This matter came to the Court on cross motions for summary judgment filed by the Plaintiff and Defendant. The sale for the Plaintiff’s house was cried out and the deed was executed before the passage of the CARES Act, but the foreclosure deed was not recorded until after the CARES Act was signed into law. The parties disagreed as to whether the foreclosure moratorium prohibits the recordation of a foreclosure deed. The Court found under Georgia law the foreclosure sale was complete before the passage of the CARES Act, therefore, the CARES Act foreclosure moratorium did not apply. Thus, the Court granted the Defendant’s motion for summary judgment and denied the Plaintiff’s motion for summary judgment.In
Opinions
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Judge John T. Laney, III
Creditor Commercial Capital Bank filed a motion to dismiss the Chapter 7 case of the Debtors Eric and Jerrie Lee for abuse of the bankruptcy system under 11 U.S.C. §§ 707(a), 707(b)(2), and 707(b)(3). The Court found that the presumption of abuse did not arise under § 707(b)(2), but the totality of the circumstances showed their case should be dismissed under § 707(b)(3). The Court did not rule on the motion under § 707(a).
Kelley, Lovett, Blakey & Sanders P.C. (“KLBS”) requested writs of execution against clients Hood Farms, Inc. and Hood Landscaping, Inc. for unpaid attorneys’ fees. KLBS had previously been granted administrative claims in both bankruptcy cases for their attorneys’ fees. Guardian Bank, which also held administrative claims, objected. The Court found a writ of execution to collect attorneys’ fees is impermissible, sustained Guardian Bank’s objections, and denied KLSB’s requests.
Kelley, Lovett, Blakey & Sanders P.C. (“KLBS”) requested writs of execution against clients Hood Farms, Inc. and Hood Landscaping, Inc. for unpaid attorneys’ fees. KLBS had previously been granted administrative claims in both bankruptcy cases for their attorneys’ fees. Guardian Bank, which also held administrative claims, objected. The Court found a writ of execution to collect attorneys’ fees is impermissible, sustained Guardian Bank’s objections, and denied KLSB’s requests.
This matter came before the Court by the Debtors’ objection to the IRS’s proof of claim number three. The IRS’s amended proof of claim included $2,780 owed for Shared Responsibility Payments under the Affordable Care Act. The IRS claimed the Shared Responsibility Payments were entitled to priority under § 507(a)(8) as either “an excise tax on a transaction…” or “a tax on or measured by income.” The Court found that the Shared Responsibility Payments are not levied on a transaction, therefore not entitled to priority under § 507(a)(8)(E), but are measured by income and entitled to priority under § 507(a)(8)(A).
Movant, Regions Bank, filed a motion for adequate protection or, in the alternative, relief from the stay. The Trustee objected. The Trustee presented evidence that the Movant’s financing statements, which listed Debtor’s name with the Debtor’s middle initial not the Debtor’s full name as listed on his driver’s license, were seriously misleading. The Court found the Trustee’s evidence persuasive and denied the motion. The Court also addressed the Movant’s unpersuasive arguments that the Trustee’s objections were barred by res judicata and judicial estoppel and that the Debtor filed his plan in bad faith.
This matter came before the Court by the Plaintiff’s motion to reconsider or vacate judgement under the Federal Rules of Bankruptcy Procedure Rules 7052, 9023, and 9024, Plaintiff’s claims the previous judgement violated his due process rights, and the Plaintiff’s oral motion to continue the hearing. The Court found that the Plaintiff had not presented new evidence or facts and it did not make an error in law in its earlier judgment. The Court also found that the Plaintiff was not entitled relief under Federal Rules of Bankruptcy Rule 9024. The Court did not find that the Plaintiff’s due process rights were violated and did not grant the Plaintiff’s oral motion to continue
Chief Judge Austin E. Carter
In the Debtor’s previous Chapter 12 case, the Court valued farmland for the purpose of confirmation. When the creditor whose claim was secured by the farmland sought to enforce a settlement agreement that had earlier been announced to support plan confirmation, the Debtor dismissed the case under 11 U.S.C. § 1208(b). In the current case, the Debtor sought a continuance of the confirmation hearing under § 1224 to conduct a new appraisal of the farmland. The creditor objected to the continuance and brought a motion to dismiss for “cause” under § 1112(b) due to the Debtor’s lack of good faith in filing the petition and abuse of the bankruptcy process. The creditor argued that the value of the farmland was fixed by the Court’s valuation in the previous case under the doctrine of res judicata. The Court found that no “cause” existed to continue the confirmation hearing. The Court also found that “cause” existed to dismiss the case as the petition was filed in bad faith. Although res judicata did not apply to the valuation of the farmland in the current case due to dismissal of the previous case, the Court held that the Debtor was improperly attempting to manipulate the bankruptcy code by taking action in the current case (i.e., revalue the farmland) that could not have been accomplished in the previous one.
Judge James P. Smith (Retired)
Pursuant to 11 U.S.C. § 544(b)(1), Trustee sought to step into the shoes of the IRS and use Georgia’s fraudulent transfer law, O.C.G.A. § 18-2-74, to avoid the debtor’s ten-year old transfer of real property to her brother. Some thirteen years prior to the debtor’s bankruptcy, the brother had conveyed the property to the debtor because the brother and his wife were having marital problems. The brother retained all the benefits and burdens of ownership of the property. The brother and his wife later reconciled and the debtor reconveyed the property to her brother. Trustee argued the reconveyance was a fraudulent transfer because the debtor had an actual or constructive intent to defraud her creditors. The court held that the debtor had held the property in constructive trust for her brother and that she had held bare legal title . Property of the estate does not include property in which the debtor holds only legal title and not an equitable interest. 11 U.S.C. § 541(d). The court held that the reconveyance was not a transfer of an interest of the debtor’s property under § 544.
ETC was the successful bidder at an ad valorem tax sale on Debtor’s residence. ETC then held title to the property as a defeasible fee interest, subject to Debtor’s right of redemption. After Debtor failed to redeem the property within one year of the tax sale (O.C.G.A. § 48-4-40(1)), Debtor was personally served with a barment notice to foreclose her redemption rights. Debtor again failed to redeem and filed Chapter 13 bankruptcy offering to pay the redemption price through her plan. The Court held that Debtor’s rights in the property had expired and that there was no “claim” to modify under § 1322(b)(2). The Court also held that service of the barment notice upon Debtor, although not perfect, met due process requirements. The Court denied confirmation of Debtor’s Chapter 13 plan.