Defendant filed for summary judgment on Plaintiff-Debtor's complaint to determine dischargeability of tax debt. Court granted motion concluding tax debt nondischargeable under 11 U.S.C. Section 523(a)(1)(B)(i) based on Debtor's failure to file annual state income tax return as required under O.C.G.A. Section 48-7-56).
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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)
(Court denied motion of Defendant Coastal Bank & Trust to dismiss complaint asserting claim for equitable marshaling where Defendant argued Court lacked jurisdiction to hear and decide same based on decision of U.S. Supreme Court in Stern v. Marshall, 564 U.S. _, 131 S.Ct. 2594 (2011)).
(Anne Wilson Parham and Lawrence Neil Parham v. Suzanne Harris-Onaxis and Lee Harris-Onaxis),(Court denied renewed motion to dismiss and granted Plaintiff's motion for summary judgment seeking to except various claims as pursued in state court litigation from discharge under 11 U.S.C. Sections 523(a)(2)(A). Looking to state issue preclusion rules, Court determined that an Alabama state court would give preclusive effect to state court order where no trial actually occurred because Debtor-Defendants failed to participate. Finding no definitive authority under Alabama law addressing such situation, Court reasoned that reference to federal authority was appropriate in deciding what effect an Alabama court would give a default judgment. From its review of the state court order that adopted Plaintiff's allegations in that action, the Court found Plaintiff had established grounds supporting entitlement to relief under Section 523(a)(2)(A)).
(denying motion for default judgment, as the complaint failed to allege sufficient facts to enable the Court to determine the portion of the debt that actually arose from the Debtor's willful and malicious injury).
(denying payment of compensation requested by accountant who was not retained by trustee).
Judge James E. Massey (Retired)
The Court granted judgment on the pleadings for debtor defendant in plaintiff’s case for nondischargeability under 11 USC 523(a)(2),(4), & (6). Defendant’s claims of witness interference under FLSA, intimidation, and conspiracy to deter a witness from testifying were not supported merely by allegations of breach of an employment contract, a request for return of property, and a failure to remit severance pay.
The issues here were whether various counts of the complaint asserting debts to be nondischargeable stated claims for relief. The court denied the motion Defendant’s motion to dismiss as to the count under section 523(a)(2) because the facts alleged, though they did not include a false representation, were sufficient to show actual fraud. The decision also dealt with claims under section 523(a)(6) (motion denied) and (a)(4) (motion granted).
Honorable Paul W. Bonapfel
Order denying motion to dismiss for failure to state a claim for relief. Plaintiff’s complaint to determine dischargeability of debt pursuant to 523(a)(2)(A) satisfies pleading standards of Rules 8 and 9 of the Federal Rules of Civil Procedure and also states claim for attorney’s fees under OCGA 13-6-11.
Honorable Mary Grace Diehl (Recall)
Order modifying the automatic stay and continuing the relief from stay hearing. Finding that the automatic stay was applicable, the stay was modified for the lender to proceed with preparation for foreclosure and any action in the related criminal forfeiture action to determine the priority of lender’s claim in relation to that of the United States. Lender’s evidence of value of the property was suspect and revealed unusual accounting practices. Trustee raised several legal theories and concerns over the impact on the estate based on the sale of the property. However, based on the uncontested appraisals, there was no equity in the property and, therefore, some relief was appropriate given that this is a chapter 7 liquidation case.
Order denying pro se Debtor’s motion. Essentially, Debtor sought to change the treatment of two secured creditors in a case where the plan had been confirmed in 2007. Based on the res judicata effect of the plan and the value of the property at the time of the petition, Debtor’s motion was denied.