promissory note remained Debtor wife’s separate property because her actions never manifested a clear intent to convert the promissory note into marital property. Thus, only Debtor wife could claim an exemption in the promissory note. Second, the Court rejected the Debtors’ arguments that the Trustee’s objections should be barred under the doctrines of judicial admission and judicial estoppel.
Honorable James R. Sacca
Chapter 13 debtor-in-possession is the equivalent of the trustee for purposes of retaining special counsel under 11 U.S.C. section 327(e).