On a Motion to Dismiss, the Court held that statutes in derogation of common law must be strictly complied with, which follows an earlier ruling by the Court on a similar issue in a different case. The Court denied Speedee Cash of Georgia, Inc.’s ("Defendant") Motion to Dismiss, as to Count One of Clarence Chester Brown, Sr.’s ("Debtor") Complaint, because the title pawn contract gave only a ten-day grace period, instead of a thirty-day grace period as required by the Georgia Pawnshop Act. The Court did grant Defendant’s Motion to Dismiss, as to Count Two of Debtor’s Complaint, because the contract in dispute was for more than $3,000, therefore it did not fall under the Georgia Industrial Loan Act.
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Judge John T. Laney, III
Columbus Bank & Trust Co. ("Movant") filed a Motion for Relief from the Automatic Stay to pursue an action against Sammy A. Caves ("Respondent") in state court. Under the test articulated in In re South Oakes Furniture, Inc., 167 B.R. 307 (Bankr. M.D. Ga. 1994)(J. Walker), the Court found that Movant was not entitled to relief from the automatic stay because Respondent established that Movant did not have a probability of prevailing on the merits.
Robert F. Hershner, Jr. (Retired)
The defendants moved to transfer the adversary proceeding to the Southern District of New York for consolidation and coordination with a pending multidistrict class action litigation. The Court held that it did not have authority to transfer the adversary proceeding for coordinated or consolidated pretrial hearings under the multidisitrct litigation statute. 28 U.S.C.A. § 1407.
The Court also held that the defendants had not carried their burden of showing that transfer would be in the interest of justice or for the convenience of the parties. 28 U.S.C.A. § 1412. The Court held that mere allegations that witnesses and records were located in another district were insufficient to satisfy the defendants' burden.
The debtor contended that the creditor had failed to file an objection to dischargeability of debt within the time period provided by Bankruptcy Rule 4007(c). The Court noted that the final day to file a timely complaint was a Sunday and that the next day was a legal holiday. Thus, the creditor had until Tuesday to file a timely complaint. The Court noted that the creditor had filed its complaint on Tuesday and that the complaint was timely filed.
The Chapter 13 debtor moved to modify her Chapter 13 plan after confirmation. The debtor wanted to modify her plan to make payments to a secured creditor that had not filed a proof of claim. The debtor had completed all payments under her original 13 plan and all allowed claims had been paid in full. The Court held that there was no pending Chapter 13 plan to modify and noted that 11 U.S.C.A. § 1329(a) provides that a modification be made before the completion of payments under the plan.
The district court determined that the debtor was liable for civil penalties under the Clean Water Act. The civil penalties arose from the discharge of oil into a navigable water and the failure to have a spill prevention plan to prevent and control oil pollution. The bankruptcy court determined that the debtor's obligation for civil penalties which may be imposed for violations of the Clean Water Act were nondischargeable under 11 U.S.C.A. § 523(a)(7).
The chapter 13 debtor served as executrix of her father's estate. The debtor breached her fiduciary duty and was removed as executrix by the probate court. The debtor's brothers obtained a state court judgment and were awarded actual damages, punitive damages, and attorney's fees.
The debtor filed for Chapter 13 relief and proposed a Chapter 13 plan that would pay a six percent dividend to her brothers.
The brothers contended that the debtor's proposed plan was not proposed in good faith and did not meet the disposable income test. The Court reviewed the debtor's income and expenses and applied the Kitchens factors in deciding whether the plan was proposed in good faith. The Court held that the debtor's proposed plan was confirmable.
Creditors filed a motion requesting that the court appoint a chapter 11 trustee. The creditors argued that the chapter 11 debtor's managing member would not scrutinize certain monetary transfers made to himself. The court denied the creditors' request, noting that the debtor planned to have an independent attorney or accountant scrutinize the transfers.
Judge James D. Walker Jr. (Retired)
Debtors who were currently unable to make ends meet, were living a frugal existence, lacked marketable skills or the ability to acquire marketable skills, and had made some efforts to negotiate with their student loan creditors would suffer undue hardship if required to repay their student loans. Consequently, they were entitled to a discharge of those loans pursuant to § 523(a)(8).
Debtor’s early withdrawals from his IRA, which were used to pay bills, were not the type of "prohibited transactions" that would have caused the entire account to lose its status as an IRA under the Internal Revenue Code. Thus, any money in the IRA at the time Debtor filed his bankruptcy petition could be exempted pursuant to O.C.G.A. § 44-13-100(a)(2.1)(D).