Court denied objection to claim of Georgia Department of Revenue served only on the person who filed claim at an address stated therein. The proof of claim limited the address to correspondence and payments. Service should have been made on the head of the Revenue Department and on the Attorney General.
NOT INTENDED FOR PUBLICATION
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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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Judge James E. Massey (Retired)
Court denied objection to proof of claim based on alleged failure of creditor to respond to debtor’s demand that creditor “verify” claim. Debtor scheduled debt to creditor as undisputed in an amount greater than the amount stated in the proof of claim, thereby eliminating any basis for asserting that claim was unenforceable.
NOT INTENDED FOR PUBLICATION
Motion to dismiss under Rule 12(b)(6) denied because complaint stated sufficient facts to make it plausible that Plaintiffs could prevail on their objection to Defendant’s discharge.
NOT INTENDED FOR PUBLICATION
Honorable Mary Grace Diehl (Recall)
Defendant prevailed on cross motions for summary judgment where Plaintiff sought a determination of nondischargeability pursuant to § 523(a)(4). Plaintiff asserted that loan documents between the Defendant’s company and its lender provided a basis for a technical trust between it and Defendant. The requirements of a technical trust were not satisfied because the loan documents did not explicitly provide for a trust in Plaintiff’s benefit and no preexisting fiduciary relationship existed before the loan documents on which the Plaintiff relied to establish the alleged fiduciary relationship. Without establishing a fiduciary duty, Defendant was entitled to judgment as a matter of law.
(proposed findings of fact and conclusions of law recommending the dismissal of complaint for lack of subject matter jurisdiction).
(proposed findings of fact and conclusions of law recommending the dismissal of the plaintiff's complaint on the basis that the plaintiffs lacked standing to prosecute the claim).
Judge Joyce Bihary (Retired)
Chapter 7 case - general claims belong to trustee; claims for particular injury belong to injured party; "claim-splitting" is an affirmative defense and must be raised as such. Fed. R. Civ. P. 8(c)
Individual Chapter 11 case - Motion to use estate property denied
Honorable Paul W. Bonapfel
Order overruling Debtors’ objection to claim. Creditor holds valid and enforceable security interest in goods purchased on account by virtue of the application and cardholder agreement, coupled with the use of the credit account and the sales slips that show the purchased items serving as collateral.
Order denying request for finding pursuant to 11 U.S.C. § 362(d)(4)(B). Court denied motion for relief in part because creditor may not take a “no opposition” order on a request for relief under 11 U.S.C. § 362(d)(4)(B). Because the statute specifies that the court must find that the debtor engaged in a “scheme to delay, hinder, and defraud creditors,” by filing a petition, the creditor must make sure such a request is heard by the court and must, at a minimum, proffer facts in sufficient detail to permit the court to draw the conclusion required by the statute.