In this reopened case, the Court granted the Trustee’s motion to revoke the technical abandonment of Debtors’ residence that occurred under section 554(c) when the case was closed, based on an analysis under Civil Rule 60. Debtors had scheduled a second lien on the residence as undisputed, showing that there was no equity and did not claim the residence as exempt. When the existence of the proceeds was discovered, Debtors filed affidavits in an adversary proceeding stating that they never received loan proceeds or signed the second security deed.
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)
Motion to dismiss for failure to state a claim was granted under the holding of Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) because the complaint contained no facts that if true would satisfy the elements of a preference or fraudulent transfer..
In a Chapter 13 case, Debtor moved to reopen the case after third party contended in state court that Debtor was judicially estopped to claim ownership of property not disclosed on schedules. After an evidentiary hearing, the Court found Debtor’s failure to disclose the property was inadvertent, noting that Debtor had paid the claims of creditors in full in the Chapter 13 case. The motion to reopen pursuant to section 350(b) was granted.
NOT INTENDED FOR PUBLICATION
(granting motion for summary judgment in favor of the IRS; holding that the IRS properly treated forgiven debt, which arose from the deficiency after a foreclosure of real property, as income, notwithstanding the mortgage creditor's failure to confirm the foreclosure sale in accordance with state law).
(granting trustee's motion to compel defendant to attend deposition).
(DA who received postpetition retainer while the filing fee remained unpaid was directed to pay the filing fee from the retainer);
(Filing a Chapter 11 case in bad faith without any reasonable prospect for reorganization constitutes cause for dismissal and in rem relief);
Judge Joyce Bihary (Retired)
Order denying motion for relief from stay in part.
Honorable Paul W. Bonapfel
(Order denying motion for default judgment. Plaintiff’s allegation that within 174 days of the debtor’s bankruptcy filing, the debtor accumulated $6,900 in cash advances did not invoke 523(a)(2)(C)’s presumption of nondischargeability because the Plaintiff did not demonstrate or even allege that any of the advances were obtained on or within 70 days of filing. Further, no basis for entry of default judgment on the 523(a)(2)(A) claim existed because the complaint lacked specific factual allegations from which a finding of actual, subjective fraudulent intent to establish actual fraud could be inferred.)