Order denying Defendant’s motion to dismiss for failure to state a claim and denying motions for summary judgment filed by both Plaintiff and Defendant. The facts alleged in the complaint were sufficient provided enough facts to infer each element of the nondischargeability claims under § 523(a)(2)(A) & (B). Material facts were in dispute and an award of summary judgment to either party was unwarranted.
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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)
Order denying Defendant’s motion to dismiss for failure to state a claim because Trustee made sufficient factual allegations to support its claims for preference avoidance under section 547 and recovery and avoidance and recovery of a fraudulent transfer pursuant to section 548(a)(1)(A)
Order granting the Chapter 13 Trustee’s motion to amend Debtor’s Chapter 13 plan, finding that section 1329(a) explicitly provides the Trustee with standing to modify the plan and under the facts of this case–Debtor’s schedules did not properly disclose $120,000 in non-exempt property and the Chapter 13 plan, providing a zero percent distribution to unsecured creditors, without objection –
Trustee’s motion to modify is warranted.
The Court entered an Order granting Plaintiff’s uncontested motion to amend, denying Plaintiff’s motion for summary judgment, and denying Plaintiff’s second motion to amend to add a state law claim. Plaintiff sought Truth in Lending Act (“TILA”) damages resulting from a 2009 car loan. Defendant included the cost of single interest vehicle insurance in the amount financed. The Court determined that this inclusion did not violate TILA because the requirements under 12 C.F.R. § 226.4(d)(2) were satisfied. Language excepting the waiver of subrogation rights with fraud was insufficient to amount to a violation under this TILA disclosure requirement of waiver of all subrogation rights. Plaintiff’s second motion to amend was denied because the factual allegations as stated were futile.
Honorable Paul W. Bonapfel
Although only a debtor may seek to defer entry of discharge under Rule 4004(c)(2), the court may enlarge the time to file a reaffirmation agreement under Rule 4008(a). The effect is the same since Rule 4004(c)(1)(J) provides that, upon expiration of deadlines for objecting to discharge or filing a motion to dismiss, a the court shall grant a discharge unless a motion to enlarge the time to file a reaffirmation agreement is pending.
Order granting chapter 13 debtor’s motion to strip wholly unsecured second priority deed to secure debt, but noting that because the property is owned jointly by the debtor and his non-filing spouse from whom he is separated, only his interest in the property is property of the estate. As a result, the lien continues to exist on the non-filing spouse’s interest in the property.
NOT INTENDED FOR PUBLICATION
(denying debtor's motion to reopen case as reopening case and setting aside dismissal would serve no bankruptcy purpose).
(Bcy court may enter order extending deadlines while appeal is pending)
(Debtor is not "responsible person," so that unpaid sales and payroll taxes are not D's personal liability)