Order appointing guardian ad litem for chapter 13 debtor pursuant to Bankruptcy Rule 1004.1.
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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
Order denying without prejudice default motion for stay relief. Affidavit must be based on personal knowledge of facts and affidavit of counsel stating that she “has been advised” that the debtors were delinquent under consent order is insufficient.
Order denying Debtor’s motion to strip off wholly unsecured mortgage in chapter 7 case. Based upon Dewsnup v. Timm, 502 U.S. 410 (1992), sections 506(a) and 506(d) do not permit a debtor to strip off a wholly unsecured lien in a chapter 7 case. APPEAL PENDING
Order denying motions for summary judgment. The trustee’s action under O.C.G.A. Section 18-2-22 to avoid fraudulent conveyance was not barred by the statute of limitations. Though the applicable statute of limitations is four years and presuming, for purposes of this issue only, that a Ponzi scheme existed, the running of statute was equitably tolled based upon the alleged conduct of non-defendant individual who perpetuated Ponzi scheme and concealed fraud. APPEAL PENDING
NOT INTENDED FOR PUBLICATION
Judge Robert E. Brizendine (Retired)
(Court granted judgment on the pleadings in favor of Plaintiff concerning whether obligation in question (expenses Debtor had been ordered to pay in connection with certain litigation among the parties in another forum) constituted a domestic support obligation under 11 U.S.C. Section 523(a)(5) and/or (a)(15).)
Honorable Mary Grace Diehl (Recall)
Order denying Plaintiff’s Motion for Default Judgment because Plaintiff failed to effectuate service of process on Defendant. Defendant, a federal depository institute, was never served with a valid summons in accordance with Rule 7004(h) and (e).
Ordering granting Defendant’s Motion to Compel Arbitration, holding that under the Federal Arbitration Act and the Eleventh Circuit’s application of the FAA in Whiting-Turner Contracting Co. et al. v. Elec. Mach. Enters., Inc. (In re Elec. Mach. Enters., Inc. ), 479 F.3d 791, 796 (11th Cir. 2007) arbitration was compelled whether the matter was core or non-core. The parties agreed that they entered into a binding arbitration agreement. Adjudication of Plaintiff’s Truth in Lending claim against Defendant did not present any inherent conflict between the Bankruptcy Code and the parties’ arbitration agreement. Plaintiff’s basis for core jurisdiction, 28 U.S.C. § 157(b)(2)(K), was circular – conflating the claim and the remedy sought – and insufficient to deny arbitration.
Show cause order was entered in involuntary Chapter 11 because of improper service of the petition and summons under Rule 1010. No order for relief could be entered without proper service.
(denying request to set a prompt hearing; if the plaintiff's complaint were construed as dischargebility complaint, the discovery period had not ended; if the complaint were construed as a motion for relief from stay to pursue litigation in state court, the motion asserted no legally cognizable basis for lifting the stay).
(denying request to set a prompt hearing; if the plaintiff's complaint is construed as dischargebility complaint, the discovery period has not ended; if the complaint is construed as a motion for relief from stay to pursue litigation in state court, the motion asserts no legally cognizable basis for lifting the stay; in either case, the complaint is deficient because it was signed by a nonattorney as "attorney in fact" for the plaintiff, rather than the plaintiff as a pro se litigant).