The Chapter 13 trustee does not violate § 586 by basing her commission on a percentage of the money paid into the plan rather than on a percentage of money she disburses.
Opinions
The Middle District of Georgia offers opinions in PDF format, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.
Please note: These opinions are not a complete inventory of all judges' decisions and are not documents of record. Official court records are available at the clerk's office.
Judge James D. Walker Jr. (Retired)
Applying the plain language of O.C.G.A. § 44-13-100(a)(1), the court allowed a married debtor filing individually to take a $20,000 homestead exemption when his residence was titled solely in his name, even though debtor and his spouse had been separated for 20 years and she maintained a separate residence.
The so-called "no-look" fee set forth in Local Rule 2002-1 does not set a fee, but acknowledges that $1,500 typically will be a reasonable fee in a Chapter 13 case. The debtor’s attorney is obligated to request a lesser fee when appropriate.
Judge John T. Laney, III
The former Chapter 7 Trustee ("Trustee") asked the court to reconsider the August 25, 2004 decision overruling the Trustee’s objection to confirmation of the Debtors’ Chapter 13 plan. The Trustee alleged that the Barbers were insolvent and that the transfer of property from Mr. Barber to his son was fraudulent. After arguments and evidence were presented, the court determined that the Barbers were solvent and overruled the objection. The Trustee then brought a motion to reconsider because at the hearing he failed to argue that after the transfer of the property the mortgage remained in Mr. Barber’s name for 64 days, although the son had assumed the payments as required under the security deed. The Trustee argued in his reconsideration motion that this made the Barbers insolvent. The court denied the motion to reconsider because under Rule 59(e) a motion to reconsider should only be used in extraordinary circumstances. Because there was no previously unavailable evidence, change in the law, or a clear error of law, the court declined to reconsider.
The Court held a hearing on Washington Mutual Home Loans’ motion for Relief from the Stay. The security deed at issue was notarized, but not witnessed by an unofficial witness as required under O.C.G.A. § 44-14-61. The court found the security deed was unperfected because it did not meet the statutory requirements. However, the Trustee did not bring an action to avoid the nonperfected lien, so the issue of whether an unrecorded security deed has priority over a subsequent judgment lien was not before the court.
Creditor, Farmers Furniture, objected to the confirmation hearing in the Cersey and Ledford cases because the Debtors’ plans did not include all of the collateral securing the notes executed between the Debtors and Farmers Furniture. The Debtors claimed that the purchase money security interest ("PMSI") in the collateral was lost under the Transformation Rule when subsequent contracts with cross-security clauses were executed. However, the case law regarding this issue holds that if the contract contain a method for allocation, the PMSI will be enforceable. Because the contracts at issue contained an adequate allocation method, the PMSIs are enforceable.
Robert F. Hershner, Jr. (Retired)
The creditor loaned the debtor funds to purchase a residence. The debtor moved from the residence. The debtor offered to pay through her Chapter 13 plan the value of the residence and to treat the remainder of the creditor's claim as unsecured. The creditor contended that modification of its claim was prohibited by 11 U.S.C.A. § 1322(b)(2) because its claim was secured by the debtor's principal residence.
The Court held that the critical date for deciding whether a creditor qualifies for § 1322(b)(2) protection is the date the petition is filed, not the date the loan was made. The Court held that the creditor's claim was not protected because the residence was not the debtor's principal residence when the bankruptcy petition was filed
The debtor filed a complaint to subordinate the creditors' secured claims to all unsecured claims for purposes of distribution, 11 U.S.C.A. § 510(c).The creditors filed a motion to dismiss contending that a prior pending action in state court would determine the issues presented. The Court denied the motion to dismiss noting that the state court has no jurisdiction to subordinate the defendant's allowed claims. The Court also noted that the defendants' claims may be subordinated to some but not all unsecured claims.
Applicants sought reimbursement as administrative expenses the attorney fees they incurred in bringing an involuntary Chapter 7 bankruptcy petition against the debtor. 11 U.S.C.A. § 503(b)(3)(A), (4). The debtor argued that the itemization of the services did not adequately describe the services rendered. The court held that the itemization was sufficient and was similar to those submitted in other bankruptcy cases. The court disallowed services which were not necessary to bringing the involuntary petition.
A surety provided a guardian bond to the debtors who were the guardians of their minor daughter. The debtors were removed as guardians and the successor guardian called upon the surety to honor its bond. The surety obtained a confession of judgment from the debtors. The debtors filed for Chapter 7 relief and the surety contended the debtors obligation was a nondischargeable defalcation while acting in a fiduciary capacity.
The court held that the surety was entitled to summary judgment on the issue that the debtors were acting in a fiduciary capacity and that the surety was a proper party to bring the nondischargeable action. The court held that there remain material questions of fact as to whether the debtors committed a defalcation.