Order granting Georgia Lottery Corporation’s motion for summary judgment, finding the debt owned non-dischargeable under § 523(a)(4). A fiduciary relationship exists between Plaintiff and Defendant, the owner of a Georgia Lottery retailer. O.C.G.A. § 50-27-21(a) creates a fiduciary duty and satisfies the technical trust requirements. Defendant asserts a theft defense, which under this timeline, still amounts to a defalcation while acting in a fiduciary capacity.
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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.
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Honorable Mary Grace Diehl (Recall)
Order denying Debtor’s Motion to Bar City of Chicago from Reinstating Discharged Bankruptcy Debt. The Court construed Debtor’s motion as one to enforce the discharge injunction of 11 U.S.C. § 524. Debtor alleged that the city of Chicago violated the discharge injunction by seeking to enforce the payment of parking fines that were discharged in Debtor’s bankruptcy case. The Court found that parking fines are payable to a governmental unit and that their purpose was to enforce parking and traffic laws, not compensate the city for pecuniary loss. Consequently, the debts for the parking fines were excepted from discharge under 11 U.S.C. § 523(a)(7), and the discharge injunction was not violated.
Order denying Defendants’ motion to dismiss for failure to state a claim. Central to the decision was an analysis of whether sufficient facts were alleged under the Supreme Court’s Iqubal/Twombly standard as to the Debtor’s insolvency at the time of the alleged fraudulent transfers. It was determined that the fraudulent transfer claims had facial plausibility given the date of the transfers, the complaint’s allegation of insolvency, the date of bankruptcy filing, and scheduled assets and liabilities. Additionally, constructive fraudulent transfer claims were not subject to Rule 9's heightened pleading standard.
The Court granted in part Plaintiff’s motion to quash subpoena. Defendant sought to depose Plaintiff and two others, and Plaintiff objected that discovery had closed. Defendant argued that the depositions were for the purpose of preserving evidence at trial. The Court granted the motion to quash because Defendant did not attempt to depose Plaintiff during the discovery period. Second, Plaintiff would be available for trial, making the preservation of evidence for trial unnecessary. Finally, the Court denied both Plaintiff’s and Defendant’s requests for sanctions because no authority was given to support either request.
Honorable James R. Sacca
Denial of discharge under 11 U.S.C. § 727(a)(4)(A) for Debtor's knowing and fraudulent failure to disclose on her SOFA and Schedules $480,000 of income in 2008, 2009 and 2010 and a Rolex watch, among other things.
At trial, Debtor admitted to failing to disclose $120,000 of rental income in 2008. She asserted that another $360,000 of undisclosed deposits into her personal accounts was not from income, but rather gifts and loan repayments. Because the definition of income for purposes of Questions 1 and 2 on the SOFA includes any receipt of money, the Court found the gifts and loan repayments should have been disclosed. Furthermore, in her 2009 divorce settlement agreement, Debtor acknowledged having sufficient income to support her children, but she disclosed no income for 2009 on her SOFA.
Debtor admitted to failing to disclose the Rolex, but testified she did not think she had to do so because it was "aftermarket" and, in her opinion, not worth anything. The Court found it was not Debtor's place to determine whether the watch was worth disclosing.
The Court found these and other omissions to be false oaths under § 727(a)(4)(A).
(denying trustee's motion to reconsider order lifting the automatic stay to permit bank to perform setoff of certificate of deposit), APPEAL filed 11/07/2011.
Order denying Trustee’s Motion for Default Judgment on Trustee’s Objection to Discharge holding, inter alia, Trustee’s allegations pursuant to 11 U.S.C. § 727(a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) were conclusory in nature. The Trustee did not allege facts other than that the Debtor did not respond to a Rule 2004 order. Allegations did not include sufficient information from which the Court can conclude that the documents requested are necessary to the Trustee, that the withholding of the books and records was knowing, fraudulent or willful, or that facts supported the Trustee’s other allegations. Therefore, this matter is set for trial.
(denying claimholder's motion for reconsideration and inclusion in final Chapter 7 distribution; claimant filed proof of claim after the Chapter 7 bardate, and there was evidence that the claimant had received notice and had actual notice of the filing of the bankruptcy case, such that section 726(a)(2) could not be applied to permit the payment of the late claim with timely claims).
Judge Robert E. Brizendine (Retired)
(Court denied Plaintiffs' motion for summary judgment on complaint to determine dischargeability of debt under 11 U.S.C. Sections 523(a)(2)(A), 523(a)(2)(B), and (a)(6) based on judgment obtained by default in New York state court. Court applied issue preclusion rules of New York, but found that various theories of recovery in the New York judgment, including breach of contract and negligence, were not limited to certain aspects of award and thus, could not support relief under the governing legal standards of the bankruptcy provisions at issue. Matter to proceed to trial).
(Plaintiff-Debtor filed complaint asserting, among other things, that certain tax debt was not enforceable and was dischargeable because a state tax execution was not properly entered and became dormant. Court found Defendant complied with applicable state law (O.C.G.A. Sections 48-3-21; 48-2-56(e)(2); and 9-12-60) in filing its execution and re-recording same by filing nulla bonas. Motion for leave to amend complaint to seek determination of amount of tax liability denied. Judgment granted for Defendant on issue of nondischargeability of subject tax debt for failure to file required tax returns under O.C.G.A. Section 48-7-56)