Isiah Foskey and Plus Properties, LLC

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ISIAH FOSKEY,
Debtor.
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Case No. 05-01417
(Chapter 13)
For Publication in West’s
Bankruptcy Reporter
MEMORANDUM DECISION RE MOTION REGARDING AUTOMATIC STAY
AS TO POSTPETITION ISSUANCE AND RECORDING OF TAX SALE DEED
PURSUANT TO PREPETITION JUDGMENT FORECLOSING RIGHT OF REDEMPTION
This decision addresses the debtor Isiah Foskey’s motion to
sell real property (3115 E Street SE, Washington, D.C.) free and
clear of liens, and the motion of Plus Properties, LLC (“Plus
Properties”), the tax-sale purchaser of the property, for
annulment of the automatic stay of 11 U.S.C. § 362(a) or to
declare the automatic stay inapplicable. 	In reliance on the
Superior Court of the District of Columbia having issued a final
order prepetition which foreclosed Foskey’s right of redemption,
Plus Properties made a payment to the District of Columbia and
received and recorded a deed to the property. 	At a hearing on
the motions, I rendered an oral opinion, holding that even if
delivery and recording of the tax-sale deed technically violated
The document below is hereby signed.
Signed: October 16, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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the automatic stay, the automatic stay would be annulled nunc pro
tunc so as to permit the recording of that deed. 	As such, I
denied Foskey’s motion for authority to sell the property free
and clear of liens. 	This decision concludes that the automatic
stay was not violated. 	It addresses a statutory issue that had
been somewhat ambiguous in this district, namely, whether a tax-
sale purchaser’s completing its payment postpetition pursuant to
a prepetition judgment terminating the debtor’s right of
redemption, the District of Columbia’s executing and delivering
the deed, or the purchaser’s recording that deed violates the
automatic stay.
I
Foskey and his wife owned the subject property, but it was
sold by the District of Columbia at a tax sale to Plus
Properties. 	Plus Properties then sued Foskey in the Superior
Court of the District of Columbia pursuant to D.C. Code § 47-1370
(2005 Supp.) to foreclose his right of redemption. 	On July 20,
2005, the Superior Court entered an Order granting Plus
Properties’ motion for entry of a default judgment and entered a
judgment extinguishing Foskey’s right of redemption on the
property.
On September 20, 2005, Foskey filed his petition commencing
this case. 	Subsequently, with a 30-day statutory period for its
performance running, Plus Properties paid the taxes owed on the
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1 	In an order entered on June 12, 2007 but later vacated, I
denied debtor’s motion to sell the property and dismissed Plus
Properties’ motion as moot by declaring that the automatic stay
did not apply to Plus Properties’ postpetition acts. 	This latter
determination was based on the erroneous belief that the final
judgment foreclosing the right of redemption issued by the
Superior Court meant that no further action was required of the
District or Plus Properties to confer fee simple title on Plus
Properties. 	(See Dkt. No. 132, p. 2.) 	Accordingly, on the
debtor’s motion to reconsider, I agreed that the order of June
12, 2007, would not be effective if I concluded it should be
ineffective after I held a new hearing.
3
property to the District of Columbia, a prerequisite to obtaining
title pursuant to D.C. Code § 47-1382. 	Pursuant to that same
statute and pursuant to the command of the Superior Court’s
judgment, the Mayor then executed and delivered a deed to Plus
Properties. 	Plus Properties recorded that deed in March 2006.
Foskey asserts that these postpetition acts violated the
automatic stay of 11 U.S.C. § 362(a) and were thus void, and
filed a motion for authority to sell the property free and clear
of any liens. 	Plus Properties filed a motion to annul the
automatic stay, 11 U.S.C. § 362(a), or to declare that it was
inapplicable. 1 	The District of Columbia has appeared in this
matter to advance arguments in support of Plus Properties’
positions. 	For ease of discussion I will refer to these two
parties’ arguments as though they were advanced by Plus
Properties alone.
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II
Whether the automatic stay was violated is dependent upon
what interest in the property, if any, was held by the estate,
and whether any of the postpetition acts at issue were acts to
collect a prepetition debt. 	What interest in property the estate
held is dependent upon what property interest Foskey possessed,
under the D.C. Code, when he filed for bankruptcy. 	The tax-sale
and foreclosure process under the D.C. Code is as follows.
The D.C. Mayor has the authority, after satisfying various
requirements, see D.C. Code § 47-1340-1342, to auction off a
property based upon the delinquency of tax payments. 	The
prevailing bidder at the auction, however, does not immediately
gain title. 	Following the sale, there is a six-month waiting
period in which time the original owner of the property has a
right of redemption, in which he retains ownership and use of the
property, and in which he can cure the tax delinquency. 	See D.C.
Code § 47-1370(a). 	At any time after that six-month period, the
purchaser can file a complaint in the D.C. Superior Court to
foreclose the original owner’s right of redemption. 	Id. 	Here,
Plus Properties, the tax-sale purchaser, filed such a complaint
and, on July 20, 2005, the Superior Court granted default
judgment, foreclosing the debtor’s right of redemption. 	See D.C.
Code § 47-1370(d) (“The right of redemption shall continue until
a judgment foreclosing the right of redemption becomes final.”)
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Legal title, however, does not vest in the tax sale
purchaser by reason of the final judgment. 	Such a final
judgment, foreclosing the right of redemption:
shall direct the Mayor to execute and deliver a deed to
the purchaser in fee simple on payment to the Mayor of
the amount required under this section. 	No deed shall
be executed before such payment is received. 	The final
judgment shall direct the Mayor to enroll the purchaser
in fee simple as the owner of the real property.
D.C. Code § 47-1382(a). 	Until the deed is transferred in this
manner, the original owner still holds legal title and is
entitled to use of the property, but the legal title is subject
to divestment upon payment of the purchase price and issuance of
a deed.
Here, Foskey filed for bankruptcy after the Superior Court
issued its final judgment of foreclosure, but before Plus
Properties paid the amount due on the property, before the Mayor
issued the deed, and before Plus Properties recorded the deed.
Thus, at the time of these latter acts, the automatic stay of 11
U.S.C. § 362(a) had arisen in this case. 	In part, the automatic
stay bars certain acts against property of the estate. 	Pursuant
to 11 U.S.C. § 362(a)(2),(3),(4), the automatic stay precluded,
respectively, “the enforcement against . . . property of the
estate, of a judgment obtained before the commencement of the
case,” “any act to obtain possession of property of the estate or
of property from the estate or to exercise control over property
of the estate,” and “any act to . . . enforce any lien against
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property of the estate.” 	The first question, then, is whether
the postpetition acts of Plus Properties and the District
directed against the real property were acts against property of
the estate. 	A second question is whether the postpetition acts
violated the bar of 11 U.S.C. § 362(a)(6) against collection of a
prepetition debt.
A.
Foskey argues that he still had an interest in the property
that became property of the estate under 11 U.S.C. § 541, and
that the automatic stay of § 362(a) applied here based on Flowers
v. Washington Fed. Sav. Bank (In re Flowers), 94 B.R. 3, 8 (D.C.
Bankr. 1988), which held that when the trustees under a deed of
trust issued a deed postpetition to a prepetition non-judicial
foreclosure sale purchaser, that act violated the automatic stay.
But because no judgment had issued upholding the effectiveness of
that foreclosure sale, In re Flowers, even if correctly decided,
is distinguishable as discussed below.
Unless there was some defect in the foreclosure sale, the
debtor in In re Flowers no longer retained a right of redemption
whereby the debtor could prevent the purchaser from obtaining
title. 	See id. at 7-8. 	The court implicitly adopted the
rationale that the automatic stay nevertheless applied because
the sale’s validity was still subject to challenge. 	See also In
re Simcock, 152 B.R. 7, 9-10 (Bankr. D. Me. 1993) (adopting a
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similar rationale). 	Other courts have concluded differently.
See In re Hazelton, 137 B.R. 560 (Bankr. D.N.H. 1992); 	Rodgers
v. County of Monroe (In re Rodgers) 333 F.3d 64, 68 (2d Cir.
2003) (“we agree with the bankruptcy court that, in the context
of either a tax or mortgage foreclosure, under New York law,
‘once the ability to redeem has been lost pre-petition, the
foreclosed property sold at a public sale is no longer property
of the estate for purposes of Section 541.’”) 	Because the
propriety of a nonjudicial foreclosure sale had not been upheld
by a judgment in In re Flowers, and theoretically was subject to
challenge, that may justify the conclusion in In re Flowers that
the debtor in that case continued to possess an ownership
interest in the property, albeit only a shadow of his former
rights, such that the automatic stay barred postpetition issuance
of a trustee’s deed. 	Such a prophylactic approach assures the
debtor breathing room in the midst of the debtor’s reorganization
efforts to consider and pursue any such options, and the
foreclosure sale arguably cannot be deemed a completed process
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2 	On the other hand, a purchaser at a valid foreclosure
sale could argue that the debtor’s equitable ownership interest
was at an end, leaving only bare legal title that was subject to
divestment upon the purchaser performing on its purchase
contract, such that (under the later reasoning of this decision)
the automatic stay was not violated. 	Of course, a purchaser at a
prepetition foreclosure sale faces the risk that the sale was not
valid, and if it were determined to be invalid, the purchaser’s
postpetition act of obtaining title to the property would violate
the automatic stay. 	Even if completing a valid prepetition
foreclosure sale would be held not to have violated the automatic
stay, the uncertainty as to whether the sale would be declared
valid may lead purchasers at foreclosure sales playing it safe by
seeking relief from the automatic stay.
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because the sale is still subject to challenge. 2 	But I need not
decide whether In re Flowers was correctly decided under that
rationale.
In this case, in contrast to In re Flowers, a judgment had
already issued adjudicating that the debtor’s right of redemption
no longer existed. 	Foskey continued to hold legal title and
enjoy use of the property despite Plus Properties’ tendering
payment. 	The Mayor, pursuant to D.C. Code § 47-1382(a), executed
and delivered to Plus Properties a deed upon payment, thus
divesting Foskey of legal title and of his right to enjoy use of
the property. 	But those acts did not violate the automatic stay
with respect to acts against property of the estate. 	The tax
judgment conclusively ended Foskey’s right of redemption, and
left Foskey with no equitable rights in the property as against
Plus Properties if the latter elected to pay the tax-sale
purchase price. 	Further, D.C. Code § 47-1382(a) empowered the
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District to convey the legal and equitable title to the property
to Plus Properties upon payment of the purchase price. 	Foskey’s
rights were limited to a legal title (and the use of the property
during the period he held legal title) that was subject to
divestment upon Plus Properties performing on its purchase
contract. 	That conditional legal title (and the incidental right
to use the property) was not interfered with by Plus Properties’
performing on the contract and the District’s conveying title to
Plus Properties.
In contrast to In re Flowers, in the case of a judicial
decree in a District of Columbia tax sale foreclosing the
debtor’s right of redemption, the debtor’s ability under District
of Columbia law to prevent the purchaser from completing the sale
and obtaining the issuance of a deed is limited to a challenge to
jurisdiction over his or her person or an appeal of the judgment
(or a motion for the Superior Court to reconsider that judgment).
Until vacated, the Superior Court’s judgment (unless void for
lack of jurisdiction over the debtor) is entitled to full faith
and credit by this court unless set aside by the Superior Court
or reversed on appeal. 	Foskey does not assert that the Superior
Court lacked jurisdiction over his person in entering the default
judgment against him, and the judgment was not stayed.
Accordingly, upon the filing of the petition, Foskey’s
interests in the property were subject to Plus Properties’ right
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to make payment of the purchase price and to obtain the Mayor’s
ministerial issuance of a deed by reason of such payment. 	He no
longer enjoyed the right to redeem the property from the
foreclosure process and thereby to prevent Plus Properties’
acquisition of the property. 	He continued to be the owner of
title and to occupy the property until those events occurred, but
those rights were conditional rights that were subject to being
terminated by Plus Properties’ completing payment of its tax sale
bid and an ensuing ministerial issuance to it of a deed.
Upon filing of bankruptcy, the estate possesses “all legal
or equitable interests of the debtor in property as of the
commencement of the case.” 	See 11 U.S.C. § 541(a)(1). 	Because
the estate cannot possess greater rights or interest in the
property than those held by the debtor upon filing, the
bankruptcy estate possesses only that limited bundle of post-sale
rights. 	See In re Alpine PCS, Inc., 2008 WL 5076983, *4 (Bankr.
D.D.C. Oct. 10, 2008) (“A debtor's property rights do not expand
upon the commencement of a case.”); Moody v. Amoco Oil Co., 734
F.2d 1200, 1213 (7th Cir. 1984) (“[W]hatever rights a debtor has
in property at the commencement of the case continue in
bankruptcy - no more, no less.”) 	The automatic stay only
protects that limited bundle of rights.
Here, Foskey’s interest in the property upon filing of
bankruptcy was subject to Plus Properties’ right, under the
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3 	Even under the reasoning of In re Flowers, if the
property were treated as property of the estate protected by the
automatic stay, Plus Properties’ act of making payment would not
have violated the automatic stay. 	The act would be merely the
unilateral act of Plus Properties’ performing its obligations
under that contract of purchase, and in effect making a deposit
in order that it would be entitled to have the District convey
the property once the stay was lifted to permit such conveyance.
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Superior Court’s final judgment, to deposit payment towards its
purchase of the property, 3 and to have the District convey the
legal title to it. 	Accordingly, the automatic stay was not
violated.
In re Rodgers, 333 F.3d at 68, held that when a debtor files
a petition after a tax sale at public auction, but before
completion of payment and delivery of the deed, the debtor has
lost her ability to redeem the property and no longer possesses
“legal or equitable interests” in the property, so that the
property is not property of the estate for purposes of 11 U.S.C.
§ 541, and thus is not protected by the automatic stay. 	This is
an even stronger case for holding that the automatic stay did not
bar issuance of the deed because a judgment, binding on Foskey
and to which this court must give full faith and credit, has
adjudicated that Foskey no longer had a right of redemption, and
changed his ownership from one of full title to one of title
subject to divestment upon Plus Properties’ making payment.
Unlike the grant under 11 U.S.C. § 365 to a bankruptcy trustee of
the right to reject executory contracts of sale, the Bankruptcy
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Code grants no right to undo a Superior Court tax sale judgment
terminating the debtor’s right of redemption. 	Under the Superior
Court’s judgment, Foskey’s ability to regain a right to redeem
the property was limited to hoping that Plus Properties would
neglect to make payment to the District and become entitled to a
deed. 	Under the Superior Court’s judgment, he no longer had any
right to challenge the tax sale.
Unlike In re Flowers, where the sale was subject to
challenge, the issuance of the deed here was dictated by D.C.
Code § 47-1382(a), which, affording no discretion, commands the
Mayor of the District of Columbia to execute and deliver the deed
“on payment.” 	There is a string of cases, upon which Plus
Properties relied, stating that “ministerial acts,” which are
governmental actions that are compelled by statute to be
performed and provide no discretion in doing so, do not violate
an automatic stay. 	See, e.g., In re Rodgers, 333 F.3d at 69;
Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969,
973-74 (1st Cir. 1997) (“A ministerial act is one that is
essentially clerical in nature. 	Thus, when an official’s duty is
delineated by, say, a law or a judicial decree with such
crystalline clarity that nothing is left to the exercise of the
official's discretion or judgment, the resultant act is
ministerial.” (citations omitted)). 	From the language of D.C.
Code § 47-1382(a), it is clear that the execution of the deed,
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4 	With respect to a clerk’s postpetition entry of a
judgment pursuant to a court’s prepetition decision directing the
entry of a judgment, I have doubts regarding the propriety of
applying the ministerial acts exception to the automatic stay in
§ 362(a)(1) of continuation of proceedings against the debtor.
Prior to the clerk’s entering a judgment, a judge is free to
change her mind and revise her ruling. 	But after the filing of
the debtor’s bankruptcy petition, the judge would be stayed from
revising her ruling and withdrawing her direction to the clerk to
enter a judgment (because the revision of her ruling and her
direction to the clerk would be a judicial function and thus a
postpetition continuation of the judicial proceeding), yet the
clerk’s entry of the judgment would not be barred by the stay.
The response may be that ministerial act doctrine only leads to a
judgment in the judicial proceeding, and that although the
proceeding is otherwise stayed, the litigants are free to obtain
a lifting of the stay to permit the judge to revise her ruling,
and thus no harm arises from having permitted only the clerk to
act.
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once payment is made, is a ministerial action.
But it is unnecessary to decide this case based on the
“ministerial act” doctrine. 	My limited research suggests that
the doctrine initially arose in the context of the stay of
§ 362(a)(1) barring an act to continue a prepetition judicial
proceeding against the debtor, and held that a clerk’s
ministerial act of entering a judgment pursuant to a judge’s
prepetition decision of a matter does not violate the automatic
stay. 4 	That research further leads me to believe that even those
courts that follow the ministerial acts exception recognize that
when the judgment would effect a transfer of title to property of
the estate, the ministerial act of entering a judgment
postpetition is ineffective to transfer title. 	Musso v. Ostashko
(In re Ostashko), 468 F.3d 99, 107 n.2 (2d Cir. 2006),
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distinguishing Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,
527 (2d Cir. 1994). 	Accordingly, without further research, it
would be dangerous for me to assume that the “ministerial act”
doctrine extends to an act that divests the debtor of title.
Instead of relying on that doctrine, I elect to decide this
case on a more straightforward basis. 	The deed here did not
impair title to property of the estate. 	Although a debtor may
retain some incidents of ownership after entry prepetition of a
District of Columbia tax sale judgment (for example, a limited
right of possession), the delivery of the deed does not impair
any of the debtor’s rights as the debtor’s previous full
ownership of the property had been converted by the judgment to a
right of enjoyment subject to divestment by way of the
purchaser’s exercising its rights under its purchase commitment.
See In re Rodgers, 333 F.3d at 69.
Holding that the granting of the deed in In re Flowers
violated the automatic stay may have conformed with the purpose
of the automatic stay by providing the debtor breathing room to
evaluate and pursue his or her options and rights with respect to
the foreclosure sale (including any challenge to the validity of
the foreclosure sale). 	Here, in contrast, Foskey had no options
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5 	Nevertheless, a purchaser at a tax sale who obtains a
judgment from the Superior Court purporting to terminate the
debtor’s right of redemption, and who procures and records a deed
incident to the judgment, may run afoul of the automatic stay if
the Superior Court judgment is void for failure to have obtained
jurisdiction over the debtor (by reason of improper service).
Accordingly, such purchasers proceed at their own risk. 	But the
theoretical possibility that a debtor may challenge the judgment
for lack of proper service is no reason to adopt a prophylactic
rule that the automatic stay applies.
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left: they were all foreclosed by the Superior Court’s judgment. 5
Because the transfer of the deed ultimately had no effect on the
property of the estate, the District’s issuance of the deed was
not a violation of the stay under § 362.
B.
To the extent that I reasoned in In re Flowers, 94 B.R. at
8, that the postpetition issuance of a deed “constitutes a step,
albeit minor and perfunctory, in the completion of the collection
process,” that reasoning cannot be applied here to treat the
issuance of the deed to Plus Properties as an act to collect the
debt in violation of § 362(a)(6). 	Plus Properties’ act of making
payment did not violate the automatic stay of § 362(a)(6) against
collection of a prepetition debt as it was its right to complete
its tax sale contract of purchase, and the Superior Court
judgment had adjudicated the effectiveness of that sale
prepetition. 	In turn, the issuance of the deed was compliance
with the obligation to issue a deed if payment were made, not an
act itself to collect the debt: the tax sale, and the Superior
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6 	Even in In re Flowers, it would probably have been error
(at least if the foreclosure sale was valid) to treat the
issuance of the deed as an act to collect the debt (even though
the deed reflected that collection had been accomplished) as the
foreclosure sale already resulted in a contract of purchase, and
upon the purchaser’s making payment, the issuance of the deed
would merely be the act of complying with that contract.
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Court proceeding, were the acts to collect the debt. 6
C.
Foskey asserts in passing that there is a possibility he
would regain his right of redemption through operation of D.C.
Code § 47-1382(f). 	(Dkt. No. 134, Memorandum, p. 6.) 	Based on
that provision, he contends that he has a continuing property
interest even after the deed was issued. 	Foskey could regain his
right of redemption in two ways: Plus Properties could either (1)
fail to pay the amount due on the property within 30 days of the
final judgment or (2) pay but fail to record the deed within 30
days. 	In either case, for Plus Properties to be stripped of any
interest in the property, Foskey would then need to file a motion
to have the final judgment vacated and the Superior Court, in its
discretion, would need to grant that motion. 	See D.C. Code § 47-
1382(f). 	As a result of a voiding of the final judgment of
foreclosure, Foskey’s original right of redemption would be
restored. 	But his interest in the property was an interest that
was subject to divestment by Plus Properties’ making payment and
the District’s issuing title to Plus Properties, and his right to
attempt to invoke his rights under § 47-1382(f). 	The District
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and Plus Properties have not taken any act against that interest
in the property, and thus have not violated the automatic stay.
Moreover, § 47-1382(f) protects the rights of the District
of Columbia to payment for the property and to quiet title (which
provides resolution as to whom is liable for property taxes and
in relation to other ownership liabilities). 	The District has
joined in Plus Properties’ effort to defend or permit the
transfer of the deed despite, as Foskey asserts, Plus Properties’
payment and recording of the deed being late. 	Foskey has given
no reason why the Superior Court would thus be inclined to grant
a motion to vacate its foreclosure judgment; to the extent Foskey
wishes to pursue relief in the Superior Court, as previously
ordered, the automatic stay has been and remains lifted to allow
the parties to pursue such rights as they may have in the D.C.
Superior Court litigation, including any appeals.
III
Because Mr. Foskey’s interest in the property was subject to
Plus Properties’ right of payment and because the subsequent
transfer and recordation of the tax deed had no effect on the
interest Mr. Foskey retained after the foreclosure of his right
of redemption, the postpetition acts of the District and Plus
Properties were not in violation of the stay. 	An order follows.
[Signed and dated above.]
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18	O:\TEEL\Garrett\Decisions\Foskey - Final Decision re Mtn for Reconsideration.wpd
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Carol
Blumenthal, Esq. (counsel for Plus Properties); David Fisher,
Assistant Attorney General for the District of Columbia; Joseph
F. Ferguson, Jr., Assistant Attorney General for the District of
Columbia.
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