Lessor objected to the certification in Debtor’s petition that stated that landlord had a judgment against her to take possession of the residence, but that applicable state law permits debtor to cure the entire monetary default that gave rise to the judgment. Lessor moved for an expedited hearing pursuant to § 362(l)(3)(A) to object to Debtor’s certification. Under Georgia law, O.C.G.A. § 44-7-49, once a landlord obtains a writ of possession, the landlord has no legal obligation to accept rent from the debtor-tenant. The Court also found that an exception to the automatic stay was applicable to these facts as provided by § 362(b)(22) in sustaining Lessor objection and determining that the automatic stay was not applicable.
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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 Mary Grace Diehl (Recall)
Plaintiff’s request for entry of default was denied based on improper service. Plaintiff failed to comply with Federal Rule of Bankruptcy Procedure 7004(b)(9) which requires service of process on a debtor at the address shown on the petition. Service of process on Debtors’ purported attorneys is insufficient on its own to effectuate service and providing the Court with jurisdiction.
Order denying Plaintiff’s motion for default judgment without prejudice because sufficient facts were not alleged to entitle Plaintiff to an award of judgment. Plaintiff’s claim was based on § 522(h) using § 547. However, the complaint failed to allege facts sufficient to make out the elements of a preference claim.
Order finding Debtor’s counsel in violation of Fed. R. Bankr. P. 9011(b) by filing of bankruptcy petition, under the circumstances of the case.
The matter was before the court on the defendant’s motion for summary judgment. The defendant alleged that the debtor willfully evaded the payment of taxes by failing to file tax returns and causing a controlled entity to pay his personal expenses, make payments to his wife, and purchase vehicles for his use. The court granted the defendant’s motion for summary judgment because the plaintiff/debtor failed to provide sufficient evidence to raise a genuine issue of material fact.
Judge Joyce Bihary (Retired)
(Rule 4004(c)(2) - motion to delay entry of discharge denied. The purpose of Rule 4004(c)(2) is to give debtor time to decide to reaffirm a debt, not to extend the automatic stay. Bankruptcy courts do not typically rule on objections to proofs of claim in no asset Chapter 7 cases, since the point of filing a proof of claim is to obtain a distributive share in the assets of the proceeding.);
Judge Robert E. Brizendine (Retired)
(Dispute concerning dischargeability of loan indebtedness under 11 U.S.C. Section 523(a)(2)(A). Complaint also set forth objection to discharge under 11 U.S.C. Sections 727(a)(2), (a)(3), and (a)(4). Court denied Defendant-Debtors' motion for summary judgment stating that Plaintiffs made sufficient case for proceeding to trial on issue of Debtors' intent in entering into loan transaction.)
Honorable Paul W. Bonapfel
Creditor timely filed action to determine nondischargeability of debt under sections 523(a)(2), (a)(4), and (a)(6) based on consent judgment in the District Court in which the Debtor acknowledged that the debt would be excepted from discharge under those sections but failed for over two years to serve summons and the complaint. On the Debtor's motion to dismiss and the Creditor's motion to extend time for service under Fed. R. Civ. P. 4(m), applicable under Fed. R. Bankr. P. 7004(a), the Court concluded that good cause for an extension of time did not exist but that, in its discretion, it would extend the time for service for ten days in view of the fact that the Creditor's claim would otherwise be time-barred, the Debtor would not be prejudiced other than by having to defend the lawsuit,
and the Debtor should not be able to use a procedural deficiency to avoid defending on the merits when he had expressly agreed that the debt would not be dischargeable in the earlier litigation.
NOT INTENDED FOR PUBLICATION
Plaintiffs in a pending state court action in which the debtor and others are co-defendants obtained an order for the Rule 2004 examination of the debtor. The other defendants then filed a motion to prohibit the examination as an attempt to obtain discovery in the state court action after the time for discovery had expired. The Court denied the objection.