Order granting Plaintiff’s motion for summary judgment. Plaintiff sought a determination that a state court judgment for malicious prosecution and intentional infliction of emotional distress was non-dischargeable pursuant to section 523(a)(6). The Court found that the doctrine of collateral estoppel applied and barred relitigation of Defendant’s willful and malicious conduct. The debt arising from the state court judgment, including attorney’s fees, was deemed non-dischargeable.
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Opinions
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(denying creditor's motion to extend time to object to debtor's discharge, as the deadline expired prior to the filing of the motion).
Order on Defendant’s Motion for Summary Judgment holding, inter alia, (1) issues remain as to whether the Defendant is a non-statutory insider for purposes of a preference claim; (2) there is no evidence Debtor Nadine K. Baddour owed an antecedent debt to Defendant, a transfer on account of which would value; (3) the record is insufficient to determine whether Debtor Moskowitz received reasonably equivalent value for his obligation to Defendant when the funds borrowed from Defendant were invested in a company at Defendant’s direction; (4) facts remain in dispute concerning Defendant’s liability under 11 U.S.C. § 547 and O.C.G.A. § 18-2-74; (5) issues remain as to whether any resulting unsecured claim of Defendant should be subordinated; and (6) Trustee cannot “recharacterize” Defendant’s claim to a claim of equity in Debtors’ individual cases, even though the advance of funds may have been used as equity in another company.
(granting Chapter 11 debtor's attorney's fee request in a reduced amount, following objections raised by the Debtor as to the necessity and reasonableness of the services rendered).
(Notice: service of emergency motion was inadequate); entered 2011-11-23 (Doc. No. 49; Notice of Appeal filed 2011-11-30.)
The Trustee asserted that Debtors were not entitled to an additional $200 in transportation operating expenses and therefore were not committing all of their projected disposable income. The Court found that a debtor’s expenses are to be defined by IRS standards and using the Internal Revenue Manual to justify an additional operating expense would be inconsistent with the way that the Manual was used in Ransom v. FIA Card Services, N.A., ___ U.S. ___, 131 S. Ct. 716 (2011). The Court held that debtors with motor vehicles over six years old or with over 75,000 miles may not claim an additional $200 in operating expenses on line 27A of Form 22C.
Judge Joyce Bihary (Retired)
(Filing duplicate proofs of claim does not give rise to a claim under the Fair Debt Collection Practices Act (FDCPA). Filing a proof of claim (even one that is invalid) cannot constitute the sort of abusive debt collection practice proscribed by the FDCPA. Filing a proof of claim is not an activity against a consumer debtor; it is a request to participate in the distribution of the bankruptcy estate. Complaint does not state a claim under 15 U.S.C. §§ 1692e(2)(A), (5) or (10). Adversary proceeding is dismissed under Rule 12(c).)
Honorable James R. Sacca
Untimely Rule 4007 motion for extension of time to file an objection to discharge under 11 U.S.C. section 523(a)(2), (4), and (6) denied. Equitable tolling was not justified. Movant did not support its assertions that Debtor actively misled it regarding the cause of action. Further, though a snowstorm prevented movant from filing its complaint on January 11, 2011, it should have filed the very next day the court was open, and filing eight days after the Court reopened was not sufficient. Though it based its decision on the abovementioned factors, the court also discussed whether equitable tolling of the time to file under Rule 4007 is permissible under any circumstance in the eleventh circuit (See Kontrick v. Ryan, 540 U.S. 443 (2004); Byrd v. Alton, 837 F.2d 457 (11th Cir. 1988)).
Judge Robert E. Brizendine (Retired)
Defendant filed for summary judgment on Plaintiff-Debtors' 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 Debtors' failure to file amended income tax return reflecting upward adjustment to Debtors' net income by IRS as required under O.C.G.A. Section 48-7-82(e)(1)).
Honorable Mary Grace Diehl (Recall)
Order granting in part and denying in part motion for default judgment. Wells Fargo Bank, N.A., is a federally insured depository institute and service of process is proscribed by Rule 7004(h). Service of the summons and complaint was not effectuated on the bank and entry of default judgment was not proper.