This is an issue that comes up fairly often, although normally no objections are made for a Rule 2004 examination. As long as the lawyer is not obstructive, it is usually not worth the additional time and expense of filing an objection. In In re Craig, Ch. 7 Case No. 16-59582, 2017 WL 713572 (Bankr.… Continue Reading
Search Results for:
N.D. Ga. – Judge Sacca Holds Interest Rate Paid Pursuant To 11 U.S.C. §726(a)(5) Is Federal Judgment Rate.
It is the rare Chapter 7 case that ends up with sufficient estate assets to pay all claims in full, plus interest as required by 11 U.S.C. §726(a)(5). The question addressed by Judge Sacca in In re Robinson, Ch. 7 Case No. 15-51556, 2017 WL 713571 (Bankr. N.D. Ga. February 22, 2017) (click here for… Continue Reading
Judge Basier: Debtor May Redeem Real Property Sold At Tax Sale And Pay Redemption Amount Over Term Of Chapter 13 Plan.
In In re Jimerson, Ch. 13 Case No. 16-60838, 2017 WL 393675 (Bankr. N.D. Ga. January 26, 2017 (Basier, J.) (click here for .pdf of opinion), the debtor’s property had been sold at a tax sale for non-payment of Fulton County property taxes. The purchaser at the tax sale sent the appropriate Barment Notice providing… Continue Reading
One Year Time Period For §727(e) Revocation Of Discharge Cannot Be Extended Or Equitably Tolled.
In In re Anzo, Ch. 7 Case No. 14-22766-jrs, 2017 WL 432787 (Bankr. N.D. Ga. January 30, 2017) (click here for .pdf of opinion), the debtor had been granted a discharge on September 29, 2015 and the case was closed on the same date. Almost a year later, on September 27, 2016 (two days prior… Continue Reading
When Is A Discharge Proceeding For Student Loans Ripe In Chapter 13? Judge Bonapfel Answers.
In In re Vines, Adv. Proc. No. 16-4045, 2017 WL 213806 (Bankr. N.D. Ga. January 18, 2017), the Chapter 13 debtor filed an adversary proceeding to discharge her student loan debt pursuant to 11 U.S.C. §523(a)(8). The lender, Educational Credit Management Corporation, moved to dismiss, arguing that the matter was not ripe for adjudication until… Continue Reading
Section 362(c)(3) Expiration of Automatic Stay For Repeat Filings: What Does It Cover?
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
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
Who Owns The Money In Joint Bank Accounts?
Funds in joint bank accounts can generally be accessed by all account-holders — each of them can withdraw all of the money in the account regardless of who actually deposited the funds in the account. This is often the reason for having a joint account. This can create a huge problem for the account holders… Continue Reading
Chapter 13 Debt Limits Apply Equally To Individual and Joint Cases, Says Judge Sacca
In In re Pete, Ch. 13 Case No. 15-63725-JRS, 2015 WL 8540438 (Bankr. N.D. Ga. Dec. 8, 2015), the debtor husband and wife filed a joint Chapter 13 case, disclosing a combined total of unsecured debt of more than $475,000. The Chapter 13 Trustee objected to confirmation and filed a motion to dismiss, alleging that… Continue Reading
Agreement To Pay Mortgage On Prior Marital Home Is Not Nondischargeable Domestic Support Obligation
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
Debtors Cannot Claim Homestead Exemption In Carve-out Funds Recovered By Trustee.
In a July 2015 case the Chapter 7 Trustee sold a house that was underwater with three liens, and received a carve-out from the lender that held the second and third liens. The Debtors did not object to the sale, but to the Trustee’s Final Report because it did not allow for payment of their… Continue Reading
Judge Diehl: Undisbursed Funds Paid Into Court For Garnishment Are Property Of The Estate
In In re Cochran, Ch. 7 Case No. 13-43242, 2014 Bankr. LEXIS 1178 (Bankr. N.D. Ga. Feb. 10, 2014), the issue in the motion to avoid lien was whether funds paid into court pursuant to a Summons of Garnishment are property of the Bankruptcy estate after a case is filed. Judge Mary Grace Diehl held… Continue Reading
N.D. Ga – Trustee Cannot Use Reverse Piercing of Veil To Recover Alleged Preferential Transfer
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
ND Ga – Equitable Tolling Does Not Apply To One Year Limitation For Revocation Of Discharge
Last week I was at a final hearing on fee applications on behalf of a Chapter 7 Trustee, in a case in which the debtor had failed to disclose a pre-petition personal injury case pending in another state. The defendants in that case ultimately founds out about the Bankruptcy case about a year after it… 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
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
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
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
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
Debtor Can Pay Tax Sale Redemption Price in Chapter 13 Plan, in Northern District of Georgia
In In re Francis, Ch. 13 Case No. 12-73183, 2013 Bankr. LEXIS 923 (Bankr. N.D. Ga. March 13, 2013) (J. Hagenau) (click here for opinion), the issue before the Court was whether a Debtor can pay the redemption price from a tax sale through a Chapter 13 plan, where her petition was filed on the… Continue Reading
Single Premium Annuity Exempt In Bankruptcy, Says Georgia Supreme Court.
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
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
Judge Diehl In ND Georgia Allows Lien Stripping In Chapter 7, Follows McNeal
In In re Malone, Ch. 7 Case No. 12-61289, 2013 Bankr. LEXIS 1282 (Bankr. N.D. Ga. March 28, 2013) (click here for .pdf), the Debtor filed a Motion to Determine Status of Wholly Unsecured Second Mortgage on Real Property when Debtor’s case was pending as a Chapter 13, but the court heard the matter only after… Continue Reading
Bankruptcy Rule Establishing Deadline To File Dischargeability Complaint Is Strict, “Hard And Fast” Rule.
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
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