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 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.

USDA Farm Service Agency filed motion for retroactive stay relief to allow offset of liability of Debtor against income tax refund due to Debtor.  Court rejected USDA’s argument that the setoff was exempt under 11 U.S.C. § 362(b)(26) because that section applies only to liability of debtors for unpaid income taxes, and not to other types of liabilities to government creditors (like USDA).   Court also rejected Debtor’s argument that the entry of discharge extinguished the USDA’s right to setoff.

U.S. Trustee’s motion to dismiss granted on grounds that Debtor improperly “double-dipped” on means test form by attempting to include a pre-petition secured tax obligation both as a tax expense and a secured debt.

Judge John T. Laney, III

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).

The creditor filed a Motion to Dismiss with Prejudice.  At the hearing, the parties stipulated to the dismissal of the case.  The only issue addressed at the hearing was whether the case would be dismissed with prejudice.  The Court found that the Debtors continually failed to comply with the Court’s orders on Bankruptcy Rule 2004 examinations.  The Court found the Debtors’ conduct warranted a 36-month bar from filing a bankruptcy case for the husband-debtor and a 12-month bar for the wife-debtor.

The issue addressed in this opinion is whether the Plaintiff, Wells Fargo, has standing to bring an action to deny the dischargeability of a debt under 11 U.S.C. § 523(a)(2)(A) premised on actual fraud by the Debtor-Defendant in transactions with Wachovia, the predecessor bank in the merger between it and Wells Fargo.  Wells Fargo has standing to bring such an action because Wells Fargo acquired the right to prosecute such a claim by virtue of its merger with Wachovia.

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