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Category Archives: Middle District Cases

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

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”

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

MD GA – The Hanging Paragraph; Vehicle Driven Exclusively By Non-Debtor Spouse Was Not Acquired For “Personal Use Of Debtor”

In re Beasley, Case No. 07-40280, 2007 WL 2986124 (Bankr. M.D. Ga. October 9, 2007).  The issue was whether a Chapter 13 debtor could bifurcate a secured claim into secured and unsecured portions pursuant to §506 of the Code, pursuant to the "hanging paragraph" of §1325.  Ironically, the "new" (now 2 year old) law provides… Continue Reading

Hanging Paragraph: District Court In Middle Georgia Holds That Negative Equity Is Included In “Purchase Money Security Interest”

Graupner v. Nuvell Credit Corp., Case No. 4:07-CV-37, 2007 U.S. Dist. LEXIS 46144 (M.D. Ga. June 26, 2007) (Land). The issue presented by this appeal is whether the "cramdown" provisions of § 506 of the Bankruptcy Code apply under the facts of this case. The resolution of this issue depends solely upon whether the Creditor… Continue Reading

MD Ga – UCC Financing Statement Valid Only As To Creditor Identified On Statement, But Creditor Is Perfected For Full Value Of Note Even Though She Only Contributed A Portion Of Funds Loaned

By: Scott B. Riddle, Esq. Tidwell, Ch. 7 Trustee of Amron Technologies, Inc., v. Legrand, et al., Adv. No. 06-5081, 2007 Bankr. LEXIS 1028 (Bankr. M.D. Ga. March 22, 2007) (Walker).  Several parties loaned money to the debtor, memorialized by a single promissory note.  Each defendant contributed a different amount to the amount loaned via… Continue Reading

MD Ga – Debt Arising From Violation Of Perishable Agricultural Commodities Act (PACA) Held Nondischargeable.

General Produce, Inc. v. Tucker, Case No. 06-50092, 2007 Bankr. LEXIS 1322 (Bankr. M.D. Ga. April 10, 2007)(Walker).  Debtor was the president and primary shareholder of a business that sold produce purchased from the plaintiff.  All transactions were covered by the Perishable Agricultural Commodities Act ("PACA").  Debtor’s company sold the produce, but did not submit… Continue Reading

Case Of First Impression: Debtor’s Use Of Credit Card To Pay Debt Within 90 Days of Filing Of Petition Could Be Recovered As Preferential Transfer

By: Scott B. Riddle, Esq. Flatau v. The Walman Optical Co. (In re Werner), Adv. No. 06-5101, 2007 Bankr. LEXIS 975 (Bankr. M.D. Ga. March 22, 2007)(Walker).  Within 90 days of the filing of his Chapter 7 petition, the debtor used his credit card to pay $4,000 to the defendant optical company.  The payment satisfied an obligation… Continue Reading

MD Ga – Foreclosure Sale Held Before Bankruptcy Filing Terminates Debtor’s Interest And Right Of Redemption After Foreclosure Deed Recorded

By: Scott B. Riddle, Esq. In re Dillard, Ch. 13 Case No. 06-30939, 2007 Bankr. LEXIS 394 (Bankr. M.D. Ga. February 7, 2007)(Hershner).  Hours before the debtor filed her Bankruptcy petition (without getting counseling), the lender conducted a foreclosure sale.  The property was purchased by the lender, who "bid in" the loan amount.  Debtor’s case… Continue Reading

MD Ga – Vehicle Driven Primarily By Debtor’s Spouse Was Not “Aquired For Personal Use of Debtor,” And Hanging Paragraph Of §1325(a) Did Not Protect Creditor

By: Scott B. Riddle, Esq. In In re Adams, Ch. 13 Case No. 06-51651, 2007 Bankr. LEXIS 616 (Bankr. M.D. Ga. March 1, 2007)(Hershner), the debtor husband purchased a new vehicle within 910 days of the filing of his Chapter 13 petition.  In his plan, Debtor proposed to bifurcate the secured lender’s claim into secured… Continue Reading

MD Ga – Vehicle Driven Primarily By Debtor’s Spouse Was Not “Aquired For Personal Use of Debtor,” And Hanging Paragraph Of §1325(a) Did Not Protect Creditor

By: Scott B. Riddle, Esq. In In re Adams, Ch. 13 Case No. 06-51651, 2007 Bankr. LEXIS 616 (Bankr. M.D. Ga. March 1, 2007)(Hershner), the debtor husband purchased a new vehicle within 910 days of the filing of his Chapter 13 petition.  In his plan, Debtor proposed to bifurcate the secured lender’s claim into secured… Continue Reading

MD Ga – Failure to Perform Future Promise Does Not Make Debt Nondischargeable Pursuant to Section 523(a)(2(A)

Hall v. Jackson, Adv. No. 05-5170, 2006 WL 2457847 (Bankr. M.D. Ga. August 23, 2006)(Hershner). Prior to the Debtor’s bankruptcy filing in September 2005, she had borrowed significant funds via personal loans from the Plaintiff (Debtor’s sister) and through the use of Plaintiff’s credit cards with permission.  Debtor continuously promised to pay Plaintiff back, and… Continue Reading

MDGa – New Section 1325 Means Secured Claims For “910 Vehicles” Cannot Be Bifurcated; Till v. SCS Credit Not Abrogated

In In re Murray, No. 05-48017, 2006 WL 2457851 (Bankr. M.D.Ga. August 22, 2006), the debtor owner of a "910 vehicle,"  argued (1)  that the creditor did not qualify for secured treatment under §1325(a)* because part of its claim included an extended warranty, document fee and title fee, in addition to the "price" of the… Continue Reading

MD Ga – E-mails To Debtor’s Counsel Not Privileged Where They Sought Business Advice And Were Copied To Persons Other Than Officers and Directors

In re Tom’s Foods, Inc., No. 05-40683, 2006 Bankr. LEXIS 1323 (Bankr. M.D.Ga. July 13, 2006). The Responsible Liquiditating Officer of Debtor sought production of e-mails between former principal of the debtor and an attorney who also served on the debtor’s board of directors.  The corporate shareholder who had possession of the e-mails refused to… Continue Reading

MDGa – Debtor Not a “Buyer In The Ordinary Course” Where Purchase Price Was Satisfaction of Prior Debt to Transferor

O.C.G.A. §§ 11-1-201(9), 11-2-403(2); Buyer in the Ordinary Course First National Bank of South Georgia v. Ayers Aviation Holdings, Inc., 2006 Bankr. LEXIS 675, Adv. No. 01-1003 (Bankr. M.D. Ga. March 31, 2006)(Laney) The basic relevant facts of a case that is otherwise factually and procedurally complicated are as follows. Seller, which was in the… Continue Reading