(Filing a Chapter 11 case in bad faith without any reasonable prospect for reorganization constitutes cause for dismissal and in rem relief);
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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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In rem relief granted based on debtor's multiple filings without prospect of reorganization); notice of appeal filed August 12, 2009.
(Debtor's motion to reopen to seek discharge of student loan denied because facts alleged insufficient to support finding of undue hardship);
(granting defendant's motion to compel; plaintiff directed to respond to all pending discovery requests and to pay a fine).
Honorable Paul W. Bonapfel
After closing of Chapter 13 case prior to discharge, Debtors request disbursement of funds that car creditor did not claim on the ground that the creditor’s debt was paid. Court declines to order disbursement of funds. The Court cannot make a determination that the holder of a proof of claim does not have an interest in unclaimed funds unless either (1) the Application shows, with properly authenticated documentation, that an authorized representative of the entity acknowledges that fact or (2) the entity has had notice and an opportunity to be heard with regard to its interest in the unclaimed funds that complies with constitutional due process. Even if creditor is not entitled to the funds, the Trustee or unsecured creditors might have an interest in the funds. Therefore, they must also have notice of the application and opportunity to object and to be heard.
Order denying summary judgment on 523(a)(2)(A) and (C) claims. Court concluded that the Plaintiff had put forth no evidence nor cited any legal authority for the contention that a “convenience check” was a “cash advance” for purpose of § 523(a)(2)(C). Further, court cannot conclude that the execution of a convenience check to a third party, where there is no evidence that the debtor obtained cash or engaged in an intentional strategy with his wife who was not an obligor, constitutes a cash advance. Because the Plaintiff failed to offer evidence from which the court could draw an inference of the Debtor’s subjective fraudulent intent, summary judgment on the § 523(a)(2)(A) claim was denied as well.
Order denying motion to withdraw as counsel for the debtor. Although new attorney had filed entry of appearance, this fact alone insufficient to relieve original attorney of responsibility of complying with BLR 9010-5. Local rule contemplates does not require motion to withdraw if certificate of consent, signed by the client, the withdrawing attorney and substituting attorney is filed with court. Since parties had not filed certificate of consent, attorney who seeks to withdraw must comply with the procedural requirements of motion to withdraw. The court observed that existence of dual counsel complicates issue of fees because nothing in record to instruct court, creditors, or trustee as to how payment of fees is to be allocated. Court instructed original attorney to file fee application and new attorney to file Rule 2016(b) statement.
Court cannot disallow proof of claim when the objection to it seeks amendment of the claim. Further, citing In re Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004), court declines to require creditor to amend the claim. Debtor may amend objection to state the amount, if any, debt she contends she owes.
Judge James E. Massey (Retired)
On a motion to avoid liens, excess equity in real property after accounting for the Debtor’s exemption was allocated among three judgment liens. Judgments obtained at the same term of court are deemed to have equal rank pursuant to O.C.G.A. § 9-12-87.
Defendant included in his answer to the complaint a motion to dismiss for failure to state a claim for relief. Held: Motion denied.
It is improper to combine a motion with a pleading such as an answer. Such a motion must be made before filing an answer as provided in Fed. R. Civ. P. 12(b). Hence, the motion was untimely.
NOT INTENDED FOR PUBLICATION