CASE NUMBERS BANKRUPTCY CASE NO. 05-11063-WHD, ADVERSARY PROCEEDING NO. 06-1032.United States Bankruptcy Court, N.D. Georgia, Newnan Division.
September 15, 2006
IN PROCEEDINGS UNDER CHAPTER 7 OF THE BANKRUPTCY CODE
W. DRAKE JR., Bankruptcy Judge
ORDER
Currently before the Court is the Motion for Summary Judgment filed by the Office of the United States Trustee (hereinafter the “US Trustee”). The Motion arises in connection with an Objection to Discharge filed by the US Trustee against Debra Ann Dent (hereinafter the “Debtors”). This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 157(b)(J); § 1334.
FINDINGS OF FACT
On March 4, 2005, the Debtor filed a voluntary bankruptcy petition under
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Chapter 7 of the Code. The records of this Court indicate that the Debtors filed a voluntary Chapter 7 petition on October 12, 1999 (Case Number 99-12790), in which she received a discharge on January 20, 2000. Prior to the expiration of the deadline for objecting to the Debtor’s discharge in the instant case, the US Trustee filed the instant complaint.
CONCLUSIONS OF LAW
In accordance with Federal Rule of Civil Procedure 56
(applicable to bankruptcy under FED. R. BANKR. P. 7056), this Court will grant summary judgment only if “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of a proceeding under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The moving party has the burden of establishing the right to summary judgment, Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Clark v. Union Mut. Life Ins. Co., 692 F.2d 1370, 1372 (11th Cir. 1982), and the Court will read the opposing party’s pleadings liberally Anderson, 477 U.S. at 249.
In determining whether a genuine issue of material fact exists, the Court must view the evidence in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Rosen v. Biscayne Yacht Country Club, Inc., 766 F.2d 482, 484 (11th Cir. 1985). The moving party must identify those evidentiary materials
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listed in Rule 56(c) that establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); see also FED. R. CIV. P. 56(e). Once the motion is supported by a prima facie showing that the moving party is entitled to judgment as a matter of law, the party opposing the motion must go beyond the pleadings and demonstrate that there is a material issue of fact that precludes summary judgment Celotex, 477 U.S. at 324; Martin v. Commercial Union Ins. Co., 935 F.2d 235, 238 (11th Cir. 1991).
Pursuant to section 727(a)(8), a debtor shall not be granted a discharge if the debtor has been granted a discharge in a case commenced within six years before the date of the filing of the petition. See 11 U.S.C. § 727(a)(8). No material questions of fact remain as to whether the Debtor’s discharge should be denied. The US Trustee has established that the Debtor received a discharge in a Chapter 7 case within six years prior to the filing of the instant case. Accordingly, as a matter of law, the Debtor’s discharge must be, and hereby is, DENIED.
The US Trustee’s Motion for Summary Judgment is, therefore,GRANTED. Judgment in favor of the US Trustee shall be entered.
IT IS SO ORDERED.
JUDGMENT
Judgment is hereby entered for the Plaintiff, the Office of the United States Trustee, against the Defendant, Debra Ann Dent, in the above-styled adversary proceeding in accordance with the Order of the Court entered the ___ day of September, 2006.