Chapter 13 debtor proposed to surrender her vehicle in full satisfaction of her obligation to secured creditor. Creditor contended that it was entitled to file an unsecured claim for any deficiency that remains after it disposes of the vehicle. The court held that the creditor was not entitled to file an unsecured claim for a deficiency.
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.
Robert F. Hershner, Jr. (Retired)
The Chapter 13 debtor filed a motion to extend the automatic stay to prevent the mortgage creditor from dispossessing her from her residence. The court held that the debtor's interest was terminated by a pre-petition foreclosure and that the residence was not property of the bankruptcy estate. The court denied the debtor's motion to the extent it sought to extend the automatic stay to the mortgage creditor.
The United States Trustee contended that the debtor was a "health care business" and asked the court to order the appointment of a "patient care ombudsman" under 11 U.S.C.A. §333. The court held that under the specific facts presented in evidence, the appointment of an ombudsman was not necessary for the protection of patients. The court did not decide the issue of whether the debtor was a "health care business."
Judge James D. Walker Jr. (Retired)
Objection to the inclusion of exculpation and indemnification clauses in the plan was overruled because the clauses are not prohibited by the Bankruptcy Code, do not offend public policy, and are not unreasonable.
The defendants in default were not allowed to file a late answer because they offered no excuse for the default.
Debtor offered to guarantee credit extended to his company. The creditor declined to extend credit, but offered to provide products on COD terms. Consequently, the creditor rejected the offer of a guarantee and had no claim against debtor for the debts of his company.
The debtor, who had filed a prior bankruptcy case five years earlier as a Chapter 13, converted to Chapter 7, and received a discharge, was eligible for a discharge in her current Chapter 13 case. The lookback period for determining whether a debtor is eligible for a discharge begins on the date the previous case was filed, not the date it was converted.
The debtor's case was dismissed because she failed to obtain pre-petition credit counseling and she met none of the three exceptions to the credit counseling requirement.
Judge John T. Laney, III
Chapter 7 Trustee filed an objection to the claimed exemptions by Debtors in a singlewide mobile home (“Singlewide”) and in real property on which a block house was constructed. Debtors claimed the exemption under O.C.G.A. § 44-13-100(a)(1), Georgia’s opt-out homestead exemption statute. Debtors argued that their equity interest in the Singlewide could be exempted under O.C.G.A. § 44-13-100(a)(1) since their 22 year-old daughter and minor grandson occupied the Singlewide at the time Debtors’ bankruptcy petition was filed. Debtors claimed that their daughter and grandson were “dependent” for purposes of the homestead exemption statute. The evidence at the hearing revealed that Debtors had claimed their daughter and grandson as “dependents” on their 2005 income tax returns and that the daughter and grandson did, in fact, occupy the Singlewide at the time Debtors’ petition was filed. With regard to the Singlewide, the Court found that the Trustee did not present evidence sufficient to prove that Debtors’ daughter and grandson were not dependents of Debtors for purposes of O.C.G.A. § 44-13-100(a)(1). Therefore, the claim of exemption in the Singlewide was proper since the Singlewide was the residence of Debtors or their dependents. As to the block house property, however, the Court found that there was no legal basis for exempting the equity interest in a rental property owned by a debtor just because that property was located contiguous to the homestead or residence of the debtors. The Court, therefore, sustained the objection of the Trustee as to the claim of exemption in the block house property.
Creditor Nuvell Credit Corp. (“Nuvell”) filed an objection to the confirmation of Debtor’s Chapter 13 Plan. In his plan, Debtor proposed to bifurcate and cramdown Nuvell’s undersecured claim using § 506 of the Code as was common practice prior to the enactment of certain provisions of BAPCPA. The “hanging paragraph” of § 1325(a), which was added by BAPCPA and became effective on October 17, 2005, prohibits bifurcation and cramdown where (1) the creditor has a purchase money security interest; (2) the debt was incurred within 910 days preceding the filing of the bankruptcy case; (3) the collateral for the debt is a motor vehicle; and (4) the motor vehicle was acquired for the personal use of the debtor. The Court SUSTAINED Nuvell’s objection holding that in the context of the retail installment sale of a motor vehicle in Georgia, “price,” for purposes of Georgia’s purchase money security interest statute, can include negative equity in a trade-in vehicle.