(Demand that Plaintiff file discovery responses denied)
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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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(Debtors failed to file timely return; Plaintiff's tax liabilities are not dischargeable because the assessments for those tax years are not based on returns filed by taxpayers but instead are based on substitute returns created by IRS)
(Sanctions imposed on Defendant's attorney for failure to timely notify Plaintiff's attorney of inability to attend deposition)
(Fair Debt Collection Practices Act and attempted wrongful foreclosure)
(Striking jury demand)
(Failure to state a claim under Fair Debt Collection Practices Act)
Honorable Paul W. Bonapfel
Watson, Ch. 7 Trustee v. Powell, et. al. - Adversary Proceeding No.: 10-6349-PWB,
Chapter 7 Trustee’s amended complaint seeks to recover allegedly fraudulent transfers and the Defendants moved to dismiss it for failure to state a claim on which relief can be granted because it did not allege existence of creditor with a claim arising prior to transfers. O.C.G.A. § 18-2-74(a)(2)(A) permits a post-transfer creditor to avoid, as constructively fraudulent, a transfer for less than reasonably equivalent value that occurs when the debtor was engaged or was about to engage in a business or transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. Motion to dismiss denied.
NOT INTENDED FOR PUBLICATION
Chapter 13 Debtors failed to give notice of filing to Pawnbroker to which they had pawned two motor vehicles. After the Pawnbroker, without knowledge of the bankruptcy case, repossessed them, Debtors sought return of the vehicles and damages on the ground that the Pawnbroker violated the automatic stay. The Court concluded that the pawned vehicles were no longer property of the estate at the time of their repossession because the Debtors had not taken affirmative steps to redeem them in accordance with Georgia’s pawnshop laws and that, consequently, the Pawnbroker did not violate § 362(a)(3)’s prohibition on obtaining possession of property of the estate. Section 362(a)(3) also prevents an entity from obtaining possession of property from the estate. The Court declined to decide whether this provision applies when a Chapter 13 debtor is in possession of non-estate property with no legal basis for such possession because, in the circumstances of this case, the Pawnbroker was entitled to annulment of the stay retroactively to the date the Pawnbroker repossessed the pawned vehicles. Consequently, the debtors were not entitled to return of the vehicles or to any damages.
Honorable Mary Grace Diehl (Recall)
Order overruling Debtor’s objections to claims. Debtor’s objections were all based on the claims’ non-compliance with Rule 3001. Even without the presumption of prima facie validity under Rule 3001(f), the Debtor’s sworn schedules and statement of financial affairs provided a sufficient basis to allow the claims, especially where no other creditor was asserting such debt.
Honorable James R. Sacca
Collateral estoppel does not bar litigation of the issue of whether Debtors caused "willful and malicious injury" under section 523(a)(6) when a state court previously determined that Debtors were liable for “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” under O.C.G.A. Section 51-12-5.1(b) without making any additional findings. Motion for summary judgment denied.