11th Circuit: Subchapter S Election is Not Property of the Bankruptcy Estate

By Scott Riddle Posted in Corporate & Fiduciary Litigation, Eleventh Circuit Cases

Owoc v. Liquidating Trustee on Behalf of Liquidating Trust, — F.4th —-, 2026 WL 2294569 (11th Cir. August 10, 2026) (click for .pdf). The issue on appeal was whether a corporate debtor’s Subchapter S election constitutes property of the bankruptcy estate. Pursuant to a Chapter 11 plan, the debtor corporation’s reconstituted board removed the sole shareholder, John Owoc, from his position as chief executive officer and board member, although he remained the sole shareholder post-confirmation. Owoc thereafter sought relief from the automatic stay to terminate the debtor’s Subchapter S status. The Bankruptcy Court denied the motion because the company’s “S election gives it the valued right to avoid tax liability” and, therefore, the S election is property of the estate and protected by the automatic stay. The decision was appealed to the District Court, which certified a direct appeal to the Eleventh Circuit Court of Appeals.

The Court, citing the Third Circuit case of Majestic Star Casino, LLC v. Barden Dev., Inc. (In re Majestic Star Casino, LLC), 716 F.3d 736, 757 (3d Cir. 2013), held that the Subchapter S election is not property of the bankruptcy estate because the shareholders, and not the debtor, control its tax classification. “[T]he shareholders control the creation and termination of eligibility for Subchapter S status.” Although the company received a significant tax benefit from the election, the shareholders have the legal power to revoke or terminate the election. Therefore, the company does not have a legitimate claim or entitlement to the election.

The Court, therefore, reversed the lower courts and held that the Subchapter S election is not property of the bankruptcy estate pursuant to 11 U.S.C. § 541. This abbreviated summary omits the substantive discussion of equitable mootness, law of the case, and laches.

Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and individuals in bankruptcy and reorganization matters for more than 20 years. You can contact Scott at 404-815-0164 or scott@scottriddlelaw.com. For more information, click here.

Georgia’s New $50,000 Homestead Exemption (And Why It’s Really Worth More)

By Scott Riddle Posted in Consumer Bankruptcy Guide, News and Comments, Northern District Cases, Uncategorized

On July 1, 2026 the Georgia Homestead Exemption increases from $21,500.00 to $50,000.00 for an individual debtor, or a double exemption of $100,000.00 if a non-filing spouse is also a co-owner. This is a dramatic increase for Georgia, and opens up Chapter 7 for many people who are facing bankruptcy and may otherwise have had to file a Chapter 13. We should see a significant increase in filings between July 1 and July 7 (foreclosure day in Georgia).

What is the Georgia Homestead Exemption?

A simplistic explanation of the homestead exemption is that it determines how much equity in a residence is protected in a bankruptcy case and, in many Chapter 13 cases, the amount of your monthly trustee payments. For example, if you own a house worth $300,000.00 and the balance of your home loan (and any other liens) is $250,000.00, your equity of $50,000.00 is fully protected in Georgia and the trustee would not have an interest in the house. If you had equity of $200,000.00, and the trustee sought a sale of your house, you would get the first $50,000.00 of the net sale proceeds. The exemption is available for a property if either the debtor or a dependent of the debtor resides at the property. For example, if a debtor owns a house in which a former spouse and dependent children reside, the exemption is applicable.

What is the Double Homestead Exemption?

The Georgia homestead exemption is doubled to $100,000.00 when the residence is co-owned by the individual filing the bankruptcy case and a spouse who is not in bankruptcy. In the second example above, if there is $200,000.00 in equity and the trustee sells the house, the debtor and spouse will receive the first $100,000.00 of the sale proceeds. This is a significant benefit for a spouse who is not in bankruptcy.

Will the Bankruptcy Trustee sell my House?

This is the real question, isn’t it? “Can I keep my house in Chapter 7?” is probably the most common question we are asked. The good news is that in addition to the increased homestead exemption in Georgia, in actual practice, the trustee is not interested in selling your house unless there is significant equity above your exemption. The trustee is interested in net recovery for creditors after accounting for your exemptions and the expenses of selling the house.

Let’s look at another example. Assume your house is worth $300,000.00 and you have equity of $75,000.00, leaving $25,000.00 in equity unprotected. To reach that $25,000.00, the trustee has to sell your house. The trustee’s expenses in selling the house will include a 6% real estate commission ($18,000.00) and perhaps $5,000.00 in legal and accounting fees. After those expenses, the net recovery is only $2,000.00 and very few trustees will be interested in selling a house for $2,000.00. Most trustees will want to net at least $10-15,000.00 (and often more) before selling a house. As a practical matter, this preserves an additional $25,000.00 in unexempt equity in the example. You can make the same calculations using the market value and loan balances for your house.

What is the market value of your house? Most people begin by looking at Zillow, Realtor.com or similar websites. Those estimates can be helpful starting points, but they are not always accurate. Bankruptcy trustees often retain a real estate professional to inspect the property and provide an opinion of value. If you believe you may have significant non-exempt equity, obtaining your own opinion of value before filing can be money well spent. Many real estate agents who work in your neighborhood will be willing to provide an opinion of value.

What Should I Discuss With My Bankruptcy Lawyer? Here Are A Few Things Beyond The Worksheets

By Scott Riddle Posted in Consumer Bankruptcy Guide, News and Comments, Northern District Cases

A recent Order from our Bankruptcy Court highlights several important considerations when choosing a bankruptcy lawyer and planning your case. On June 26, 2026, Judge Sacca, joined by the other judges in the Northern District of Georgia, entered a 147-page Order permanently disbarring a lawyer and law firm from practicing in Bankruptcy Court. The Order was effective immediately and the lawyer was promptly removed from the Clerk’s electronic filing system. According to PACER, the lawyer currently has 540 open cases, meaning approximately 540 people will need a new lawyer to continue their bankruptcy cases. The Court’s Order speaks for itself. This post is intended to highlight several lessons that may help consumers who are considering bankruptcy. An experienced bankruptcy lawyer should guide you through the process, ask detailed questions, and ensure that your case is properly prepared before it is filed.

If anyone is urging you to file a bankruptcy case, tell every lawyer you consult.

That person may have good intentions, or they may have motivations that do not align with your best interests. Ask the lawyers if they have a relationship with the other person. Most lawyers get new clients through referrals from people they know, and this is usually a positive because the lawyer is a trusted friend or professional colleague. If there is a financial relationship between the lawyer and the other person, it needs to be disclosed to you and you should consider at least consulting with other lawyers.

US Supreme Court Rules on Judicial Estoppel in Chapter 13 Bankruptcy Case

By Scott Riddle Posted in US Supreme Court Cases

Make sure you are disclosing ALL property, including any personal injury or other claims you might have against any other party. That includes disclosing it after your Bankruptcy case is filed in a Chapter 13 case. I expect the debtor might prevail on remand because he apparently promptly notified his Bankruptcy lawyer after the accident.

Keathley v. Buddy Ayers Construction, Incorporated, — S.Ct. —- , 2026 WL 1686028 (June 11, 2026) (click here for .pdf) (click here for oral argument). The Debtor filed a Chapter 13 case in December 2019. In August 2021, while the case was still pending, Debtor was in a car accident and had a personal injury claim. He hired a personal injury lawyer and notified his Bankruptcy lawyer of the accident and claim, but no one disclosed the claim in the Bankruptcy case. After the Debtor filed suit on the personal injury claim in District Court, the defendant moved for summary judgment based on judicial estoppel and the failure of the Debtor to disclose the claim in the Bankruptcy case. Although the Debtor promptly amended his schedules, the District Court “found that [Debtor] knew of the facts underlying his claims and hypothetically had a motive to conceal, and therefore held the omission was not inadvertent or a mistake, entering summary judgment for [the defendant].” The Fifth Circuit affirmed.

The Supreme Court reversed, finding that the lower courts should have considered the “totality of circumstances” rather than just knowledge of the facts and claim and a potential motive to conceal.

Judicial estoppel is an “equitable doctrine” intended “to protect the integrity of the judicial process” by “prohibiting parties from deliberately changing positions according to the exigencies of the moment” and preventing the “risk of inconsistent court determinations.”… The rigidity comes from the Fifth Circuit’s failure to fully recognize that “judicial estoppel is an equitable doctrine.” … The Fifth Circuit’s rule allows courts to consider only two circumstances—whether the debtor knew of the underlying facts and whether there was a potential motive to conceal—and does not permit courts to look at any other evidence tending to show the omission was inadvertent. That rigidity is out of step with equity. The Fifth Circuit’s rule is also overly broad because it holds that an omission falls outside the exception any time a debtor knows certain facts or could potentially benefit from nondisclosure, circumstances that will almost always be true, as the Fifth Circuit recognized. A near-dispositive criterion is a poor fit for a fair inquiry into whether an omission is actually the result of inadvertence or mistake.

Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and other parties in Bankruptcy cases for over 20 years. You can contact Scott at 404-815-0164 or scott@scottriddlelaw.com. For more information, click here.

11th Circuit and 2 Live Crew: Contingent Copyright Termination Rights Are Property of the Bankruptcy Estate, but Questions Remain

By Scott Riddle Posted in Eleventh Circuit Cases, News and Comments

In a case of first impression, the Eleventh Circuit addressed the intersection of Copyright Law and Bankruptcy Law, and whether an artist’s statutory copyright termination rights are property of the Bankruptcy Estate. Lil’ Joe Records, Inc. v. Mark Ross, Luther Campbell, et al., 2026 WL 1549151 (11th Cir. June 2, 2026) (click here for .pdf). What will be interesting to Bankruptcy lawyers is that the estate property in question is analyzed as of 2020, but the Chapter 7 case was filed in 2000 and closed in 2007. In what realm of the universe the property exists now is a question not addressed by the Court. (If you are mainly interested in Copyright Law, you probably should just go right to the opinion).

The statute at issue is Section 203 of the Copyright Act, 17 U.S.C. §203.

Section 203 of the Copyright Act allows the authors of copyrighted works (or their successors in interest) to terminate grants of copyrights… The author (or his successors) can exercise his termination interests only by serving a signed, written notice on a copyright grantee or the grantee’s successor in title. … … [I]f a work has multiple authors, section 203 requires a majority of those authors (or their successors in interest) to sign a notice to cause a termination… [Additionally] section 203 makes an author’s termination interests
inalienable by agreement.

Now to the basic facts. 2 Live Crew is a hip-hop group formed in 1984, with members including Mark Ross (“Brother Marquis”), Luther Campbell (“Luke Skywalker”), David Hobbs (“Mr. Mixx”) and Christopher Wong Won (“Fresh Kid Ice”). The Band gave Luke Records the sound recording rights in all master recordings through 1990. In 1995, Campbell and Luke Records filed jointly administered Chapter 11 cases, in which Luke Records sold all sound recording copyrights it received under the agreement to Lil’ Joe Records and Joseph Weinberger. In 2000, Ross filed a personal Chapter 7 case (ND of Ala., 00-43637-JJR7), but his termination rights were never scheduled, administered or even mentioned in the case. “[P]roperty that is not scheduled, administered, or formally abandoned remains property of the estate ‘[u]nless the court orders otherwise.’” See id. § 554(c), (d).”

Is Trustee Required to Disclose Information Voluntarily Provided by a Creditor on a Confidential Basis?

By Scott Riddle Posted in Northern District Cases

In In re Newport 222 Mitchell Street, L.P., 2026 WL 1488930, Ch. 7 Case No. 24-54060-sms (Bankr. N.D. Ga. May 27, 2026) (click here for .pdf) a creditor sought to compel the Chapter 7 Trustee to furnish information voluntarily provided to him by another creditor on a confidential basis. The basis for the motion was 11 U.S.C. §704(a)(7) which provides that the Trustee shall, “unless the court orders otherwise, furnish such information concerning the estate and the estate’s administration as is requested by a party in interest.” The Trustee did not oppose the Motion, but suggested the statute should be narrowly interpreted and left it to the discretion of the Court. The Motion was opposed by the creditor that provided the information to the Trustee.

The Moving Creditor cited the case of In re Pearlstein, 2022 WL 1492236 (Bankr. D. Or. May 11, 2022), in which the court allowed discovery from the trustee of the debtor’s financial information. Judge Sigler noted that a more relevant case is In re Walters, 136 B.R. 256 (Bankr. C.D. Cal. 1992), wherein “creditors challenging a debtor’s discharge under §727 argued that § 704(a)(7) required the trustee to provide the creditors information that the trustee’s accountants developed while investigating and prosecuting fraudulent transfer actions against the debtor’s wife, which the court defined as the ‘audit materials.'”

The Walters court … said that it could not accept the argument that the audit materials “constitute ‘information concerning the estate and the estate’s administration’” either under the plain language of the section, the broad context of the Bankruptcy Code generally, or under the specific facts of this case.

Judge Sigler ultimately allowed the Moving Creditor very limited discovery from the Trustee –

Other than the [Debtor’s] Bank Statements, the Requested Discovery belongs to a third party and was collected by the Trustee solely for the purpose of determining whether to pursue claims on behalf of the Estate. The Trustee chose not to pursue those claims and [Moving Creditor], presumably, is displeased with that decision. But a creditor’s discontent with a trustee’s course of action does not warrant an overbroad application of § 704(a)(7).

If the Requested Discovery fell within the scope of § 704(a)(7), the Court may need to evaluate why [Moving Creditor] wants the Requested Discovery or what [Moving Creditor] would do with it. But the threshold inquiry is whether the Requested Discovery is “information concerning the estate and the estate’s administration” and, for the reasons stated on the record at the March 30, 2026 hearing and supplemented in this Order, other than the Bank Statements, it is not.

Georgia Homestead Exemption Increases to $50,000.00/$100,000.00 on July 1, 2026

By Scott Riddle Posted in Consumer Bankruptcy Guide, Georgia State Cases, News and Comments

If you are contemplating filing for Bankruptcy and own a home, you probably will want to consider waiting a few weeks. Georgia Governor Brian Kemp has signed House Bill HB 1024, which increases the Georgia Homestead Exemption from the current $21,500.00 to $50,000.00 effective July 1, 2026. If the residence is titled in the name of one of two spouses who is a debtor, the exemption is doubled to $100,000.00. Further, starting on July 1, 2031, the exemption amount is revised annually based on the inflation rate of the prior year.

The amendments to O.C.G.A. §44-13-100 are:

“(1)(A) The debtor’s aggregate interest, not to exceed ~~$21,500.00~~ $50,000.00 in value,
in real property or personal property that the debtor or a dependent of the debtor uses
as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor; provided, however, that beginning July 1, 2031, and annually thereafter, such exemption shall be revised by being multiplied by the inflation rate of the prior year. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, and such property is the primary residence of both spouses, the amount of the exemption hereunder shall be ~~$43,000.00~~ $100,000.00; provided, however, that, beginning July 1, 2031, and annually thereafter, such exemption shall be revised by being multiplied by the inflation rate of the prior year;

(B) As used in this paragraph, the term ‘inflation rate’ means the annual inflationary index rate as determined for a given year by the state revenue commissioner by promulgating a standardized method for determining annual inflationary index rates which reflect the effects of inflation and deflation on the cost of living for residents of this state for a given calendar year. Such method may utilize the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor or any other similar index established by the federal government if the state revenue commissioner determines that such federal index fairly reflects the effects of inflation and deflation on the cost of living for residents of this state.”

The Bill was cosponsored by Representative Soo Hong along with Rep. Matt Reeves, Rep. Rob Leverett and Sen. Marty Harbin.

US Supreme Court – “Reasonable Time” Requirement Applies to Rule 60(b) Motions to Vacate Void Judgments

By Scott Riddle Posted in US Supreme Court Cases

Coney Island Auto Parts Unlimited, Inc. v. Burton, Trustee, 2026 WL 135998 (January 20, 2026) (click here for .pdf). In 2014, Debtor Vista-Pro Automotive, LLC filed an adversary proceeding against Coney Island to recover $50,000.00 in unpaid invoices. Coney Island did not answer and a default judgment was entered in 2015. In 2021, the Trustee was able to garnish Coney Island’s bank accounts. Coney Island then filed a Motion to vacate the judgment pursant to Federal Rule of Civil Procedure 60 on the grounds that it had not been properly served and, therefore, the 2015 judgment was void. The Bankruptcy Court denied the Motion because it was not filed within a “reasonable time” and the District Court and Eighth Circuit affirmed.

Rule 60(b)(4) expressly provides that a party may move for relief from a void judgment. However, Rule 60(c)(1) provides that a “motion under Rule 60(b) must be made within a reasonable time.”

The structure of Rule 60 confirms what the plain text of subdivision (c)(1) provides. When Rule 60 modifies the default reasonable-time limit, it does so expressly. For example, Rule 60(c)(1) imposes a 1-year limit on Rule 60(b) motions alleging mistakes, new evidence, or fraud. Thus, one would expect Rule 60 to include an analogous provision if a special, unlimited-time principle applied to motions alleging voidness. …But the Rule does not.

Coney Island argued that the reasonable time limit of Rule 60(b)(1) did not apply to void judgments, and the passage of time did not turn a nullity into an enforceable judgment.

This argument cannot bear the weight that Coney Island and others have placed on it. Even if the passage of time cannot cure voidness, the same principle holds true for most legal errors. Nevertheless, statutes and rules routinely limit the time during which a party can seek relief from a judgment infected by error. Therefore, a party in Coney Island’s position would need to show that some principle of law, such as the Due Process Clause, gives a party the right to allege voidness at any time. .. Giving a party a “reasonable” time to seek relief from an allegedly void judgment may well be all that due process demands.

The analysis is not different because the issue was failure of proper service and the possibility that a party may not learn of the judgment for a significant period of time. A defendant may strategically use that unlimited time to wait and file a Rule 60(b) motion until the plaintiff attempts to collect on the judgment. There was also no consensus among other courts that a party could move for relief at any time, and the Rule’s “text and structure” take precedence over historical practice. Similarly, policy concerns over an interpretation of a rule generally do not carry any weight when a rule is not ambiguous.

As Coney Island did not contend that its Motion was filed within a reasonable time, the lower court’s decision was affirmed. “Litigants seeking relief under Rule 60(b)(4) must comply with Rule 60(c)(1) and file a motion within a reasonable time.”

11th Circuit: Equitable Tolling Still Does Not Apply To Deadline For §523 Discharge Complaints

By Scott Riddle Posted in Eleventh Circuit Cases

“Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.” Samuel Beckett in Worstword, Ho. Many have tried to extend the deadline for discharge complaints that is found in Bankruptcy Rule 4007(c), almost always after missing the deadline. The Eleventh Circuit recently affirmed that equitable tolling still does not apply to extend the deadline in TL90108 LLC v. Ford, 147 F.4th 1351, 2025 WL 2304512 (11^th Cir., August 11, 2025). The issue was whether equitable tolling applied to the Bankruptcy Rule 4007(c) deadline to file a complaint under 11 U.S.C. §523(c) in light of subsequent Supreme Court opinions.

A previous panel held that equitable tolling did not apply to Rule 4007. See In re Alton, 837 F.2d 457 (11th Cir. 1988). The Creditor argued that the decision in Alton had been abrogated by the Supreme Court’s decisions in Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In Kontrick, the Supreme Court held that Rule 4004 (denial of discharge) was a non-jurisdictional claim-processing rule, but it stopped short of deciding whether equitable tolling might apply.

After Kontrick, the Court considered, in Holland, 560 U.S. at 645, 130 S.Ct. 2549, whether the nonjurisdictional statute of limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) may be equitably tolled. The Court concluded that “a nonjurisdictional federal statute of limitations is normally subject to a rebuttable presumption in favor of equitable tolling.” Id. at 645–46, 130 S.Ct. 2549 (emphasis in original) (internal quotation marks omitted). Thus, based on the combination of Kontrick and Holland, the limitations period in Rule 4004—closely related to Rule 4007 —is presumably subject to equitable tolling.

The Creditor argued that these cases effectively established that Rule 4007 was also a non-jurisdictional, claim-processing rule like Rule 4004 and “have removed Alton’s doctrinal underpinning to the point of abrogation, leaving behind the presumption in favor of equitable tolling.” The Circuit panel agreed that Rule 4007 is also a non-jurisdictional, claim-processing rule but that was not sufficient to overturn Alton. Nothing in Kontrick leads to the conclusion that Rule 4007 can be equitably tolled, and Holland does not apply to the Bankruptcy Rules. “The doctrinal underpinning of our decision in Alton was a plain reading of Rule 4007(c) and the absence of any express language in the rule indicating that its deadline was subject to equitable doctrines.” See also Nutraceutical Corp. v. Lambert, 586 U.S. 188, 139 S.Ct. 710, 203 L.Ed.2d 43 (2019) (“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility.” (emphasis added). The Creditor’s motion to extend the deadline to file a discharge complaint was, therefore, properly denied in the Bankruptcy Court.

Trustee Cannot Avoid Deed Because Every Letter Of the Notary’s Signature Was Not Fully Discernible

By Scott Riddle Posted in Northern District Cases

In Barger v. Rocket Mortgage, LLC, Adv. Proc. No. 23-5164-bem, 2025 WL 1416871 (Bankr. N.D. Ga. May 15, 2025), the Chapter 7 Trustee sought to avoid a deed because every letter of the notary’s name was not fully discernible in the signature. The Court previously granted summary judgment to the lender/transferee and the Trustee sought reconsideration, contending that the Court erred in its interpretation of the Exact Name requirement in O.C.G.A. §45-17-8.1(a). Judge Ellis-Monro denied the Motion.

“[I]n documenting a notarial act, a notary public shall sign on the notarial certification, by hand in ink, only and exactly the name indicated on the notary’s commission and shall record on the notarial certification the exact date of the notarial act.”

O.C.G.A. § 45-17-8.1(a).

The Court found that the statute does not impose a legibility requirement or a “directive as to the quality of the signature or the discernibility of each letter in the signature.”