ORDER DENYING DEFENDANTS' RENEWED MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ROBERT E. BRIZENDINE, Bankruptcy Judge. Before the Court is Defendant-Debtors' motion as renewed to dismiss Plaintiffs' complaint. Following a joint telephone status conference, the parties agreed that this adversary proceeding could be submitted to the Court for decision based on the pleadings of record, including the question of the preclusive effect of a prior state court judgment...
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND ORDER AND NOTICE OF STATUS CONFERENCE ROBERT E. BRIZENDINE, Bankruptcy Judge. Before the Court is the motion of Plaintiffs named above, filed on June 15, 2011, for summary judgment on their three-count complaint as filed herein against Defendant-Debtor. In the complaint, Plaintiffs seek a determination that a certain indebtedness based on an award as set forth in an order and judgment obtained by Plaintiffs against Debtor, evidently...
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND COMPLAINT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT MARY GRACE DIEHL, Bankruptcy Judge. This case involves an attempt by a creditor to deny debtor a discharge based upon 11 U.S.C. 727(a)(2)(transfer of property within one year of filing) or 727(a)(4) (false oath). The undisputed material facts defeat both claims because the transfer at issue occurred outside the one year period and the only disclosure error was unintentional and was...
ORDER DENYING AVAYA, INC.'S MOTION FOR DETERMINATION THAT AUTOMATIC STAY DOES NOT APPLY MARY GRACE DIEHL, Bankruptcy Judge. Debtor Charles Matthews ("Debtor") was a majority shareholder in a corporation ("vTRax") that filed a pre-petition patent infringement suit against Avaya, Inc. ("Avaya") and other defendants. The patent infringement suit continued after Debtor filed a joint Chapter 7 case. The patent infringement suit was dismissed post-petition by the trial court when vTrax's counsel...
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT MARY GRACE DIEHL, Bankruptcy Judge. Student loans are given special protection from discharge in bankruptcy. 11 U.S.C. 523(a)(8). This case involves a student who incurred debt to attend a helicopter flight training school. The student was unable to complete her training because the school closed. She sued the school and the lenders in state court and settled the matter, receiving concessions as to the amount and repayment...
ORDER GRANTING TRUSTEE'S MOTION FOR AUTHORIZATION TO SETTLE AND COMPROMISE CLAIMS AGAINST STATE BANK OF TEXAS MARY GRACE DIEHL, Bankruptcy Judge. On April 22, 2011, an evidentiary hearing was held on Trustee's Motion for Authorization to Settle and Compromise Claims Against State Bank of Texas ("Motion") filed by Paul H. Anderson, Chapter 7 Trustee ("Trustee"). (Docket No. 223). Trustee seeks to settle the remaining claims in the adversary proceeding action against State Bank of Texas ("SBT")...
ORDER MODIFYING THE AUTOMATIC STAY FOR THE LIMITED PURPOSE OF CONCLUDING PENDING LITIGATION IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA TO DETERMINE THE AMOUNT OF PRE-PETITION RENT OWING MARY GRACE DIEHL, Bankruptcy Judge. Prior to the Debtor's Chapter 11 filing, the Debtor and its landlord were engaged in state court litigation. The landlord sought to evict Debtor and to determine damages under the lease. Debtor raised a setoff defense based on...
ORDER JOYCE BIHARY, Bankruptcy Judge. The pro se Chapter 7 debtor in this case, Adedoyin Faloye, filed an adversary proceeding against Provident Funding Associates, L.P. ("Provident") and Mortgage Electronic Registration Systems, Inc. ("MERS") asserting state law and non-bankruptcy claims to prevent Provident from foreclosing on property located at 1474 Knights Trail, Stone Mountain, Georgia 30083 (the "Property"), and Provident filed a motion for relief from the automatic stay to allow it...
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT MARY GRACE DIEHL, Bankruptcy Judge. Plaintiff seeks a non-dischargeability determination against this Chapter 7 Debtor for the $37 million dollar jury verdict awarded to Plaintiff in a pre-petition state court suit. Plaintiff filed the state court action against Debtor and ten other corporate defendants, asserting that her father died as a result of receiving inadequate care while residing at one of the nursing homes, which was a named...
ORDER DENYING DEFENDANT FLEETONE FACTORING LLC'S MOTION FOR RECONSIDERATION MARY GRACE DIEHL, Bankruptcy Judge. In this case, FleetOne Factoring, LLC asks the Court to reconsider its Order Denying FleetOne's Motion for Summary Judgment. FleetOne argues that the Court overlooked deposition testimony in the record that creates a dispute as to a material fact. The fact FleetOne refers to is immaterial and does not change the Court's legal conclusions, and therefore the Motion to Reconsider is...
ORDER JAMES R. SACCA, Bankruptcy Judge. Before the Court is the Movant's Motion for Relief from Stay [Doc. No. 11] (the "Motion") to proceed with the foreclosure of the equity of redemption with respect to Debtor's residence located at 4690 Kent Road, NW, College Park, Fulton County, GA, 30331 (the "Property"), title to which Movant acquired at a tax sale on February 2, 2010. The matter came on for hearing on April 21, 2011. The parties stipulated the facts and certain exhibits and the...
MEMORANDUM OPINION ON CHAPTER 20 LIEN STRIPPING C. RAY MULLINS, Bankruptcy Judge. Introduction The issue before the Court is whether a "chapter 20 debtor"—a debtor who is ineligible for a chapter 13 discharge pursuant to section 1328(f) of the Bankruptcy Code because of a recent chapter 7 discharge— may strip off 1 the lien of a wholly underwater second mortgage ("lien stripping"). For the reasons set forth herein, the Court finds that if the plan is filed in good faith, a chapter 20...
ORDER C. RAY MULLINS, Bankruptcy Judge. This MATTER is before the Court on the Motion to Dismiss (the "Motion") filed by State Bank & Trust Company (the "Bank"). On November 17, 2010, the Plaintiff filed the Complaint. On December 17, 2010, the Bank filed an answer and a counterclaim against the Plaintiff, Allan Boyd Simpson, and David H. Cofrin. On February 17, 2011, Simpson and Cofrin filed an answer to the counterclaim. On May 26, 2011, the Bank filed the Motion, and on June 20, 2011, the...
ORDER W. HOMER DRAKE, Bankruptcy Judge. Before the Court is the Motion to Allow Late Filed Claim, filed by Community and Southern Bank (hereinafter "Movant"). Rather than allowance of a late filed claim, the relief actually sought by Movant is a finding by the Court that its claim is entitled to a certain priority of treatment, notwithstanding the fact that the claim was filed late. The Motion is opposed by the United States Trustee (hereinafter "U.S. Trustee"). Following a hearing on the...
ORDER MARGARET H. MURPHY, Bankruptcy Judge. This matter is before the court on Defendants' motion to dismiss for failure to state a claim upon which relief can be granted. For the reasons stated below, Defendants' motion to dismiss is denied in part and granted in part. STATEMENT OF FACTS On September 15, 2010, Debtor Anne Pauline Ward ("Plaintiff") filed a Complaint (Doc. No. 1) (the "Complaint") against Johnson & Freedman, LLC ("J & F") and AMS Servicing, LLC ("AMS") (...
ORDER MARGARET H. MURPHY, Bankruptcy Judge. Plaintiff's complaint relates to the attempted prepetition foreclosure by Defendants on Debtor's residence located at 330 Jade Cove Drive, Roswell, Georgia (the "Property"), which she owns jointly with her husband. Specifically, in Count 1, Plaintiff alleges Defendants failed to comply with the notice requirements contained in paragraph 19 of the deed to secure debt on the Property (the "Deed"); and in Count 2, Plaintiff alleges Defendants'...
ORDER GRANTING SUMMARY JUDGMENT MARGARET H. MURPHY, Bankruptcy Judge. In this adversary proceeding, the United States Trustee ("Trustee") seeks a determination that the debts in Debtor's current bankruptcy case should be determined nondischargeable under 523(a)(10) because they are the same debts listed by Debtor in a prior case in which Debtor waived his discharge. As the facts are essentially undisputed, Trustee filed a motion for summary judgment, which Debtor opposes. On April 25, 2001,...
ORDER MARGARET H. MURPHY, Bankruptcy Judge. This matter is before the court on Defendants' motion to dismiss for failure to state a claim upon which relief can be granted. For the reasons stated below, Defendants' motion to dismiss is denied. STATEMENT OF FACTS Michael William Marsh ("Defendant"), filed for bankruptcy protection under Chapter 7 of the United States Bankruptcy Code February 10, 2010 ("Petition Date"). On April 21, 2010, John R. Griff ("Plaintiff") filed a Complaint...
ORDER DENYING MOTION FOR RECONSIDERATION MARGARET H. MURPHY, Bankruptcy Judge. Movants, among others, filed a motion to extend the time for filing a complaint to determine dischargeability under 11 U.S.C. 523(a) and Bankruptcy Rule 4007; and to object to the discharge of Debtor under 11 U.S.C. 727(a) and Bankruptcy Rule 4004 (Doc. No. 295) (the "Extension Motion"). Debtor filed a response opposing the requested extension of time (Doc. No. 303). Hearing was held October 5, 2010, as a...
ORDER MARGARET H. MURPHY, Bankruptcy Judge. Plaintiffs (Debtors in the main case) filed this adversary proceeding against Defendant Internal Revenue Service ("IRS"), seeking a determination that all taxes, penalties and interest for tax years prior to 2005 are dischargeable under 523(a)(1) and (8). IRS filed a Motion for Summary Judgment (the "Motion") based on facts stipulated by the parties. Plaintiffs oppose the Motion. The parties stipulate that Plaintiffs did not file federal income...
