The Court held a hearing on the Movants’ Motion to Reopen the case in order to contest the prior re-opening and move to strike the amended schedules. The Farmers had completed payments on their plan when they were involved in an automobile accident. They did not immediately amend their schedules to reflect the potential cause of action. After the case was closed, the Farmers reopened the case and added the lawsuit to their schedules. The Movants, the defendants in the personal injury lawsuit, asserted judicially estoppel. The Court found that judicial estoppel did not apply because the Farmers never asserted inconsistent positions and because the Farmers’ plan was complete at the time of the injury. In addition, the cause of action was not property of the estate under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000) and 11 U.S.C. §1329(a), because cause of action arose after the confirmation and completion of the plan.
Opinions
The Middle District of Georgia offers opinions in PDF format, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.
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 John T. Laney, III
Creditor, Wells Fargo Bank N.A., objected to the confirmation hearing in the Jordan case because the Debtor was modifying the value of property in the plan. Wells Fargo argued that the property at issue was the Debtor’s principal residence and thus could not be modified under 11 U.S.C. § 1322(b)(2), and that the Debtor’s plan was not filed in good faith. The court held that the date for deciding whether a creditor qualifies for section 1322(b)(2) protection is at the time of filing, not when the obligation arose. Because the Debtor had moved at the time of filing, the property was not his principal residence. However, the court denied confirmation because the plan was not filed in good faith. The property which the Debtor was attempting to cram down was not necessary for his maintenance or support. Rather, the Debtor’s son, who was neither a debtor nor a dependant, was living on the property and made the Trustee payments.
The United States Trustee brought this motion because the Debtors are residents of Alabama. The Debtors opposed the motion under three arguments: (1) this court should reconsider its decision in In re Swinney, 300 B.R. 388 (Bankr. M.D. Ga. 2003); aff’d, Swinney v. Turner, 309 B.R. 638 (M.D. Ga. 2004); dismissed as a nonfinal order, Swinney v. U.S. Trustee, No. 04-12639-FF (11th Cir. Aug. 11, 2004); (2) the United States Trustee was not a party in interest with standing to file a motion to dismiss or transfer due to improper venue; (3) the United States trustee program is unconstitutional because it does not apply in all fifty states and is therefore not a uniform law respecting bankruptcy. The constitutional issue was reserved. The court adhered to its decision in Swinney. The court then determined that the United States Trustee did have standing to bring this motion under 11 U.S.C. § 307 and is able to bring such a motion under Fed. R. Bankr. P. 1014(a)(2).
The former Chapter 7 Trustee ("Trustee") asked the court to reconsider the August 25, 2004 decision overruling the Trustee’s objection to confirmation of the Debtors’ Chapter 13 plan. The Trustee alleged that the Barbers were insolvent and that the transfer of property from Mr. Barber to his son was fraudulent. After arguments and evidence were presented, the court determined that the Barbers were solvent and overruled the objection. The Trustee then brought a motion to reconsider because at the hearing he failed to argue that after the transfer of the property the mortgage remained in Mr. Barber’s name for 64 days, although the son had assumed the payments as required under the security deed. The Trustee argued in his reconsideration motion that this made the Barbers insolvent. The court denied the motion to reconsider because under Rule 59(e) a motion to reconsider should only be used in extraordinary circumstances. Because there was no previously unavailable evidence, change in the law, or a clear error of law, the court declined to reconsider.
The Court held a hearing on Washington Mutual Home Loans’ motion for Relief from the Stay. The security deed at issue was notarized, but not witnessed by an unofficial witness as required under O.C.G.A. § 44-14-61. The court found the security deed was unperfected because it did not meet the statutory requirements. However, the Trustee did not bring an action to avoid the nonperfected lien, so the issue of whether an unrecorded security deed has priority over a subsequent judgment lien was not before the court.
Creditor, Farmers Furniture, objected to the confirmation hearing in the Cersey and Ledford cases because the Debtors’ plans did not include all of the collateral securing the notes executed between the Debtors and Farmers Furniture. The Debtors claimed that the purchase money security interest ("PMSI") in the collateral was lost under the Transformation Rule when subsequent contracts with cross-security clauses were executed. However, the case law regarding this issue holds that if the contract contain a method for allocation, the PMSI will be enforceable. Because the contracts at issue contained an adequate allocation method, the PMSIs are enforceable.
The Court held a telephonic hearing to determine whether to close David and Vicki Wrens’("Debtors") case nunc pro tunc. The Wrens reopened the case to address an adversary proceeding, but failed to pay Trustee fees or file monthly operating reports in accordance with 28 U.S.C. § 1930 (a)(6). The Court determined that the Debtors did not meet the burden of extraordinary circumstances required for the granting of retroactive relief.
The Court held a final pre-trial conference in an adversary proceeding to determine the dischargeability of a debt arising from a state court default judgment in favor of William Bass, Carolyn Burgess, and Haven Hills Estates ("Plaintiffs") against Wayne Barber ("Defendant"). To determine whether collateral estoppel applies, the Court must apply the law of the state in which the judgment was entered. Under Georgia law three elements must be present for collateral estoppel to apply; 1) the issue must be identical to the issue resolved in state court; 2) the issued was "actually and necessarily" litigated in the state court case; 3) the resolution of the issue was essential to the state court case. The Court determined that the Defendant’s liability, which was determined by default, was not "actually and necessarily" litigated in the state court, therefore collateral estoppel was not applicable.
Georgia Power Co. ("Defendant") filed a Motion for Summary Judgment arguing that the post-petition, pre-conversion debt owed by Stephanie M. Davis ("Plaintiff") was collectable in addition to the deposit, as set out in 11 U.S.C. § 366, as an administrative expense under 11 U.S.C. § 503(b). In ruling against Defendant’s motion, the Court held that the effect of 11 U.S.C. § 348 was that the post-petition, pre-conversion debt was to be treated as if it had arisen just prior to the filing of the petition, unless it was determined to be an administrative expense under 11 U.S.C. § 503(b), which requires notice and a hearing. The Court held that Defendant was not automatically entitled to such priority. Therefore, Defendant was not entitled to judgment as a matter of law.
After the United States Department of Treasury and the Internal Revenue Service ("U.S.A./I.R.S.") filed a Motion for Relief from the Automatic Stay to Exercise the Right of Setoff, Noah J. and Connie C. Peterson ("Debtors") filed a Motion for Contempt against U.S.A./I.R.S. Both motions were heard at the same time. The Court did not agree with Debtors that U.S.A./I.R.S. had waived its right to setoff because it did not assert the right to setoff in its proof of claim. Therefore, the Court held in favor of U.S.A./I.R.S., granted its Motion for Relief from the Automatic Stay to Exercise the Right of Setoff, and denied Debtors’ Motion for Contempt.