Debtor who bought a car but failed to pay the creditor for the purchase merely violated a promise to pay, which did not rise to the level of fraud under § 523(a)(2), fiduciary defalcation under § 523(a)(4), or willful and malicious injury under § 523(a)(6).
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Judge James D. Walker Jr. (Retired)
Debtor's right to receive income from a trust was property of the estate when the trustee had no right to accumulate or withhold the income and the income was not intended for the debtor's support.
Plaintiffs could not establish the dischargeability of a debt though application of collateral estoppel to a state court judgment for libel per se. The state court judgment did not establish that Debtor personally committed the libelous act or that the act was done intentionally rather than negligently.
Possible 910 creditor that failed to object to cramdown treatment could not seek modification of the debtor's plan after confirmation.
Defendant's motion for summary judgment on preference and fraudulent conveyance claims was denied because material facts were in dispute regarding the scope of a prior settlement agreement, the insider status of Defendant, and the value of services provided by Defendant.
When only a portion of a judgment debt is nondischargeable, any prepetition partial payments on the debt that are not allocated by the parties shall be applied first to accrued interest, then to attorney fees, then to damages.
Chief Judge John T. Laney, III
Receiver filed for bankruptcy for five business under state receivership. Question as to whether filing was in bad faith when Superior Court entered order nunc pro tunc after the filing. Held that nunc pro tunc order is void, and that bankruptcy estate retains exclusive jurisdiction. Also, debtors' principals were not in position to act as fiduciaries due to the fact that they were indicted and currently under trial for various Georgia criminal charges.
Judge James P. Smith
Some of the prepetition sale proceeds from real estate jointly owned by the debtors and the defendants were placed in an escrow account. After the debtors filed for Chapter 7 relief, the parties disagreed as to the purpose of the escrow. The Court held that there was no meeting of the minds as to the purpose of the escrow, no valid and binding escrow was formed and that the debtors' interest in the escrowed funds were property of the estate.
The chapter 7 trustee objected to the debtor's claim of exemption of an annuity pursuant to Georgia Insurance Code § 33-28-7. The trustee contended that the debtor's exemptions were limited to those allowed under Georgia's bankruptcy specific exemption statute OCGA § 44-13-100. The bankruptcy court agreed and held that the debtor could not claim her annuity as exempt in bankruptcy, pursuant the Georgia Insurance Code. The bankruptcy court also held that the annuity was not a spendthrift trust and thus, was not excluded from property of the estate pursuant to 11 USC § 541 (c)(2) because the annuity was not a trust.
The debtor pledged his truck to a pawnbroker. The debtor did not cure his default within the applicable time, and the truck was automatically forfeited to the pawnbroker. The debtor filed a Chapter 13 case and proposed to pay the pawnbroker as a secured claim. The pawnbroker filed a proof of claim and received preconfirmation adequate protection payments. When the debtor defaulted on his plan payments, his case was dismissed and the pawnbroker repossessed the truck. The debtor filed a second Chapter 13 case and contented that the pawnbroker had waived its ownership of the truck by filing a proof of claim in the first case and accepting adequate protection payments. The court held that under 11 USC § 349, dismissal of the first case returned the parties to the positions as they existed at the time of the filing and that the pawnbroker was the owner of the truck. The court denied the debtor's motion for turnover of the truck.