Chapter 13 debtor whose plan was completed and who was discharged, but whose case had not yet been closed, sought to amend his schedules to add a medical malpractice claim in order to avoid a judicial estoppel defense on the claim in state court. The Court denied debtor’s motion to amend because debtor had a right to amend without leave of Court under Federal Rule of Bankruptcy Procedure 1009(a).
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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 James D. Walker Jr. (Retired)
Debtor sought to reopen her Chapter 13 case, which had been dismissed post-confirmation, to add a tort claim to her schedules thereby, avoiding the defense of judicial estoppel on the claim in state court. Although the Court concluded that a dismissed case may be opened under Section 350(b), it denied Debtor’s motion to reopen because the tort claim was not property of the estate, and therefore Debtor was not required to list it on her bankruptcy schedules.
Debt of automobile franchise was dischargeable under Section 523(a)(6) in the sole shareholder’s individual bankruptcy because Debtor did not intend to inflict injury on creditor. Furthermore the debt, which was caused by selling cars out of trust, could not be attributed to Debtor because he was not an active participant in creating the out-of-trust position.
The Court held that the automatic stay applied to an arrest warrant that was issued against Debtor as a contempt sanction for his failure to respond to post-judgment discovery requests in a civil case. In addition, the Court held that the Plaintiff in Debtor’s civil case was responsible for taking affirmative steps to ensure the arrest warrant was not carried out.
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.
Chief Judge John T. Laney, III
In cross motions for partial summary, the court granted in part and denied in part the motions of several commercial bulk purchasers and denied the motion of the Creditors’ Committee. The court held that the transactions between the Debtor and several commercial bulk purchasers did not involve the creation of an interest in real estate. Therefore, the Georgia Uniform Commercial Code, not the Georgia real estate recording statutes, governed those transactions between SGE and the bulk purchasers of promissory notes. As to whether the commercial bulk purchasers were holders in due course of the promissory which they purchased from the Debtor, the court found that issues of material fact remained on the elements of good faith and notice. The court entered a separate Memorandum Opinion on the Debtor’s motion for summary judgment.
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.
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.
Robert F. Hershner, Jr. (Retired)
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.
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.