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 Court denied the Debtor’s motion to convert his Chapter 7 case to a Chapter 11 pursuant to 11 U.S.C. § 706(b).  The issues before the Court were whether a debtor’s right to convert to a Chapter 11 is absolute and, if not, under what circumstances a court should deny a debtor’s request for conversion.  The Court held a debtor’s right to convert is not absolute.  Rather, where the debtor’s conduct would constitute grounds for immediate reconversion or dismissal, a court may deny conversion.  The Court determined the totality of the circumstances surrounding this case clearly indicated conversion would immediately create grounds to dismiss or reconvert the case.  In making this determination, the court considered the nonexhaustive factors set forth in 11 U.S.C. § 1112(b)(4) and the debtor’s bad-faith conduct.

The Court sustained the Debtor’s Objection to Wilmington Trust, N.A.’s claim and disallowed the claim as untimely.  The issues before the Court were whether a consent order that does not address the timeliness of a late-filed proof of claim can deem such an untimely filed claim as an allowed, general non-priority unsecured claim and furthermore, whether the court has the authority to enlarge the amount of time for filing the Creditor’s proof of claim.  The Court determined that the consent order did not address the timeliness for filing a proof of claim, and the Court did not have the authority to enlarge the time to file a proof of claim or allow an untimely filed proof of claim because Rule 3002(c) did not apply to the circumstances.

The Court grants partial summary judgment for the plaintiff's Motion for Full or Partial Judgment.

The Court grants partial summary judgment for the plaintiff's Motion for Full or Partial Judgment.

The Court grants partial summary judgment for the plaintiff's Motion for Full or Partial Judgment.

The issue in the case was whether a security deed executed by a husband-debtor in favor of Wells Fargo was avoidable under 11 U.S.C. § 544(a)(3).  The Trustee argued that the Security Deed was patently defective due to the lack of an attesting official witness, which is required by O.C.G.A. § 44-14-33 for recordation of a security deed.  The Trustee alleged that the “Attestation Page” only contains the signatures of the borrower and an unofficial witness and the notary public’s signature and seal on the following page under the term “Acknowledgment” do not satisfy the requirements for proper attestation of a security deed.  Wells Fargo argued that O.C.G.A. § 44-2-18  provides for the curing of defects in security deeds through an affidavit and the signature of the official witness on the Affidavit accompanying the Waiver recorded with the Security Deed cured any such defect.  Following the Eleventh Circuit opinion of Gordon v. Terrace Mortgage Co. (In re Kim), 571 F.3d 1342 (11th Cir. 2009), the Court agreed with Wells Fargo and determined that the Trustee may not avoid the security deed.

The issue before the Court was whether the Trustee could avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3) because it lacked the seal of the notary public acting as the official witness to the attestation of the security deed.  Under O.C.G.A. § 44-17-6(a)(1), a notary public is required to provide his seal in order to authenticate his notarial acts.  Attesting to a security deed is a notarial act.  The Court interpreted Georgia attestation law to find that the Bank’s security deed was not properly attested to by an official witness because the notary public failed to place his seal on the deed as required by Georgia law.  Under O.C.G.A. § 44-14-33, the Bank’s security deed as recorded could not provide a subsequent bona fide purchaser with constructive notice of the deed.  Therefore, the Court holds that the Trustee may avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3).

Chief Judge James P. Smith

The debtor pledged his home as security for a loan.  The recorded copy of the security deed was missing the signature page for the grantor.  Recorded contemporaneously with the security deed was a Waiver of Borrower’s Rights Rider which was signed by the debtor and properly attested by unofficial and official witnesses.  
    
The trustee sought to avoid the lender’s interest in the debtor’s home arising from the recorded but defective security deed.  11 U.S.C. § 544(a)(3).  The court held that the trustee could not avoid the lender’s interest because the security deed and waiver, when construed together, provided inquiry notice to a subsequent purchaser.  Had that purchaser done further inquiry, by contacting the debtor or lender, the purchaser would have discovered the existence of the lender’s security interest.

The plaintiffs, through their “family trust”, contracted with a construction company owned solely by the debtor to build a custom home.  The plaintiffs made a down payment and a number of requested draws.  Although the house was not completed by the date expected, the plaintiffs gave additional draws on the debtor’s promise to complete the house by certain dates.  The debtor had financial problems and was unable to complete the house.  The plaintiffs learned that the debtor had failed to apply $164,000 of the draws to the cost of their house.  The plaintiffs’ family trust sought to have that amount declared non-dischargeable under 11 U.S.C. § 523(a)(2)(A).

The court held that the debtor had not made a false representation by failing to voluntarily disclose his financial difficulties when the construction contract was signed.  Furthermore, the debtor’s alleged promises about how money paid by the family trust would be used and that the house would be finished by certain dates if additional payments were made were not false representations.  Finally, the Court refused to pierce the construction company’s corporate veil and hold the debtor personally liable for the corporate debt.
 

Judge Austin E. Carter

Defendant filed motion for summary judgment on Plaintiffs’ complaint for equitable subordination on the basis that claim and issue preclusion barred relitigation of facts and issues previously decided in district court.  The Court held that claim preclusion did not bar Plaintiffs’ equitable subordination claim because that claim is derived from bankruptcy code and could not have been brought in the district court action.  However, the Court granted the Defendant’s motion based on issue preclusion, as the Plaintiffs’ asserted bases for equitable subordination had been brought before and ruled on (in the Defendant’s favor) by the district court.

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