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Category Archives: Middle District Cases

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Bankruptcy Court Finds Former UGA Football Coach Jim Donnan Did Not Knowingly Participate In Ponzi Scheme

Posted in Middle District Cases, News and Comments
In a significant victory for former Georgia football coach Jim Donnan, a Bankruptcy Judge has ruled that the evidence at trial did not support a finding that Donnan knowingly participated in a fraudulent Ponzi Scheme.  The case is Fennell v. Donnan, Adv. No. 11-3088, 2013 Bankr. LEXIS 3110 (Bankr. M.D. Ga. August 1, 2013) (Judge … Continue Reading

Lender’s Security Interest In Cash Collateral Is Separate & Distinct From Security Interest In Land, Entitling Lender To Separate Adequate Protection For Cash Collateral

Posted in Middle District Cases, Small Business Bankruptcy
The issue before the District Court in Putnall v. SunTrust Bank, No. 5:12-cv-481, 2013 U.S. Dist. LEXIS 44187 (M.D. Ga. March 28, 2013) was whether the lender’s security interest in rents (the “cash collateral”) was separate and apart from, and in addition to, its security interest in the rental property owned by the Debtor.  The … Continue Reading

Student Loan Discharge: Opinion Of Judge Walker of Middle District Of Georgia Illustrative Of “Certainty Of Hopelessness” Required For Discharge

Posted in Middle District Cases
The opinion of Judge Walker in the case of  In re Williams (Williams v. American Education Service, et al,), 2013 Bankr. LEXIS 2050, Adv. Proc. No. 12-5059 (Bankr. M.D. Ga. May 13, 2013) is a good example of the standard that must be met to discharge student loans. Debtor’s must not only demonstrate “undue hardship” … Continue Reading

Middle District Bankruptcy Court Approves Lien Stripping In Chapter 7 Case, Although Judge Disagreed With Precedent

Posted in Middle District Cases
In May 2012 the Eleventh Circuit entered its opinion in  In re McNeal and seemingly approved the stripping of wholly unsecured second liens in Chapter 7 cases.  Since this was an unpublished opinion of a panel (and non-binding), and contrary to authority in other Circuits, lawyers have been watching to see what Bankruptcy Courts would … Continue Reading

Tort Claim That Arose Before Chapter 7 Case Was Filed, But Not Discovered Until Long After Discharge, Was Property Of Bankruptcy Estate (M.D. Ga.)

Posted in Middle District Cases
In an interesting opinion, Chief Judge Laney of the Middle District of Georgia held that a tort claim that "arose" well before a Chapter 7 filing but was not discovered by the debtor until well after discharge was property of the Chapter 7 case. The case is interesting in that it was before the Court … Continue Reading

M.D. Ga. – Collateral Estoppel For Probate Court Judgment; Defalcation While Acting In Fiduciary Capacity

Posted in Middle District Cases
 RLI Ins. Co. v. Waters (In re Waters), Adv. No. 09-5014, 2009 Bankr. LEXIS 3865 (Bankr. M.D. Ga. Dec. 7, 2009) (J. Hershner). Debtor was the guardian of his minor son, who was injured in a car accident and received $15,522.74 in settlement proceeds.  Plaintiff was the issuer of a surety bond in the amount of … Continue Reading

Middle District Opinion: Relief From Stay To Litigate Employment Claims In District Court

Posted in Middle District Cases
In re Coachworks Holdings, Inc., Ch. 11 Case No. 09-51096, 2009 Bankr. LEXIS 3369 (Bankr. M.D. Ga. Oct. 16, 2009).  Movant filed a motion for relief to pursue employment claims against the debtor and non-debtor parties.  Debtor opposed, contending the claims should be resolved in Bankruptcy Court based primarily on the expense of litigating in … Continue Reading

MD Ga – Stay Lifted For Lender To Repossess Vehicle Even Where Non-Debtor Assets That Served As Collateral Had Value In Excess Of Loan

Posted in Middle District Cases
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Recent Opinions In The Northern And Middle Districts Of Georgia

Posted in Middle District Cases, Northern District Cases
In re Dabney, 2009 Bankr. LEXIS 1112, 08-77955-PWB (April 7, 2009).  The Chapter 13 Trustee objected to the debtor’s attorney’s flat fee of $3500 where the debtor was only paying unsecured, non-priority claims in his confirmed Ch. 13 plan.  Judge Bonapfel engaged in a lengthy 6 page analysis of fees in Chapter 13 cases (which all Ch. … Continue Reading

Introsul, Inc., Designer And Installer Of Bathrooms And Fixtures For Hotel Industry, Files Chapter 11 Petition In Middle DistrictOf Georgia

Posted in Middle District Cases
Introsul, Inc., which according to its website offers "innovative solutions in bathroom design and installation to make life better for innkeepers and their guests all over North America," filed a Chapter 11 petition in the Middle District of Georgia on November 11, 2008.  In re Introsul, Inc., Ch. 11 Case No. 08-53328 (Bankr. M.D. Ga. Nov. … Continue Reading

Middle District Changes To ECF Definitions

Posted in Middle District Cases
From the Middle District of Georgia Clerk of the Bankruptcy Court - CMECF DICTIONARY CHANGES EFFECTIVE NOVEMBER 24, 2008 Motion to Release Unclaimed Funds: This is a new event in the motions category. Trustee’s Response: This was formerly called “Trustee’s Approval/Objection Letter.” The prompt has been modified to read “Please enter APPROVAL, OBJECTION, NO POSITION … Continue Reading

MD Ga – Oversecured Creditor Entitled To Post-Petition Attorneys Fees Notwithstanding Failure To Comply With O.C.G.A. § 13-1-11

Posted in Middle District Cases
JP Morgan Chase Bank v. ELL 11, LLC, No. 7:07-CV-158-HL, 2008 WL 4682263 (M.D. Ga. October 21, 2008). The issue before the Court is – This case presents the question of whether after the filing of a debtor’s Chapter 11 petition, an oversecured creditor is entitled to attorney fees actually incurred post-petition when the creditor failed to comply … Continue Reading

Bankr. M.D. Ga. – Debtor’s Equity Of Redemption Extinguished When High Bid Made At Foreclosure Sale, Even If Deed Under Power Not Recorded Until After Bankruptcy Petition Filed

Posted in Middle District Cases
In re Williams — B.R. —-, 2008 WL 4168151 ( Bkrtcy.M.D.Ga., September 04, 2008) (J. Hershner). In a motion to set aside a foreclosure sale, the Court held that a debtor’s equity of redemption was extinguished when the highest bid was made at a foreclosure sale, even if the deed under power was not recorded until … Continue Reading

Bankruptcy Court Order Dismissing Adversary Was Final Appealable Order Notwithstanding Absence Of Entry Of Judgment By Clerk Of Court

Posted in Middle District Cases
Klauman v. GMAC Mortg., LLC, Slip Copy, 2008 WL 4098947 (M.D.Ga. August 28, 2008) (J. Land). Debtors filed a class action against Defendant alleging that Defendants added undisclosed fees during their Bankruptcy case.  The Bankruptcy Court entered an Order dismissing the adversary for lack of subject matter jurisdiction on April 10, 2008: Since [Debtors] fail … Continue Reading

District Court for Middle District Holds Surrender Of “910 Vehicle” Constitutes Full Satisfaction Of Claim

Posted in Middle District Cases
Jason Braswell of Morgan & Morgan in Athens, Georgia passed along is case of  In re Carter , Case No. 3:07-CV-50, Ch. 13 Case No. 06-30846 (M.D. Ga.) (click here for .pdf), wherein Judge Land affirmed the Bankruptcy Court’s ruling that surrender of "910 vehicles" constitutes full satisfaction of the claim.  This issue has been discussed … Continue Reading

Member/Manager of Georgia Limited Liability Company Not Necessarily A Fiduciary For § 523(a)(4) Purposes.

Posted in Middle District Cases
Tarpon Point, LLC v. Wheelus, Adv. No. 07-3022, 2008 WL 372470 (Bankr. M.D. Ga. Feb 11, 2008) (Walker).  Plaintiffs alleged that the debt owed by Debtors was nondischargeable pursuant to § 523(a)(4), defalcation while acting as a fiduciary.  The issue was whether the Debtors had a fiduciary duty sufficient to invoke this section merely because … Continue Reading

Member/Manager of Georgia Limited Liability Company Not Necessarily A Fiduciary For § 523(a)(4) Purposes.

Posted in Middle District Cases
Tarpon Point, LLC v. Wheelus, Adv. No. 07-3022, 2008 WL 372470 (Bankr. M.D. Ga. Feb 11, 2008) (Walker).  Plaintiffs alleged that the debt owed by Debtors was nondischargeable pursuant to § 523(a)(4), defalcation while acting as a fiduciary.  The issue was whether the Debtors had a fiduciary duty sufficient to invoke this section merely because … Continue Reading

NDGa – Misc. Consumer Cases: Means Test, Automatic Stay, Disqualification of Judge, Preferential Transfers

Posted in Middle District Cases
  In re McDaniel, No. 06-62786, 2007 Bankr. LEXIS 3390 (August 24, 007)(CRM).  The United States Trustee filed a motion to dismiss under §707(b)(2) and (b)(3) based on  presumption of abuse and totality of circumstances.  The Court held that 1) the debtor could deduct secured debt payments on the means test even where he intended … Continue Reading

MD Ga – Incarceration No Excuse For Failing To Complete Financial Management Course.

Posted in Middle District Cases
In re Cox, 2007 WL 4355254, No. 07-10787-JDW (Bankr. M.D.Ga. Nov 29, 2007).  Prison is no excuse for not completing the financial management course, as required in §727(a)(11) and §109(h)(4). The Court agrees with [ In re Rendler, 368 B.R. 1 (Bankr.D.Minn.2007)] that an incarcerated debtor is prevented from obtaining a financial management course by his personal circumstances; not … Continue Reading

Misc. Georgia Cases – Post-Petition PI Claim Not Ch. 13 Estate Property; Claim For Sales Taxes Disallowed In Individual Case

Posted in Middle District Cases, Southern District Cases
In re Foreman, No. 01-21400, 2007 WL 4170629 (Bankr. S.D. Ga. Nov. 26, 2007).  From the Westlaw blurb – Wrongful death action which arose postconfirmation, when Chapter 13 debtor’s husband was killed, and which no party asserted would have to be successfully prosecuted to enable debtor to fulfill her plan, was not included in “property … Continue Reading

MD Ga – “910 Vehicle” Lender Entitled To Till Interest Rate In Chapter 13 Plan, Even If Higher Than Contract Rate

Posted in Middle District Cases
In re Davis, Ch. 13 Case No. 07-50761, 2007 Lexis 3175 (Bankr. M.D. Ga. September 12, 2007). On February 26, 2005, Debtor purchased a new 2005 Chevrolet Trail Blazer … Debtor financed the purchase by entering into a Retail Installment Sale Contract …GMAC holds a purchase money security interest in Debtor’s truck. Debtor purchased the … Continue Reading

M.D. Ga – Financing of Extended Warranty and Gap Insurance Does Not Prohibit Status As Purchase Money Security Interest (PMSI); Ch. 13 Debtor Could Not Bifurcate Claim For “910 Vehicle”

Posted in Middle District Cases
In re Spratling, No. 06-40614, 2007 WL 3102154 (Bankr. M.D. Ga. October 19, 2007). Following up on the case of Graupner v. Nuvell Credit Corp., Case No. 4:07-CV-37, 2007 U.S. Dist. LEXIS 46144 (M.D. Ga. June 26, 2007), where the Court held that a security interest still qualified as a purchase money security interest even though it included … Continue Reading