Martha A Akers

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTHA A. AKERS,
Debtor.
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Case No. 07-00662
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DENYING MOTION
FOR NEW HEARING FOR ORDER MODIFYING AUTOMATIC STAY
This addresses the Motion (Dkt. No. 157) for New Hearing for
Order Modifying Automatic Stay filed by the debtor, Martha A
Akers. 	For the following reasons, the motion must be denied.
I
Akers’s confirmed plan in this case (Dkt. No. 53) required
her to maintain postpetition payments directly with respect to
the claim of Beal Bank. 	She failed to make certain postpetition
payments to Beal Bank. 	As a result, Beal Bank filed a motion for
relief from the automatic stay (Dkt. No. 95), and at the hearing
on the motion, Akers consented to the entry of an order requiring
Akers to cure over a ten-month period her default in making
postpetition monthly mortgage payments, and requiring her to
remain current on future monthly mortgage payments, if the
The document below is hereby signed.
Signed: August 11, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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automatic stay was to remain in effect with respect to efforts by
Beal Bank to foreclose its mortgage (a deed of trust). 	That
order (Dkt. No. 125) was entered on May 5, 2009. 	On May 26,
2009, Akers filed a motion to reconsider that order, and on May
28, 2009, she filed an amended motion to reconsider (Dkt. No.
134). 	At a hearing of June 25, 2009, the court issued an oral
opinion ruling that the amended motion for reconsideration must
be denied. 	On June 30, 2009, the court entered its order (Dkt.
No. 148) denying Akers’s amended motion for reconsideration. 	On
July 15, 2009, Akers filed her motion (Dkt. No. 157) seeking a
new hearing regarding the order modifying the automatic stay with
respect to Beal Bank.
II
Akers’s motion contends that there is equity in her
property, and thus that reimposing the automatic stay would not
harm Beal Bank. 	But Akers’s confirmed plan required her to
maintain postpetition payments directly to Beal Bank, and her
failure to make postpetition payments thus constituted cause for
modifying the automatic stay. 	Akers’s motion for a new hearing
does not dispute that she failed postpetition to make certain
monthly mortgage payments to Beal Bank.
III
As in the case of her earlier amended motion to reconsider,
the motion for new hearing alludes to a pending civil action in
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the District Court in which Akers seeks to recover damages from
Beal Bank for breach of contract and torts. 	In addition, the
motion for new hearing elaborates upon the grounds upon which she
thinks that she is entitled to make recovery from Beal Bank, or
that Beal Bank has overstated the amount that it is owed. 	She
contends that the amount she is entitled to recover from Beal
Bank exceeds the principal that was owed to Beal Bank. 	In
denying the debtor’s amended motion for reconsideration, the
court ruled that the order modifying the automatic stay left of
the debtor free to pursue her non-bankruptcy law remedies for
obtaining an injunction against any foreclosure efforts by Beal
Bank. 	The court ruled that a hearing on a motion for relief from
the automatic stay is a summary proceeding which does not address
such defenses to the secured claim as the setoff defense that the
debtor attempts to assert. 	Instead, that type of issue ought to
be pursued in a plenary proceeding (such as a civil action in the
District Court or an adversary proceeding in this court). 	Such a
plenary proceeding must be commenced by the filing of a
complaint. 	If a temporary restraining order or a preliminary
injunction is sought, the motion for such relief filed in the
plenary proceeding must comply with the rules of procedure
applicable to such a motion.
The reasoning the court applied to the amended motion for
reconsideration applies as well to the motion for new hearing.
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Beal Bank was entitled to modification of the automatic stay
based on the debtor’s defaults in making postpetition mortgage
payments, and if the debtor wishes to assert a non-bankruptcy law
reason for preventing Beal Bank from proceeding with foreclosure,
she must proceed by way of a plenary proceeding in a court of
competent jurisdiction.
IV
In accordance with the foregoing, it is
ORDERED that the Motion for New Hearing for Order Modifying
Automatic Stay (Dkt. No. 157) is DENIED.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Kevin
Feig, Esquire.
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