Annulment of the automatic stay, entailing retroactive validation of actions taken in violation of the stay, requires the party seeking annulment to show that (1) it innocently violated the stay, (2) its innocent violation of the stay did not interfere with the debtor's "breathing spell," and (3) its innocent violation of the stay did not injure other creditors.
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 James D. Walker Jr. (Retired)
The secured status of a creditor should be determined for the purpose of Section 1325(a)(5)(B) based on collateral's confirmation date replacement value, but in a Chapter 13 case, secured status should be determined based on a value no less than the petition date liquidation value if the creditor's claim is secured by inherently depreciable collateral.
If a creditor perfected its lien on a mobile home within the 90 day period prior to the debtor's petition and more than 20 days after delivery of the mobile home, and if the Chapter 13 trustee does not actually bring an action to litigate avoidance of the perfection of the lien prior to confirmation of the plan, the res judicata effect of Section 1327(a) will protect the creditor's allowed secured claim only if the trustee had opportunity to litigate the avoidance because she actually knew about the untimeliness of the creditor's perfection of its lien, and if the trustee discovers the untimely perfection subsequent to confirmation, she may bring an action to avoid it.
Robert F. Hershner, Jr. (Retired)
Debtor obtained a rapid refund on his income tax return by fraudulently representing that he owed no child support arrearage. The Court held that the debtor's obligation to repay the rapid refund was nondischargeable.
The Chapter 13 debtor defaulted prepetition on a retail land sales contract. The creditor moved for relief from the automatic stay so that he could remove the debtor from the realty. The Court denied the motion, noting that the debtor's interest had not been foreclosed under state law.
Debtor could not claim as exempt the cash value of life insurance policies under O.C.G.A. § 44-13-100(a)(8).
Judge John T. Laney, III
Creditor (Piggly Wiggly) is held in contempt for willfully violating the automatic stay based on its having issued a warrant postpetition for Debtor's arrest based on a worthless check written prepetition. Debtor carried her burden and satisfied both prongs of the test established in Barnette v. Evans, 673 F.2d 1250 (11th Cir. 1982), so that having the criminal warrant issued was stayed by the bankruptcy filing.