The debtors signed a Contract For Deed to purchase certain unimproved real property. The debtors were to make monthly payments for 20 years. The creditor was to convey legal title after the debtors satisfied their obligations. The debtors defaulted and filed for bankruptcy relief. The court held that the Contract For Deed had not terminated prepetition and that the unimproved real estate was not the debtors' principal residence as that term is used in 11 U.S.C.A. § 1322(b)(4).
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Robert F. Hershner, Jr. (Retired)
The creditor conducted a foreclosure sale just prior to the debtor filing for bankruptcy relief. The creditor contended that the foreclosure sale was final upon its acceptance of the highest bid. The debtor contended the foreclosure sale was not final because there was no tender of consideration and no execution of a deed of foreclosure. The court held that the foreclosure sale was not consummated and that the debtor's interest in the property was not terminated before the debtor filed for bankruptcy relief.
Certain creditors objected to the final compensation application filed by the Chapter 11 debtor's counsel. The creditors contended that the debtor should have initially pursued a liquidation rather than trying to reorganize as a going concern. The creditors also contended that counsel had a conflict of interest in representing both the Chapter 11 debtor and the debtor's qualified pension and profit sharing plan. The court overruled the objections noting that counsel's efforts were primarily responsible for a sale price for debtor's assets that was twice the opening bid. The court also noted that counsel provided necessary and beneficial services to the debtor's senior management in dealing with its pension plan.
The defendant sought to tender into evidence the sealed deposition of the sole shareholder and controlling person of a corporation that was a party in the adversary proceeding. The court admitted the deposition into evidence, noting that Federal Rule of Civil Procedure 32(a)(2) permits a party to introduce the deposition of an adversary as part of his substantive proof regardless of the adversary's availability to testify at trial.
Judge James D. Walker Jr. (Retired)
Claims falling within the scope of the hanging paragraph to § 1325(a) are not secured claims for purposes of treatment under § 1325(a)(5). However, because Congress did not intend to punish such claimholders, the claims must receive the greater of (1) the full amount of the claim without interest; or (2) the amount the creditor would receive if the claim were bifurcated and crammed down.
A vehicle purchased for the primary use of a nondebtor spouse did not fall within the scope of the hanging paragraph to § 1325(a) because the was not purchased for the "personal use of the debtor." When Congress has wanted to include family or household use within a provision it has done so expressly; it did not do so in the hanging paragraph.
Numerous irregularities and misstatements in Debtor’s schedule and Chapter 13 plan did not demonstrate a lack of good faith sufficient to justify dismissal of the case. The errors gained Debtor no advantage and were promptly corrected
When a joint chapter 7 case has been filed by non-spouses, the appropriate remedy is deconsolidation or severance in the absence of a showing of abuse or cause for dismissal.
A debtor’s bankruptcy attorney violates the discharge injunction by attempting to collect prepetition fees. In addition the attorney’s fee disclosure statement must fully and unambiguously disclose the fee agreement.
Judge John T. Laney, III
The case was remanded to this Court from the District Court for the Middle District of Georgia, The Honorable W. Louis Sands, Chief Judge, for the sole purpose of determining the following two issues: (1) Whether Ayres Aviation Holdings, Inc. (“Debtor”) properly raised the legal issue of whether it was a “buyer in ordinary course of business”; and (2) Whether Ayres Aviation Holdings, Inc. was in fact a “buyer in ordinary course of business” of General Electric engine 998.
The Court first held that Debtor properly raised the issue of whether Ayres Aviation Holdings, Inc. was a “buyer in ordinary course of business. The Court relied on the admission of General Electric that Debtor had properly raised the issue and upon the record of the hearing to reach its conclusion.
The Court next held that Debtor was not a “buyer in ordinary course of business,” as defined in O.C.G.A. § 11-1-201(9), of General Electric engine 998 so as to extinguish the ownership rights of General Electric in the engine. The Court looked to the last sentence of the O.C.G.A. § 11/1/201(9) definition and to the interpretation of that Section by the Eleventh Circuit Court of Appeals in Sterling National Bank & Trust Co. of New York v. Southwire Co., 713 F.2d 684 (11th Cir. 1983). These authorities were considered with the testimony of former principal of Debtor, Fred P. Ayres, that Debtor took the L610 aircraft and its two General Electric engines (including engine 998) in exchange for the forgiveness of a money debt arising from the transfer of avionics from Debtor to LET, a.s.