The Movant sought relief from the automatic stay. The issue before the Court was whether the agreement between the Debtor and the Movant was a lease or a security interest. The Movant argued Tennessee law governed the agreement by the operation of a choice-of-law provision in the contract. Tennessee law explicitly provides that a rental-purchase agreement is not a security interest. The Court agreed, finding the choice-of-law provision was enforceable.
Opinions
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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 John T. Laney, III
The parties sought summary judgment on an action for declaratory judgment that concerned the extension of an open-end clause in a real estate financing agreement. The issue before the Court was whether a non-borrowing grantor’s security interest also secured the borrower’s later incurred debt, even without the non-borrowing grantor’s consent. The Court found the documents memorializing the security agreement did not require consent to extend the security interest. Further, the Court found such a provision did not contravene Georgia law. Accordingly, the Court granted summary judgment for the Plaintiff.
The Court denied the Debtor’s motion to convert his Chapter 7 case to a Chapter 11 pursuant to 11 U.S.C. § 706(b). The issues before the Court were whether a debtor’s right to convert to a Chapter 11 is absolute and, if not, under what circumstances a court should deny a debtor’s request for conversion. The Court held a debtor’s right to convert is not absolute. Rather, where the debtor’s conduct would constitute grounds for immediate reconversion or dismissal, a court may deny conversion. The Court determined the totality of the circumstances surrounding this case clearly indicated conversion would immediately create grounds to dismiss or reconvert the case. In making this determination, the court considered the nonexhaustive factors set forth in 11 U.S.C. § 1112(b)(4) and the debtor’s bad-faith conduct.
The Court sustained the Debtor’s Objection to Wilmington Trust, N.A.’s claim and disallowed the claim as untimely. The issues before the Court were whether a consent order that does not address the timeliness of a late-filed proof of claim can deem such an untimely filed claim as an allowed, general non-priority unsecured claim and furthermore, whether the court has the authority to enlarge the amount of time for filing the Creditor’s proof of claim. The Court determined that the consent order did not address the timeliness for filing a proof of claim, and the Court did not have the authority to enlarge the time to file a proof of claim or allow an untimely filed proof of claim because Rule 3002(c) did not apply to the circumstances.
Judge James P. Smith
The debtor sought to set aside the alleged wrongful foreclosure on her residence. The foreclosure sale occurred prepetition but the foreclosure deed was filed for record postpetition. Although the creditor sent via certified mail notice of the pending foreclosure, the U.S. Postal Service never delivered the notice to the debtor. The Court held that the creditor had complied with applicable state law, O.C.G.A. § 44-14-162.2, even though the notice was not actually received by the debtor. The Court also denied the debtor’s claims that the foreclosure sale was an avoidable preferential transfer, a fraudulent transfer or that filing the foreclosure deed postpetition was a violation of the automatic stay. 11 U.S.C. §§ 547, 548, 549, 362.
The Chapter 13 debtor filed a motion for turn over of her car and for damages for violation of the automatic stay. 11 U.S.C. §§ 362, 542(a). The car had been repossessed prepetition by a recovery company pursuant to its contract with the secured creditor. Debtor sought to hold the secured creditor liable for the recovery company’s postpetition demand that the debtor sign a release of liability before returning the car. The court held that the recovery company was an independent contractor and not an agent of the creditor and that the creditor was not liable for the acts of the recovery company.
The debtors signed a deed to secure debt which secured a debt that was due and payable no later than August 29, 2008. The debt was not satisfied and the debtors filed Chapter 13 bankruptcy in August 2017. The Bankruptcy Court held that, pursuant to Georgia Code O.C.G.A. § 44-14-80(a), title to the real property reverted to the debtors seven years after the maturity date of the debt. The court rejected the grantee’s assertion that the deed contained an affirmation statement that the parties intended to establish a perpetual or indefinite security interest.
The debtor pledged his home as security for a loan. The recorded copy of the security deed was missing the signature page for the grantor. Recorded contemporaneously with the security deed was a Waiver of Borrower’s Rights Rider which was signed by the debtor and properly attested by unofficial and official witnesses.
The trustee sought to avoid the lender’s interest in the debtor’s home arising from the recorded but defective security deed. 11 U.S.C. § 544(a)(3). The court held that the trustee could not avoid the lender’s interest because the security deed and waiver, when construed together, provided inquiry notice to a subsequent purchaser. Had that purchaser done further inquiry, by contacting the debtor or lender, the purchaser would have discovered the existence of the lender’s security interest.
The plaintiffs, through their “family trust”, contracted with a construction company owned solely by the debtor to build a custom home. The plaintiffs made a down payment and a number of requested draws. Although the house was not completed by the date expected, the plaintiffs gave additional draws on the debtor’s promise to complete the house by certain dates. The debtor had financial problems and was unable to complete the house. The plaintiffs learned that the debtor had failed to apply $164,000 of the draws to the cost of their house. The plaintiffs’ family trust sought to have that amount declared non-dischargeable under 11 U.S.C. § 523(a)(2)(A).
The court held that the debtor had not made a false representation by failing to voluntarily disclose his financial difficulties when the construction contract was signed. Furthermore, the debtor’s alleged promises about how money paid by the family trust would be used and that the house would be finished by certain dates if additional payments were made were not false representations. Finally, the Court refused to pierce the construction company’s corporate veil and hold the debtor personally liable for the corporate debt.
Chief Judge Austin E. Carter
Debtor objects to the priority claim filed by his ex-wife, arguing that the obligation underlying the claim is a property settlement obligation, which is not afforded priority status under the Bankruptcy Code, rather than a domestic support obligation. In support of his position, Debtor asserted, primarily, that the Settlement Agreement and Divorce Decree specifically state that the obligation “shall not be considered alimony.” The Court overrules the Debtors’ objection, ruling that the obligation was in the nature of support despite the language to the contrary in the Settlement Agreement.