Order granting Defendants’ motion to dismiss under local rule 7041-1(a)(3) and Fed. R. Civ. P. 41(b). An undisputed clear record of inactivity in the adversary proceeding without a proposal to move the action forward where the claims against Defendants included an objection to discharge were sufficient for the Court to find that lesser sanctions were inadequate. Here, Debtors case was filed on July 1, 2008 and the Chapter 7 Trustee entered a no distribution report on May 27, 2008. The adversary proceeding had been pending 9 months before entry of this order. The Court also emphasized Debtors’ interest in the prompt resolution of objection to discharge claims as justification for dismissal.
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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)
(denying the defendant's motion to dismiss; finding that the court has subject matter jurisdiction over the trustee's motion for declaratory judgment that funds are property of the bankruptcy estate, notwithstanding the defendant's assertion of Eleventh Amendment immunity).
(granting motion to dismiss for failure to state a claim; lender's security interest in real property could not be avoided under section 544(a)(3) on the basis that the signature of the debtor's nonfiling spouse on the security deed was not properly attested).
(dismissing Chapter 13 debtor's petition void abinitio and barring her from refiling another petition for two years).
Judge James E. Massey (Retired)
Debtor sought to avoid state tax liens pursuant to section 522. Motions denied. The lien was not a judicial lien but a statutory lien and was unavoidable under section 522 even though the tax executions provided for a Sheriff’s sale.
The Court denied a motion of an individual seeking an order approving an amendment to the Debtor’s schedules that he, and not the corporate Debtor, had prepared and filed.
Debtors objected to the proof of a claim secured by an automobile on the ground that the debt was not “valid” because “upon information and belief the collateral has been in an accident and declared a total loss by the insurance company.” The relief sought was to direct the Trustee to stop funding the claim until it was amended to show an unsecured claim. Debtors’ counsel submitted a proposed order that would have disallowed the claim altogether. For that reason the Court denied the objection, pointed out that an objection to the claim was not the correct procedure, and expressed doubt that Debtors could modify the plan under section 1329.
In Findings of Fact and Conclusions of Law, the Court determined that certain transfers made by Debtors to Defendants as fraudulent under section 548 and that Defendants were liable to Plaintiffs under section 550(a) in part as initial transferees and in part as persons for whose benefit transfers were made.
Honorable Paul W. Bonapfel
Order denying motion for reconsideration of dismissal pursuant to 11 U.S.C. 521(i)). “Without deciding the issue of whether the Court can even vacate an order that is entered under 521(i), the Court declines to grant the Debtor’s motion because the Debtor has asserted no error of fact or law that warrants reconsideration of the order of dismissal.”
Court declines to dismiss case on U.S. Trustee's motion under section 521(e)(2) or section 707(a) based solely on debtor's failure to produce a tax return to the Chapter 7 trustee when the undisputed record shows that the debtor has not filed tax returns for 15 years and there is no showing that the debtor has otherwise failed to provide required information. Court declines to enter consent order of dismissal because granting relief on the record before the Court would be a manifest injustice and contrary to law.