In re Barber (03-71139 Adv. No. 03-07062)

The Court held a final pre-trial conference in an adversary proceeding to determine the dischargeability of a debt arising from a state court default judgment in favor of William Bass, Carolyn Burgess, and Haven Hills Estates ("Plaintiffs") against Wayne Barber ("Defendant"). To determine whether collateral estoppel applies, the Court must apply the law of the state in which the judgment was entered. Under Georgia law three elements must be present for collateral estoppel to apply; 1) the issue must be identical to the issue resolved in state court; 2) the issued was "actually and necessarily" litigated in the state court case; 3) the resolution of the issue was essential to the state court case. The Court determined that the Defendant’s liability, which was determined by default, was not "actually and necessarily" litigated in the state court, therefore collateral estoppel was not applicable.

Tuesday, August 17, 2004