Great Plains Transportation Services, Inc. v. Garner et al

1 Paragraph 5 of the complaint alleges that the cause of action
arises under 11 U.S.C. § 523(a)(2)(A) and (B) and 11 U.S.C. § 727;
however, the delineated claims for relief within the complaint all
arise under § 523(a)(2).
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
IN RE:
LARRY GARNER
LINDA M. GARNER
DEBTORS
CASE NO.
05-04669-8-ATS
GREAT PLAINS TRANSPORTATION
SERVICES, INC.
Plaintiff
v.
LARRY GARNER and
LINDA M. GARNER
Defendants.
ADVERSARY PROCEEDING NO.
S-O5-00258-8-AP
ORDER REGARDING MOTION FOR DEFAULT JUDGMENT
The matter before the court is the plaintiff’s motion for default
judgment. A telephonic hearing was conducted on January 9, 2006.
Larry Garner and Linda M. Garner filed a petition for relief under
chapter 13 of the Bankruptcy Code on June 15, 2005. On September 2,
2005, Great Plains Transportation Services, Inc. filed a complaint
against the debtors objecting to their discharge and the
dischargeability of debts pursuant to 11 U.S.C. §§ 727 and 523(a)(2).1
The debtors were served on September 8, 2005, and no responsive
pleading was filed. The plaintiff now seeks entry of default and
default judgment.
Procedurally, entry of default and default judgment are
appropriate; however, even where judgment is obtained by default, a
Case 05-00258-8-ATS Doc 17 Filed 01/13/06 Entered 01/13/06 15:49:51 Page 1 of 2

2
plaintiff may only be awarded the relief to which it is legally
entitled. This is a case under chapter 13 of the Bankruptcy Code.
Section 523(a)(2) does not apply in chapter 13 cases filed prior to
October 17, 2005, the effective date of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005. See 11 U.S.C. § 1328(a).
Similarly, § 727 does not apply in chapter 13 cases. Accordingly, even
if the facts alleged in the complaint are established due to the
debtors’ default, the plaintiff is not entitled to have its debts
excepted from discharge under § 523(a)(2), nor does § 727 operate to
deny the debtors their discharge.
Based on the foregoing, the court concludes that the plaintiff has
a claim against the debtors in the amount of $25,230.96. The court
also concludes that the plaintiff is not entitled to a judgment
determining that the debt is nondischargeable in this chapter 13 case
or a judgment that the debtors’ discharge should be denied pursuant to
§ 727 of the Bankruptcy Code.
SO ORDERED.
DATED: January 13, 2006
Case 05-00258-8-ATS Doc 17 Filed 01/13/06 Entered 01/13/06 15:49:51 Page 2 of 2