The Court grants partial summary judgment for the plaintiff's Motion for Full or Partial Judgment.
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Judge John T. Laney, III
The issue in the case was whether a security deed executed by a husband-debtor in favor of Wells Fargo was avoidable under 11 U.S.C. § 544(a)(3). The Trustee argued that the Security Deed was patently defective due to the lack of an attesting official witness, which is required by O.C.G.A. § 44-14-33 for recordation of a security deed. The Trustee alleged that the “Attestation Page” only contains the signatures of the borrower and an unofficial witness and the notary public’s signature and seal on the following page under the term “Acknowledgment” do not satisfy the requirements for proper attestation of a security deed. Wells Fargo argued that O.C.G.A. § 44-2-18 provides for the curing of defects in security deeds through an affidavit and the signature of the official witness on the Affidavit accompanying the Waiver recorded with the Security Deed cured any such defect. Following the Eleventh Circuit opinion of Gordon v. Terrace Mortgage Co. (In re Kim), 571 F.3d 1342 (11th Cir. 2009), the Court agreed with Wells Fargo and determined that the Trustee may not avoid the security deed.
The issue before the Court was whether the Trustee could avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3) because it lacked the seal of the notary public acting as the official witness to the attestation of the security deed. Under O.C.G.A. § 44-17-6(a)(1), a notary public is required to provide his seal in order to authenticate his notarial acts. Attesting to a security deed is a notarial act. The Court interpreted Georgia attestation law to find that the Bank’s security deed was not properly attested to by an official witness because the notary public failed to place his seal on the deed as required by Georgia law. Under O.C.G.A. § 44-14-33, the Bank’s security deed as recorded could not provide a subsequent bona fide purchaser with constructive notice of the deed. Therefore, the Court holds that the Trustee may avoid the Bank’s security deed under 11 U.S.C. § 544(a)(3).
The creditor filed a Motion to Dismiss with Prejudice. At the hearing, the parties stipulated to the dismissal of the case. The only issue addressed at the hearing was whether the case would be dismissed with prejudice. The Court found that the Debtors continually failed to comply with the Court’s orders on Bankruptcy Rule 2004 examinations. The Court found the Debtors’ conduct warranted a 36-month bar from filing a bankruptcy case for the husband-debtor and a 12-month bar for the wife-debtor.
The issue addressed in this opinion is whether the Plaintiff, Wells Fargo, has standing to bring an action to deny the dischargeability of a debt under 11 U.S.C. § 523(a)(2)(A) premised on actual fraud by the Debtor-Defendant in transactions with Wachovia, the predecessor bank in the merger between it and Wells Fargo. Wells Fargo has standing to bring such an action because Wells Fargo acquired the right to prosecute such a claim by virtue of its merger with Wachovia.
Motion to avoid judicial lien granted on grounds of exemption impairment. The issue before the Court was whether § 522(f) allows a debtor to avoid a postpetition judicial lien obtained prior to conversion from Chapter 13 to Chapter 7 for a deficiency on a postpetition, preconversion debt. Pursuant to § 348(d), a judicial lien must be treated for the purpose of § 522(f) as if it arose prepetition. Because the Creditor’s judicial lien impaired the Debtor’s claim of exemptions, the lien is avoided.In
Creditor’s motion for relief from the automatic stay was denied. Debtor’s right to redeem the vehicle under O.C.G.A. § 44-14-403(b)(1) was property of the bankruptcy estate, and it did not expire at the end of the sixty days provided by 11 U.S.C. § 108(b). Debtor also was in possession of the vehicle at the time of the petition. Debtor’s confirmed plan provided for Creditor’s secured claim. Creditor failed to object to Debtor’s Chapter 13 plan prior to confirmation. The doctrine of res judicata barred Creditor from objecting to the plan postconfirmation.
Creditor’s motion for relief from the automatic stay was denied. Debtor’s right to redeem the vehicle under O.C.G.A. § 44-14-403(b)(1) was property of the bankruptcy estate, and it did not expire at the end of the sixty days provided by 11 U.S.C. § 108(b). Debtor also was in possession of the vehicle at the time of the petition. Debtor’s confirmed plan provided for Creditor’s secured claim. Creditor failed to object to Debtor’s Chapter 13 plan prior to confirmation. The doctrine of res judicata barred Creditor from objecting to the plan postconfirmation.
No extreme circumstances (bad faith) exception present in § 1112 to Debtor's right to convert from Chapter 11 to Chapter 7, and, even if Debtor engaged in serious preconversion misconduct, such misconduct not sufficient to prevent conversion under Court's equitable powers where conversion not prejudicial to creditors or abuse of process.
The matter came before the Court on Defendants’ Motion for Judgment on the Pleadings. The motion sought dismissal of the Trustee’s complaint, whereby the Trustee brought various preference and fraudulent transfer claims. Defendants argued that dismissal was appropriate because the Trustee failed to adequately plead the factual allegations required to make out each of the claims listed in the complaint. According to Defendants, after stripping away the bare legal conclusions, the remaining allegations were insufficient to state a claim for relief that is plausible on its face. The Court granted the motion in part and denied it in part. The court granted the motion as to the Trustee’s 11 U.S.C. § 548 claims, finding that the transfer at issue occurred outside the statutory reach back period. Similarly, the Court granted the motion as to Trustee’s 11 U.S.C. § 544 and O.C.G.A. § 18-2-70 et seq., again finding the transfers at issue occurred outside the applicable reach back period. The Court denied the motion as the Trustee’s remaining claims.