Georgia Bankruptcy Blog

Georgia Bankruptcy Blog

Category Archives: Georgia State Cases

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Georgia Supreme Court: Foreclosure Confirmation Requirements Can be Waived By Borrowers And Guarantors

Did the Georgia Supreme Court effectively repeal the foreclosure confirmation statute by affirming the rights of lenders to include waivers in their standard loan documents for both borrowers and guarantors?  That appears to be the case.  In PNC Bank, NA v. Smith, No. S15Q1445, 2016 WL 690406 (GA 2016) (download .pdf), the U.S. District Court… Continue Reading

Single Premium Annuity Exempt In Bankruptcy, Says Georgia Supreme Court.

The Georgia Supreme Court recently answered certified questions from the Eleventh Circuit Court of Appeals regarding whether a single premium annuity was exempt in a Chapter 7 case, where the annuity was purchased a year before filing with $220,000 in inherited funds.  A debtor’s transfer of $220,000 a year before filing Chapter 7 is certainly… Continue Reading

Reese v. Provident Funding: Georgia Court of Appeals Ruling Potentially Invalidates Thousands Of Foreclosures

In a case of first impression, the Georgia Court of Appeals has held that a foreclosure notice must identify both the secured lender and the "individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor."  Reese v. Provident Funding Associates, LLP, 2012 Ga. App. LEXIS… Continue Reading

Can Creditors File A Derivative Action Against Limited Liability Company?

In CML V, LLC v. Bax, No. 735, 2010 (Del. Supr. Sept. 2, 2011) (click here for .pdf of opinion), the Delaware Supreme Court addressed the questions of whether a creditor can file a derivative action against a limited liability company.   Plaintiff CML asserted the following derivative claims against the present and former members of… Continue Reading

Lawsuits Being Flying Against Officers, Directors, Insiders And Professionals Of Failed Banks

The State of Georgia is among the national leaders in banks closed by state and federal agencies.  So far in 2011, six Georgia banks have been closed, with the latest two being Habersham Bank and Citizens Bank of Effingham.  Since late 2008, when the banking crisis hit, a total of fifty seven Georgia banks have… Continue Reading

Georgia Court Of Appeals Upholds Expansive Scope Of Personal Jurisdiction

By: Scott B. Riddle, Esq. Vibratech, Inc. v. Frost, et al., 2008 WL 1704091 (Ga. App. March 27, 2008). Although this Georgia Court of Appeals opinion involves a bankruptcy issue, it is more important for the discussion and holding on personal jurisdiction.  This case indicates that a defendant can be hauled into Georgia Courts based on… Continue Reading

Ga Ct of Appeals – Corporate Directors Can File Bankruptcy Petition After Receiver Appointed And TRO Issued, But It Better Be Properly Authorized And Valid

By: Scott B. Riddle, Esq.  Huffman v. Armenia, Case Nos. A06A2105; A06A2106; A07A0616, 2007 Ga. App. LEXIS 325 (Ga. App. March 20, 2007).   In a prior post, I discussed a case that held that a debtor entity may file a Bankruptcy petition even when a Receiver has been appointed by the state court.  While I do not… Continue Reading

Aiding And Abetting Breach Of Fiduciary Duty — Did The Georgia Court Of Appeals Create An Unworkable Definition?

By: Scott B. Riddle, Esq.   In a prior post, I noted that the Georgia Court of Appeals had recognized a cause of action for aiding and abetting breach of fiduciary duty.  You can review that post for lengthy excerpts from the opinion in Insight Technology, Inc. v. Freightcheck, Inc., No. A06-0710, Ga. App. LEXIS 738, 2006… Continue Reading

GA Court of Appeals – Discharge Injunction Pre-empts State Law; State Court Has Concurrent Jurisdiction To Determine Scope Of Injunction

In Roy v. Garden Ridge, LP, Case No. A06-A-2065 (December 5, 2006), plaintiffs filed a personal injury suit against the defendant.  The defendant subsequently filed a Chapter 11 Bankruptcy petition, staying the tort case. Defendant’s plan of reorganization was confirmed.  Defendant then filed a motion for summary judgment in state court on the grounds that the… Continue Reading

Ga App. – Party Who Settled Claim And Released Debtor Cannot Later Make Recoupment or Set-Off Claim For Same Debt

Hill v. Green Tree Servicing, Inc., A06–0530, 2006 Ga. App. LEXIS 771 (Ga. App June 26, 2006) – Prior to this action,  Borrower, the owner of a residential mobile home, had asserted a claim against Conseco Financial Services in Conseco’s Chapter 11 bankruptcy case.  The Borrower ultimately settled the proceeding, agreeing on a general unsecured… Continue Reading

Georgia Court of Appeals Recognizes a Claim For Aiding and Abetting Breach of Fiduciary Duty

In a significant corporate governance case, the Georgia Court of Appeals officially recognized a claim of aiding and abetting breach of fiduciary duty.  Federal courts have recently dismissed such claims because, they believed, Georgia state courts would not recognize such a cause of action.  See Official Committee of Unsecured Creditors of PSA, Inc. v. Edwards,… Continue Reading

Ga Court of Appeals – Debtor Collaterally Estopped From Re-litigating State Fraudulent Conveyance Claim After Denial of Discharge Under §727(a)(2)

11 U.S.C. §727(a)(2); Fraudulent Conveyance; Collateral Estoppel Playnation Play Systems, Inc. v. Hammer, 277 Ga. App. 675 (February 20, 2006). Prior to filing for bankruptcy, the debtor transferred property after a state court judgment was entered against him. Debtor then filed a Chapter 7 petition and the creditor challenged his discharge pursuant to §727(a)(2) (transfer… Continue Reading

Ga Court of Appeals – Debtor Collaterally Estopped From Re-litigating State Fraudulent Conveyance Claim After Denial of Discharge Under §727(a)(2)

11 U.S.C. §727(a)(2); Fraudulent Conveyance; Collateral Estoppel Playnation Play Systems, Inc. v. Hammer, 277 Ga. App. 675 (February 20, 2006). Prior to filing for bankruptcy, the debtor transferred property after a state court judgment was entered against him. Debtor then filed a Chapter 7 petition and the creditor challenged his discharge pursuant to §727(a)(2) (transfer… Continue Reading

Ga Court of Appeals – Corporate Chapter 7 Debtor Becomes “Defunct” and “Ceases to Exist” Outside of Bankruptcy ??

11 U.S.C. 727; Standing Thornton v. Mankovitch, 277 Ga. App. 221 (January 12, 2006). The debtor corporation was pursuing a claim against the US Postal Service when an involuntary bankruptcy petition was filed against it. A trustee was appointed, and the attorney who previously represented the debtor and its principal in the USPS litigation was… Continue Reading

Ga Court of Appeals – Debtor Who Failed to List Property in Prior Bankruptcy Judicially Estopped From Recovering Insurance Proceeds

Judicial Estoppel Battle v. Liberty Mutual Fire Ins. Co., 276 Ga. App. 434 (November 3, 2005) The plaintiff filed suit against the insurance company seeking payment for property damage sustained in 2002. The insurance company moved for summary judgment based upon the plaintiff’s failure to list the property as an asset in his 1995 bankruptcy… Continue Reading