Movant U.S. National Bank Association, not in its Individual capacity, but solely as trustee for RAMC Trust, Series 2016-CTT, moved for relief from the stay because Respondent’s proposed chapter 11 plan failed to provide adequate protection to the Movant. The proposed chapter 11 plan modified the mortgage on debtor’s principal residence, in violation of § 1123(b)(5). Therefore, the Court grants Movant’s motion for relief from the stay.
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
Movants, The Otis Overby Co. and Steven Mark Overby moved to reopen the chapter 7 bankruptcy case of Respondent Christine Marie Ray. Movants allege that technical difficulties with CM/ECF prevented their timely upload of an objection to dischargeability. The Court found that, if the case was reopened, Movant would still be barred from relief under FRBP Rule 4007(c). Therefore, the Court denied Movant’s motion to reopen case.
Creditor Nissan moved for relief from stay against Debtor and objected to Debtor’s confirmation plan. Nissan alleged that the transaction between Nissan and Debtor for the vehicle was a true lease and, additionally, that Debtor’s plan lacked sufficient adequate protection. Debtor, in response, argued that the lease was not a true lease and instead was a disguised security agreement. The Court found the lease to be a true lease and granted the motion for relief from stay; the Court also agreed that the offered adequate protection was insufficient and sustained Nissan’s objection to confirmation.
In this case, the Trustee brought a Motion for Sanctions against a Pro Se Debtor. The Trustee alleged that the Debtor filed a complaint to open an adversary proceeding in violation of F.R.B.P. 9011. After a hearing on the motion, the Court found that Debtor did violate Rule 9011 and therefore sanctions were appropriate. The Court determined that the appropriate sanction for this matter was to dismiss the adversary proceeding.
In this adversary proceeding, a Defendant moved to dismiss Plaintiff-Debtor’s claims under FRCP 12(b)(6). Plaintiff’s claims, in order, were 1) Wrongful Foreclosure, 2) Fraud, and 3) Violation of the Real Estate Settlement Procedures Act (RESPA). The Court found that Plaintiff was able to allege sufficient facts to potentially state a claim for Claim I but not for Claims II or III. As a result, the Court granted Defendant’s Motion with respect to Claims II and III but denied Defendant’s Motion with respect to Claim I.
Judge James P. Smith (Retired)
The plaintiff asserted that collateral estoppel precluded the debtors from denying that a probate court judgment was nondischargeable under 11. U.S.C. §523(a)(4) and (6). The plaintiff and wife-debtor are sisters. Debtors moved the daughters’ father and his extensive gun collection from Ohio to debtor’s home in Georgia. The plaintiff later moved the father back to Ohio where he soon died. The Ohio Probate Court appointed the plaintiff executrix of the father’s estate, prohibited the debtors from disposing of the guns and ordered them to return the guns to Ohio. Thereafter, the probate court held the debtors in contempt for failing to return and disposing of most of the guns and awarded the father’s estate damages of $125,940. The judgment was assigned to plaintiff, individually, as a distribution in accordance with the father’s will. Later, the debtors filed Chapter 7 bankruptcy.
The bankruptcy court held that the judgment was not a nondischargeable larceny under §523(a)(4) because there was no “felonious taking” of the guns which came into debtors’ possession lawfully when the father brought them to the debtors’ home. The plaintiff had not asserted a claim for embezzlement (fraudulent taking of property by person into whose hands it had lawfully come).
As to §523(a)(6), the probate court had found, in essence, that the debtors had converted the guns to their own use and that their conduct was “malicious.” Issue preclusion barred any argument to the contrary. The probate court judgment established facts from which a finder of fact could find that the debtors acted with intent in concealing the guns. Since the debtors offered no other evidence as to why they concealed the guns, the bankruptcy court held that their debt was nondischargeable under §523(a)(6).
The debtor’s business, an LLC, entered into two revenue based factioning agreements in which the LLC sold its future receivables. The LLC was to collect and deposit its receivables into a bank account. The Purchaser would be repaid by debiting by ACH a fixed amount each business day. The debtor personally guaranteed the contracts. The debtor’s business had financial problems and could no longer make the daily payments. The debtor placed a “stop payment” order on the ACH debts to the Purchaser. The debtor filed a Chapter 11 case.
The Purchaser argued its claim against the debtor was nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), and (B), (4) and (6). The court held that the debtor had not made false representations in the contracts or phone calls with the Purchaser. The court held the transactions were actual sale contracts and that the LLC’s receivables were the Purchaser’s property. The Purchaser’s embezzlement claim failed because it failed to show that the debtor appropriated the property for a use other than for which it was entrusted. Finally, the court held there was no willful and malicious injury to the Purchaser.
In these consolidated adversary proceedings, the debtors are doctors of podiatric medicine and guarantors of their business’ debt which was secured by all assets of the business. After the business had financial problems and closed, the debtors, without notice to the creditor, transferred the business’ assets to another podiatric group in exchange for employment offers to the debtors. After the debtors filed Chapter 7 cases, the creditor argued their obligations were nondischargeable under 11 U.S.C. § 523(a)(4) and (6).
The court granted the debtors’ motion to dismiss the § 523(a)(4) objections, holding that the debtors had not acted in a fiduciary capacity or embezzled the creditor’s collateral. The court denied the debtors’ motion as to the § 523(a)(6) objection, holding that the creditor’s complaint had stated a claim for willful and malicious injury by transfer of the collateral.In re
Chief Judge Austin E. Carter
Defendant, a guarantor of certain debt of the Debtor, brought Rule 12(b)(6) motion to dismiss trustee’s § 547 action to avoid indirect preferential transfers, where Defendant was alleged to have benefitted from transfers by the Debtor. The Court denied the motion to dismiss, and in doing so, declined to adopt a heightened pleading standard for complaints to avoid preferential transfers.In re
The Debtor sought to employ counsel for special purpose under 11 U.S.C. § 327(e) to which the United States Trustee objected, claiming the proposed representation was over-broad and amounted to conducting the case. The Court found that preparation of the Debtor’s schedules and statement of financial affairs as well as gathering required documents and attending the initial debtor interview amounted to conducting the case, and denied the application as to those acts. The Court approved the employment as to general human resources and labor matters (WARN Act and FLSA), non-bankruptcy related outstanding and threatened liability lawsuits, and advising the Debtor’s bankruptcy counsel regarding previous efforts to work-out, negotiate, and resolve forbearance and other agreements with its primary secured lender.