Andia Ashley Evans

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ANDIA ASHLEY EVANS,
Debtor.
)
)
)
)
)
)
Case No. 10-00139
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION REGARDING DEBTOR’S OBJECTION TO AFFIDAVIT
OF DEFAULT UNDER CONSENT ORDER MODIFYING THE AUTOMATIC STAY
The debtor consented to entry of a Consent Order lifting the
automatic stay on her real property to permit First Mount Vernon
to foreclose upon the property, but the Consent Order, which was
signed and entered on April 19, 2010, provided that the automatic
stay would be stayed so long as the debtor:
1. Resume(s) making regular monthly payments on
May 1, 2010 of $1,823.82 or as adjusted for escrow
changes and continue thereafter, as well as all other
conditions and obligations under the terms of the Deed
of Trust or Mortgage, and
2. Make(s) a payment of $841.28 for six (6) months
beginning April 20, 2010, and continue through September 20,
2010. The total post-petition arrearage due from March, 2010
to April 2010 is $5,047.64 which includes $650.00 bankruptcy
legal fees, $150.00 and $600.00 late charges.
The Consent Order directed that:
Should the Debtor(s) fail to make any payment when due
or should any payment be returned for insufficient
The document below is hereby signed.
Signed: June 03, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 10-00139 Doc 59 Filed 06/04/10 Entered 06/04/10 08:25:53 Desc Main
Document Page 1 of 4

funds, Movant shall file a Notice of Default with the
Court. 	Said Notice shall provide copies to the
Debtor(s) and Debtor(s)' attorney and allow the
Debtor(s) ten (10) days from the date the Affidavit of
Default is mailed to cure two (2) default(s) under this
agreement. 	Any cure of an Affidavit of Default must be
made in the form of a certified or cashier's check, or
Western Union Quick Collect. 	No right shall be given
to cure any ensuing default. 	In the event of a
subsequent default and upon notice to Debtor(s),
Debtor(s)' counsel and the Court the stay shall
automatically terminate.
The debtor defaulted in making a required payment, and the
creditor filed an affidavit of default. 	The debtor then filed a
response stating in pertinent part:
4. On or about April 22, 2010, Debtor, filed with
this Court, a motion seeking to value the Property, and
in turn cramdown the claim of Movant such that debtor
would pay through the plan the lien of First Mount
Vernon to the extent of $85,000.00 (with interest at
7%).
5. Inasmuch as debtor intends to make payment to First
Mount Vernon by and through the plan, First Mount Vernon is
adequately protected, and cause has not been established to
permit First Mount Vernon relief from the stay.
The debtor’s response to the affidavit of default does not rebut
the accuracy of the facts recited in the affidavit of default,
establishing that the debtor had defaulted in making a payment
required by the Consent Order. 	Under the terms of the Consent
Order, the automatic stay has terminated without the necessity of
further order of the court.
The Consent Order did not provide an exception to the
termination of the automatic stay in the event the debtor were to
propose a plan that would provide for the lien to be paid through
2
Case 10-00139 Doc 59 Filed 06/04/10 Entered 06/04/10 08:25:53 Desc Main
Document Page 2 of 4

a plan at a “cramdown” value. 	To be relieved of the terms of the
Consent Order, the debtor would have to file a motion under Fed.
R. Civ. P. 60 for relief from the Consent Order. 	The debtor has
filed no such motion. 	Nor has the debtor secured confirmation of
a plan containing terms that would bind the creditor and trump
the Consent Order.
In any event, if it were treated as a motion to be relieved
of the Consent Order, the debtor’s response to the affidavit of
default does not set forth adequate grounds for being relieved of
the terms of the Consent Order. 	The debtor has not even filed a
plan to “cram down” the creditor: the only plan on file, filed on
February 17, 2010, provides:
B. 	11 U.S.C. § 1322(b5) CLAIMS: THE DEBTOR SHALL
MAINTAIN POST-PETITION PAYMENTS DIRECTLY WHILE
CASE IS PENDING AND THE TRUSTEE WILL CURE ALL
PRE-PETITION ARREARS, COSTS, AND FEES OF THE
FOLLOWING CLAIMS:
-- WITH FULL 1OO% PAYMENT:
First Mount Vernon (Adversary Complaint to Be Filed)
(No adversary proceeding has been filed.) 	The debtor does not
allege how she could pay $85,000, with 7% interest, over the
five-year maximum term of a plan. 	Perhaps most importantly, the
debtor has not explained why she should be relieved of the terms
of the Consent Order when she knowingly entered into that Consent
Order.
An order follows striking the response to the affidavit of
default, without prejudice to the debtor’s seeking relief from
3
Case 10-00139 Doc 59 Filed 06/04/10 Entered 06/04/10 08:25:53 Desc Main
Document Page 3 of 4

the Consent Order under Fed. R. Civ. P. 60, or seeking
confirmation of a plan that alters the rights of the creditor.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Richard
Rogers, Esq.
4	O:\TEEL\Judge Temp Docs\Evans (Andia Ashley) - Mem Decsn & Order re Affi of Deflt.wpd
Case 10-00139 Doc 59 Filed 06/04/10 Entered 06/04/10 08:25:53 Desc Main
Document Page 4 of 4