David Brian Derringer

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
David Brian Derringer
04-17330
Order Denying [172-1] Motion To Strike Affidavit by Stephen Long regarding
debtor's continuing failure to comply with the Order 1/26/05. [104-1] by David
Brian Derringer .
Received on: 2005-06-28 10:19:59.000
2005-06-28 00:00:00.000
2005-06-28 00:00:00.000
Patti Hennessy
Case 04-17330-m13 Doc 194 Filed 06/28/05 Entered 06/28/05 15:56:00 Page 1 of 5

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: DAVID DERRINGER, No. 13-04-17330 MA
Debtor.
ORDER DENYING DEBTOR’S MOTION TO STRIKE STEPHEN LONG’S
AFFIDAVIT REGARDING DEBTOR’S CONTINUING FAILURE
TO COMPLY WITH THE TERMS AND CONDITIONS OF THE
COURT ORDER ENTERED 1-26-05 WITHOUT NOTICE TO DEBTOR
THIS MATTER is before the Court on Debtor David Derringer’s Motion to Strike Stephen
Long’s Affidavit Regarding Debtor’s Continuing Failure to Comply with the Terms and Conditions of
the Court Order Entered 1-26-05 Without Notice to Debtor (“Motion to Strike”). Stephen Long filed
an affidavit regarding the Debtor’s failure to comply with the Court’s Order on Chapels’ Motion for
Relief from Stay, entered December 23, 2004 (“Long Affidavit”) on January 26, 2004. The Motion to
Strike requests that the Long Affidavit be stricken because it is “both fraudulent and designed for
‘improper purposes’” in violation of Rule 11(b), Fed.R.Civ.P., made applicable to bankruptcy
proceedings by Rule 9011, Fed.R.Bankr.P. The Motion to Strike also asserts that the Long Affidavit
was filed without notice or proper service. The Court finds that the Motion to Strike fails to raise
sufficient grounds upon which to strike the Long Affidavit. In reaching this determination, the Court
FINDS:
1. The Order on Chapels’ Motion to Modify Automatic Stay (“December 23, 2004 Order”)
conditioned the continuation of the automatic stay imposed by 11 U.S.C. § 362 on the Debtor
complying with certain requirements for proceeding under Chapter 13 of the Bankruptcy Code,
including filing a proposed plan of reorganization, obtaining a preliminary hearing on confirmation, filing
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amended statements and schedules, and confirming a plan.
2. The December 23, 2004 Order provided that “[i]f the Debtor fails to comply with these
deadlines, then upon the filing of an affidavit by counsel for the Chapels that the Debtor has failed to
comply, the Court will enter an order terminating the automatic stay.”
3. The Long Affidavit was filed in accordance with the December 23, 2004 Order.
4. The Long Affidavit includes a Certificate of Mailing which states that a copy of the Long
Affidavit was mailed to David Derringer, P. O. Box 157, Quemado, NM 87829. This address is the
Debtor’s address of record. “It is well settled that if a notice is properly addressed and mailed, there is
a rebuttable presumption that notice was proper.” In re Taylor, 207 B.R. 995, 999 (Bankr.W.D.Pa.
1997), aff’d, 178 F.3d 698 (3rd Cir. 1999). Where notice is sent to the Debtor’s address of record, it
is presumptively proper, and it is the Debtor’s burden to show that the notice was not properly
addressed and/or mailed; whether the notice was actually received is not at issue. Id.
5. Affidavits must be based on personal knowledge. See 3 Am. Jur. 2d Affidavits § 13 (An
affidavit must be based on personal knowledge, and its allegations should be of the pertinent facts and
circumstances, rather than conclusions.”); Cf. Rule 56(e), Fed.R.Civ.P., made applicable to
bankruptcy proceedings by Rule 7056, Fed.R.Bankr.P. (“affidavits [in support or opposition of
motions for summary judgment] shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein.”).
6. There is nothing contained in the Motion to Strike which would indicate that the statements
are not based on the personal knowledge of the affiant, or that the affiant is not competent to testify to
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1 “A ‘drop dead’ clause ‘allows a creditor to exercise its state law remedies upon default of a
debtor under a plan without seeking further permission from the bankruptcy court.’" Id. at 1269
(quoting In re Kennedy, 177 B.R. 967, 975 (Bankr.S.D.Ala.1995)).
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the matter stated therein.
7. Debtor also asserts that the Long Affidavit improperly interferes with his due process rights
with regard to the requirements for obtaining relief from the automatic stay under 11 U.S.C. § 362(d).
Debtor’s assertion mis-interprets the requirements for notice and a hearing under 11 U.S.C. § 362.
The December 23, 2004 Order was issued after a final hearing on the merits of Chapels’ Motion for
Relief from Stay, and the inclusion of a provision allowing for the entry of an order terminating the stay
upon filing an affidavit of default is within the Court’s discretion. See In re Mendoza, 111 F.3d 1264,
1270 (5th Cir. 1997) (bankruptcy court is not precluded “from including ‘drop dead’1 clauses in its
orders, whether by agreement of the parties or sua sponte without the parties’ agreement.”).
7. Because the Long Affidavit is based on personal knowledge, was filed in accordance with
the December 23, 2004 Order, and included a certificate of mailing indicating proper service of the
Long Affidavit on the Debtor, the Debtor’s assertion that the Long Affidavit is fraudulent and filed for
an improper purpose in violation of Rule 9011, Fed.R.Bankr.P. is without merit.
8. Finally, because Debtor’s request for stay pending appeal has been denied, Debtor’s
argument that the Long Affidavit improperly falsifies the record because a plan cannot be
consummated until the issues on appeal are resolved is inapposite. All other arguments raised in the
Motion to Strike, such as Debtor’s continuing assertions of ongoing constitutional rights violations, are
irrelevant to a motion to strike an affidavit.
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WHEREFORE, IT IS HEREBY ORDERED that the Debtor’s Motion to Strike the Long
Affidavit is DENIED.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
David Derringer
Box 157
Quemado, NM 87829
Stephen C.M. Long
2501 Yale SE, Suite 204
Albuquerque, NM 87106
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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