Order granting U.S.’s Motion for Summary Judgment and denying Trustee’s Motion for Summary Judgment where Debtor and non-Debtor spouse’s claimed joint tax refunds were found not to be property of the estate because there is a distinction between Debtor’s right to a refund and the actual claimed funds. Therefore, Trustee’s willful stay violation or turnover claims were denied. Trustee’s theory of recovery under § 724(b) was also denied. Trustee’s letter to an attorney at the Department of Law was insufficient notice to provide actual notice or knowledge of Debtor’s bankruptcy to Georgia Department of Revenue, a separate legal entity. Summary Judgment for Trustee’s turnover claim was awarded to Georgia Department of Revenue.
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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 Movant’s Motion for Relief from Stay to pursue state court litigation. Movant represented that it sought to litigation the pending state court litigation to judgment and use res judicata in this court to obtain a non-dischargeability judgment against Debtor. The Court was not persuaded that Movant’s strategy was more efficient or convenient and the motion was denied.
Honorable Paul W. Bonapfel
Order denying motion to dismiss for insufficient service of process and insufficient process. A motion asserting these defenses must be made before pleading and, because the defendant did not raise it and preserve it as an affirmative defense in answer filed 4 months earlier, the defenses were waived.
Unemployment compensation benefits are included in "current monthly income."
(Exemption from prepetition credit counseling granted)
Order denying the debtor’s motion for default judgment. The debtor sought to strip the second lien on his personal residence pursuant to 11 U.S.C. § 506. Although the record indicated that the creditor had an allowed secured claim, the debtor asserted that the lien was not secured when it was created because the value of senior liens exceeded the value of the residence. The court held that the value of an allowed secured claim can not be determined until the petition is filed. By the time the petition was filed, the creditor had an allowed secured claim; therefore, the debtor could not strip the lien.
The creditor filed a complaint to determine the dischargeability of a credit card debt under 11 U.S.C. § 523(a)(2). The court denied the creditor’s motion for default judgment because the complaint relied on implied representations of the debtor’s financial condition when she used the credit card.
(granting motion to set aside entry of default).
Judge Joyce Bihary (Retired)
(Trustee's objection to exemptions sustained. Debtor claimed exemptions in amounts owed under a stock purchase agreement and a related non-compete agreement. Amounts owing are property of the estate, and there is no exemption under Georgia law that would permit debtor to retain the funds. 11 U.S.C. § 541(a)(6). O.C.G.A. § 44-13-100. Georgia statute O.C.G.A. § 44-13-18 is not applicable.)
Judge James E. Massey (Retired)
Motion to approve compromise was denied because the attorney filing the motion did not represent the debtor in the Chapter 13 case but rather in tort litigation and notice of the settlement terms and of the hearing were not served on all creditors as required by Bankruptcy Rule 2002(a)(3).