Debtor sought relief for creditor’s failure to disclose that it would seek payment of attorney fees incurred between the date of filing and the date of confirmation. The Court dismissed the complaint for failure to state a claim because the creditor had not yet demanded payment of more than the amount actually disclosed on the proof of claim.
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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)
Creditor sought to dismiss Debtor’s Uniform Deceptive Trade Practices Act claim for failure to state a claim on the ground that Debtor failed to allege an injury to a consumer. Court denied dismissal, concluding that Georgia’s UDTPA does not require an injury to a consumer.
Debtor’s sixth bankruptcy filing in 18-month period was dismissed for being filed in bad faith. Each previous case was dismissed for various reasons, including failure to pay filing fee, failure to file schedules, failure to file a plan, and failure to appear at the § 341(a) meeting of creditors. The Court barred debtor from filing for bankruptcy for 36 months.
The Court rejected Georgia’s assertion of sovereign immunity in a dischargeability proceeding on the basis that states surrendered their sovereign immunity with respect to bankruptcy when they ratified the Constitution.
A woman who purchased a car from debtor sought to have debtor’s case dismissed for bad faith. The woman claimed debtor forged her name on a contract relating to the vehicle. Because the preponderance of the evidence favored the debtor, the case was not dismissed.
Debtor sought injunction of state criminal proceeding on grounds it was a subterfuge to collect debt. Court granted summary judgment to defendants because plaintiff failed to establish, pursuant to Younger doctrine, that the criminal case presented a threat of great an immediate injury or that an injunction was necessary to preserve to a federally protected right.
Robert F. Hershner, Jr. (Retired)
The debtor owed a substantial federal income tax obligation. The IRS refused to receive and consider his offer-in-compromise during the pendency of his chapter 11 case. The Court held that the IRS's refusal was not prohibited by the anti-discrimination provisions of 11 U.S.C.A. § 525(a). The Court, however, held that it could, under 11 U.S.C.A. § 105(a), order the IRS to receive and consider an offer-in-compromise. The Court stated that the IRS's policy not to participate in the offer-in-compromise procedure while a taxpayer is in bankruptcy frustrates the basic principles of the Bankruptcy Code and I.R.C. § 7122.
The debtor owned a video tape rental store. The creditor was a distributor that provided tapes to the debtor. The creditor retained ownership of the tapes. The debtor had financial problems and stopped sending the creditor its portion of the proceeds from the tape rentals. The creditor demanded the return of its tapes. The debtor sold the tapes to a third party and closed his store. The Court held that the debtor had converted the creditor's tapes. The Court held that the debtor's obligation was a nondischargeable willful and malicious injury under 11 U.S.C.A. § 523 (a)(6).
The Chapter 11 debtor proposed a plan of liquidation. The debtor proposed to pay his creditors by selling his primary asset, a 6,708 acre tract of land. A secured creditor argued that the debtor proposed an unreasonable length of time to market the land. The Court held that the creditor 's claim was fully secured and thus adequately protected. The Court held that six to twelve months was needed to market the land and close the sale.
Judge John T. Laney, III
Ruling on the United States Trustee’s Motion to Dismiss Case or to Transfer Venue, the Court held under Connecticut National Bank v. Germain, 503 U.S. 249 (1992), the Court has no discretion to retain a case which was filed in the wrong venue. Under 28 U.S.C. § 1406, in the interests of justice, the Court ordered the case transferred to the United States Bankruptcy Court for the Middle District of Alabama.