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.
Opinions
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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)
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.
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.
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.
Judge James D. Walker Jr. (Retired)
The debtor’s personal injury attorney failed to satisfy the rules of professional conduct by conducting his representation without any direct communication with the debtor and settling the case without the debtor’s authority.
"Escrow agreement" under which a creditor secured by a lien on the debtor’s mobile home loaned the debtors additional funds was a separate contract from the mobile home loan contract rather than a modification of the mobile home loan contract. The escrow agreement contained no language of modification and contained a separate repayment schedule. Therefore, the claim arising out of the escrow agreement was not secured by the mobile home.
The debtor was permitted to amend his schedules to claim an exemption that would serve as the basis for a lien avoidance action. The error in the original schedule and a substantial delay in the filing of the amendment were due solely to neglect by the debtor’s attorney rather than bad faith.
Judge John T. Laney, III
The Plaintiff’s filed a complaint against the Debtor/Defendant alleging the conversion of property used as collateral for a security agreement. The Debtor/Defendant failed to answer the complaint due to a clerical mistake. A clerk’s entry of default was entered in accordance with Fed. R. Bankr. P. 7055(a). Less than a week later, the Debtor/Defendant filed a motion to open the default, as well as a late filed answer to the complaint. The "good cause" standard of Fed. R. Civ. P. 55(c) governs whether a clerk’s entry of default should be set aside. The four factor test is (1) whether the defaulting party took prompt action to vacate the default; (2) whether the defaulting party provides a plausible excuse for the default; (3) whether the defaulting party presents a meritorious defense; and (4) whether the party not in default will be prejudiced if the default is set aside. Turner Broadcasting Systems, Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 1001 (N.D. Ga. 1983), aff’d, 742 F.2d 1465 (11th Cir. 1984). In this case, the Debtor/Defendant failed to show a meritorious defense. Therefore, the entry of default was granted as to liability.
(Also: Bruce, Case No. 04-42805; McRae, Case No. 04-42887; Cook, Case No. 04-42810; LaGrand, Case No. 04-42787; Cooper, Case No. 04-42754; Burrell, Case No. 04-42793; Gilboy, Case No. 04-42888; Skinner, Case No. 04-43011; Kirkland, Case No. 05-40241; Voss, Case No. 05-40018; Cochran, Case No. 05-40483; Carr, Case No. 05-40559 - July 15, 2005) - The United States Trustee brought this motion because the Debtors are residents of Alabama. The Debtors opposed the motion and argued that the U.S. Trustee’s motions were untimely. The court did not adopt a bright-line rule that motions brought sixty days after filing are untimely. To determine whether a motion is timely, the court must look to the facts and circumstances of each case. The court found that the motions in the majority of the cases were untimely under the Advisory Committee Notes, Fed. R. Bankr. P. 1014(a) because too much had transpired when the motions were brought. The court found two of the motions were timely because "the first major motion[s] were not yet decided before the motion[s] were filed." In re 1606 New Hampshire Avenue Associates., 85 B.R. 298, 305 (Bankr. E.D. Pa. 1988).
The United States Trustee brought this motion because the Debtors are residents of Alabama. The Debtors opposed the motion and argued that the U.S. Trustee program is unconstitutional because it does not apply in all fifty states and is therefore not a uniform law respecting bankruptcy. The Federal Courts Improvement Act allowed Alabama and North Carolina to opt out of the U.S. Trustee Program. The court determined that the debtors did not meet the heavy burden to invalidate the Act. Further, the Debtors did not show they would be harmed by having their case administered under the Bankruptcy Administrator Program rather than the U.S. Trustee Program, and therefore lacked standing to challenge the Act.