Trustee’s complaint sought to avoid fraudulent or preferential transfers of $18,700, together with additional transfers made within applicable time periods and“reserved” the right to amend to assert additional claims. The Court concluded that because the complaint put the defendant on notice of the trustee’s intent to recover all avoidable transfers, the trustee did not have to amend the complaint to assert avoidance claims in excess of those originally stated. Alternatively, any amendment to the complaint would relate back. Because the defendant had not timely moved to dismiss the complaint for failure to state a claim on which relief can be granted, the court did not decide whether it met requisite pleading standards. NOT INTENDED FOR PUBLICATION
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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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Honorable Paul W. Bonapfel
The Court avoided a creditor’s judgment lien under 11 U.S.C. § 522(f) only to the extent that it impaired an exemption in the one-half interest originally titled in the debtor’s name. The Court determined the amount of the lien that was not avoidable with regard to that one-half interest and ruled that the lien was fully enforceable against the one-half interest titled of record in the name of the debtor’s deceased wife. The Debtor did not provide information from which the court could determine whether the debtor inherited some or all of his deceased wife’s interest. NOT INTENDED FOR PUBLICATION
Court declines to confirm Chapter 13 plan containing nonstandard provisions with regard to treatment of nonmodifiable mortgage that impose certain affirmative duties on lender. The Court concluded that the provisions were not appropriate because they were either surplusage, impermissibly modified the mortgage, or imposed procedural requirements that neither the Bankruptcy Rules nor the Court’s local rules and procedures contemplate.
Honorable Mary Grace Diehl (Recall)
Order Denying Defendant’s Motion to Dismiss. Plaintiff, the Chapter 7 Trustee, commenced adversary proceeding to avoid alleged fraudulent transfers between Debtor and Defendant under 11 U.S.C. § 548(a)(1)(A). Defendant moved to dismiss based on failure to state a claim or, in the alternative, for a more definitive statement. The Court ruled that Plaintiff stated a valid claim because Plaintiff alleged fraudulent transfers with sufficient particularity to allow an inference that Defendant was liable. First, Plaintiff alleged the parties involved, their insider relationships, the date, amount, and method of transfers, and the condition of indebtedness between the parties. Moreover, Plaintiff set forth adequate badges of fraud to allow an inference of fraudulent intent, such as a subsequently insolvent transferor and the transfer of assets to or for the benefit of an insider. Finally, requiring Plaintiff to make a definitive statement was inappropriate. Plaintiff plead sufficient factual detail and clear legal bases. Thus, the complaint was not so vague or ambiguous as to be unintelligible, and Defendant was able to respond.
The Court annulled the automatic stay and validated the post-petition foreclosure sale. Debtor asserted an interest in the property at issue based on an unrecorded “joint tenancy deed,” which was admitted into evidence. The grantor in the “joint tenancy deed” was the party on the note and security deed with Wells Fargo. The Court heard testimony from the Debtor and determined that annulling the stay was appropriate under § 362(d)(4). Debtor failed to establish that he had any interest in the property because the “joint tenancy deed” was unrecorded and incomplete. Additionally, Debtor’s testimony lacked credibility regarding the purported notice he provided to Wells Fargo in advance of the foreclosure sale. Debtor’s bankruptcy history and the absence of prosecution of this case evidenced that his Chapter 13 case was not filed in good faith. Therefore, the stay was annulled and the foreclosure sale was validated to the extent otherwise valid under Georgia law.
Order granting trustee’s motion to sell property over the objection of creditor asserting a right to reclamation. Creditor did not have a reclamation right because it failed to timely assert that right in compliance with the provisions of 11 U.S.C. § 546(c). And Creditor could not exercise its state law right to reclamation, as § 546(c) provides the exclusive right to reclamation in bankruptcy.
Order granting GMAC’s motion for an order confirming no stay is in effect. The Court found that Debtor was ineligible pursuant to § 109(g)(2) since GMAC had a motion for relief in Debtor’s prior Chapter 13 case when it was voluntarily dismissed by Debtor within the applicable 180-day period. The Court, however, made the distinction that ineligibility does not necessarily mean the stay is not in effect. Based on Debtor’s ineligibility and § 362(b)(21), it was confirmed that no automatic stay prohibited GMAC from exercising it state law remedies.
(SSI is excluded from projected disposable income; but Debtor's retention of SSI income while paying unsecureds 0% is not good faith);
(discussing the allocation of ownership of a tax refund between joint debtor spouses).
Order Granting in Part and Denying in Part Plaintiff’s Motion for Summary Judgment regarding claims of nondischargeability under 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6). Plaintiff’s assertion of summary judgment relied upon the doctrine of collateral estoppel, which was based upon the entry of a Superior Court order prior to the filing of the Debtor Defendant’s bankruptcy petition under Chapter 7.