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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

This matter came before the Court on Debtor, FMB Bancshares, Inc.’s, Motion to Dismiss the Involuntary Chapter 7 Petition filed by Trapeza CDO XII, LTD. FMB sought to have the Involuntary Petition dismissed pursuant to 11 U.S.C. § 303 and 11 U.S.C. § 305. FMB argued that Tapeza was not a proper creditor under § 303 because FMB’s liability to Trapeza was “contingent,” and that Trapeza did not have standing under the contractual documents to file an involuntary bankruptcy petition. Additionally, FMB argued that the court should exercise discretionary abstention pursuant to § 305 because bankruptcy was not in the best interest of the debtor and creditors. The Court did not agree. The Court held that: (1) Trapeza had standing under the contractual documents to file the involuntary petition; (2) Trapeza was a proper creditor under § 303 because it is the holder of a claim that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount; and (3) Abstention under § 305 was not proper. Accordingly, the Court denied the Motion to Dismiss.

The Court granted the Trustee’s Motion for Summary Judgment to set aside certain fraudulent transfers under O.C.G.A. § 18-2-70, et seq., as made applicable to bankruptcy cases pursuant to 11 U.S.C. § 544. The Court held that the doctrine of judicial estoppel barred the Debtor and the Defendant from claiming the transfers were merely returning the property to the Defendant, and that the Defendant had always been the rightful owner of the property. The Court also found that the Trustee established all the elements of a fraudulent transfer by showing that the Debtor did not receive a reasonably equivalent value in exchange for the transfers and the Debtor was insolvent or became insolvent as a result of the transfers.

On Summary Judgement the Court was asked to decide a narrow issue regarding federal tax liens. Specifically, the issue before the Court was whether accounts receivable acquired by the debtor more than 45 days after the filing of a notice of tax lien on the debtor's property may be considered proceeds of contract rights acquired by the debtor prior to the expiration of that 45 day period, so as to give the security interest of a commercial creditor in the receivables priority over the tax lien. The Court held that payments received by the Debtor under its contract after the filing of the tax liens were identifiable proceeds of contract rights, rather than accounts receivable. Therefore, pursuant to 26 U.S.C. §§ 6323(a) and (c) the Bank's prior perfected security interest in the contract payments is senior to the IRS's tax lien.

Chief Judge James P. Smith

The debtor sought to recover as a preferential transfer certain funds from a judgment creditor which also held a default judgment against the debtor’s employer-garnishee.  The creditor argued that once it obtained the default judgment, that the garnishment action was closed and that the garnishee was paying its own default judgment from its own funds rather than paying on the debtor’s debt pursuant to the garnishment.  The employer, however, had continued to withhold funds from the debtor’s paychecks and send those exact amounts to the creditor which then applied the funds on the debtor’s debt as shown by its Account Detail History for the debtor.  The court held that the debtor could recover the funds from the creditor as preferential transfers.

The Chapter 7 debtor contended that the creditor-bank’s claim had been settled, satisfied and discharged pursuant to a compromise and release agreement entered into by the bank and an insurance company.  The court disagreed and held that the settlement agreement did not release the bank’s claim against the debtor, and that neither accord and satisfaction, judicial estoppel, promissory estoppel nor dismissal with prejudice barred the banks’ claim against the debtor.

The Chapter 13 debtors filed an adversary proceeding seeking damages against the IRS, alleging that the IRS had attempted to collect certain taxes in violation of their Chapter 13 discharge.  The court dismissed the complaint and held that pursuant to 26 U.S.C. § 7433, a plaintiff is required to exhaust its administrative remedies before it can bring a complaint for damages under section 7433.

Debtor may not exempt a health savings account under O.C.G.A. § 44-13-100(a)(2)(C) or (E). An HSA is not the type of illness benefit contemplated by the exemption statute because it does not serve as a replacement for income.

Debtor who omitted from his schedules information about significant financial assets relating to a business, a worker's compensation claim, and a divorce and who resisted fully answering questions about the assets at trial was denied a discharge under 11 USC § 727(a)(4)(A) for making a false oath in connection with his bankruptcy case.

Loan agreement between the debtor and oversecured creditor provided for 15% attorney fees. Such attorney fees are only enforceable under state law if perfected by a notice that gives the debtor 10 days to avoid the fees by paying the debt in full. The creditor did not send the 10-day notice prior to the petition date, yet requested the contractual amount of attorney fees pursuant to 11 USC § 506(b). The Court allowed attorney fees, but limited them to an amount determined to be reasonable.

For debts subject to a co-signer, when the debtor's plan fails to provide for payment of interest at the contract rate, the creditor is entitled to stay relief against the codebtor to collect any amounts due under the contract but not provided for in the plan.