(Larry H. Tatum v. Lauren Denise Espinosa),(Plaintiff filed motion for entry of default judgment on complaint seeking determination that debt in issue was excepted from discharge under 11 U.S.C. Section 523(a)(5). Court held that guardian ad litem fees were subject to exception as a domestic support obligation since these fees were in the nature of support. Motion granted in favor of Plaintiff and judgment entered).
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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 Robert E. Brizendine (Retired)
Judge Joyce Bihary (Retired)
(Claims under the Truth-in-Lending Act are time barred and dismissed. Claims under the Fair Debt Collection Practices Act dismissed; foreclosure under a security deed is not a debt collection activity under 15 U.S.C. 1692(f)(6). Claims for wrongful foreclosure are dismissed, as defendants did not conduct a foreclosure.)
NOT INTENDED FOR PUBLICATION
(Claims under the Truth-in-Lending Act are time barred and dismissed. Claims under the Fair Debt Collection Practices Act dismissed; foreclosure under a security deed is not a debt collection activity under 15 U.S.C. § 1692(f)(6). Claims for wrongful foreclosure are dismissed, as defendants did not conduct a foreclosure.)
Honorable Mary Grace Diehl (Recall)
Order granting Defendants’ motion to set aside and vacate default judgment. After Defendants’ failed to appear or respond to the complaint, the Court entered default judgment denying their chapter 7 discharge. Defendants appeared by counsel immediately after default judgment was entered, asserting that the default judgment should be set aside on the basis of excusable neglect. The Court held that Defendants’ met the excusable neglect standard because they asserted potentially meritorious defenses, showed a good reason for the default, and showed a lack of substantial prejudice to Plaintiff.
Order granting Debtors’ motion to redeem with the second priority lien holder for no payment. Debtors had reaffirmed the debt with the first lien holder on the vehicle. Based on the amount of the first lien, there was no equity for the second lien to attach. The § 722 redemption requirements had been satisfied and the Court found redemption to be an available remedy with a wholly unsecured lien
Order denying creditor’s motion to dismiss or convert chapter 11 case for cause under 11 U.S.C. § 1112. Creditor, Debtor’s ex-wife, argued that cause existed to dismiss or convert Debtor’s chapter 11 case because Debtor failed to maintain a life insurance policy, pursuant to a divorce decree, that had lapsed pre-petition. According to Creditor, the obligation to maintain the life insurance policy was a domestic support obligation that first became payable post-petition. The Court held that the life-insurance obligation was a domestic support obligation. But the Court further held that the obligation did not first become payable post-petition. No premiums were due and owing under the lapsed policy, and there was no state court order requiring Debtor to replace the policy. Further, there were no other obligations related to the life insurance that were payable.
Order denying the Chapter 7 Trustee’s motion for sanctions against two creditors and their attorney. The Trustee sought to impose sanctions under the court’s inherent power, § 105, and 28 U.S.C. § 1927. Although the legal standard differs, all require a finding of bad faith. The facts did not support a finding of objective bad faith for the creditors or their attorney. Noting that bringing losing arguments do not evidence bad faith, the facts asserted by the Trustee as objective bad faith were not found by the Court to be frivolous or taken in bad faith. Additionally, none of the actions by the parties was found to multiply the proceedings. The Court also noted the impropriety of the Trustee in submitting communication between counsel to the Court, citing Local Rule 7.4, N.D. Ga. and BLR 9003-2, N.D. Ga.
Order granting creditor’s motion to convert individual non-consumer Debtor’s case from one under Chapter 7 of the Bankruptcy Code to one under Chapter 11 of the Bankruptcy Code. The Court held that 11 U.S.C. § 706(b) permits the Court to convert an individual non-consumer debtor’s case from Chapter 7 to Chapter 11 and the act of conversion alone does not violate the Thirteenth Amendment to the Constitution as involuntary servitude nor does conversion violate the Anti-Peonage Act.
(finding that marketing agreement did not grant party an interest in intellectual property, such that the party was entitled to retain its rights under the agreement upon rejection by the debtor in possession in accordance with section 365(n)(1); court had insufficient evidence to determine whether the parties' conduct could have resulted in the granting of an implied license).
Judge James E. Massey (Retired)
The Court denied Defendant’s motion to withdraw deemed admissions; the motion failed to address the two-part test for withdrawal in Fed.R.Civ.P. 36(b). Defendant’s blanket assertion of 5th Amendment privilege was not a basis for failing to respond to the request for admissions.