(bankruptcy court lacks discretion to prevent Plaintiff's voluntary dismissal under FRCP 41(a)(1))
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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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(denying Debtors' motion to enforce the automatic stay against utility company, as, under section 366, respondent had the right to terminate service when debtor failed to provide adequate assurance of payment for postpetition services).
(state court post-discharge order that creditor's claim was non-dischargeable was res judicata)
Order dismissing the complaint for failure to state a claim upon which relief can be granted. The plaintiff alleged that the defendant was liable for breach of contract but failed to allege facts sufficient to state a plausible claim for relief. While the plaintiff’s pleading alleged that the plaintiff and defendant had entered into an integrated credit facility agreement covering both a line of credit loan and stand-by letters of credit, the attachments to the complaint contradicted the allegations. The defendant’s motion to dismiss was construed as a motion for judgment on the pleadings per Fed.R.Civ.P. 12(c) & 12(h), incorporated by Fed.R.Bankr.P. 7012. The Court also dismissed the defendant's counterclaim upon the defendant's request to pursue the claim in state court.
Order granting the defendant, Ocwen Loan Servicing, LLC, summary judgment. The plaintiff claimed that Ocwen was liable for the unauthorized short sale after it had obtained relief from stay. The Court found that Ocwen was not liable because no injury occurred to the estate at the time it accepted a payoff, which was less than what it was entitled to receive as the secured creditor. Furthermore, Ocwen did not sell the property, did not receive any surplus funds owing to the estate, and could not have prevented the allegedly fraudulent and unauthorized sale.
Order holding lien stripping is permissible in chapter 13, where debtor is ineligible for a chapter 13 discharge because of a recent chapter 7 discharge (“chapter 20”), if the chapter 13 plan is filed in good faith. Whether lien stripping was permitted in a “chapter 20” case was relevant to plan confirmation in both the Jennings (11-50570-CRM) case and the Hill (10-88514-CRM) case.
Judge Joyce Bihary (Retired)
(§ 521(i)(1) dismissal automatic. § 363(c)(3)(A) – automatic stay terminated 30 days after case filed. § 1328(f)(1) – debtor not eligible for Chapter 13 discharge as she received Chapter 7 discharge in a case filed within four years of the date the Chapter 13 was filed.)
Honorable Paul W. Bonapfel
Order sustaining Chapter 13 Trustee’s objection to debtor’s post-confirmation modification of plan. Plan that proposes to pay nothing to creditors during entirety of plan duration not proposed in good faith.
Secured lender bid in the Debtor’s real estate at a foreclosure sale that occurred a few hours before Debtors filed a Chapter 7 case. Because the Court granted retroactive relief from the automatic stay, the Court declined to address whether the mere conclusion of bidding at a foreclosure sale terminates a debtor’s equity of redemption when the lender is the high bidder.
Honorable Mary Grace Diehl (Recall)
Order overruling objection to confirmation of chapter 13 plan. Secured creditor objected to plan confirmation on grounds that the plan did not provide payments to secured creditor equal to the value of the collateral securing its claim. An evidentiary hearing was held on the value of the collateral, and a dispute arose about which party has the burden of proof. The Court held that, in the context of a confirmation objection, the debtor has the burden of proof. In this case, Debtors met their burden and the secured creditor failed to rebut Debtors’ showing.