Russ L. Daniels

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 10-40031 TM
Chapter 7
RUSS L. DANIELS, 	RS EAT 780
Debtor.
_______________________________/
MEMORANDUM OF DECISION RE MOTION FOR RELIEF
The motion of Deutsche Bank National Trust Company, as Trustee
(the “moving party”) for relief from the automatic stay came before
the above-captioned Court on May 14, 2010 at 11:00 a.m. 	The debtor
appeared 	pro 	se 	in 	opposition 	to 	the 	motion. 	At 	the 	conclusion 	of
the 	hearing, 	the 	Court 	took 	the 	motion 	under 	submission. 	Having
reviewed 	the 	Court 	file 	and 	considered 	the 	issues 	raised 	at 	the
hearing, the Court now concludes that the stay should be vacated so
that the moving party can proceed with its unlawful detainer action.
DISCUSSION
The 	debtor 	filed 	a 	petition 	seeking 	relief 	under 	chapter 	7 	of
the 	Bankruptcy 	Code 	on 	January 	4, 	2010. 	His 	bankruptcy 	petition
listed 	411 	Lewis 	Avenue, 	San 	Leandro, 	California 	as 	his 	street
address 	and 	P.O. 	Box 	24960, 	Oakland, 	California 	as 	his 	mailing
Signed: May 17, 2010
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
May 18, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-40031 Doc# 40 Filed: 05/17/10 Entered: 05/18/10 16:58:35 Page 1 of 5

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26 	1A trustee’s deed transferring title to the moving party was
recorded on February 18, 2010.
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address. 	Because 	the 	petition 	was 	the 	only 	document 	filed, 	on
January 	5, 	2010, 	the 	Court 	issued 	an 	order 	listing 	the 	additional
documents 	that 	had 	to 	be 	filed 	within 	14 	days. 	The 	order 	stated
that, unless the documents were filed or the debtor obtained an order
extending his time to file them or excusing him from filing them, the
case could be dismissed without further notice. 	The order was served
on the debtor at his mailing address but not his street address. 	The
debtor 	did 	not 	file 	the 	required 	documents 	or 	obtain 	an 	order
extending the time or excusing him from filing them within 14 days.
As a consequence, on January 21, 2010, the case was dismissed.
On 	February 	4, 	2010, 	a 	foreclosure 	sale 	was 	conducted 	with
respect to real property owned by the debtor pursuant to the moving
party’s deed of trust. 1 	The debtor learned of the foreclosure sale
on February 4, 2010 and later that day filed another petition seeking
relief under chapter 7 of the Bankruptcy Code, thereby commencing a
second bankruptcy case. 	On February 17, 2010, he wrote a letter to
the 	Court 	requesting 	the 	reinstatement 	of 	his 	first 	case,
representing that he could now file the missing documents. 	The Court
concluded that the second case should be dismissed and the first case
should be reinstated. 	However, the reinstatement did not invalidate
any 	actions 	taken 	by 	creditors 	while 	the 	case 	was 	dismissed,
including the foreclosure sale.
On 	April 	16, 	2010, 	the 	moving 	party 	filed 	a 	motion 	for 	relief
from 	the 	automatic 	stay 	so 	that 	it 	could 	proceed 	with 	an 	unlawful
Case: 10-40031 Doc# 40 Filed: 05/17/10 Entered: 05/18/10 16:58:35 Page 2 of 5

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detainer action against the debtor with respect to the real property.
The 	motion was set for hearing on May 14, 2010. 	The debtor filed
an 	opposition 	to 	the 	motion 	on 	May 	14, 	2010 	and 	appeared 	at 	the
hearing 	in 	support 	of 	the 	opposition. 	At 	the 	hearing, 	the 	debtor
contended that the motion should be denied. 	He conceded that there
had 	been 	no 	automatic 	stay 	in 	place 	when 	the 	foreclosure 	sale 	was
conducted. 	However, he contended that the above-captioned case had
been improperly dismissed because the order warning him that it might
be 	dismissed 	without 	further 	notice 	had 	been 	sent 	only 	to 	the 	post
office box address.
The 	debtor 	contended 	that 	the 	post-office 	box 	address 	was 	a
secondary 	address, 	that 	it 	was 	his 	mother’s 	address, 	and 	that 	his
mother had died in the interim between the filing of the petition and
the date the order was mailed. 	Therefore, he did not receive actual
notice of the deadline for filing his documents. 	He noted that the
real property had been purchased by the foreclosing secured creditor
pursuant to a credit bid. Therefore, arguably, the sale could be set
aside 	without 	prejudice 	to 	a 	good 	faith 	purchaser. 	The 	Court 	took
the 	matter 	under 	submission, 	primarily 	to 	check 	into 	the 	notice
issue.
The 	Court 	now 	concludes 	that 	the 	motion 	for 	relief 	should 	be
granted. 	The Court finds that service of a motion for relief on the
address 	listed 	in 	the 	debtor’s 	petition 	as 	the 	mailing 	address
constitutes adequate service. 	Although the mailing address may have
been 	listed 	on 	the 	petition 	under 	the 	street 	address, 	this 	did 	not
make 	it 	a 	secondary 	address 	for 	notice 	purposes. 	The 	common
Case: 10-40031 Doc# 40 Filed: 05/17/10 Entered: 05/18/10 16:58:35 Page 3 of 5

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understanding of the phrase “mailing address” is the address at which
mail should be directed. 	As a result, the dismissal of his case was
procedurally proper.
Counsel 	for 	the 	moving 	party 	is 	directed 	to 	submit 	a 	proposed
form of order in accordance with this decision.
END OF DOCUMENT
Case: 10-40031 Doc# 40 Filed: 05/17/10 Entered: 05/18/10 16:58:35 Page 4 of 5

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COURT SERVICE LIST
Russ L. Daniels
P.O. Box 24960
Oakland, CA 94623
Russ L. Daniels
411 Lewis Ave.
San Leandro, CA 94577
Marisol A. Nagata
Barrett Daffin Frappier
Treder & Weiss, LLP
20955 Pathfinder Rd., Ste. 300
Diamond Bar, CA 91765
Case: 10-40031 Doc# 40 Filed: 05/17/10 Entered: 05/18/10 16:58:35 Page 5 of 5