By Scott Riddle Posted in Eleventh Circuit Cases,Northern District CasesOnce again, a Bankruptcy case leads to a key opinion in Georgia real estate law and, as often the case, the Chapter 7 Trustee prevails. In In re Lindstrom, 2022 WL 1041192 (11th Cir. April 7, 2022) (click here for .pdf) the issue was the validity of a security deed, the interpretation of the Georgia… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn a relatively brief opinion, the Eleventh Circuit Court of Appeals ruled on the deadlines for appealing an order from the District Court (acting as an appellate court for a Bankruptcy Court Order) to the Court of Appeals. Appellants appealed a Bankruptcy Court Order to the District Court for the Northern District of Georgia. On… Continue Reading
By Scott Riddle Posted in Eleventh Circuit Cases,Georgia State Cases,Northern District CasesIn In re Hoffman, 2022 WL 203415 (11th Cir. January 24, 2022) (click here for .pdf) the issue before the Court was whether Roth IRAs were exempt pursuant to 11 U.S.C. §541(c)(2) or O.C.G.A. § 44-13-100(a)(2)(E). This is a case of first impression in the Circuit, based upon recent amendments to the Georgia exemption statutes.… Continue Reading
By Scott Riddle Posted in Corporate & Fiduciary Litigation,Eleventh Circuit CasesApologies in advance for the lengthy post and quotes, but my goal was to provide a meaningful summary of the change-of-course for the Eleventh Circuit and scaling back the application of the Rooker-Feldman Doctrine. The Rooker-Feldman Doctrine, in general, is a “narrow jurisdictional doctrine” that “simply establishes that a party who loses a case in… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn SuVicMon Development, Inc. v. Morrison, __ F.3d __, 2021 WL 1136546 (11th Cir. March 25, 2021) (click here for .pdf), the plaintiffs are three corporations that sued the Debtor for fraud and securities violations in state court. Plaintiffs subsequently amended the complaint to include fraudulent transfer claims against Debtor and his two sons. Debtor… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn In re Breland, __ F.3d __ , 2021 WL 910657 (11th Cir., March 10, 2021) (click here for .pdf) the individual Debtor filed a voluntary Chapter 11 petition. After it was determined that he was transferring assets and defrauding his creditors a Chapter 11 Trustee was appointed. [Debtor] protested that the trustee’s appointment violated… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn In re Appling (Appling v. Lamar, Archer & Cofrin, LLP), No. 16-11911, 2017 WL 603833 (11th Cir. February 15, 2017) (click here for .pdf), the Court addressed a question that has divided several other courts – Can a statement about a single asset be a “statement respecting the debtor’s … financial condition” for purposes… Continue Reading
By Scott Riddle Posted in Eleventh Circuit Cases,Georgia State Cases,Middle District CasesHealth Savings Accounts were adopted by federal law in 2003, and allowed in Georgia in 2008. They have been a tremendous benefit to many families since that time. A simple explanation of a Health Savings Account (“HSA”), from Judge Wiki, is: [An HSA] is a tax-advantaged medical savings account available to taxpayers in the United… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn a published opinion entered on April 8, 2016, the Eleventh Circuit Court of Appeals held that District Courts are obliged to use and apply the Federal Rules of Bankruptcy Procedure rather than the Federal Rules of Civil Procedure when trying a case that “arises under” Title 11 (28 U.S.C. §1334). In Rosenberg v. DVI… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesThe question of what constitutes a tax “return” for purposes of 11 U.S.C. §523(a)(1) has been the subject of conflicting Circuit Court cases the last several years. The Eleventh Circuit Court of Appeals addressed the issue in In re Justice, No. 15-10273, 2016 WL 1237766 (11th Cir. March 30, 2016) (click for .pdf of opinion). … Continue Reading
By Scott Riddle Posted in Consumer Bankruptcy Guide,Eleventh Circuit CasesThe Eleventh Circuit recently addressed three issues of first impression in the Circuit regarding the application of the Fair Debt Collection Practices Act (FDCPA) to letters to consumers’ lawyers. Not surprisingly, the court ruled in favor of the consumer although the arguments made by the collector did seem somewhat weak. In Bishop v. Ross Earle… Continue Reading
By Scott Riddle Posted in Eleventh Circuit Cases,Miscellaneous CasesIn the last couple of years, claims against creditors for alleged violations of the Fair Debt Collection Practices Act (FDCPA) have become a hot item in Bankruptcy Courts. One such question is whether the filing of a proof of claim for a stale debt (i.e., one that has become unenforceable pursuant to the applicable statute… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn In re Kulakowski, No. 12-15294, 2013 U.S. App. LEXIS 23110 (11th Cir. Nov. 15, 2013) (click here for .pdf of opinion), the issue was the extent to the Court could consider the income and expenses of the non-filing spouse in determining whether a Chapter 7 case could be dismissed for “substantial abuse” under 11… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIn the case of Hope v. Acorn Financial, Inc., Case No. 12-10709, 2013 U.S. App. LEXIS 19661 (11th Cir. September 26, 2013) (click here for .pdf of opinion) the Court addressed whether 11 U.S.C. §1327(a) binds the Chapter 13 Trustee to the terms of the plan, even though the Trustee is not mentioned in the… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesIt is not uncommon for Bankruptcy lawyers to get requests from individuals to just help them fill out the Bankruptcy paperwork, or act as the occasional sounding board behind the scenes, without actually representing the debtor in the Bankruptcy Court. This often happens when the client either does not have the money for fees or… Continue Reading
By Scott Riddle Posted in Eleventh Circuit CasesCreditors and other parties in Chapter 7 Bankruptcy cases filed in the Eleventh Circuit just got more ammunition from the Court of Appeals to seek dismissal of cases in which the debtor filed only to avoid a single, large debt, even in the absence of fraud or misconduct. In In re Piazza, 719, F.3d 1253,… Continue Reading
By Scott Riddle Posted in Eleventh Circuit Cases,Georgia State Cases,Northern District CasesThe 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
By Scott Riddle Posted in Eleventh Circuit Cases,Northern District CasesIn 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
By Scott Riddle Posted in Eleventh Circuit Cases,Georgia State CasesOn February 18, 2013, the Georgia Supreme Court issued its opinion in Wells Fargo Bank. N.A. v. Gordon, No. S12Q2067, 2013 Ga. LEXIS 158 (Feb 18, 2013). The case was certified to the Georgia Supreme Court by the Eleventh Circuit Court of Appeals in In re Codrington, 691 F3d 1336 (11th Cir. 2012) (click here… Continue Reading
By Posted in Eleventh Circuit CasesIn In re Witcher, No. 11-15883 (11th Cir. December 13, 2012) (click here for opinion), the issue before the Court was… whether a court may take into account a debtor’s ability to pay his or her debts in determining whether "the totality of the circumstances . . . of the debtor’s financial situation demonstrates abuse"… Continue Reading
By Posted in Eleventh Circuit CasesAlderwood Group, Inc., et al v. Garcia, et al., No. 10-14726 (11th Cir. May 30, 2012) (click here for .pdf of opinion). The Creditor/Plaintiffs asserted class action tort claims in 2008 against the Debtor/Defendants in Florida state court for damages due to Debtors’ operation of a cemetery known as Graceland. The claims included inadequate record… Continue Reading
By Posted in Consumer Bankruptcy Guide,Eleventh Circuit Cases,Northern District CasesIn McNeal v. GMAC Mortgage, LLC, et al, No. 11-11352 (11th Cir. May 11, 2012) (click here for .pdf) the issue before the Court was whether a debtor in a Chapter 7 case can strip a second priority, unsecured lien from her residence. At least in the Eleventh Circuit, a debtor can strip the unsecured second… Continue Reading
By Posted in Eleventh Circuit Cases,Northern District CasesIn Perkins v. Haines, et al, No. 10-10683 (11th Cir. October 27, 2011) (click here for .pdf of opinion), the 11th Circuit took a direct appeal of the Bankruptcy Court’s order concerning the "value" defense in fraudulent transfer proceedings. The basic facts are as follows. International Management Associates, LLC and related entities were operated as a… Continue Reading
By Posted in Eleventh Circuit CasesThe Eleventh Circuit Court of Appeals has followed other courts (notably, the Fifth Circuit, as discussed here) in affirming the right of a private employer to deny employment based upon the applicant’s filing of a bankruptcy petition. In Myers v. TooJay’s Management Corp., No. 10-10774 (11th Cir. May 17, 2011) (click here for the .pdf… Continue Reading
