Trustee’s motion for default judgement based on a claim under § 544(b)(1) was denied because the complaint failed to allege sufficient facts to warrant an award of judgment. Section 544 allows a trustee to avoid any transfer of the interest of the debtor in property that is voidable under applicable law by a creditor holding an unsecured claim . . . . The complaint failed to allege one of the required elements of the statute. No facts were plead that an unsecured creditor qualified. Additionally, the underlying state law that the Trustee relied upon, O.C.G.A. § 18-2-74(2), was not plead sufficiently.
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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.
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Honorable Mary Grace Diehl (Recall)
Order denying counsel’s application for supplemental compensation when the fee requested was not contemplated in the filed attorney disclosure statement.
Order denying counsel’s application for supplemental compensation when the fee requested was not contemplated in the filed attorney disclosure statement.
Judge James E. Massey (Retired)
Motion for default judgment against a bank was denied because the certificate of service of the summons and complaint failed to show that this defendant, which is insured by the FDIC, was properly served under Fed. R. Bankr. R. 7004(h).
Debtor objected to and sought disallowance of the secured portion of a proof of claim of the IRS on the ground that he was surrendering the property in his Chapter 13 plan. Objection denied. The objection stated no basis for disallowing the claim under section 502. A debt does not cease to be enforceable merely because collateral is surrendered or abandoned or because the stay is lifted. Nor does allowance of a claim that is secured automatically mean that it is entitled to be paid in bankruptcy.
Judge Joyce Bihary (Retired)
Chapter 7 Case No. 09-68240; Franz v. Foster, Adversary Proceeding No. (Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) granted in part, denied in part. §§ 523(a)(2)(A), 523(a)(2)(B) and 523(a)(6).);
(Motion for default judgment denied; service improper under Fed. R. Bankr. P. 7004(b)(3); filing a duplicate proof of claim in error does not state a claim under the Fair Debt Collection Practices Act.)
(denying motion for default judgment due to lack of property service of the complaint and summons upon the debtor in accordance with Rule 7004(b)(9)).
(granting unopposed motion for summary judgment as to objection discharge, as the plaintiff failed to allege any facts to support a finding that the debtor's discharge should be denied; denying unopposed motion for summary judgment as it pertained to the dischargeability portion of the complaint, as the debtor failed to file a statement of undisputed material facts and pointed to no evidence to refute the facts alleged in the complaint)
(declaring a debt owed by the debtor to her former attorneys nondischargeable under section 523(a)(2)(A) after finding that the debtor incurred a debt for legal services with no subjecting intent to pay the fees).