Court denied summary judgment to chapter 13 trustee seeking to avoid creation of a lien as a preference. Trustee failed to provide any information as to the debtor’s assets and liabilities, so the Court was unable to determine whether the fifth element of a preference action–creditor is better off than it would be in a hypothetical liquidation–was satisfied. At a minimum, the Court needs sufficient facts to determine whether the case would pay a 100% dividend.
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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)
Pursuant to Bankruptcy Rules 3302(c)(1) and 3004, a debtor’s time to file a proof of claim on behalf of a government creditor begins running on the day after the first date set for the 341(a) meeting and extends to 210 days following entry of the order for relief.
Principals of Debtor guaranteed a debt owed by Debtor and secured the guaranty with certain of Debtor’s equipment. When Debtor filed a Chapter 11 petition, the guarantors filed a contingent claim. After the guarantors made a payment on the debt, the Court allowed them a secured claim for the amount of the payment.
Chief Judge John T. Laney, III
In Defendant’s motion to set aside the entry of default, the court found that "good cause" under Rule 55(c) existed. Although the pro se Defendant’s excuse for failing to file a timely answer was questionable, the court held that the strength of Defendant’s meritorious defense outweighed the weakness of his excuse. Therefore, the court granted Defendant’s motion to set aside the entry of default.
In two related chapter 11 cases in which a single estate was created, the court granted, in part, Debtors’ motion for determination of their tax liability to the Muscogee County Board of Tax Assessors. The motion sought a determination of the value of Debtors’ personal property for the 1996 through 2000 tax years. The court determined the value of Debtors’ personal property for the 1997 through 2000 tax years and ordered the Muscogee County Board of Tax Assessors to recalculate Debtors’ tax liability in accordance with the court determined values. However, Debtors’ tax liability for the 1996 tax year had been adjudicated by an administrative tribunal prior to the filing of Debtors’ bankruptcy cases. Therefore, pursuant to § 505(a)(2)(A), the court was without jurisdiction to determine Debtors’ tax liability for the 1996 tax year.
The court denied Plaintiffs’ motion for reconsideration of its April 3, 2001 order which denied Plaintiffs’ motion to open default. Because of the relief sought, the court construed Plaintiffs’ motion to open default as a motion to extend the time to file an amended complaint. Given Plaintiffs’ six month delay in moving for an extension without an explanation for the delay, the court found that the delay was not the result of excusable neglect.
The court abstained from ruling in this adversary proceeding and dismissed Debtor’s complaint without prejudice. Although the Georgia Department of Revenue’s motion to dismiss was based on its Eleventh Amendment immunity, the court made no conclusion as to the immunity issue. Rather, the court held that no bankruptcy purpose would be served by making a determination of Debtor’s tax liability to the Georgia Department of Revenue in a no-asset case where Debtor had received her discharge.
Robert F. Hershner, Jr. (Retired)
Repayment of the debtor's student loans was not an undue hardship. The debtor's salary had increased by $15,000 during the past six years, yet the debtor had made no payments on her student loans. The debtor did not show any unexpected or unusual circumstances except for her divorce.
The debtor claimed his IRA as exempt property. The Chapter 7 trustee contended that the debtor converted a nonexempt asset (a cashier's check) into an exempt asset (an IRA) on the eve of bankruptcy, with the intent to hinder, delay, or defraud creditors. The court held that the debtor's IRA was excluded from property of the bankruptcy estate and could not be claimed as exempt.
The debtor purchased, on an installment basis, real property in order to develop a subdivision. The debtor failed to record the deed to secure debt in favor of the creditor. Subsequent lenders foreclosed on part of the tract. The creditor obtained a default judgment in state court for the balance owed on the installment sale. The bankruptcy court held that the debtor had made a false representation that he would record the deed to secure debt in favor of the creditor. The bankruptcy court held that the creditor's obligations were nondischargeable under 11 U.S.C.A. section 523(a)(2)(A).