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Judge John T. Laney, III

In two related chapter 11 cases in which a single estate was created, the court granted, in part, Debtors’ motion for determination of their tax liability to the Muscogee County Board of Tax Assessors. The motion sought a determination of the value of Debtors’ personal property for the 1996 through 2000 tax years. The court determined the value of Debtors’ personal property for the 1997 through 2000 tax years and ordered the Muscogee County Board of Tax Assessors to recalculate Debtors’ tax liability in accordance with the court determined values. However, Debtors’ tax liability for the 1996 tax year had been adjudicated by an administrative tribunal prior to the filing of Debtors’ bankruptcy cases. Therefore, pursuant to § 505(a)(2)(A), the court was without jurisdiction to determine Debtors’ tax liability for the 1996 tax year.

In Defendant’s motion to set aside the entry of default, the court found that "good cause" under Rule 55(c) existed. Although the pro se Defendant’s excuse for failing to file a timely answer was questionable, the court held that the strength of Defendant’s meritorious defense outweighed the weakness of his excuse. Therefore, the court granted Defendant’s motion to set aside the entry of default.

The court granted the State of Florida’s motion to dismiss based on Eleventh Amendment immunity. The court rejected plaintiffs’ argument that the State of Florida constructively waived its sovereign immunity by participating in the Federal Income Tax Refund Offset program. The court acknowledged the case of College Savings Bank in which the Supreme Court overruled Parden and held that these Parden-type constructive waivers of sovereign immunity are unconstitutional.

The court granted the Debtor’s motion for summary judgment against the 544 individual investor defendants. Referencing its Memorandum Opinion entered on November 19, 2001, the court held that the Georgia Uniform Commercial Code, not the Georgia real estate recording statutes, applied to the transactions between the Debtor and the individual investor defendants. Therefore, because the evidence demonstrated that none of the individual investor defendants had possession of the original loan documents in which they claimed an interest, the court held that the individual investor defendants had an unperfected interest in the loans.

Pursuant to Bankruptcy Rules 3302(c)(1) and 3004, a debtor’s time to file a proof of claim on behalf of a government creditor begins running on the day after the first date set for the 341(a) meeting and extends to 210 days following entry of the order for relief.

Repayment of the debtor's student loans was not an undue hardship. The debtor's salary had increased by $15,000 during the past six years, yet the debtor had made no payments on her student loans. The debtor did not show any unexpected or unusual circumstances except for her divorce.

Court denied summary judgment to chapter 13 trustee seeking to avoid creation of a lien as a preference. Trustee failed to provide any information as to the debtor’s assets and liabilities, so the Court was unable to determine whether the fifth element of a preference action–creditor is better off than it would be in a hypothetical liquidation–was satisfied. At a minimum, the Court needs sufficient facts to determine whether the case would pay a 100% dividend.

The automatic stay does not require a creditor to release a prepetition garnishment. The creditor need only make a good faith effort to stop the garnishment, taking careful and deliberate steps to do so, such as staying the garnishment.


The plaintiff contends that certain debts from a divorce decree were nondischargeable alimony, maintenance, or child support obligations. The Court determined that the obligations were not in the nature of support and that the debtor never had the financial ability to meet her obligations.

The debtor contended that the plaintiff had attempted to amend his complaint through the pretrial order. The Court disagreed and concluded that Plaintiff's averments in the complaint satisfied the requirement that the debtor had fair notice of the nature and basis of the claim and a general indication of the type of litigation involved.