MEMORANDUM AND ORDER
This matter before the Court is South Atlanta Neurology and Pain Clinic, P.C.’s (“South Atlanta”) complaint to determine dischargeability of debt against Robert J. Lupo (“Debtor” or “Lupo”). The Court acquires core matter jurisdiction over this proceeding under 28 U.S.C. 157(a) and (b)(2)(A), (I) and (0) and General Order No. 84 of this District. Upon an examination of the parties’ respective briefs and supporting documentation, and after conducting a trial on the matter, the following findings of fact and conclusions of law are hereby rendered:
Infinite View, Inc. (hereinafter, “Infinite View”), an Ohio corporation owned by the Debtor, previously engaged in the business of brokering and remanufacturing MRI equipment, entered into a written purchase proposal (the “Proposal”) and sales agreement (“Sale Agreement”) with South Atlanta wherein Infinite View would sell a 1999 Hitachi Aris II Open MRI System (the “MRI System”) to South Atlanta for the total purchase price of $385,000.00. Plaintiff’s Exhibits 11 and 12. South Atlanta tendered $77,000.00 (the “Deposit”) to Infinite View, representing the deposit due for the purchase of the MRI System. Id. Pursuant to the Agreement, Infinite View was to ship the MRI System to South Atlanta no later than June 1, 2005. Id. The delivery date was amended to June 20, 2005 by an addendum executed by the parties (“Addendum”). Plaintiffs Exhibit 26.
Prior the execution of the Proposal and the Agreement, Infinite View executed a Purchase Proposal to acquire a 1999 Hitachi Aris II Open MRI System from a third party known as Medical Arts Commack, for $300,000.
Plaintiffs Exhibit 19.
Sub
Prior to the execution of the Proposal and Agreement with South Atlanta, Infinite View was a defendant in a civil action captioned River Radiology, PLLC v. Infinite View, Inc., which was filed in the Lake County, Ohio Court of Common Pleas. River Radiology, the plaintiff therein, obtained an agreed judgment against Infinite View in the amount of $95,000.00, plus interest. Plaintiff’s Exhibit S. Subsequently, on two separate occasions, River Radiology caused the Lake County Sheriff to perform a levy of execution upon the assets of Infinite View at its business address in Willoughby, Ohio. Plaintiffs Exhibit 4 and 6. Thereafter, River Radiology and Infinite View entered into a consent entry in the state court action, whereby River Radiology was permitted to sell the levied property towards the satisfaction of its judgment. Plaintiffs Exhibit 13.
Prepetition, South Atlanta filed a lawsuit against Infinite View and Lupo in Henry County, Georgia asserting claims of breach of contract, fraud and conversion. Therein, in the matter of South Atlanta Neurology & Pain Clinic, PC v. Infinite View, Inc. et al., the court entered an order granting default judgment in favor of South Atlanta against Infinite View, which included compensatory and punitive damages in the sum total of $541,000.00 plus interest (the “Georgia Judgment”). Plaintiffs Exhibits 37 and 46. The action, as it pertained to Lupo, was stayed due to his pending Chapter 7 case. Plaintiffs Exhibit 46.
On August 16, 2005, Lupo filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Lupo’s Schedule F (“Creditors Holding Unsecured Nonpriority Claims”) includes the claim of South Atlanta in the amount of $77,000.00, and notes that the claim was a corporate obligation only — listed for precaution.
South Atlanta commenced the above captioned adversary proceeding, seeking to determine the dischargeability of its debt pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6) (the “Complaint”). South Atlanta alleges in the Complaint that Infinite View did not operate as a corporation and was the alter ego of Lupo, and that Lupo should be held personally liable for the acts of Infinite View and its representatives. South Atlanta also alleges that Lupo owes debts to South Atlanta that are nondischargeable because: (1) the debts were obtained by false pretenses, false representations and/or actual frаud by Lupo, (2) the debts arise from Lupo’s acts of larceny and fraudulent actions while acting in a fiduciary capacity; and (3) the debts arise from a willful and malicious injury resulting from a scheme of misconduct by Lupo.
In his Answer, Lupo admits that he was the sole shareholder and president of Infinite View. Notwithstanding, he asserts that it was one Kyle Lulow, on behalf of Infinite View, who entered into the Proposal, Agreement and Addendum with South Atlanta for the sale and delivery of the MRI System. Lupo asserts that it was Infinite View, as opposed to himself, which accepted the Deposit and promised delivery of the MRI System. Lupo denies South Atlanta’s allegations and asserts that he is not personally liable for the debts of Infinite View. Additionally, he asserts that the debt allegedly owed by him to South Atlanta is fully dischargeable.
The contentions of the parties reveal two dispositive issues. First, should the Debt-
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I. Piercing the Corporate Veil
“A
corporation is a separate legal entity from its shareholders, even where there is but one shareholder.”
LeRoux’s Billyle Supper Club v. Ma,
(1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted from such control and wrong.
Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos.,
The first prong of the piercing the corporate veil test is a restatement of the alter-ego doctrine, which requires a plaintiff “show that the individual and the corporation are fundamentally indistinguishable.” Id. In deciding whether the company is an alter ego of the individual, Ohio courts consider such factors as:
(1) grossly inadequate capitalization, (2) failure to observe the corporate formalities, (3) insolvency of the debtor corporation at the time the debt is incurred, (4) shareholders holding themselves as personally liable for certain corporate obligations, (5) diversion of funds or other property of the company property for personal use, (6) absence of corporate records, and (7) the fact that the corporate was a mere fagade for the operations of the dominant shareholder(s).
LeRoux’s Billyle Supper Club,
A corporation having one shareholder and officer does not,
per se,
signify that an individual shareholder exercised control and domination over a corporation. “A corporation is a separate legal entity from its shareholder even where there is only one shareholder in the corporation.”
Zimmerman v. Eagle Mtge. Corp.,
The evidence presented at trial supports a finding that Lupo exercised complete control over Infinite View. The evidence includes an admission by Lupo that Infinite View was undercapitalized and insolvent. Specifically, between late February and early March 2005, Infinite View had liabilities totaling $4.4 million and assets with a value of $40,000. (Lupo, Cross-Examination). The evidence also established that Lupo disregarded corporate formalities by knowingly allowing Kyle Lulow to hold himself out as a corporate officer. Lupo testified that although Kyle Lulow signed the Agreement as vice-president, Lulow was not an officer of Infinite View. Id.; Plaintiffs Exhibit 39. Lupo testified that the position of vice-president was a nonchartered, in-house positiоn/title given to Lulow by Lupo. Id. The evidence further illustrated a disregard of corporate formalities by Lupo where he admittedly used a checking account in the name of IVI Purchasing, a non-chartered Ohio corporation, to conduct Infinite View business. He also testified that he established a checking account for IVI Purchasing, using the Federal Taxpayer Identification Number of Infinite View. Id. Lupo admitted that he utilized the funds from the bank account of IVI Purchasing for his personal use. Id. He also admitted that the bank account of IVI Purchasing was the only bank account utilized by Infinite View from late 2004 to June 2005, when Infinite View ceased operations. Id. The trial record contains reliable, probative, and substantial evidence supporting the conclusion that Infinite View did not have a separate mind, will, or existence of its own and that Lupо alone controlled the corporation, thereby meeting the first prong of the Belvedere test.
The second prong of the
Belvedere
test requires the party seeking to pierce the corporate veil to establish that “control over the corporation by those to be held liable was exercised in such a manner to commit fraud or an illegal act against the person seeking to disregard the corporate entity.”
Belvedere Condominium Unit Oivners’ Ass’n,
Sufficient evidence was presented at trial to support a finding that Lupo personally, used his control of Infinite View to intentionally defraud or commit an illegal act against South Atlanta. Although Lupo exercised control over Infinite View, as determined supra, “mere control over a corporation is not in itself sufficient basis for shareholder liability.”
Belvedere
The third and final prong of the Belve-dere test requires a determination of whether the plaintiff suffered an injury or unjust loss that was a result of the defendant’s control of the corporation and wrongful act(s). In construing the last prong of Belvedere:
To the extent that such dominion exercised by [the defendant] was used in the present case to avoid paying for [corporate liabilities], a wrong has been committed and potential injury or unjust loss resulted to [the plaintiff] from such wrong, meeting the second and third prongs of the Belvedere Condominium Ass’n test.
Pritchett v. Pingue,
Ohio App. No. 96APE11-1598,
A review оf the evidence presented at trial reveals that Lupo participated in the state court litigation that ultimately gave
South Atlanta has met its burden of establishing the requisite basis to pierce the corporate veil of Infinite View and hold Lupo personally liable for the corporate debts of Infinite View. Thusly, Lupo is personally liable for the debts of Infinite View.
II. False Pretenses, False Representations or Actual Fraud Under 11 U.S.C. § 523(a)(2)(A)
South Atlanta cites § 523(a)(2)(A) as a basis upon which the debt owed to it by the Debtor should be held nondis-chargeable. Section 523(a)(2)(A) excepts an individual from discharge for any debt:
(2) for money, property, services or an extension, renewal or refinancing or credit to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.
II U.S.C. § 523(a)(2)(A).
“The creditor has the burden of proving by a preponderance of the evidence that a debt is nondis-chargeable under § 523(a)(2)(A)”.
Providian Bancorp v. Shartz (In re Shartz),
A creditor seeking to except debt from discharge pursuant § 523(a)(2)(A) must prove: (1) the debtor obtained money through a material misrepresentation that, at the time, the debtor knew was false or made with gross recklessness as to its truth; (2) the debtоr intended to deceive the creditor; (3) the creditor justifiably relied on the false representation; and (4) its reliance was the proximate cause of loss.
Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert),
South Atlanta asserts that Infinite View, Lupo and its agents misrepresented to South Atlanta that Infinite View owned the MRI System and that it would provide South Atlanta with the MRI System in exchange for payment in the amount of $385,000. In addition, South Atlanta asserts that Lupo knew the representations to be false at the time they were made and that the misrepresentations were made with the intent to deceive South Atlanta. Further, South Atlanta asserts that Lupo concealed from South Atlanta that Infinite View, at the time of the Agreement, was subject to levy of execution, that Infinite View was subject to possible appointment of a receiver, and Infinite View was the target of a tax investigation by the Federal Bureau of Investigation (the “FBI”) and the Internal Revenue Service (the “IRS ”). South Atlanta also asserts that prior to the execution of the Addendum, Lupo and Infinite View concealed from South Atlanta: (1) that the seller of the MRI System required the system to be shipped priоr to June 1, 2005; (2) that Infinite View’s only assets of value were subject to a consent judgment entry; and (4) that Infinite View had been under investigation by the FBI and the IRS.
Lupo testified that he was aware of the Agreement and the Addendum that were entered into by South Atlanta and Kyle Lulow on behalf of Infinite View. However, he did not have any direct contact with South Atlanta regarding the transaction. (Lupo, Cross-Examination). Dr. Brice Choi (“Dr. Choi”), the owner of South Atlanta, does not dispute Lupo’s testimony. (Choi, Direct). Dr. Choi testified that he initially contacted Infinite View through the internet and that the majority of the transaction was negotiated between Kyle Lulow, on the behalf of Infinite View, and Michael Dillard, on the behalf of South Atlanta. Id. South Atlanta has established through the evidence presented, however, that Infinite View failed to honor its end of the bargain of the Agreement. It is also undisputed that the Deposit given to Infinite View by South Atlanta, pursuant to the Agreement, was not returned upon Infinite View’s non-delivery of the MRI System. South Atlanta has demonstrated that Infinite View obtained the Deposit through a material misrepresentation that Infinite View had the financial means to execute the terms of the Agreement at the time the Agreement was executed. Lupo knew such was false or was made with gross recklessness as to its truth.
The second element of § 523(a)(2)(A) requires South Atlanta to establish that the representations made by the debtor must have been made with an “intent to deceive.”
Rembert,
South Atlanta has produced еvidence that proves by a preponderance of the evidence that Lupo through Infinite View intended to deceive the creditor. Therefore, South Atlanta has satisfied its burden of proof as it relates to the second element of § 523(a)(2)(A).
The third element of the § 523(a)(2)(A) dischargeability fraud test requires that a creditor establish that there was a justifiable reliance on the false representation made by the debtor. The Supreme Court in
Field v. Mans,
held that reliance pursuant to § 523(a)(2)(A) must be “justifiable.”
The evidence shows South Atlanta relied upon representations made by Kyle Lulow, an agent of Infinite View, which were memorialized in the Proposal, Agreement and Addendum as they related to South Atlanta’s purchase of the MRI System. Specifically, Infinite View represented to South Atlanta in the Agreement that it was the owner of the MRI System.
See Plaintiff’s Exhibit 12.
Also, Infinitе concealed from South Atlanta that Medical Arts of Com-maek, the third party seller of a MRI machine to Infinite View, required the entire purchase price to be paid prior to delivery of the MRI machine. (Lupo, Cross-Examination). Infinite View further concealed that it did not have the funds necessary to purchase the MRI machine. (Lupo, Cross-Examination). South Atlanta justifiably relied upon the representations made by Lulow as contained in the transactional documents. Infinite View represented that it had the wherewithal to offer for sale to South Atlanta the MRI System. South Atlanta relied upon such representation and did so justifiably when the parties executed the subject documents. Lupo caused Infinite View to make assurances of performance on a future financial obligation while it was experiencing financial diffiсulties is relevant to his intent under § 523(a)(2)(A).
See Bernard Lumber Co., et al. v. Billy Joe Patrick (In re Patrick),
The fourth and final element of the § 523(a)(2) dischargeability fraud test requires the plaintiff to show the false representation of the debtor was the proximate cause of its loss. “Proximate cause is something more than ‘speculation as to what the creditor might have done in hypothetical circumstances.’ ”
Candland v. Insurance Company of North America (In re Candland),
As proof that Lupo’s misrepresentations were the proximate cause of South Atlanta’s loss, Dr. Choi testified that he entered into the transaction with Infinite View based upon the misrepresentations of Lu-low that were memorialized in the transactional documents. He subsequently learned the representations were false. (Dr. Choi, Direct) Dr. Choi further testified that he was never informed that Infinite View was insolvent, undercapitalized and was facing financial difficulties. Id. Dr. Choi also testified that after South Atlanta requested the return of the Deposit, it was never returned. Id. Dr. Choi testified that South Atlanta incurred loss of revenue because of non-delivery of the MRI System and additional costs to acquire a similar MRI System. There is a connection between the representations made by Infinite View and its agents and the claim asserted by South Atlanta. It is reasonable to surmise that had South Atlanta not relied upon the misrepresentations of Infinite View, South Atlanta would not have entered into the Agreement with Infinite View. Certainly, South Atlanta would not have paid the Deposit and incurred the additional costs necessary to obtain a similar MRI System. See Plaintiffs Exhibit Ik-
Accordingly, South Atlanta has met its burden as it relates to excepting its debt from discharge pursuant to § 523(a)(2)(A). With no corporate shield, Lupo is denied the protection of the corporate shield for his own actions. Therefore, the debt is hereby determined to be his own, rather than a corporate one, and thereby nondis-chargeable.
Having determined that the subject debt is nondischargeable under § 523(a)(2)(A), it is unnecessary for the Court to consider the other dischargeability allegations set forth in the Complaint. To the extent, however, it may be deemed prudent to address §§ 523(a)(4) and (a)(6) allegations, the following findings and conclusions are made.
III. Fraud or Defalcatiоn While Acting in a Fiduciary Capacity, Embezzlement or Larceny Under 11 U.S.C. § 523(a)(4)
As an individual chapter 7 debtor, Lupo is entitled to a discharge of all of his prepetition debts, except for debts determined to be nondischargeable. South Atlanta asserts that the exception provided in § 523(a)(4) excepts its debt from discharge. Section 523(a)(4) provides:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny
11 U.S.C. § 528(a)(1). Specifically, South Atlanta claims that Lupo committed a fraud or defalcation while acting in a fiduciary capacity and embezzlement.
In this case, in order to find a debt nondischargeable under § 523(a)(4) because of defalcation, a plaintiff must prove by a preponderance of the evidence
“(1)
a pre-existing fiduciary relationship; (2) breach of that fiduciary relationship; and (3) a resulting loss.”
Commonwealth Land Title Co. v. Blaszak (In re Blaszak),
Embezzlement is defined by federal common law as “the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.”
Brady v. McAllister (In re Brady),
It is undisputed that South Atlanta gave the Deposit to Infinite View as required by the Agreement. See Plaintiffs Exhibits 12 and 51. There is ample evidence of record to support South Atlanta’s allegation that it believed that the Deposit was fully refundable if the transaction did not close. See Plaintiffs Exhibit 12. Also, the evidence presented shows that the Deposit to be fully refundable if South Atlanta cancelled two days prior to the shipment of the MRI System. Id. The evidence further reveals that South Atlanta made several requests to Infinite View for the return of the Deposit. See Plaintiffs Exhibits 28, 33 and 3L The evidence illustrates that South Atlanta entrusted its property, the Deposit, to Lupo’s company (Infinite View); and the Deposit was fully refundable to South Atlanta pursuant to the Agreement. Herein the corporate veil has been pierced. Lupo testified that he utilized funds from a checking account where the Deposit was placed for personal use. (Lupo, Cross-Examination). The Deposit, which are the funds that South Atlanta contends were embezzled, were paid to Infinite View pursuant to the Agreement. In accordance with the Agreement and upon South Atlanta’s request, Lupo failed to cause Infinite View to return the Deposit. Further, Infinite View represented to South Atlanta in the Agreement that it was the owner of the MRI System, referenced therein. See Plaintiffs Exhibit 12. Therefore, the circumstances surrounding Infinite View’s receipt of the Deposit and it’s refusal to refund same to South Atlanta is fraudulent conduct.
Thusly, South Atlanta has met its burden by establishing embezzlement as a basis for excepting its debt from discharge
IV. Willful and Malicious Injury Under 11 U.S.C. § 523(a)(6)
Section 523(a)(6) of the Bankruptcy Code provides the following:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — ■
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.
11 U.S.C. 523(a)(6).
A creditor has the burden of proving by a preponderance of the evidence that a debt is nondischargeable.
Grogan v. Garner,
To except a debt from discharge under § 523(a)(6), a claimant must show “that the debtor caused an injury to another entity, or to the property of another entity, and that the debtor knew that his act would cause, or was substantially certain to cause, that injury.”
Aristocrat Lakewood Nursing Home v. Dryja (In re Dryja),
Although the “willful” and “malicious” requirements will be found concurrently in most cases, the terms are distinct, and both requirements must be met under § 523(a)(6).
In re Martin,
When determining whether a debtor’s conduct was willful, “[i]n addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury producing action.”
In re Sicroff,
The term malicious is defined as conduct taken in conscious disregard of one’s duties or without just case or excuse.
Wheeler v. Laudani,
Finally, “[fjor a debt to fall within this exception to discharge the creditor has the burden of proving that it sustained an injury
as a result
of a willful and malicious act by the debtor. Thus, a debtor’s actions must be determined to be the cause of the creditor’s injury.”
In re Smith,
It is apparent that South Atlanta suffered an injury based on Infinite View’s failure to honor the Agreement, through a scheme of misconduct orchestrated by Lupo. As determined above, the circumstances created, or allowed to be created by Lupo’s conduct, clearly evinces he intended the result of his actions.
Accordingly, the subject debt is nondis-chargeable under 11 U.S.C. § 523(a)(6).
V. Collateral Estoppel
South Atlanta seeks a determination that its debt arising from the prepetition default judgment it obtained against Infinite View in the state court action in Henry County, Georgia in nondischargeable pursuant to §§ 523(a)(2)(A) and (a)(6). Sоuth Atlanta asserts that pursuant to the doctrine of collateral estoppel the Georgia state court default judgment entered against Infinite View should be given pre-clusive effects against Lupo in this dis-chargeability proceeding. Collateral es-toppel prohibits the re-litigation of issues that have been adjudicated in a prior lawsuit, and collateral estoppel principles apply to dischargeability proceedings.
Grogan v. Garner,
A federal court must look to the law of the state in which the judgment was entered and give the order or judgment the same preclusive effect that it would receive in that state.
Marrese v. American Academy of Orthopaedic Surgeons,
[First, the court should] consider ... the law of the State in which the judgment was rendered to determine its pre-clusive effect. If the state court would not give preclusive effect to a default judgment, the analysis is complete. If, however, the state would accord the judgment preclusive effect, Marrese instructs that the federal court give pre-clusive effect to the judgment unless Congress has expressly or impliedly created an exception to [28 U.S.C.] § 1738 which ought to apply to the facts before the federal court.
In re Calvert,
In determining the preclusive effect of a Georgia state court default judgment the court in Lusk v. Williams (In re Williams) held that:
[T]he five elements for the application of collateral estoppel under Georgia law are (1) identity of parties or their privies; (2) identity of issues; (3) actual and final litigation of the issue in question; (4) essentiality of the adjudication to the earlier action; and (5) full and fair opportunity to litigate the issues in question.
The first prong of the collateral estoppel test requires an identity of the parties or their privies in both the state court and dischargeability proceeding. “Generally speaking, privies are those legally represented at the trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.”
Smith v. Wood,
The effect of applying the alter ego doctrine ... is that the corporation and the person who dominates it are treated as one person, so that any act committed by one is attributed to both, and if either is bound, by contract, judgment, or otherwise, both are equally bound.
See also International Telephone and Telegraph Corp. v. General Telephone & Electronics Corp.,
The second prong of collateral es-toppel requires a finding of the identity of issues between the judgment of the state court and the claims raised in this adversary proceeding. South Atlanta asserts claims pursuant to § 523(a)(2)(A), (a)(4) and (a)(6) against Lupo in this adversary proceeding. Notwithstanding, South Atlanta asserts the applicability of the doctrine of collateral estoppel as to its claim for an exception to discharge pursuant to § 523(a)(2)(A). In order to prove that a debt was obtained by fraud pursuant to § 523(a)(2)(A), a creditor must prove: (1) the debtor obtained money through a material misrepresentation that, at the time, the debtor knew was false or made with gross recklessness as to its truth; (2) the debtor intended to deceive the creditor; (3) the creditor justifiably relied on the
The third prong of the collateral estoppel test requires a showing that there was actual and final litigation of the issue in question. In deciding if a default judgment constitutes actual and final litigation the Sterling court provided:
Georgia courts have recognized default judgment as a decision on the merits. See Butler v. Home Furnishing Co.,163 Ga.App. 825 ,296 S.E.2d 121 (1982); Fierer v. Ashe,147 Ga.App. 446 ,249 S.E.2d 270 (1978). At least two bankruptcy courts within the Eleventh Circuit have accordingly found the “actual litigation” requirement for purposes of a bankruptcy dischargeability proceeding satisfied by a default judgment rendered by a Georgia court. See Graham,191 B.R. at 495 ; Hooks,238 B.R. at 885 . The court finds that the bankruptcy court did not err in finding the second prong of the Georgia collateral estoppel test satisfied.
The fourth prong of the collateral estop-pel test requires a determination that the issue of fraud in this proceeding was also essential to the Georgia Judgment. The state court in the Georgia Judgment made a specific finding of fraud against Infinite View to whom Lupo is in privity with.
Id; See Lusk,
The final prong of the collateral estoppel test hinges upon a full and fair opportunity to litigate the issues in question. This factor “is rooted in due process concerns... [therefore, for purposes of collateral estoppel the key to full and fair opportunity analysis is determining whether the party had adequate notice of the issue and was afforded the opportunity to participate in its determination.”
Lusk,
As determined above, under Georgia law, the default judgment issued by the Georgia state court against Infinite View meets all the requirements under the doctrine of collateral estoppel.
CONCLUSION
Accordingly, South Atlanta’s Complaint to Determine Discharge is well-premised and judgment is hereby rendered in favor of South Atlanta. Costs are awarded to the Plaintiff, South Atlanta.
IT IS SO ORDERED.