Alexis Stephen Donaville and Dorothy Lee Donaville

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 08-41057 TG
Chapter 13
ALEXIS STEPHEN DONAVILLE, DOROTHY 	R.S. KAZ 4710
LEE DONAVILLE,
Debtors.
_______________________________/
MEMORANDUM RE DISPUTE OVER TERMS OF ADEQUATE PROTECTION ORDER
The parties appeared before the Court on March 5, 2010 at 11:00
a.m. 	on 	the 	motion 	for 	relief 	from 	the 	automatic 	stay 	filed 	by
Deutsche Bank National Trust Company, as Trustee (“DB”). 	The debtors
opposed the motion, contending that they were not in default of the
adequate protection order entered by the Court after a June 1, 2009
hearing. 	They 	contended 	that 	the 	order 	permitted 	them 	to 	make
reduced 	payments 	on 	DB’s 	secured 	claim 	for 	an 	indefinite 	period 	of
time. 	The Court agreed to listen to the recording of the hearing at
which the terms of the adequate protection order were recited on the
record.
The 	order 	in 	question 	was 	entered 	on 	July 	24, 	2009. 	Although
the 	caption 	references 	a 	hearing 	on 	February 	18, 	2009, 	the 	hearing
Signed: March 08, 2010
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
March 08, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-41057 Doc# 38 Filed: 03/08/10 Entered: 03/08/10 15:43:43 Page 1 of 3

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1The motion was originally heard on February 18, 2009 but was
continued on that date to March 20, 2009 and then again to June 1,
2009.
2
upon which the order is based actually occurred on June 1, 2009. 	The
minutes 	reflect 	that 	the 	debtors’ 	counsel 	was 	present 	at 	that
hearing. 1 	The 	minutes 	also 	reflect 	that 	the 	reduced 	payments 	were
only to be for a six month period.
The 	recording 	of 	the 	hearing 	is 	consistent 	with 	the 	minutes.
DB’s 	counsel 	explained 	that 	the 	debtors 	had 	been 	denied 	a 	loan
modification. 	However, 	during 	the 	six 	month 	period 	of 	reduced
payments, if the debtors reapplied, it was possible that the request
for a modification might be reconsidered. 	DB’s counsel also stated
that, at the end of the six months, the motion could be restored to
the 	calendar. 	Debtors’ 	counsel 	did 	not 	contradict 	these
representations.
The 	order 	does 	not 	accurately 	reflect 	these 	provisions: 	i.e.,
that the reduced payments could only be made for six months or that
the motion could be restored at the end of the six month period even
if the debtors had made all the reduced payments and paid taxes and
insurance. 	However, 	the 	Court 	does 	not 	believe 	that 	the 	negligent
drafting 	of 	an 	adequate 	protection 	order 	can 	alter 	the 	terms 	of 	an
adequate protection order clearly agreed to by debtors’ counsel and
recited in open court to the Court.
END OF DOCUMENT
Case: 08-41057 Doc# 38 Filed: 03/08/10 Entered: 03/08/10 15:43:43 Page 2 of 3

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COURT SERVICE LIST
Dorothy Lee Donaville
Alexis Stephen Donaville
4633 Grass Valley Rd.
Oakland, CA 94605
Max Cline
Law Offices of Max Cline
1300 Clay St. #600
Oakland, CA 94612
JaVonne M. Phillips
McCarthy & Holthus, LLP
1770 Fourth Ave.
San Diego, CA 92101
Case: 08-41057 Doc# 38 Filed: 03/08/10 Entered: 03/08/10 15:43:43 Page 3 of 3