Plaintiff trustee was entitled to avoid pursuant to 11 U.S.C. § 544(a)(3) the transfer of real property to a lender because the security deed was unattested and did not provide constructive notice of its existence under Georgia law. Court rejected argument that amendment to O.C.G.A. § 44-14-33 in 1995 changed Georgia law. The label “Georgia Second Mortgage” at the bottom of the first page of an attested second security deed would not excite attention of a person of ordinary prudence so as to cause such a person to infer or to discover the existence of the unattested first security deed
You are here
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.
You can narrow your search by judge and/or year below. You can also use the search feature above to search by name, word, or phrase. The single opinions are in PDF text format and may be searched for word, phrase, or date by using “Control F,” the Windows search function available in any Windows application.
Judge James E. Massey (Retired)
Plaintiff trustee was entitled to avoid pursuant to 11 U.S.C. § 544(a)(3) the transfer of real property to a lender because the security deed lacked an unofficial witness and did not provide constructive notice of its existence under Georgia law. Court rejected argument that amendment to O.C.G.A. § 44-14-33 in 1995 changed Georgia law. The attestation of the signatures of the borrowers on a waiver of borrower’s rights attached to the partially attested deed would not provide constructive notice of the waiver to a bona fide purchaser having no actual notice, so as to create a duty of inquiry that would lead to the discovery of the partially attested deed.
Alleged failure of counsel for Defendant debtor to notify debtor of the deadline for filing a timely notice of appeal did not constitute excusable neglect under Bankruptcy Rule 8002(c)(2) so as to permit the court to grant an untimely motion to extend the time for filing an appeal.
NOT INTENDED FOR PUBLICATION
Judge Robert E. Brizendine (Retired)
(Order denying Trustee's motion for partial summary judgment on complaint seeking relief under 11 U.S.C. Sections 548(a)(1)(A) (alleged fraudulent transfers), 547 (alleged voidable preference), and 542 (turnover of property). Order also refers to defense asserted under 11 U.S.C. Section 548(c).
Motion would require Court to ascertain issues of intent and good faith, which are inappropriate for summary judgment.)
(granting motion for default judgment; pursuant to section 727(a)(8), the Court could not discharge the Debtors' Chapter 7 case because they received a discharge in a Chapter 7 case filed within the eight-year period prior to the filing of their instant case).
(denying Chapter 13 trustee's motion to convert case from Chapter 13 to Chapter 7 after finding that the secured creditor's lien would not be avoidable by a Chapter 7 trustee pursuant to section 544(a)(3)).
(granting motion to dismiss Chapter 11 case pursuant to section 1112(b) after concluding that the continued operations of the debtor's golf course and real estate development business would lead to continuing diminution of the estate's assets and that the debtor had no likelihood of rehabilitation)
Judge Joyce Bihary (Retired)
Order directing appearance at Bankruptcy Rule 2004 examination and consequences of failure to appear including procedure under Bankruptcy Rule 2005
Honorable Paul W. Bonapfel
Order denying trustee’s motion for partial summary judgment. For purposes of fraudulent transfer action involving alleged Ponzi scheme, debtors received “value” under 548(c) to the extent they made payments to an investor up to the amount of the principal that the investor invested regardless of whether investment was an equity investment/participation rather than debt.
Pursuant to Bankruptcy Rule 8001(f)(4)(A), certification of Order (Doc. 38) for direct appeal to the Eleventh Circuit. The court certifies pursuant to 28 U.S.C. 158(d)(2)(A)(i)) that the Order involves a questions lf law that is a matter of public importance as to which there is no controlling decision by the Eleventh Circuit or the U.S. Supreme Court and that an immediate appeal of the Order may materially advance the progress of the proceedings.