Opinions

Order in adversary proceeding seeking to avoid transfer as fraudulent. After conducting a trial on the merits, the Court concluded that the Trustee had failed to prove that the transfer at issue was fraudulent pursuant to Section 548 of the Bankruptcy Code and the fraudulent conveyance provisions of the Georgia Code.

Order denying motion to intervene pursuant to Rule 2018. The Court concluded that law firm had failed to show that its attorney's lien attached to real property serving as collateral for bank loan. Therefore, law firm had not shown entitlement to intervene in bank's motion for relief from stay.

Plaintiff alleged that the water department violated the automatic stay by sending Plaintiff an invoice for water service post-petition and sought damages under §362(k) for same. The Court first reviewed all evidentiary objections, made findings of facts and closed the evidentiary record. The Court concluded that Defendants did not violate the automatic stay when they sent a bankruptcy package to Plaintiff after being notified of the filing of the case because the final bill included in the package served an informational purpose and the documentation in the package was sufficient to inform the recipient that Defendant was not attempting to collect a debt. As a result sending the three documents did not amount to an attempt to collect a debt. The Court also reviewed Plaintiff’s claim of damages and noted that although Plaintiff alleged that receiving the package caused him emotional distress, he was unable to extricate the emotional and physical impact of receiving the letter from other ongoing medical conditions. NOT FOR PUBLICATION

The Court denied the Debtor's objections and allowed two claims filed by the creditor, one arising from the purchase of a vehicle and the second from a renewal of a debt consolidation loan. The Court allowed the first claim because the vehicle was not unlawfully repossessed but rather picked up by a towing company after being abandoned, and because the Georgia Court of Appeals decision, Suntrust Ban v. Venable, 299 Ga. 655, 791 S.E.2d 5 (2016), did not apply to the fact of this case. Venale involved a sale transaction whereas the underlying transaction here was only a finance transaction. The Court also allowed the second claim because the Debtor had two loans, the original and renewal, rather than one as alleged in the objection. NOT INTENDED FOR PUBLICATION

Order denying motion of Plaintiff-Debtor for entry of default judgment and granting motion of Defendant Ocwen to dismiss amended complaint. Debtor filed complaint against mortgage loan servicer Ocwen regarding attempted foreclosure and against HOA on other various grounds. Court first determined Debtor had failed to certify proper service of complaint and summons, and no default had been entered. Court also found Ocwen had responded through its motion to dismiss. Court next analyzed Ocwen’s motion concluding that amended complaint did not contain sufficient factual allegations to raise a claim to relief for fraud above speculative level regarding right of Ocwen to foreclose under F.R.C.P. 12(b)(6), applicable through F.R.B.P. 7012(b), and F.R.C.P. 9(b), applicable through F.R.B.P. 7009. In addition, Court found Debtor bound by res judicata since these claims had previously been asserted in prior district court litigation and dismissed. Debtor also lacked standing to contest assignment of security deed. "

Order finding Debtors’ tax liabilities non-dischargeable under § 523(a)(1)(C). Plaintiff-Debtors initiated an adversary proceeding seeking an order declaring their tax obligations for taxable years 2004-2007 dischargeable. The IRS argued that the debt was non-dischargeable because Debtors had willfully attempted to evade or defeat their taxes for the years in question. After a two-day trial, the Court agreed with the IRS, finding that there was enough evidence indicating willful evasion to render the debt non-dischargeable.

The Court granted the Debtor's motion to hold the creditor in contempt for knowingly violating the automatic stay, awarding damages under section 362(k)(1). The Court concluded that the creditor knowingly violated the automatic stay of section 362(a) when it failed to take any steps to revoke a default judgment issued by the state court, despite the creditor having received notice of the bankruptcy. Because default judgment was actually entered against the Debtor, the case here was materially distinguishable from Alle Cassetty Cos. v. Wren, 502 B.R. 609 (N.D. Ga. 2013), as the Court discussed. NOT INTENDED FOR PUBLICATION

On the creditor's request, the Court confirmed the automatic stay of section 362(a) was terminated pursuant to section 362(c)(3). The Debtor filed a second bankruptcy case a week after the first bankruptcy was dismissed and the Debtor did not seek an order extending the automatic stay within thirty days. The Court followed the cases interpreting the language \with respect to the debtor\" in section 362(c)(3) as terminating the automatic stay as to the debtor, his property, and the property of the estate. The Court determined such an interpretation is more practical and better serves the purpose of section 362(c)(3). NOT INTENDED FOR PUBLICATION"

The Court set an evidentiary hearing to determine if Plaintiff had standing to prosecute alleged claims either in Plaintiff’s individual capacity or as an owner of an entity owned in part by Defendant. The Court determined that Plaintiff did not have an ownership interest in an entity owned in part by Defendant and as a result did not have standing to pursue any claims as an owner. Although Plaintiff asserted claims individually, the claims had already been resolved against Plaintiff by a Tennessee state court, and as such this Court did not have jurisdiction to consider any such claims. In addition, Plaintiff failed to prosecute the proceeding. Accordingly, the Court granted both motions to dismiss. NOT FOR PUBLICATION

Order granting motion of Debtor-Defendant for summary judgment, but allowing Plantiffs thirty days to file amended complaint. Plaintiffs seek determination that debt arising from unpaid loans is excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and (a)(6). On examination under F.R.C.P. 12(b)(6), applicable through F.R.B.P. 7012(b), and F.R.C.P. 9(b), applicable through F.R.B.P. 7009, Court concluded that Plaintiffs’ allegations did not contain sufficient factual basis to make plausible claims to support inference that, if proven, Debtor had either requisite fraudulent intent under Section 523(a)(2)(A) or intent to commit willful and malicious injury under Section 523(a)(6) in executing notes creating indebtedness Debtor failed to repay."

Order After Trial. Debtor sought a determination that repayment of her student loans would cause “undue hardship” such that the loans were dischargeable under 11 U.S.C. § 523(a)(8). The Court found that the Debtor’s limited income would prevent her from being able to maintain a minimal standard of living if required to repay the loans. The Court also found that the payment by the Debtor of over $11,000 on the loans constituted a good faith effort to repay the loans. Finally, the Court found that the Debtor’s situation was likely to persist because she would be unable to find a job that would provide sufficient income to repay her outstanding loans within the loan repayment period. As a result, the Court found that the Debtor’s student loans were dischargeable pursuant to 11 U.S.C. § 523(a)(8).

Order on the Defendant's motion for summary judgment. In this adversary proceeding, the United States Trustee (UST) seeks to revoke the Debtors' discharge pursuant to section 727(d). The UST alleges that the Debtors concealed cash income from a business (itself in a Chapter 11 case) they owned, that they failed to maintain adequate records, that they made false oaths and accounts, and that they failed to report all of their property. The Debtors filed a motion for summary judgment, arguing that the UST could not seek to revoke their discharge because he had knowledge of their alledegly fraudulent conduct prior to the entry of their discharge, that the UST was asserting untimely claims, that the Debtors' conduct in a related Chapter 11 case could not be the basis to revoke their discharge, and that the UST could not show that the Debtors failed to preserve records. The Court concluded that the UST could not proceed under section 727(d)(1) as he had pre-discharge knowledge of the Debtors' allegedly fraudulent conduct. However, the Court concluded that the UST could proceed under section 727(d)(2), which allows revocation where a debtor fails to report the acquisition of property of the estate, despite the UST's knowledge. The Court held that 727(d)(2) contains no lack-of-knowledge requirement, and it was not necessary or appropriate for the Court to add one. The Court also concluded that the UST was alleging a claim not raised in his complaint and that would not relate back under Rule 15, and that the Debtors' conduct in the business's Chapter 11 case could not be used to revoke their discharge in their individual case. Consequently, the Defendant's motion was granted in part and denied in part.

Order granting motion of United States to dismiss complaint of Plaintiff-Debtor. Debtor filed complaint seeking damages based on various allegations including illegal surveillance, obstruction of justice, and harassment. Court analyzed Debtor’s causes of action and concluded that: (1) Debtor failed to state claims for which relief may be granted consistent with F.R.C.P. 12(b)(6) (as applicable through F.R.B.P. 7012(b) as they did not meet standard for plausibility; (2) to the extent viable claims were asserted, such allegations were previously addressed and dismissed by U.S. District Court and subject to claim preclusion; and, (3) to the extent claims are criminal in nature, this Court lacks subject matter jurisdiction to hear and decide them. "

Order Granting Motion for Summary Judgment. Defendant sought summary judgment on claims for actual and constructive fraudulent transfer under 11 U.S.C. §§ 548(a)(1)(A) and (B) and for unjust enrichment. The allegedly fraudulent transfer involved the termination of a residential lease between the Debtor and the Defendant. The Court held that the lease created a valid interest in the real property, and that the termination of the residential lease was a transfer of an interest in property of the Debtor. With respect to whether the transfer was constructively fraudulent, the Court found that the Plaintiff failed to carry his burden to provide evidence as to the value of the interest transferred by the Debtor such that a determination could be made that the value provided by Debtor was not reasonably equivalent. Likewise, with respect to actual fraud, the Plaintiff failed to produce evidence that the transfer was made with actual intent to hinder, delay or defraud creditors. Finally, with respect to the unjust enrichment claim, the Court again held that the Plaintiff failed to provide any evidence of the value of the property transferred to the Defendant that would support a conclusion that the Defendant was unjustly enriched. Therefore, the Court held that summary judgment was appropriate in favor of the Defendant on the remaining counts for fraudulent transfer and unjust enrichment.

Order on the Debtors' motion to reconsider the Court's order approving employment of a real estate agent. The Debtors' requested that the Court reconsider its order approving the Trustee's employment of a real estate agent to market real properties owned by the Debtors' Bankruptcy estate. The Debtors' reasoned that the Court should not have approved the employment because the proposed agreement between the Trustee and the agent undervalued the properties. The Court concluded that the Debtors' objection concerning the pricing of the properties was untimely. The Court had approved the employment of the agent, not the terms of any sale. Therefore, as the Debtors had raised no new evidence or mistake of fact or law, the motion to reconsider was denied.

Dismissing complaint to determine debt to be nondischargeable for failure to state a claim upon which relief can be granted; plaintiff pled no facts to support a finding that the debt at issue is nondischargeable.

Denying motion to reopen adversary proceeding for the purpose of setting aside the Court's prior dismissal of a complaint for failure to state a claim.

The Court determined that Plaintiff was entitled to recover attorney’s fees incurred in prosecuting a 362(k) action. The Court applied the lodestar standard to the fees claimed and concluded that the hourly rate was reasonable. However, the hours expended were not justified given the lack of significant factual or legal complexity involved and the minimal damages sought. In reducing the attorney’s fees awarded, the Court also considered Plaintiff’s unsuccessful efforts to mitigate his damages. NOT FOR PUBLICATION

Defendants filed a motion for summary judgment on a claim of violation of the automatic stay based on an invoice for water service sent by Defendants post-petition. The Court found that none of the facts in dispute were material facts; however, the Court declined to consider a document containing Defendants’ bankruptcy guidelines that was submitted with Defendants’ motion for summary judgment because Plaintiff showed the document might be excludible from evidence. The Court concluded Defendants were not entitled to summary judgment because the invoice sent to Plaintiff included language requiring payment while lacking any prominent disclaimer. NOT FOR PUBLICATION

Order Denying Motion for Rule 60 Relief. Debtor sought relief under Rule 60 from an order dismissing her bankruptcy case and barring her from refiling a bankruptcy case for a period of 180 days. The Court held that modification of the dismissal order was not warranted as the Debtor was not eligible for a discharge, had failed to file a plan, had failed to make any payments to the Chapter 13 Trustee, and had failed to appear at her meeting of creditors and her confirmation hearing.