Nicholas W. Whittenburg
How Judge Whittenburg rules, drawn from 20 signed orders. Every observation links to the order it came from.
How Judge Whittenburg decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Concrete proof of both payment capacity and intent can overcome an inference that a filing immediately before foreclosure lacked good faith.
“The debtor did file this case prior to a foreclosure, but that alone is not indicative of a lack of good faith, particularly because the debtor has presented proof that she has both the ability and intent to pay U.S. Bank as required by the Bankruptcy Code.”
Specific evidence linking requested fees to ending a stay violation and prosecuting the enforcement motion supported recovery.
“Accordingly, with respect to the fees incurred to coerce Mr. Smith’s compliance with the automatic stay and to prosecute the present motion, the court finds that the debtor has satisfied her burden of proof under Section 362(k).”
A consensual divorce transfer did not receive the protection afforded to a regularly conducted, contested property division when the trustee challenged it as constructively fraudulent.
“The Kelleys’ divorce was neither regularly conducted nor contested. The Kelleys' division of property was consensual.”
Procedural preferences
Once transfer to the proper district cures an initial venue defect, the receiving court may use the general transfer statute to send the matter to another district.
“With the transfer of the case to the Northern District of Georgia, the venue defect was cured.”
Reconsideration requires more than renewed disagreement with the original ruling; the movant must identify new evidence, changed law, clear error, or manifest injustice.
“The plaintiff has not produced any newly discovered evidence or suggested that there has been an intervening change in controlling law.”
The court separates claim allowance from the evidentiary effect of missing attachments rather than treating documentation defects as automatic disallowance.
“Questions surrounding evidence, whether prima facie or not, should not be comingled with whether a claim is to be allowed or disallowed; but rather, evidence, ‘is a concern only at a hearing to resolve factual disputes.’”
Cautions
Debt tied to a defunct business does not itself establish present commercial or business activity for Subchapter V eligibility.
“Here, the debtor had personally guaranteed CHRC’s debts, but on (and even around) the petition date, he was not taking any action that amounted to being engaged in commercial or business activities.”
A party seeking to reform an unambiguous lease must prove the claimed shared intent with clear and convincing evidence.
“The debtor simply failed to establish by clear and convincing evidence the first element necessary to reform the lease as written—that each of the parties, including Mr. Chen, agreed that the debtor, not Mr. Stewart and Mr. Watts, would be the lessee.”
Unsupported accusations of misconduct do not create a factual dispute at summary judgment.
“When pressed by this court, the defendant eagerly alleged that he had proof of doctored evidence and false testimony by expert witnesses, but he never supported those allegations with the slightest bit of evidence.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“For the reasons stated in this memorandum, the court sustains the United States trustee's objection to the debtor's election of subchapter V of chapter 11.”
“For the foregoing reasons, the court will enter an order granting the plaintiff judgment as a matter of law, declaring that she had the right to redeem the property from the tax sale through CNE as her agent since the redemption right had not expired at the time she commenced her chapter 13 case and since the redemption occurred within sixty days after that date.”
“For the foregoing reasons, the court will enter a separate order granting the Motion to Dismiss, or Alternatively to Abstain, filed on September 18, 2018, and dismissing this adversary proceeding.”
“The order will also deny the plaintiff’s motion for summary judgment.”
“For the foregoing reasons, the court will enter an order granting the defendants judgment as a matter of law in part, dismissing Counts I and II in part, and dismissing Count III in its entirety.”
“For the foregoing reasons, the court will enter an order denying the plaintiff’s Motion to Reconsider.”
“The court will, therefore, enter a separate order granting the defendant’s Motion to Dismiss.”
“For the foregoing reasons, the court by separate order denies the debtor’s Motion to Assume Lease or Executory Contract and to Determine Any Lease Arrearage.”
“By separate order in the above styled case the court is granting McKesson’s motion for determination of secured status in part.”
“Also by separate order in Case No. 17-11919, the court will overrule the trustee’s objection to claim.”
“The court will, therefore, deny the trustee’s motion to approve the compromise and settlement.”
“This memorandum supplements the court's findings and conclusions made on May 11, 2023, denying a creditor's motion to dismiss the case because it was initially filed in an improper venue.”
“By separate order the court will grant the plaintiff’s motion for partial summary judgment and will deny the defendant’s motion for summary judgment.”
“By separate order, the court will grant in part and deny in part the defendants’ motion for summary judgment, as well as dismiss the TILA cause of action.”
Caseload & timing
From public federal docket records for this judge.
Five early sampled matters were terminated and supplied no text-grounded contested disposition. Tombul remained pending and supplied one express objection outcome.
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