By Scott Riddle Posted in Northern District CasesIn 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
By Scott Riddle Posted in Northern District CasesIn 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
By Scott Riddle Posted in Northern District CasesLast 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
By Scott Riddle Posted in Northern District CasesIn 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
By Scott Riddle Posted in Northern District CasesIn 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
By Scott Riddle Posted in Northern District Cases,US Supreme Court CasesIn 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
By Scott Riddle Posted in News and Comments,Northern District CasesSeveral 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
By Scott Riddle Posted in Northern District CasesIn 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
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 Northern District CasesIn 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
By Scott Riddle Posted in Northern District CasesIn 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
By Scott Riddle Posted in Northern District CasesIn 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
By Posted in Northern District CasesIn In re Stanley, 2012 Bankr. LEXIS 6031 (Bankr. N.D. Ga. Nov. 8, 2012), the debtors certified that they tried to obtain credit counseling but were unable to complete it because they needed to file their Chapter 13 petition to stop a foreclosure the same day. Debtors requested a waiver and deferment of the counseling… Continue Reading
By Posted in Northern District CasesIt is fairly well settled and well known that public and private student loans are nondischargeable pursuant to Section 523(a)(8) of the Bankruptcy Code, unless the debtor meets the high bar of showing "undue hardship." This section states the following: A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this… Continue Reading
By Posted in Northern District CasesIn 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
By Posted in Northern District CasesChapter 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
By Posted in Northern District CasesIn 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
By Posted in Northern District CasesA recent opinion involves the convergence of a family partnership, will and probate estate, trust and Bankruptcy estate and highlights the need for appropriate planning and quality legal advice for each step in order to avoid a negative result years down the road. In Trauner, Ch. 7 Trustee v. Thadikamalla, et al, Adv. Proceeding No.… Continue Reading
By Posted in News and Comments,Northern District CasesPrevious articles have discussed the fiduciary duties of officers and directors of companies in financial trouble (see articles here and here). In another adversary proceeding to hold owners, officers and directors responsible for the financial demise of their companies, the Chapter 7 Trustee of Swoozie’s has filed a Complaint against the founder and former CEO… Continue Reading
By Posted in News and Comments,Northern District CasesA second lawsuit has been filed in the Chapter 7 cases related to Raving Brands and its owners, officers and affiliated companies. The first adversary proceeding was filed last week in the Chapter 7 case In re Raving Brands, Inc., Ch. 7 Case No. 09-68410. The latest proceeding was filed in the related case, In… Continue Reading
By Posted in News and Comments,Northern District CasesMorris Brown College, a historically black college in Atlanta and part of the Atlanta University Center (which also includes Clark Atlanta University, Spelman College, Morehouse College and the Morehouse School of Medicine) filed a Chapter 11 petition in the Northern District of Georgia on August 25, 2012 to avoid a foreclosure of its property. The… Continue Reading
By Posted in Corporate & Fiduciary Litigation,News and Comments,Northern District CasesThe Chapter 7 Trustee of Raving Brands, Inc. filed on August 16, 2012 an adversary proceeding against several former owners, officers and directors of the Debtor, as well as several affiliated companies, alleging, inter alia, that the parties engaged in a widespread effort to deceive the public, its franchisees, the press, courts and its creditors.… Continue Reading
By Posted in Northern District CasesIn re MCB Financial Group, Inc., Case No. 10-11176-WHD, 2011 Bankr. LEXIS 5502 (Bankr. N.D. Ga. March 31, 2011) (click here for .pdf of order) In 2008, Debtor MCB Financial (a bank holding company) refinanced a loan with Independent Banker’s Bank of Florida (“IBB”), and signed a demand note in the amount of $2,750,000. As… Continue Reading
