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AMENDMENTS

ARBITRATION

In re TFI Enterprises, Inc., (Ch. 11 Case No. 05-40683 RFH, Adv. No. 08-04005, April 9, 2008) - The defendant contended that a dispute concerning certain agreements was subject to binding arbitration. The court held that the agreements were contracts of insurance under Georgia law, § 9-9-2(c)(3) and were not subject to binding arbitration.

ATTORNEY/CLIENT PRIVILEGE

In re Tom's Foods Inc., (05-40683 July 13, 2006) - The court held that e-mails sent by the Chapter 11 debtor's president, CEO and board members to an attorney on the debtor's board of directors were not protected by the attorney-client privilege or joint-defense privilege. The court noted that the e-mails were widely distributed to other parties. The court also noted that the substance of the e-mails concerned matters within the debtor's business affairs.

AUTOMATIC STAY

In re Dillard, (06-30939, February 7, 2007) - The Chapter 13 debtor filed a motion to extend the automatic stay to prevent the mortgage creditor from dispossessing her from her residence. The court held that the debtor's interest was terminated by a pre-petition foreclosure and that the residence was not property of the bankruptcy estate. The court denied the debtor's motion to the extent it sought to extend the automatic stay to the mortgage creditor.

In re Perry, (Ch. 13 Case No. 03-31648, Adv. No. 04-03030, July 29, 2004 and August 4, 2004) - Three Opinions: Mr. Lavender’s Motion, Judge Rice’s Motion, Puckett Foundations’ Motion - The debtor was hired to construct an addition to a home. The debtor received payment from the homeowner but failed to pay one of his subcontractors. The debtor and his wife filed for Chapter 13 relief. The homeowner filed an application for a criminal warrant against the debtor. The subcontractor filed a materialman's lien against the homeowner's property. The district attorney caused the debtor to be indicted for theft by conversion.

The debtor contended that the defendants had conspired to violate the automatic stay and that the defendants were using the criminal proceeding to collect a civil debt. The debtor sought sanctions, injunctive relief, and damages.

The Court held that the district attorney and the magistrate court judge had absolute immunity from a civil suit for damages. The subcontractor, in filing a materialman's lien, was exercising its rights to collect from the homeowner's property. The Court held that the debtor was not entitled to injunctive relief because he had not shown that a "debt collection defense" could not be raised in the state court criminal proceeding.

In re Perry, (Ch. 13 Case No. 03-31648, Adv. No. 04-03030, September 3, 2004) - The defendants hired the debtor to construct an addition to their home. The debtor failed to pay his subcontractor, who filed a materialman's lien against the defendants' home. The debtor's failure to pay his subcontractor was prima facia evidence of intent to defraud. The defendants applied for and obtained a criminal warrant for the debtor's arrest. The debtor contended that the defendants had violated the automatic stay and sought an injunction and damages. The Court denied the debtor's request for relief, noting that the debtor had not demonstrated that a "debt collection defense" could not be raised in the state court criminal proceeding.

In re Stewart, (04-30528, March 31, 2005) - The debtor transferred three parcels of real property to a trust he had established for his wife. The debtor's sons were co-trustees. The creditor contended the transfers were fraudulent and sought civil damages under state RICO from the debtor's wife and sons. The Court held the state RICO action was not property of the bankruptcy estate and that the action against the debtor's wife and sons was not subject to the automatic stay of the bankruptcy code.

AVOIDANCE

In re Charley's Automotive, Inc., (Ch. 7 Case No. 02-50855, Adv. No. 02-05155, May 8, 2003) - The bank financed the debtor's purchase of two vehicles. The bank filed a financing statement, but did not perfect its security interest on the certificates of title. The Court held that the trustee could avoid the bank's security interest in the vehicles under 11 U.S.C.A. section 544(a)(1). The Court held that the financing statement was not effective to perfect the bank's security interest.

In re Holmes, (02-52793, Adv. No. 02-05133, August 8, 2003) - The chapter 11 debtor purchased real estate from the creditor. The creditor received cash and some shares of stock that the debtor owned in WorldCom, Inc. The debtor signed a written guarantee secured by a deed to secure debt that the stock would double in value within three years. The stock failed to double in value and the debtor was unable to perform under his guarantee. The debtor urged the Court to set aside as fraudulent conveyances the written guarantee and the deed to secure debt. The Court concluded that the sale was an arms length transaction and that the debtor was not insolvent at the time of the sale. The Court held that the transfer was not a fraudulent conveyance.

In re McDowell, (Ch. 7 Case No. 98-54657, Adv. No. 99-05113, February 8, 2001) - Defendant made a loan to Debtor so that Debtor could pay a specific creditor. Debtor understood that loan could only be used to pay that creditor. Debtor sold certain real property and put the proceeds into the same bank account as Defendant's loan. Debtor paid the creditor and repaid the loan to Defendant within the ninety-day preference period. The Court held that the repayment to Defendant was not protected by the earmarking doctrine. The Court held that Debtor held Defendant's loan proceeds in an implied trust and that the trustee could not recover the repayment as a preferential transfer.

In re Pulliam, (Ch 7. Case No. 00-31502, Adv. No. 01-03015, June 18, 2002) - The debtor withdrew the funds in his IRA. The debtor later met with a bankruptcy attorney and learned that he could exempt funds in an IRA. The debtor rolled over his IRA distribution check into his IRA. The Court held that the debtor had, on the eve of bankruptcy, converted his IRA distribution check into an IRA with actual intent to hinder, delay, or defraud creditors. The Court allowed the trustee to avoid the transfer as a fraudulent conveyance.

In re Waters, (00-30961, December 21, 2000) - The Chapter 7 debtor's employer withheld, pursuant to a continuing garnishment, funds from wages that the debtor earned within the ninety-day preference period. The Court held that the debtor could recover the funds and claim the funds as exempt property.

BANKRUPTCY ESTATE

In re Brown, (04-32128, May 3, 2005) - The debtors owned and operated a poultry farm. Columbia Farms placed poultry on the farm and paid the debtors a production settlement. The debtors executed an Assignment authorizing and directing Columbia Farms to pay part of each production settlement to a certain creditor. The funds so deducted were to be jointly payable to the debtors and the creditor. The Court held that the Assignment was merely an authorization directing Columbia Farms to deduct and did not transfer any right, title or interest in the funds deducted to the creditor. The Court held that the funds at issue were property of the bankruptcy estate.

CASE ADMINISTRATION

In re Smith, (Ch. 7 Case No. 03-30458, Adv. No. 03-03031, November 5, 2003) - Prior to filing for relief, the debtor advised the creditor that she was rescinding her mortgage obligation pursuant to the Truth-in-Lending Act. The creditor filed an adversary proceeding to confirm the validity and extent of its lien and to determine that the debtor's obligation for her "wrongful purported rescission" was nondischargeable in bankruptcy. The debtor moved to dismiss the adversary proceeding, contending that it was a non-core proceeding. The court noted that the trustee had not abandoned the real property and that the debtor's bankruptcy case had not been closed. The court noted that the trustee may have a valuable asset to administer if the creditor's lien is subject to rescission. The court held that the adversary proceeding was a core proceeding and denied the debtor's motion to dismiss.

In re The Total Woman Healthcare Center, P.C., (06-52000, December 14, 2006) - The United States Trustee contended that the debtor was a "health care business" and asked the court to order the appointment of a "patient care ombudsman" under 11 U.S.C.A. §333. The court held that under the specific facts presented in evidence, the appointment of an ombudsman was not necessary for the protection of patients. The court did not decide the issue of whether the debtor was a "health care business."

In re Westek Georgia, LLC,(03-55298, May 14, 2004) - Creditors filed a motion requesting that the court appoint a chapter 11 trustee. The creditors argued that the chapter 11 debtor's managing member would not scrutinize certain monetary transfers made to himself. The court denied the creditors' request, noting that the debtor planned to have an independent attorney or accountant scrutinize the transfers.

CHAPTER 11

In re Tom's Foods Inc., (05-40683, September 23, 2005) - The Chapter 11 debtor filed a motion for authorization to schedule an auction for the sale of substantially all of its assets. The debtor also requested approval of certain bidding procedures to govern the auction. Certain lenders agreed to be a "stalking horse bidder." The court granted the debtor's motion noting that, after the auction, the debtor must return to the court for approval of the sale.

CHAPTER 11 PLANS

In re Holmes, (02-52793, October 30, 2003) - The Chapter 11 debtor proposed a plan of liquidation. The debtor proposed to pay his creditors by selling his primary asset, a 6,708 acre tract of land. A secured creditor argued that the debtor proposed an unreasonable length of time to market the land. The Court held that the creditor 's claim was fully secured and thus adequately protected. The Court held that six to twelve months was needed to market the land and close the sale.

In re Holmes, (02-52793, November 10, 2003) - The IRS argued that the debtor's proposed Chapter 11 plan was not feasible. The debtor proposed to sell his primary asset, a 6,708 acre tract of land, and use the proceeds to pay the costs of the sale, the secured claims, and the administrative claims. The debtor proposed to pay the IRS's priority tax claim of some $9 million by making semi-annual payments over a term of ten years. The proceeds from the sale would not be sufficient to satisfy the priority tax claim. The court determined that the debtor would not be able to perform the obligations called for in his proposed Chapter 11 plan. The court sustained the IRS's objection to confirmation.

CHAPTER 13 PLANS

In re Adams, (06-51651, March 1, 2007) - The creditor financed the Chapter 13 debtor's purchase of a vehicle. The creditor's claim was secured by a purchase money security interest in a motor vehicle that was acquired within the 910 days preceding the date the debtor filed for bankruptcy relief. The creditor contended that the vehicle was "acquired for the personal use of the debtor" and that its claim was protected from bifurcation by the hanging paragraph of 11 U.S.C.A. § 1325(a)(5). The court disagreed and held that a vehicle acquired for use by the non-debtor wife was not "acquired for the personal use of the debtor" and that the claim was not protected from bifurcation by the hanging paragraph.

In re Bivins, (06-51778, February 23, 2007) - Chapter 13 debtor proposed to surrender her vehicle in full satisfaction of her obligation to secured creditor. Creditor contended that it was entitled to file an unsecured claim for any deficiency that remains after it disposes of the vehicle. The court held that the creditor was not entitled to file an unsecured claim for a deficiency.

In re Brown, (06-50193, June 30, 2006) - The debtor purchased a vehicle 197 days before filing for Chapter 13 relief. The court held that under 11 U.S.C.A. § 1325(a)(5) as amended by BAPCPA, the debtor could not bifurcate the creditor's claim. The court held that the creditor was entitled to receive periodic payments which equal the present value of the secured claim. The court also held that the applicable interest rate for present value purposes is the interest rate mandated by the United States Supreme Court in Till v. SCS Credit Corp., 541 U.S. 465 (2004).

In re Day, (97-54023, April 24, 2000) - Debtor moved to amend her confirmed Chapter 13 plan after confirmation. The Court held that Debtor could surrender the collateral (a truck) to secured creditor and then reclassify the unpaid balance of the claim as unsecured.

In re Green, (00-50470,  April 7, 2004). - The Chapter 13 debtor moved to modify her Chapter 13 plan after confirmation. The debtor wanted to modify her plan to make payments to a secured creditor that had not filed a proof of claim. The debtor had completed all payments under her original 13 plan and all allowed claims had been paid in full. The Court held that there was no pending Chapter 13 plan to modify and noted that 11 U.S.C.A. § 1329(a) provides that a modification be made before the completion of payments under the plan.

In re Jackson, (Ch. 13 Case No. 03-53485, Adv. No. 04-05055, December 3, 2004) - The creditor loaned the debtor funds to purchase a residence. The debtor moved from the residence. The debtor offered to pay through her Chapter 13 plan the value of the residence and to treat the remainder of the creditor's claim as unsecured. The creditor contended that modification of its claim was prohibited by 11 U.S.C.A. § 1322(b)(2) because its claim was secured by the debtor's principal residence.

The Court held that the critical date for deciding whether a creditor qualifies for § 1322(b)(2) protection is the date the petition is filed, not the date the loan was made. The Court held that the creditor's claim was not protected because the residence was not the debtor's principal residence when the bankruptcy petition was filed.

In re McColumn, (99-54106, February 12, 2001) - Debtor moved to amend her confirmed Chapter 13 plan after confirmation. Confirmed plan treated Respondent's liens as secured claims. Debtor's income decreased, and Debtor wanted to reclassify Respondent's liens as wholly unsecured claims. The Court denied the motion to modify, noting that Debtor's loss of income did not change the nature of Respondent's secured claims as established by the order of confirmation.

In re Scott, (Ch. 13 Case No. 98-51155, Adv. No. 02-5174, July 16, 2003.) - The creditor held a second mortgage on the debtor's primary residence. The confirmed Chapter 13 plan provided that the second mortgage was disputed and would be satisfied of record upon completion of the plan and the debtors' discharge in bankruptcy. The Court held that the creditor was bound by the confirmed plan but that the creditor's secured claim and rights under his second mortgage survive the confirmation of the debtors' Chapter 13 plan and discharge in bankruptcy.

In re Whitlock, (03-31112, April 28, 2004) - The chapter 13 debtor served as executrix of her father's estate. The debtor breached her fiduciary duty and was removed as executrix by the probate court. The debtor's brothers obtained a state court judgment and were awarded actual damages, punitive damages, and attorney's fees.

The debtor filed for Chapter 13 relief and proposed a Chapter 13 plan that would pay a six percent dividend to her brothers.

The brothers contended that the debtor's proposed plan was not proposed in good faith and did not meet the disposable income test. The Court reviewed the debtor's income and expenses and applied the Kitchens factors in deciding whether the plan was proposed in good faith. The Court held that the debtor's proposed plan was confirmable.

In re Williams, (Ch. 13 Case No. 01-30762, Adv. No. 07-03034, May 30, 2008) - The debtor purchased an unimproved parcel of land. The debtors placed a mobile home upon the land. The mobile home was financed by a thrid party. The debtors later executed a mortgage on the land. The debtors filed for Chapter 13 relief, completed their plan payments, and obtained a discharge. The debt on the land was not paid in full through the Chapter 13 plan. The debtors contended that the mortgage on the land was not secured by their principal residence and was not protected by 11 U.S.C. § 1322(b)(2). The court held that the mobile home had become part of the land and that the mortgage had survived the debtor's bankruptcy.

CLAIMS

In re Arrington, (02-51468, April 18, 2003) - Creditors failed to file proofs of claim as provided in settlement agreement. Chapter 7 Trustee and Debtor argued that claims should be disallowed. The Court held that appropriate remedy for breach of settlement agreement was monetary damages resulting from the breach.

In re Davis, (07-50761, September 12, 2007) - The debtor's proposed Chapter 13 plan offered to pay the full amount of the creditor's "910 claim" (vehicle purchased for personal use within 910 days of the bankruptcy filing) plus the contract rate of interest (4.9%). The creditor argued that it was entitled to receive interest on its claim at the prime rate (8.25%). The court held that Till v. SCS Credit Corp., 541 U.S. 465 (2004), applied even though the contract rate was less than the prime rate. The court held that the creditor was entitled to receive the full amount of its 910 claim plus interest at the prime rate under the cram down provisions of § 13259(a)(5)(B).

In re Durham, (02-54569, January 21, 2005) - The creditor asked the Court to reconsider the disallowance of its claim. The Court declined to allow the claim. The Court noted that the creditor's actions had caused the disallowance of its claim. The debtor had complied with the provisions of her Chapter 13 plan and would soon complete her plan. The debtor would be forced to stay in bankruptcy for a longer time if the creditor's claim was allowed.

In re Holmes, (02-52793, July 1, 2005) - The debtor executed a promissory note that provided in part for (1) an eighteen percent per annum default rate of interest; (2) prepayment premiums; and (3) payment of reasonable attorney's fees, costs and expenses if the obligation was referred to an attorney for collection. The creditor's claim was over secured and the estate was insolvent. The Court held that the creditor was entitled to the eighteen percent default rate. The Court held that the creditor had failed to show that the prepayment premium was reasonable. The Court disallowed the creditor's claim for interest on attorney fees because the promissory note did not provided for that interest.

In re Holmes, (Ch. 11 Case No. 02-52793, Adv. No. 03-05280, June 8, 2007) - The debtor failed to make his lease payments on two aircraft. The lessor sold the aircraft to a third party. The debtor demanded a return of his security deposits and damages for breach of contract, tortious interference with contract, and fraud. The court held that the lessor had acted in good faith, had committed no fraud, and was entitled to the stipulated loss value of the aircraft. The court also held that the lessor was entitled to liquidated damages and 18% default interest under the terms of the aircraft lease. The court held that the lessor was entitled to retain the security deposits and that the debtor was liable under his personal guarantee for $2.5 million.

In re Johnson, (02-30457, August 26, 2005) - The debtor signed a promissory note that required the debtor to repay the principal plus interest by making a single payment. The promissory note provided for a five percent late charge if any periodic payment was not timely made. The debtor failed to make her payment and the creditor demanded payment of the late charge. The court held that a single payment for the full amount of the obligation was not a periodic payment and that the debtor was not required to pay the late charge.

In re Thomaston Mills, Inc., (01-52544, December 5, 2003) - The Chapter 11 debtor's board of directors voted to terminate a severance benefit plan some five days prior to filing for bankruptcy relief. Certain former employees of the debtor filed proofs of claim for severance pay. The employees contended that the severance plan's termination was not effective because a "change in control" of debtor had occurred. The employees also contended that the board of directors was not acting in good faith in terminating the severance plan. The Court held that the board of directors' vote to terminate the severance plan was effective.

In re Thomaston Mills, Inc.,(01-52544, April 14, 2005) - Former employees of the Chapter 11 debtor filed proofs of claims for severance pay asserting priority status for their claims. 11 U.S.C.A. § 507(a)(3)(A) The debtor's board of directors had terminated the severance plan before the employees were terminated. The Court held that employees who were terminated after the severance plan was terminated were not entitled to severance pay.

In re Westek Georgia, LLC, (Ch. 11 Case No. 03-55298, Adv. No. 04-05058, December 1, 2004) - The debtor filed a complaint to subordinate the creditors' secured claims to all unsecured claims for purposes of distribution, 11 U.S.C.A. § 510(c).The creditors filed a motion to dismiss contending that a prior pending action in state court would determine the issues presented. The Court denied the motion to dismiss noting that the state court has no jurisdiction to subordinate the defendant's allowed claims. The Court also noted that the defendants' claims may be subordinated to some but not all unsecured claims.

In re Zich, (00-50707, March 31, 2003) - The confirmed Chapter 13 plan provided that the creditor's claim would "be paid 100%." The creditor filed its proof of claim after the bar date. The Court held that the creditor's claim was disallowed for purposes of distribution even though the confirmed plan provides for payment on the claim. The Court noted, however, that disallowance of a claim and nondischargeability are separate issues.

CONVERSION TO CHAPTER 13

In re West, (05-32033, October 2, 2006) - A creditor filed an adversary proceeding contending that the Chapter 7 debtors' discharge shall be denied under 11 U.S.C.A. § 727(a). The debtors moved to convert the Chapter 7 case to a Chapter 13 case. The creditor objected. The creditor contended the debtors had shown a lack of good faith and a lack of candor by filing inaccurate bankruptcy schedules and an inaccurate statement of financial affairs. The court granted the debtors' motion to convert, noting that the plain language of Section 706(a) provides that the debtors had a right to convert their case.

DEBTOR AND CREDITOR RIGHTS

DEFAULT JUDGMENT

In re Lary, (04-54138 RFH, Adv. No. 04-05181, Aug. 3, 2005) - The defendant failed to timely serve an answer to a cross-claim. The court signed a judgment by default that was prepared by the trustee's counsel. The court set aside the judgment by default because the defendant did not have the three-days notice required by Rule 55(b)(2) for parties who have made an appearance in the action. The court also held that the relief granted in the judgment by default was different in kind and exceeded the relief sought in the cross-claim.

DISCHARGE

In re Barnes, (Ch. 7, Case No. 03-31752 RFH, Adv. No. 03-03071, November 8, 2004) - A surety provided a guardian bond to the debtors who were the guardians of their minor daughter. The debtors were removed as guardians and the successor guardian called upon the surety to honor its bond. The surety obtained a confession of judgment from the debtors. The debtors filed for Chapter 7 relief and the surety contended the debtors obligation was a nondischargeable defalcation while acting in a fiduciary capacity.

The court held that the surety was entitled to summary judgment on the issue that the debtors were acting in a fiduciary capacity and that the surety was a proper party to bring the nondischargeable action. The court held that there remain material questions of fact as to whether the debtors committed a defalcation.

In re Daniel, (Ch. 7 Case No. 01-54502, Adv. No. 02-05013, February 26, 2003) - Hester contended that the debtor's obligations arising from their divorce were nondischargeable. The Court held that the obligations were dischargeable under 11 U.S.C.A. section 523(a)(15) because the debtor did not have the ability to pay the obligations. The Court held that the debtor's agreement not to list her divorce obligations on a bankruptcy petition was not enforceable. The Court further held that the debtor's agreement that the obligations would not be dischargeable in bankruptcy was not dispositive of the issue under section 523(a)(15) under the facts of this adversary proceeding.

In re Driggers, (Ch. 7, Case No. 04-30321, Adv. No. 04-03024, August 31, 2004) - An individual who is not a licensed attorney filed on behalf of a corporation a complaint objecting to the dischargeability of debt. The Court advised that a corporation must be represented by an attorney in federal court. The corporation failed to obtain an attorney. The Court dismissed the corporation's complaint.

In re Fowler, (Ch. 7, Case No. 03-54812, Adv. No. 04-05009, April 1, 2004) - The debtor contended that the creditor had failed to file an objection to dischargeability of debt within the time period provided by Bankruptcy Rule 4007(c). The Court noted that the final day to file a timely complaint was a Sunday and that the next day was a legal holiday. Thus, the creditor had until Tuesday to file a timely complaint. The Court noted that the creditor had filed its complaint on Tuesday and that the complaint was timely filed.

In re Gordon, (Ch. 7 Case No. 00-52694, Adv. No. 00-05145, June 13, 2001) - Wife authorized her husband to sign her name to financial statement. Husband misrepresented wife's income and assets. Creditor contended that wife's debt was nondischargeable under 11 U.S.C.A. § 523(a)(2)(B). The Court held that the wife had not intended to deceive because she had reasonably believed that her husband knew her financial condition and that he would truthfully report that information on the financial statement.

In re Gordon, (Ch. 7 Case No. 00-52694, Adv. No. 00-05145, June 5, 2003) - The debtor allowed her husband to use the debtor's good credit to obtain a loan to continue farming. The debtor's husband signed the debtor's name to a false financial statement concerning the debtor's financial affairs. The Court held that the husband's intent to deceive could not be imputed through agency law to the debtor.

In re Grot, (Ch. 7 Case No. 98-41493, Adv. No. 98-04082, December 17, 2001) - The debtor contended that the plaintiff had attempted to amend his complaint through the pretrial order. The Court disagreed and concluded that Plaintiff's averments in the complaint satisfied the requirement that the debtor had fair notice of the nature and basis of the claim and a general indication of the type of litigation involved.

In re Harkins, (Ch. 7, Case No. 02-55794, Adv. No. 03-05046, December 22, 2003) - The creditor obtained a default judgment in state court when the debtor failed to respond to a request for production of documents. The state court's order stated that by reason of the debtor's default, the court affirmatively found that the actions of the debtor constituted a fraud on the creditor. The creditor contended that under collateral estoppel principles, the state court's order may be used to establish conclusively the elements of fraud in this dischargeability proceeding.

The Court disagreed, noting that the debtor was acting on the advice of counsel who advised that filing bankruptcy was inevitable. The Court also noted that the debtor was unable to produce the records because he no longer had control or access to his former business location and its business records.

In re Jackson, (Ch. 7, Case No. 05-53649, Adv. No. 05-05170, August 23, 2006) - The plaintiff allowed her sister, the debtor, to use her credit cards to make her house and car payments, and meet other obligations. The debtor promised to repay the loans by obtaining a home equity loan or by selling her residence. The debtor did not repay the loans and her applications to obtain a home equity loan were denied. The plaintiff contended the obligations were nondischargeable under Section 523(a)(2)(A). The court held that the plaintiff had not shown that the debtor had sufficient equity in her residence to honor her promise. The court concluded that the plaintiff knew the debtor was in severe financial distress but continued to make loans to the debtor. The court held that the debtor's obligation was dischargeable noting that the failure to perform a mere promise is not sufficient to make a debt nondischargeable.

In re Jones, (Ch. 7, Case No. 01-55087, Adv. No. 02-05025, April 23, 2004) - The district court determined that the debtor was liable for civil penalties under the Clean Water Act. The civil penalties arose from the discharge of oil into a navigable water and the failure to have a spill prevention plan to prevent and control oil pollution. The bankruptcy court determined that the debtor's obligation for civil penalties which may be imposed for violations of the Clean Water Act were nondischargeable under 11 U.S.C.A. § 523(a)(7).

In re Moore, (Ch. 7 Case No. 00-30917, Adv. No. 00-03033, March 8, 2001) - In a Complaint to Determine Dischargeability of Debt, Court denied cross-motions for summary judgment filed by Plaintiff and Defendant. The Court held that collateral estoppel did not apply to a state court's default judgment on issue of Defendant's fraud. The Court held that state court's default judgment was entitled to full faith and credit.

In re Moore, (Ch. 7 Case No. 00-30917, Adv. No. 00-03033, April 16, 2002) - The debtor purchased, on an installment basis, real property in order to develop a subdivision. The debtor failed to record the deed to secure debt in favor of the creditor. Subsequent lenders foreclosed on part of the tract. The creditor obtained a default judgment in state court for the balance owed on the installment sale. The bankruptcy court held that the debtor had made a false representation that he would record the deed to secure debt in favor of the creditor. The bankruptcy court held that the creditor's obligations were nondischargeable under 11 U.S.C.A. section 523(a)(2)(A).

In re Neal, (Ch. 7 Case No. 02-54169, Adv. No. 02-05181, October. 3, 2003) - The debtor owned a video tape rental store. The creditor was a distributor that provided tapes to the debtor. The creditor retained ownership of the tapes. The debtor had financial problems and stopped sending the creditor its portion of the proceeds from the tape rentals. The creditor demanded the return of its tapes. The debtor sold the tapes to a third party and closed his store. The Court held that the debtor had converted the creditor's tapes. The Court held that the debtor's obligation was a nondischargeable willful and malicious injury under 11 U.S.C.A. § 523 (a)(6).

In re Patel, (Ch. 7 Case No. 05-40341, Adv. No. 05-04273, September 16, 2005) - Plaintiff's counsel filed a complaint to determine the dischargeability of a debt two days after the deadline provided by Bankruptcy Rule 4007(c). Plaintiff's counsel contended that his failure to timely file the complaint was excusable neglect. The court held that Bankruptcy Rules 4007(c) and 9006(b)(3) do not authorize the court to extend the deadline for excusable neglect. The court held that Plaintiff's untimely complaint must be dismissed.

In re Pearson, (Ch. 13 Case No. 95-30158, Adv. No. 99-03051, May 21, 2002) - The Court entered a "form discharge order" which purported to discharge the debtor's student loan obligation. The debtor had not filed an adversary proceeding contending that payment of her student loans would be an undue hardship. The Court determined that its discharge order was rendered in a manner inconsistent with due process and thus void under Federal Rules of Civil Procedure 60(b)(4).

In re Thompson, (Ch 7 Case No. 02-54184, Adv. No. 02-05165, August 1, 2003) - The debtor owned a small store that sold lottery tickets. The debtor failed to deposit certain proceeds from the sale of lottery tickets into a special bank account. The Court held that this failure was a "defalcation while acting in a fiduciary capacity" under 11 U.S.C.A. § 523(a)(4)

In re Wiggins, (Ch. 7 Case No. 98-53576, Adv. No. 99-05079, March 1, 2000) - Debtor obtained a rapid refund on his income tax return by fraudulently representing that he owed no child support arrearage. The Court held that the debtor's obligation to repay the rapid refund was nondischargeable.

In re Wilson, (Ch. 7 Case No. 01-31304, Adv. No. 02-03005, July 3, 2002) - The debtor's counsel failed to file a timely response to an objection to discharge. The Court entered an order denying the debtor's discharge. The debtor, pro se, moved the Court to reconsider its order. The debtor's counsel thought that the debtor had obtained other counsel to represent her in the adversary proceeding. The Court noted that counsel had failed to ensure that a response to the complaint objecting to discharge had been filed. The Court held that it could not consider debtor's motion for reconsideration because the motion was filed more than ten days after entry of the order denying her discharge.

DISCHARGE INJUNCTION

In re Nickelson, (Ch. 7 Case No. 02-54916, April 3, 2003) - Tucker filed a medical malpractice action in state court against the debtor for the alleged wrongful death of Tucker's daughter. The Court granted Tucker relief from the discharge injunction, 11 U.S.C.A. section 524, to proceed with the state court litigation to establish, if she can, debtor's liability and to proceed against the Debtor's liability insurer if the debtor is found liable in the state court litigation.

DISMISSAL

In re Rollins, (Ch. 7 Case No. 06-52058, July 16, 2007) - The debtor, for ten years, used credit cards to meet his living expenses and to maintain his lifestyle. The debtor filed for Chapter 7 relief after finding a new job that tripled his annual income. The United States trustee contended that granting Chapter 7 relief would be an abuse under the totality of the circumstances under section 707(b)(3) of the Bankruptcy Code. The court agreed that the debtor's Chapter 7 case should be dismissed, but allowed the debtor ten days to convert his Chapter 7 case to a case under Chapter 11 or Chapter 13.

DOMESTIC OBLIGATIONS

In re Whitehead, (Ch. 7 Case No. 99-52131, Adv. No. 99-5114, June 1, 2000) - Debtor's obligation to hold former spouse harmless on certain credit card debts was nondischargeable under 11 U.S.C.A. § 523(a)(15).

DOMESTIC RELATIONS

In re Archer, (Ch. 7 Case No. 99-30009, Adv. No. 99-3017, August 24, 2001) - The debtor filed an action for divorce in state court. The state court later held that the debtor's actions in refinancing the marital residence were fraudulent and in contempt of a temporary consent order. The state court ordered the debtor to pay her husband's attorney's fees and to reimburse her husband for certain payments he had made to the IRS.

The bankruptcy court held that the debtor's obligations to her husband were not in the nature of alimony, maintenance, or support and therefore were dischargeable in bankruptcy. The bankruptcy court held that the debtor's obligation for postpetition services rendered by her husband's attorney was not dischargeable.

In re Butler, (Ch. 7 Case No. 00-31386, Adv. No. 01-03005, January 7, 2002) - The plaintiff contends that certain debts from a divorce decree were nondischargeable alimony, maintenance, or child support obligations. The Court determined that the obligations were not in the nature of support and that the debtor never had the financial ability to meet her obligations.

In re Olsommer, (Ch. 7 Case No. 99-54055, Adv. No. 00-05012, August 16, 2000) - Debtor filed a child custody action against her ex-spouse. Debtor's obligation to pay fees of guardian ad litem were in nature of support and were nondischargeable in bankruptcy. State court appointed a guardian ad litem to protect the interest of two minor children.

In re Olsommer, (Ch. 7 Case No. 99-54055, Adv. No. 00-05012, December 28, 2000) - The state court awarded custody of two minor children to the debtor's former husband. The state court ordered the debtor to pay some of the attorney's fees and costs incurred by the former husband. The debtor argues that an award of attorney's fees arising from a post-divorce child custody action was dischargeable. The bankruptcy court disagreed and held that the debtor's obligation was in the nature of support and was nondischargeable in bankruptcy.

In re Olsommer, (Ch. 7 Case No. 99-54055, Adv. No. 00-05012, May 2, 2001) - Clinical psychologist provided counseling services to debtor's children and testified at child custody hearing. The Court held that debtor's obligation to pay for the services of the psychologist was a nondischargeable support obligation under 11 U.S.C.A. § 523(a)(5)(B).

EQUITABLE SUBORDINATION

In re Westek Georgia, LLC, (Ch. 11 Case No. 03-55298, Adv. No. 04-05058, October 6, 2005) - The Chapter 11 debtor contended that the defendants' secured claims should be equitably subordinated to the claims of all other creditors. 11 U.S.C.A. § 510(c). The debtor contended that the defendants were insiders or fiduciaries for purposes of establishing the standard and burden of proof. The debtor also contended that the defendants' claims should be treated as stock redemption claims subject to no fault subordination. The court rejected both of the debtor's contentions.

EXEMPTIONS

In re Leskosky, (01-55313, Dec. 17, 2002) - Chapter 7 debtor claimed as exempt his stock in several corporations. Debtor listed the value of the claimed exemption as $10. The trustee was concerned that the stock may increase in value and argued that the exemption should be limited to the amount claimed, $10. The Court rejected the trustee's argument that the trustee should be entitled to any post-petition appreciation in value of the stock.

In re Sorrow, (99-30390, August 9, 2000) - Debtors' minor daughter was injured in an automobile accident. Debtors suffered no bodily injury and had no personal injury claim to exempt.

In re Waggoner, (99-30949, January 25, 2000) - Debtor could not claim as exempt the cash value of life insurance policies under O.C.G.A. § 44-13-100(a)(8).

JURY TRIAL

LEASES

In re Bonner, (06-50472, July 19, 2006) - The debtor leased a used Cadillac. The debtor proposed to treat the lease as a disguised security agreement in his Chapter 13 plan. The court held that the lease was a true lease and not a disguised security agreement. The court looked to the terms of the lease and whether the debtor could purchase the vehicle at the end of the lease for a nominal amount.

PROCEDURE

In re Dudley, (Ch. 7 Case No. 02-51225 Adv. No. 02-5087, January 10, 2003) - The complaint's style showed Citicorp Mortgage, Inc. to be the defendant in the adversary proceeding. CitiMortgage, Inc. filed a motion to dismiss for failure to state a claim upon which relief can be granted. The complaint made no mention of CitiMortgage, Inc. and sought no relief against CitiMortgage, Inc. The Court held that CitiMortgage, Inc. was not a party that may file a motion to dismiss and denied the motion to dismiss.

In re Harden, (Ch. 7 Case No. 02-50434, Adv. No. 02-05076, August 26, 2002) - Plaintiff filed discovery requests, including Request for Admissions, prior to conference required by Federal Rules of Civil Procedure 26(f). Defendant failed to respond to the Request for Admissions. The Court held that Plaintiff's Request for Admissions was not served in accordance with requirements of Rule 26(d) and that the Defendant cannot be deemed to have admitted any matters contained therein. The Request for Admissions was stricken from the record and the Plaintiff must start over with all its discovery.

In re Holmes, (Ch. 11 Case No. 02-52793, Adv. No. 03-05280, April 27, 2006) - The defendant sought to tender into evidence the sealed deposition of the sole shareholder and controlling person of a corporation that was a party in the adversary proceeding. The court admitted the deposition into evidence, noting that Federal Rule of Civil Procedure 32(a)(2) permits a party to introduce the deposition of an adversary as part of his substantive proof regardless of the adversary's availability to testify at trial.

In re Holmes, (Ch. 11 Case No. 02-52793, Adv. No. 03-05280 July 12, 2006) - The plaintiffs moved to amend their pleadings to include two issues raised at trial. The defendant contended that an amendment of the pleadings would be futile because the final pretrial order controlled the issues for trial. The court held that the pleadings may be amended under Rule 15(b) even though a final pretrial order had been entered under Rule 16(e). The court held that the defendant would suffer no prejudice by allowing the amendment.

In re McDowell, (Ch. 7 Case No. 98-54657, Adv. Nos. 99-05113, 00-05088, 01-05078, July 19, 2002)- Movant's counsel failed to file a timely notice of appeal or motion to extend the time to file a notice of appeal. Counsel mistakenly relied upon Federal Rules of Civil Procedure (6)(a) rather than Federal Rules of Bankruptcy Procedure 9006(a) when calculating time period for filing notice of appeal. Court held that counsel's mistake was not excusable neglect.

In re Wilson, (Ch. 7 Case No. 01-31304, Adv. No. 02-03005, July 3, 2002) - Debtor's attorney abandoned client and failed to file response to complaint objecting to discharge. Debtor moved pro se for reconsideration of order that denied Debtor's discharge. Court held that it did not have jurisdiction to hear Debtor's motion because the motion was filed more than ten days after entry of order denying discharge.

PROFESSIONAL

In re Arrington, (02-51468, August 22, 2002) - The attorneys for Chapter 7 debtor filed an application for attorney's fees, contending that their services benefited the estate. The Court held that an attorney who has represented the Chapter 7 debtor is not entitled to compensation from the estate unless the Court has approved the attorney's appointment for a specified special purpose under 11 U.S.C.A. section 327(e). The Court dismissed, without prejudice, the application so that the attorneys could seek special appointment and, if appointed, file an application for attorney's fees in accordance with applicable standards.

In re Brown, (05-30144, March 5, 2007) - The attorney for the Chapter 7 trustee filed an application for interim compensation. The court applied the factors listed in 11 U.S.C.A. § 330(a)(3) in awarding interim compensation.

In re Brown, (05-30144, November 15, 2007) - The attorney for the Chapter 7 trustee sought interim compensation for professional services provided to the trustee under 11 U.S.C.A. § 330(a). The court applied the six nonexclusive factors listed in section 330(a)(3) to the services described in the application and awarded interim compensation.

In re McCartney, (05-58001, Jan. 12, 2006) - The debtor's attorney asked the court to determine that attorneys are not debt relief agencies under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. No party had threatened to enforce the debt relief agency provisions against the attorney. The court held that the attorney had failed to satisfy the case or controversy requirements necessary for the exercise of judicial power.

In re McEver, (07-53256, February 12, 2008) - The Chapter 11 debtor filed an application asking the court to approve the employment of David Judah as attorney for the debtor under 11 U.S.C. § 327(a). The United States trustee argued that Mr. Judah was not a disinterested person because an attorney in Mr. Judah's law firm was an officer of a corporation that was owned by the debtor. The court held that Mr. Judah was not disqualified from representing the debtor. The court noted that the corporation had a legal existence separate and apart from its officers and shareholders.

In re Tom's Foods, Inc., (05-40683, April 6, 2006) - Certain creditors objected to the final compensation application filed by the Chapter 11 debtor's counsel. The creditors contended that the debtor should have initially pursued a liquidation rather than trying to reorganize as a going concern. The creditors also contended that counsel had a conflict of interest in representing both the Chapter 11 debtor and the debtor's qualified pension and profit sharing plan. The court overruled the objections noting that counsel's efforts were primarily responsible for a sale price for debtor's assets that was twice the opening bid. The court also noted that counsel provided necessary and beneficial services to the debtor's senior management in dealing with its pension plan.

In re Westek Georgia, LLC., (03-55298,  November 10, 2004) - Applicants sought reimbursement as administrative expenses the attorney fees they incurred in bringing an involuntary Chapter 7 bankruptcy petition against the debtor. 11 U.S.C.A. § 503(b)(3)(A), (4). The debtor argued that the itemization of the services did not adequately describe the services rendered. The court held that the itemization was sufficient and was similar to those submitted in other bankruptcy cases. The court disallowed services which were not necessary to bringing the involuntary petition.

PROPERTY of the ESTATE and TURNOVER

In re Alexander, (03-31759, July 21, 2005) - The debtor's chicken farm was destroyed by arson. The insurance company denied the debtor's claim because the debtor failed to provide information and cooperate. The insurance company agreed to pay the mortgagee under a "standard mortgage clause". The Court held that the debtor had no interest in the insurance proceeds paid to the mortgagee.

In re Bonner, (02-54219, December 2, 2002) - The creditor repossessed a vehicle three days before the debtor filed for Chapter 13 relief. The creditor refused to turn over the vehicle, contending that the vehicle was not property of the bankruptcy estate. The creditor relied upon Bell-Tel Federal Credit Union v. Kalter (In re Kalter), 292 F.3d 1350 (11th Cir. 2002) (under Florida law, ownership in vehicle terminated upon repossession). The Court concluded that repossession, by itself, is not sufficient to terminate ownership under Georgia law. The Court ordered the creditor to turn over the vehicle contingent upon the debtor providing adequate protection.

In re Chipman-Union, Inc., (Ch. 11 Case No. 01-31418,  Adv. No. 04-03008, February 17, 2005) - The corporate debtor employed an insurance broker to procure its insurance coverage. The debtor made monthly payments to the broker which in turn paid the insurance company. The broker sent payments to the insurer regardless of whether the debtor had sent payments to the broker.

The debtor defaulted on its payments to the broker. The broker offered the debtor a revised payment schedule conditioned upon the debtor's agreement that any premium refunds would be paid directly to the broker. The debtor accepted the offer. The insurance company determined that it owed a premium refund of $89,417. The Court held that the debtor had assigned its rights to the premium refund and that the broker was entitled to the $89,417.

In re Geiger, (05-54262, March 30, 2006) - The creditor conducted a foreclosure sale just prior to the debtor filing for bankruptcy relief. The creditor contended that the foreclosure sale was final upon its acceptance of the highest bid. The debtor contended the foreclosure sale was not final because there was no tender of consideration and no execution of a deed of foreclosure. The court held that the foreclosure sale was not consummated and that the debtor's interest in the property was not terminated before the debtor filed for bankruptcy relief.

In re Lary, (Ch. 7 Case No.04-54138, Adv. No. 04-05181, February 10, 2006) - The deceased's Will provided that the debtor could live in the deceased's residence as long as he wanted, then the residence could be sold and divided between the debtor and his sister. The sister filed for Chapter 7 relief. The debtor later conveyed his interest in the residence to his sister. The Court held that the interest the sister received under the Will was property of her bankruptcy estate. The Court held that the debtor's bankruptcy estate could avoid as fraudulent the transfer of his interest to his sister.

In re Tom's Foods, Inc., (05-40683, Dec. 7, 2006) - Prior to filing for bankruptcy relief, the Chapter 11 debtor purchased director and officer liability insurance. The policies provided direct coverage to the directors and officers and indirect coverage to the debtor. The policies also paid for attorney fees incurred in defending a claim. The director and officers were entitled to have their claims paid before the debtor's claims were paid. Several creditors made claims against the directors and officers. The debtor did not object to the advancement by the insurance company of the directors and officers defense cost. The debtor, however, contended that the directors and officers should submit for review by the Court or the debtor a fee application for each advancement request. The directors and officers argued that the insurance company would monitor and review all defense cost requests and only pay reasonable costs and that review by the debtor or Court was not necessary. The Court was persuaded by this reasoning.

REAL PROPERTY

In re Beacham, (Ch. 13, Case No. 05-51927, Adv. No. 05-05109, February 17, 2006) - The debtors signed a Contract For Deed to purchase certain unimproved real property. The debtors were to make monthly payments for 20 years. The creditor was to convey legal title after the debtors satisfied their obligations. The debtors defaulted and filed for bankruptcy relief. The court held that the Contract For Deed had not terminated prepetition and that the unimproved real estate was not the debtors' principal residence as that term is used in 11 U.S.C.A. § 1322(b)(4).

In re Howard, (Ch. 13, Case No. 05-53602, Adv. No. 05-05160, September 21, 2006) - The debtor filed for bankruptcy relief the day after the creditor foreclosed on the debtor's residence. The debtor contended that his interest in his residence was not terminated before he filed for bankruptcy relief. The court held that the language of the deed to secure debt provided that the debtor's right and equity would not terminate until the creditor gave the purchaser at foreclosure title to the debtor's residence.

In re Lott, (04-30823, September 29, 2004) - The debtor defaulted on monthly payments under a Contract For Deed. The contract provided a specific address for notices of default and termination. The creditor sent the notices to another address. The Court held that the creditor had not complied with the notice requirements and denied the creditor's motion for relief to dispossess the debtor.

In re Verdi, (99-54047, January 31, 2000) - The Chapter 13 debtor defaulted prepetition on a retail land sales contract. The creditor moved for relief from the automatic stay so that he could remove the debtor from the realty. The Court denied the motion, noting that the debtor's interest had not been foreclosed under state law.

RECUSAL OF JUDGE

RELIEF FROM ORDERS

SANCTIONS

In re Brown, (Ch. 7, Case No. 05-30144, March 11, 2008) - The Chapter 7 trustee asked the court to impose sanctions under Bankruptcy Rule 9011. The court determined that respondent has continued to relitigate virtually verbatim contentions of the trustee's fraud long after the court has ruled that the contentions have no merit. The court held that the respondent should be sanctioned under Rule 9011.

In re Lindsey, (98-54195, September 14, 2000) - Creditor sought relief from automatic stay, alleging that Debtor had failed to make her postpetition mortgage payments. Creditor and its attorneys failed to timely respond to Debtor's request for a copy of her account history. Creditor had misapplied some of Debtor's payments. Creditor and Debtor resolved the matter, but creditor's attorney continued to seek attorney's fees from Debtor. Court ordered creditor's attorney to pay for attorney's fees that Debtor incurred after the matter was resolved.

In re Rucker, (99-30752, September 13, 2001) - The debtor and creditor submitted a consent order that contained a six-month strict compliance provision. The creditor later filed a Default Motion supported by an affidavit setting forth the default. The creditor contended that the debtor still owed certain insurance premiums that preceded the consent order. The court disagreed and held that the consent order had resolved the dispute between the debtor and the creditor and that the debtor was not in default under the consent order. The court held that there was no reasonable basis for the creditor's Default Motion and awarded sanctions and attorney's fees in favor of the debtor.

SETTLEMENTS

In re Grot, (Ch. 7 Case No. 98-41493,  Adv. No. 98-04082, March 7, 2003) - A complaint was filed to deny the debtor's discharge and to determine that the debtor's obligations were nondischargeable. Some four years later, the Chapter 7 trustee filed a motion to compromise. The compromise would require that the Chapter 7 debtor pay a total of $45,000 and the Chapter 7 trustee would dismiss with prejudice the adversary proceeding. One creditor objected to the compromise, contending that the debtor had committed fraud and was "buying a discharge." The Court, after considering the factors set forth by the Eleventh Circuit Court of Appeals, approved the compromise.

SUBROGATION

In re CUA Autofinder, LLC, Ch. 7 Case No. 05-50480 RFH, April 29, 2008) - The chapter 7 debtor's sole shareholder used his personal funds to pay the debtor's obligation to deposit certain escrow funds with an escrow agent. The shareholder contended that he was equitably subrogated to the debtor's right to receive a return of the escrow funds because the shareholder had personally guaranteed the debtor's obligations. The Court held that the shareholder had not personally guaranteed the debtor's obligation to deposit the escrow funds and that the shareholder had waived any right to subrogation. The Court held that the debtor's bankruptcy estate was entitled to the funds held by the escrow agent.

SUMMARY JUDGMENT

In re Holmes, (Ch. 11, Case No. 02-52793, Adv. No. 03-05280, October 14, 2005) - The court denied the cross-motions for summary judgment noting that there were genuine issues of material fact as to the parties acting in good faith and fair dealing concerning certain leases.

TAXES

In re Chipman-Union, Inc., (Ch. 11 Case No. 01-31418  November 1, 2002) - Chapter 11 debtor filed ad valorem tax returns, asserting the true market value of its equipment was $8.8 million. Debtor began liquidating its assets and would not reorganize as a going concern. Several months later, debtor asked the court to determine, under 11 U.S.C.A. section 505, that the value of its equipment was $1,296,000. The Court was not persuaded by testimony of Debtor's expert witness and held that valuation in ad valorem tax returns must stand. The Court also refused to excuse the debtor's untimely filing of its freeport exemption application.

In re Hamrick, (Ch. 7 Case No. 98-31314, Adv. No. 99-03004, November 14, 2000) - Debtors sought to discharge income tax obligations for taxable years ending more than three years prior to the Chapter 7 bankruptcy filing under 11 U.S.C.A. § 523(a)(1)(A). The Court held that the three-year priority period was equitably tolled during the debtors' prior Chapter 13 cases under 11 U.S.C.A. § 105(a). The Court held that the debtors' obligations for some, but not all, of the tax years in question were dischargeable.

In re Hamrick, (Ch. 7 Case No. 98-31314, Adv. No. 99-03005, December 8, 2000) - Debtors sought to discharge state income tax obligations for taxable years ending more than three years prior to the Chapter 7 bankruptcy filing under 11 U.S.C.A. § 523(a)(1)(A). Debtors presented no facts in opposition to the state's motion for summary judgment. The Court held that the three-year priority period was equitably tolled during the debtors' prior Chapter 13 cases under 11 U.S.C.A. § 105(a). The Court held that the debtors' obligations for the tax years in question were nondischargeable.

In re Hendrix, (Ch. 7 Case No. 02-51326, Adv. No. 02-05062, June 3, 2002) - Debtors' state income tax obligations were nondischargeable because they failed to file tax returns.

In re Holmes, (Ch. 11 Case No. 02-52793, September 12, 2003) - The debtor owed a substantial federal income tax obligation. The IRS refused to receive and consider his offer-in-compromise during the pendency of his chapter 11 case. The Court held that the IRS's refusal was not prohibited by the anti-discrimination provisions of 11 U.S.C.A. § 525(a). The Court, however, held that it could, under 11 U.S.C.A. § 105(a), order the IRS to receive and consider an offer-in-compromise. The Court stated that the IRS's policy not to participate in the offer-in-compromise procedure while a taxpayer is in bankruptcy frustrates the basic principles of the Bankruptcy Code and I.R.C. § 7122.

UTILITY SERVICE

In re Harris, Inc., (Ch. 11 Case No. 03-51863, July 11, 2003) - Pursuant to 11 U.S.C.A. § 366, the Chapter 11 debtor proposed its current liquidity as adequate assurance of payment for utility services. The debtor also proposed to require its utility companies to obtain court approval before terminating its services. No utility company appeared at the hearing or objected to debtor's motion. The Assistant United States Trustee did object. The Court held that the debtor's current liquidity was adequate assurance of payment, but declined to require utility companies to obtain court approval before terminating services.

VENUE

In re Holmes, (Ch. 11, Case No. 02-52793 Adv. No. 03-05208, February 5, 2004) - The defendants moved to transfer the adversary proceeding to the Southern District of New York for consolidation and coordination with a pending multidistrict class action litigation. The Court held that it did not have authority to transfer the adversary proceeding for coordinated or consolidated pretrial hearings under the multidisitrct litigation statute. 28 U.S.C.A. § 1407.