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Category Archives: Northern District Cases

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Section 362(c)(3) Expiration of Automatic Stay For Repeat Filings: What Does It Cover?

Posted in Northern District Cases
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), as the name implies, included several amendments to the Bankruptcy Code that were intended to curb alleged “abuses” of the Code and Bankruptcy system.   One of the amendments was limiting or eliminating the protections of the automatic stay of §362(a) for repeat filings… Continue Reading

Judge Bonapfel: Above-Median Chapter 13 Debtor Can Deduct Title Pawn Or Non-Purchase Money Debt As Vehicle Ownership Costs In Calculating Disposable Income

Posted in Northern District Cases
In In re Feagan, 549 B.R. 811, Ch. 13 Case No. 15-40823 (Bankr. N.D. Ga. April 8, 2016) (click here for .pdf of opinion), the issue before Judge Bonapfel was “whether an ‘above-median’ Chapter 13 debtor with car payments on account of a nonpurchase-money debt may deduct the Ownership Costs allowance for purposes of calculating… Continue Reading

Agreement To Pay Mortgage On Prior Marital Home Is Not Nondischargeable Domestic Support Obligation

Posted in Northern District Cases
In In re Lawson, Ch. 13 Case No. 13-73476-WLH (click here for .pdf of opinion) the issue was whether a settlement agreement between the Debtor and his former spouse, whereby the Debtor retained (via quit claim deed) the marital home and agreed to make the loan payments, was a nondischargeable domestic support obligation pursuant to… Continue Reading

N.D. Ga – Trustee Cannot Use Reverse Piercing of Veil To Recover Alleged Preferential Transfer

Posted in Northern District Cases
In Howell v. U.S. Foods, Inc., Ch. 7 Case No. 11-13160, Adv. Proc. No. 13-1054, 2014 Bankr. LEXIS 681 (Bankr. N.D. Ga. Feb. 5, 2014) (click here for .pdf of Order), the individual debtor owned and managed a restaurant incorporated as Bilbo’s Bar-B-Que, Inc.  However, the Trustee alleged that the Debtor operated the business as… Continue Reading

District Court in N.D. Ga. Finds No Willful Stay Violation Where Creditor Failed To Dismiss Collection Suit After Notice Of Debtor’s Bankruptcy Case

Posted in Northern District Cases
In Alley Cassetty Companies, Inc. v. Wren, No. 2:12-cv-196-WCO, 2013 U.S. Dist. LEXIS 11294 (N.D. Ga. July 22, 2013), the creditor, who had no notice of the Debtor’s Bankruptcy case, filed a collection suit against the Debtor in state court.  After receiving notice of the pending Bankruptcy case, creditor’s counsel informed Debtor’s counsel they would… Continue Reading

Secured Lender’s Post-Discharge Communications To Debtor Did Not Violate Discharge Injunction

Posted in Northern District Cases
In Mele v. Bank of America, et al., Adv. Proc. No. 12-5031, 486 B.R. 546, 2013 Bankr. LEXIS 455 (Bankr. N.D. Ga. January 8, 2013)(J. Ellis-Monro) (click here for .pdf copy of opinion), the issue before the Court was whether certain communications sent by the home lender after the Debtor’s Chapter 7 was discharged violate… Continue Reading

Bankruptcy Court Has Jurisdiction To Enter Final Judgment On Fraudulent Transfer Claims; Judge Sacca Follows Narrow View Of Stern v. Marshall

Posted in Northern District Cases, US Supreme Court Cases
In a 28 page opinion, Judge Sacca of the Northern District of Georgia held that Bankruptcy Courts have jurisdiction to enter final orders in some cases involving fraudulent transfer claims. Mitchell v. Banks, Adv. Proc. No. 12-0562, 2013 Bankr. LEXIS 2384 (Bankr. N.D. Ga. June 5, 2013) (click here for opinion).  Judge Sacca based his… Continue Reading

Several Popular Local Restaurants, Including Garrison’s, Einstein’s and Joe’s on Juniper, File Chapter 11 Petitions After Large Judgment Entered

Posted in News and Comments, Northern District Cases
Several popular restaurants in metro Atlanta filed Chapter 11 petitions in the Northern District of Georgia on June 13, 2013 after a $2.14 million judgment was entered in Cobb County Superior Court.  The entities filing include: Vinings Dining, LLC (d/b/a Garrison’s Boiler & Tap), Ch. 11 Case No. 13-63089 (click here for Ch. 11 petition).… Continue Reading

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

Posted in Eleventh Circuit Cases, Georgia State Cases, Northern District Cases
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

Security Deed Lacking Signature of Additional Witness and Improperly Identifying Property Was Invalid in Georgia, says Eleventh Circuit

Posted in Eleventh Circuit Cases, Northern District Cases
In National City Mortgage v. Gordon (In re Bennett), No. 12-13239, 2013 U.S. App. LEXIS 10765 (11th Cir. May 29, 2013) (click here for .pdf), the issue was the validity of a Security Deed that did not contain the signature of “one additional witness,” as required by O.C.G.A. § 44-14-33 and identified a larger tract of… Continue Reading

Bankruptcy Rule Establishing Deadline To File Dischargeability Complaint Is Strict, “Hard And Fast” Rule.

Posted in Northern District Cases
In United Community Bank v. Harper (In re Harper), Adv. Proc. No. 12-1080, 2013 Bankr. LEXIS 1080 (Bankr. N.D. Ga. January 29, 2013 (Judge Drake) (click here for .pdf of order), the issue was whether Federal Rule of Bankruptcy Procedure 4007(c)  created a strict deadline for filing adversary complaints to determine dischargeability of debts under §523(c). Judge Drake… Continue Reading

Secured Lender Only Entitled To Secured Claim For Actual Fees, Not Contractual Fees, After Foreclosure

Posted in Northern District Cases
In a key decision in the Northern District of Georgia, Judge Hagenau has ruled that a secured creditor is only entitled to a secured claim, pursuant to § 506(b), to the extent of its actual and reasonable fees rather than contractual and statutory fees after a foreclosure sale where the property has not been abandoned. … Continue Reading

ND Ga – Exception To Automatic Stay For Pre-Petition Writ Of Possession Only Applies In Landlord-Tenant Relationship

Posted in Northern District Cases
In In Re Higgs, Ch. 13 Case No. 12-76496-pwb, 2012 Bankr. LEXIS 6008 (Bankr. N.D. Ga. November 2, 2012), the Movant purchased a foreclosed property from the lender after a foreclosure sale.  Movant proceeded to obtain a writ of possession in the Magistrate Court to evict the Debtor, who was not the original borrower but… Continue Reading

ND Ga – Chapter 13 Debtor May Take “Marital Adjustment” For Non-Filing Spouse’s Income

Posted in Northern District Cases
Chapter 13 cases, especially after 2005, are often a tightrope between being able to pay basic living expenses and contributing all disposable income to the plan.  Chapter 13 Trustees are often viewed as wanting to squeeze every penny from a debtor.  This case is an example of the posturing of the parties, and a victory… Continue Reading

In Case of First Impression in Eleventh Circuit, Bankruptcy Court Holds That Overpayment of Domestic Support Obligation Is Entitled to Priority Status

Posted in Northern District Cases
In a case of first impression in the Northern District of Georgia, and perhaps the Eleventh Circuit, the Court held that a claim for the overpayment of a domestic support obligation was entitled to priority status under 11 USC § 507(a)(1)(A).  In In re Knott, Ch. 7 Case No. 09-90822, 2012 Bankr. LEXIS 5063 (Bankr.… Continue Reading