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 United States Trustee brought this motion because the Debtors are residents of Alabama. The Debtors opposed the motion under three arguments: (1) this court should reconsider its decision in In re Swinney, 300 B.R. 388 (Bankr. M.D. Ga. 2003); aff’d, Swinney v. Turner, 309 B.R. 638 (M.D. Ga. 2004); dismissed as a nonfinal order, Swinney v. U.S. Trustee, No. 04-12639-FF (11th Cir. Aug. 11, 2004); (2) the United States Trustee was not a party in interest with standing to file a motion to dismiss or transfer due to improper venue; (3) the United States trustee program is unconstitutional because it does not apply in all fifty states and is therefore not a uniform law respecting bankruptcy. The constitutional issue was reserved. The court adhered to its decision in Swinney. The court then determined that the United States Trustee did have standing to bring this motion under 11 U.S.C. § 307 and is able to bring such a motion under Fed. R. Bankr. P. 1014(a)(2).

The former Chapter 7 Trustee ("Trustee") asked the court to reconsider the August 25, 2004 decision overruling the Trustee’s objection to confirmation of the Debtors’ Chapter 13 plan. The Trustee alleged that the Barbers were insolvent and that the transfer of property from Mr. Barber to his son was fraudulent. After arguments and evidence were presented, the court determined that the Barbers were solvent and overruled the objection. The Trustee then brought a motion to reconsider because at the hearing he failed to argue that after the transfer of the property the mortgage remained in Mr. Barber’s name for 64 days, although the son had assumed the payments as required under the security deed. The Trustee argued in his reconsideration motion that this made the Barbers insolvent. The court denied the motion to reconsider because under Rule 59(e) a motion to reconsider should only be used in extraordinary circumstances. Because there was no previously unavailable evidence, change in the law, or a clear error of law, the court declined to reconsider.

The Court held a hearing on Washington Mutual Home Loans’ motion for Relief from the Stay. The security deed at issue was notarized, but not witnessed by an unofficial witness as required under O.C.G.A. § 44-14-61. The court found the security deed was unperfected because it did not meet the statutory requirements. However, the Trustee did not bring an action to avoid the nonperfected lien, so the issue of whether an unrecorded security deed has priority over a subsequent judgment lien was not before the court.

The corporate debtor employed an insurance broker to procure its insurance coverage. The debtor made monthly payments to the broker which in turn paid the insurance company. The broker sent payments to the insurer regardless of whether the debtor had sent payments to the broker.

The debtor defaulted on its payments to the broker. The broker offered the debtor a revised payment schedule conditioned upon the debtor's agreement that any premium refunds would be paid directly to the broker. The debtor accepted the offer. The insurance company determined that it owed a premium refund of $89,417. The Court held that the debtor had assigned its rights to the premium refund and that the broker was entitled to the $89,417.

The Chapter 13 trustee has not violated 28 U.S.C. § 586 by basing her percentage fee on payments received from the debtor rather than on payments disbursed to creditors. The statute is silent on the question, and the long standing policy promulgated by the Executive Office of the United States Trustee is highly persuasive.

The creditor asked the Court to reconsider the disallowance of its claim. The Court declined to allow the claim. The Court noted that the creditor's actions had caused the disallowance of its claim. The debtor had complied with the provisions of her Chapter 13 plan and would soon complete her plan. The debtor would be forced to stay in bankruptcy for a longer time if the creditor's claim was allowed.

The Chapter 13 trustee does not violate § 586 by basing her commission on a percentage of the money paid into the plan rather than on a percentage of money she disburses.

Applying the plain language of O.C.G.A. § 44-13-100(a)(1), the court allowed a married debtor filing individually to take a $20,000 homestead exemption when his residence was titled solely in his name, even though debtor and his spouse had been separated for 20 years and she maintained a separate residence.

The creditor loaned the debtor funds to purchase a residence. The debtor moved from the residence. The debtor offered to pay through her Chapter 13 plan the value of the residence and to treat the remainder of the creditor's claim as unsecured. The creditor contended that modification of its claim was prohibited by 11 U.S.C.A. § 1322(b)(2) because its claim was secured by the debtor's principal residence.

The Court held that the critical date for deciding whether a creditor qualifies for § 1322(b)(2) protection is the date the petition is filed, not the date the loan was made. The Court held that the creditor's claim was not protected because the residence was not the debtor's principal residence when the bankruptcy petition was filed

The so-called "no-look" fee set forth in Local Rule 2002-1 does not set a fee, but acknowledges that $1,500 typically will be a reasonable fee in a Chapter 13 case. The debtor’s attorney is obligated to request a lesser fee when appropriate.

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