Debtor sought to reopen his case to add a previously unlisted creditor and subsequently enforce the discharge injunction against that creditor. The Court concluded that the real issue was whether the creditor was subject to the discharge injunction. Because allowing the Debtor to reopen his case to add the creditor would not answer that question, the court denied Debtor’s motion to reopen.
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Judge James D. Walker Jr. (Retired)
Robert F. Hershner, Jr. (Retired)
Debtor's attorney abandoned client and failed to file response to complaint objecting to discharge. Debtor moved pro se for reconsideration of order that denied Debtor's discharge. Court held that it did not have jurisdiction to hear Debtor's motion because the motion was filed more than ten days after entry of order denying discharge.
The debtor's counsel failed to file a timely response to an objection to discharge. The Court entered an order denying the debtor's discharge. The debtor, pro se, moved the Court to reconsider its order. The debtor's counsel thought that the debtor had obtained other counsel to represent her in the adversary proceeding. The Court noted that counsel had failed to ensure that a response to the complaint objecting to discharge had been filed. The Court held that it could not consider debtor's motion for reconsideration because the motion was filed more than ten days after entry of the order denying her discharge.
Movant's counsel failed to file a timely notice of appeal or motion to extend the time to file a notice of appeal. Counsel mistakenly relied upon Federal Rules of Civil Procedure (6)(a) rather than Federal Rules of Bankruptcy Procedure 9006(a) when calculating time period for filing notice of appeal. Court held that counsel's mistake was not excusable neglect.
The attorneys for Chapter 7 debtor filed an application for attorney's fees, contending that their services benefited the estate. The Court held that an attorney who has represented the Chapter 7 debtor is not entitled to compensation from the estate unless the Court has approved the attorney's appointment for a specified special purpose under 11 U.S.C.A. section 327(e). The Court dismissed, without prejudice, the application so that the attorneys could seek special appointment and, if appointed, file an application for attorney's fees in accordance with applicable standards.
Plaintiff filed discovery requests, including Request for Admissions, prior to conference required by Federal Rules of Civil Procedure 26(f). Defendant failed to respond to the Request for Admissions. The Court held that Plaintiff's Request for Admissions was not served in accordance with requirements of Rule 26(d) and that the Defendant cannot be deemed to have admitted any matters contained therein. The Request for Admissions was stricken from the record and the Plaintiff must start over with all its discovery.
Judge John T. Laney, III
The court denied the motion of Southwest Georgia Bank ("SWGA") for relief from the automatic stay and SWGA’s motion to dismiss the case. In a prior Chapter 11 case, Debtor consented to a plan provision whereby he would not oppose relief from stay in any subsequent case that he might file within five years. The court held that such waivers of the automatic stay are enforceable, however, they not per se enforceable and must be evaluated on a case-by-case basis. In this case, the court found that others factors outweighed Debtor’s waiver. Therefore, the court denied SWGA’s motion for relief conditioned on Debtor’s strict compliance to payments to SWGA. As to SWGA’s motion to dismiss the case, the court found no evidence of bad faith and therefore, denied that motion.
As to the issue of which law should apply to the validity and priority of liens on the property central to the adversary proceeding, the court held that the law of the Czech Republic is the controlling law. Pursuant to the Convention on the International Recognition of Rights in Aircraft, 4 U.S.T. 1830, the law of the country where the aircraft is registered is the law which governs property rights in aircraft. No party disputes that the subject aircraft is registered in the Czech Republic.
In a trial to determine the validity, priority and extent of liens between competing parties, the court had previously ruled that the law of the Czech Republic was to govern the issues in this trial. Because the party which had the burden to prove foreign law under Rule 44.1 of the Federal Rules of Civil Procedure failed to meet its burden, the court held that party had no interest in the subject property.
Answering the question whether a debtor’s car that had been repossessed just prior to the debtor filing Chapter 13 bankruptcy was property of the bankruptcy estate, the court analyzed a new 11th Circuit Court of Appeals case, Bell-Tel Federal Credit Union v. Kalter (In re Kalter), 292 F.3d 1350 (11th Cir 2002), regarding Florida law. Upon reconsidering its opinion in American Honda Finance Corp. v. Littleton (In re Littleton), 220 B.R. 710 (Bankr. M.D. Ga. 1998), the court held that Georgia case law provides direction on this issue. Thus, In re Kalter is not controlling as applied to Georgia law and the repossessed car is property of the bankruptcy estate.