Creditor, Wells Fargo Bank N.A., objected to the confirmation hearing in the Jordan case because the Debtor was modifying the value of property in the plan. Wells Fargo argued that the property at issue was the Debtor’s principal residence and thus could not be modified under 11 U.S.C. § 1322(b)(2), and that the Debtor’s plan was not filed in good faith. The court held that the date for deciding whether a creditor qualifies for section 1322(b)(2) protection is at the time of filing, not when the obligation arose. Because the Debtor had moved at the time of filing, the property was not his principal residence. However, the court denied confirmation because the plan was not filed in good faith. The property which the Debtor was attempting to cram down was not necessary for his maintenance or support. Rather, the Debtor’s son, who was neither a debtor nor a dependant, was living on the property and made the Trustee payments.
Opinions
The Middle District of Georgia offers opinions in PDF format, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.
Please note: These opinions are not a complete inventory of all judges' decisions and are not documents of record. Official court records are available at the clerk's office.
Judge John T. Laney, III
The United States Trustee brought this motion because the Debtors are residents of Alabama. The Debtors opposed the motion under three arguments: (1) this court should reconsider its decision in In re Swinney, 300 B.R. 388 (Bankr. M.D. Ga. 2003); aff’d, Swinney v. Turner, 309 B.R. 638 (M.D. Ga. 2004); dismissed as a nonfinal order, Swinney v. U.S. Trustee, No. 04-12639-FF (11th Cir. Aug. 11, 2004); (2) the United States Trustee was not a party in interest with standing to file a motion to dismiss or transfer due to improper venue; (3) the United States trustee program is unconstitutional because it does not apply in all fifty states and is therefore not a uniform law respecting bankruptcy. The constitutional issue was reserved. The court adhered to its decision in Swinney. The court then determined that the United States Trustee did have standing to bring this motion under 11 U.S.C. § 307 and is able to bring such a motion under Fed. R. Bankr. P. 1014(a)(2).
The former Chapter 7 Trustee ("Trustee") asked the court to reconsider the August 25, 2004 decision overruling the Trustee’s objection to confirmation of the Debtors’ Chapter 13 plan. The Trustee alleged that the Barbers were insolvent and that the transfer of property from Mr. Barber to his son was fraudulent. After arguments and evidence were presented, the court determined that the Barbers were solvent and overruled the objection. The Trustee then brought a motion to reconsider because at the hearing he failed to argue that after the transfer of the property the mortgage remained in Mr. Barber’s name for 64 days, although the son had assumed the payments as required under the security deed. The Trustee argued in his reconsideration motion that this made the Barbers insolvent. The court denied the motion to reconsider because under Rule 59(e) a motion to reconsider should only be used in extraordinary circumstances. Because there was no previously unavailable evidence, change in the law, or a clear error of law, the court declined to reconsider.
Judge James D. Walker Jr. (Retired)
Debtor, a U.S. citizen who lived and worked in Mexico, satisfied venue statute for purposes of filing in the Middle District of Georgia when all his assets in the United States were located in that District.
Creditor was enjoined from pursuing fraudulent conveyance action against nondebtor third party when the Trustee had settled a claim arising out of the same transaction pursuant to 11 U.S.C. § 544(b).
The Chapter 13 trustee has not violated 28 U.S.C. § 586 by basing her percentage fee on payments received from the debtor rather than on payments disbursed to creditors. The statute is silent on the question, and the long standing policy promulgated by the Executive Office of the United States Trustee is highly persuasive.
The Chapter 13 trustee does not violate § 586 by basing her commission on a percentage of the money paid into the plan rather than on a percentage of money she disburses.
Applying the plain language of O.C.G.A. § 44-13-100(a)(1), the court allowed a married debtor filing individually to take a $20,000 homestead exemption when his residence was titled solely in his name, even though debtor and his spouse had been separated for 20 years and she maintained a separate residence.
Robert F. Hershner, Jr. (Retired)
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.
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.