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.
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.
Robert F. Hershner, Jr. (Retired)
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.
Judge James D. Walker Jr. (Retired)
The debtor claimed a homestead exemption pursuant to O.C.G.A. § 44-13-100(a)(1) in certain real property in which she had a security interest. The exemption requires that the property be used as the debtor’s residence. In this case, it was uncontested that the debtor did not reside on the property claimed as exempt, thus the Court sustained the trustee’s objection to the exemption.
When a secured creditor repossesses and sell collateral following a grant of stay relief, it must file an amended claim. If the creditor fails to do so within the time period prescribed by Court order, that order will provide for designation of the claim as fully satisfied.
When several pieces of sevarable collateral secure a single debt, a Chapter 13 debtor may satisfy Section 1325(a)(5) by retaining a portion of the collateral and surrendering a portion of the collateral.
Judge John T. Laney, III
Ruling on Pennsylvania Higher Education Assistance Agency’s ("Defendant") Motion for Summary Judgment, the Court stated that Education Credit Management Corp. v. Carter (In re Carter), 279 B.R. 872 (M.D. Ga. 2002), set a very high standard for undue hardship. However, the Court could not make such a determination as a matter of law because there were genuine issues of material fact which remained in dispute. The Court denied Defendant’s Motion for Summary Judgment.
On a motion for summary judgment, the court held that statutes in derogation of common law must be strictly complied with. The court ruled against Speedee Cash of Columbus, Inc. ("Defendant") because the title pawn contract did not strictly comply with the Georgia Pawnshop Act. Since Defendant’s contract was not in strict compliance, it was not entitled to summary judgment as a matter of law.
The court was asked to consider whether, under Banks v. Sallie Mae Servicing Corporation (In re Banks), 299 F.3d 296 (4th Cir. 2002), Debtors’ adversary proceeding should be dismissed for failure to state a claim upon which relief can be granted. Reserving judgment on whether Banks was applicable and should be followed, the court ruled that the record and admitted pleadings did not provide grounds to dismiss the adversary proceeding.
The court was asked to reconsider an order dated September 3, 2002 in which the court ruled that Deere Credit, Inc. did not have a security interest in a 548G skidder that had been mislabeled on both the security agreement and the financing statement. Upon reconsideration, the court held that it was correct in the September 3, 2002 order and did not change its ruling. While the serial number and model number were both off by just one digit, the combination of both incorrect numbers did not raise a red flag to a third party. Therefore, the description of the collateral did not meet the requirements of O.C.G.A. § 11-9-108(a).
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.