David Brian Derringer

* The parties did not request oral argument, and after examining the briefs
and appellate record, the Court has determined unanimously that oral argument
would not materially assist in the determination of this appeal. 	See Fed. R.
Bankr. P. 8012. 	The case is therefore ordered submitted without oral argument.
FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
September 24, 2007
Barbara A. Schermerhorn
ClerkPUBLISH
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
IN RE DAVID BRIAN DERRINGER,
Debtor.
BAP No. 	NM-07-002
MICK CHAPEL, JENNIFER CHAPEL
and JOSEPH E. MANGES,
Appellants,
Bankr. No. 	04-17330-m13
Chapter 	13
v. 	OPINION
DAVID BRIAN DERRINGER,
Appellee.
Appeal from the United States Bankruptcy Court
for the District of New Mexico
Submitted on the briefs: *
Joseph E. Manges of Comeau, Maldegen, Templeton & Indall, Santa Fe, New
Mexico, pro se and for Appellants.
David Brian Derringer, pro se.
Before CLARK, MICHAEL, and NUGENT, Bankruptcy Judges.
MICHAEL, Bankruptcy Judge.
Mick Chapel and Jennifer Chapel (the “Chapels”) and their attorney, Joseph
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1 Debtor David Derringer appealed the same order to the United States
District Court for the District of New Mexico. 	See details infra at 5-6.
2 We also DENY AS MOOT Derringer’s 1) Motion for Sanctions Under US
Bankruptcy Rule 9011(B)(1)(2)(3)(4) Against Mick Chapel, Jennifer Chapel,
Joseph Manges and Steven Long and Request for Relief, filed April 16, 2007, and
2) Appellee’s Response in Opposition to Chapel’s Notice of Decision in CIV-06-
855, Appellee’s Request for Continuation of Stay and Request for Judgment on
the Appellee’s Motions [sic] for Sanctions Against Appellants, filed July 18,
2007.
3 See In re Derringer, NM-05-077, NM-05-097, 2005 WL 3105619 (10th Cir.
BAP November 21, 2005).
4 Id.
5 A New Mexico state district court entered an Order of Foreclosure on
February 13, 2004.
6 The foreclosure sale was originally scheduled for March 31, 2004, but was
(continued...)
-2-
Manges (“Manges”), cross-appeal 1 an order of the bankruptcy court finding that
they violated the automatic stay and awarding compensatory and punitive
damages to debtor David Brian Derringer (“Derringer”) in the total amount of
$903. 	The sole issue presented to this Court is whether the bankruptcy court
abused its discretion when it found that a violation of the automatic stay had
taken place in this case. 	Finding no reversible error, we affirm. 2
I. 	BACKGROUND
In a 2005 Order and Judgment of this Court, 3 we remarked that “[t]he battle
between the parties to these appeals has continued unabated for over ten years,”
and that “these cases mark the fifth and sixth appeals that [the parties] have
presented to this Court.” 	The saga continues. 	Much of what follows may sound
familiar. 4 We limit our description of the facts to those relevant to disposition on
appeal.
The Chapels hold a judgment lien upon certain real property owned by
Derringer. 5 A foreclosure sale of the real property was scheduled for October 8,
2004. 6 On October 6, 2004, Derringer filed a petition for relief under Chapter 13
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6 (...continued)
precluded by a Chapter 7 bankruptcy petition filed by Susan Nevitt, Derringer’s
wife.
7 Unless otherwise indicated, all future statutory references are to the
Bankruptcy Code, Title 11 of the United States Code.
8 Unless otherwise indicated, all future references to a Rule or Rules are to
the Federal Rules of Bankruptcy Procedure.
9 See Fed. R. Bankr. P. 4001(a)(3).
-3-
of the Bankruptcy Code. On October 29, 2004, the Chapels (through Manges,
their attorney) filed a motion for relief from the automatic stay that arises
pursuant to 11 U.S.C. § 362 in order to enforce their judgment lien. 7 After a
hearing, the motion for relief from stay was granted in part and denied in part by
an order entered on December 27, 2004 (the “December 27 Order”). 	The
December 27 Order imposed certain duties and conditions upon Derringer, and
stated that if such conditions were not complied with, the automatic stay would be
summarily vacated. 	The December 27 Order was appealed to this Court by
Derringer, but that appeal was dismissed as interlocutory.
On June 28, 2005, the bankruptcy court entered an order terminating the
automatic stay as it applied to the Chapels (the “Order Granting Relief”). 	The
Order Granting Relief made no mention of Federal Rule of Bankruptcy Procedure
4001(a)(3), 8 which provides that such orders are automatically stayed for a period
of ten days, “unless the court orders otherwise.” 9 Seven days later, on July 5,
2005, Manges (again in his capacity as attorney for the Chapels) mailed a
document entitled “Notice of Foreclosure Sale” (the “Foreclosure Notice”) to
Derringer. 	The Foreclosure Notice was filed with the New Mexico state court on
July 8, 2005. 	Pursuant to the terms of the Foreclosure Notice, a sale of the
Derringer property was scheduled for August 11, 2005.
On July 13, 2005, Derringer filed with the bankruptcy court a pleading
entitled “Debtor David Derringer’s Motion For Order to Show Cause and For
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-4-
Extreme Actual and Punitive Damages Against Mick Chapel, Jennifer Chapel,
Joseph Manges, [and] Stephen Long for Violations of Title 11 Section 362(a)
Under Provisions of Title 11 Section 362(h); and Request for Relief” (the
“Sanctions Motion”). In addition to reasserting virtually every argument
previously made regarding the dispute between the parties, Derringer claimed that
the service of the Foreclosure Notice less than ten days after the entry of the
Order Granting Relief constituted a violation of the automatic stay provisions
found in § 362. Derringer sought an award of actual and punitive damages
against all parties listed in the caption of the Sanctions Motion.
The bankruptcy court held a hearing on the Sanctions Motion on August 10,
2005, one day prior to the scheduled sale of the Derringer property. While the
parties were provided with an opportunity to present argument, no evidence was
offered or received at the hearing. The parties agreed and the bankruptcy court
found that the Foreclosure Notice was sent to Derringer less than ten days after
the entry of the Order Granting Relief. The bankruptcy court found that the
Chapels and Manges (collectively “Appellants”) had acted in violation of § 362.
The bankruptcy court then entered an order (the “Sanctions Order”) requiring the
Chapels to pay Derringer actual damages of $250 and further directing Manges to
pay Derringer actual damages of $250 and punitive damages of $750.
Derringer filed his notice of appeal from the Sanctions Order on August 17,
2005. On August 18, 2005, Appellants filed a motion seeking reconsideration of
the Sanctions Motion. On September 20, 2005, the bankruptcy court denied the
motion to reconsider. On September 23, 2005, the Appellants filed their cross-
appeal with respect to the Sanctions Order.
Derringer’s primary argument on appeal was that the damages awarded by
the bankruptcy court were inappropriately low. In response, Appellants argued
that an award of damages was not supported by either the law or the record.
Upon review, this Court found that the evidentiary record did not support an
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10 See In re Derringer, NM-05-077, NM-05-097, 2005 WL 3105619, *4 (10th
Cir. BAP November 21, 2005).
11 Id. at *3.
12 See September 1, 2006, Order on David Derringer’s Motion for Order to
Show Cause and for Extreme and Punitive Damages Against Mick Chapel,
Jennifer Chapel, Joseph Manges, Steven Long for Violations of Title 11 Section
362(a) Under Provisions of Title 11 Section 362(h); and Request for Relief at 4,
in Chapels’ Appendix to Opening Br. at 145, 148.
-5-
award of damages and remanded the matter for further proceedings. 10 Further,
this Court, exercising its discretion, declined to address Appellants’ argument that
an alleged “postponement” of a foreclosure sale is not an act that violates the
automatic stay. 	We noted that the argument was not presented to the bankruptcy
court and, given that the case was to be remanded, found it unnecessary to address
the issue. 	The Court left it to the “discretion of the bankruptcy court” as to
whether to consider the argument on remand. 11 Accordingly, this Court vacated
the award of damages. 	Upon remand, the bankruptcy court refused to consider
the argument that the alleged postponement of the foreclosure sale did not
constitute a stay violation. 	However, the court did take evidence on the issue of
damages. 	Based on that evidence, the bankruptcy court awarded Derringer actual
damages of $153 against Appellants jointly and severally, and assessed punitive
damages against Manges in the amount of $750. 12
Derringer was the first to appeal the bankruptcy court’s order after remand.
Once again, Derringer took issue with the amount of damages awarded by the
bankruptcy court. 	Additionally, he filed a valid election for the appeal to be
heard by the United States District Court for the District of New Mexico (the
“District Court”). 	The Appellants then cross-appealed the same bankruptcy court
order to this Court. 	Both appeals were sent to the District Court, which withdrew
the Notice of Cross Appeal and returned it to this Court. 	Since similar issues
were pending before both the District Court and this Court, this Court stayed this
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13 See Order and Judgment entered on June 29, 2007, in CIV 06-0855 and
underlying Magistrate Judge’s Report and Recommendation. 	Additionally, on
July 31, 2007, the District Court entered an order denying Derringer’s Motion for
Reconsideration of such Order and Judgment.
14 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002; 10th Cir.
BAP L.R. 8001-1(a) & (d).
15 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin
v. United States, 324 U.S. 229, 233 (1945)).
-6-
cross-appeal pending resolution of the District Court appeal. The District Court
has affirmed the bankruptcy court’s calculation of damages, and expressly left it
to this Court to review the bankruptcy court’s ruling that a violation of § 362 took
place. 13 The ruling of the District Court is final, and we can dispose of this cross-
appeal.
II. 	APPELLATE JURISDICTION
This Court has jurisdiction to hear timely-filed appeals from “final
judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,
unless one of the parties elects to have the district court hear the appeal. 14
Neither party elected to have this cross-appeal heard by the United States District
Court for the District of New Mexico. 	The parties have therefore consented to
appellate review by this Court.
A decision is considered final “if ‘it ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.’” 15 In this case, the
bankruptcy court found a stay violation and entered sanctions against the
Appellants. 	Nothing remains for the trial court’s consideration. 	Thus, the
decision of the bankruptcy court is final for purposes of review.
III. 	ISSUE ON APPEAL
The only issue on appeal is whether the Appellants’ mailing and court
filing of the Foreclosure Notice less than ten days after the entry of the Order
Granting Relief constitutes a willful violation of the automatic stay.
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16 Diviney v. NationsBank of Tex., N.A. (In re Diviney), 225 B.R. 762, 769
(10th Cir. BAP 1998).
17 See In re Derringer, NM-05-077, NM-05-097, 2005 WL 3105619, *3 (10th
Cir. BAP November 21, 2005). 	As a general rule, appellate courts do not
consider an issue not presented to the trial court. 	Lyons v. Jefferson Bank &
(continued...)
-7-
IV. 	STANDARD OF REVIEW
In In re Diviney, this Court previously held that
“Whether a party’s actions have violated the automatic stay is a
question of law which is reviewed de novo.” 	Barnett v. Edwards (In
re Edwards), 214 B.R. 613, 618 (9th Cir. BAP 1997) (citations
omitted). 	We review the bankruptcy court’s finding that a creditor’s
action constituted a willful violation of the stay for clear error.
McHenry v. Key Bank (In re McHenry), 179 B.R. 165, 167 (9th Cir.
BAP 1995); Franchise Tax Bd. Roberts (In re Roberts), 175 B.R.
339, 343 (9th Cir. BAP 1994). 16
There is no reason to depart from the standard of review outlined in
Diviney.
V. 	ANALYSIS
A. 	The argument that the alleged postponement of the foreclosure sale
does not constitute a violation of the stay is reviewable on appeal.
Derringer contends that Appellants are prevented from asserting that the
mailing and filing of the Foreclosure Notice did not violate the automatic stay
because Appellants did not present this argument to the bankruptcy court before it
was argued to this Court in the previous appeal. 	It is true that, prior to our
remand of this case, counsel for the Chapels never expressed to the bankruptcy
court (either at the hearing or in the pleadings) that “the actions taken in
furtherance of the foreclosure sale do not violate the automatic stay.” 	However,
this entire proceeding is about whether or not Appellants violated the stay, and
the bankruptcy court ruled that there had been a willful violation. 	Additionally,
Appellants did not concede that they had violated the stay.
In the previous appeal, this Court exercised its discretion not to hear
Appellants’ argument. 17 However, since the bankruptcy court chose not to review
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17 (...continued)
Trust, 994 F.2d 716, 721 (10th Cir. 1993).
18 Appellate courts retain discretion to consider issues for the first time on
appeal based on the facts of the individual case. 	Ross v. U.S. Marshal for E. Dist.
of Okla., 168 F.3d 1190, 1195 n.5 (10th Cir. 1999). 	Additionally, appellate courts
are more likely to exercise such discretion when the issue is a pure matter of law.
See id.; Grubb v. FDIC, 833 F.2d 222, 224 (10th Cir. 1987); Stahmann Farms,
Inc. v. United States, 624 F.2d 958, 961 (10th Cir. 1980). 	In this case, the
primary inquiry is whether the Appellants’ action violated the automatic stay, and
that determination is one of law.
19 Federal Rule of Bankruptcy Procedure 4001 provides in pertinent part:
(a) 	Relief from stay; prohibiting or conditioning the use, sale, or lease of
property
. . .
(3) 	Stay of order
An order granting a motion for relief from an automatic stay
made in accordance with Rule 4001(a)(1) is stayed until the
expiration of 10 days after the entry of the order, unless the
court orders otherwise.
20 Fed. R. Bankr. P. 4001(a)(3) advisory committee notes (1999
Amendments); see also In re Banks, 253 B.R. 25, 28-29 (Bankr. E.D. Mich.
2000).
-8-
the issue on remand, this Court will exercise its discretion to consider this
argument on appeal. 18 If we decline to do so, the finding that a willful violation
of the automatic stay occurred in this case would never be reviewed.
B. 	The mailing and filing of the Foreclosure Notice is a violation of
the automatic stay.
Rule 4001(a)(3) operates to postpone the effectiveness of an order granting
relief from the automatic stay for a period of ten days. 19 As noted by the advisory
committee, “[w]hile the enforcement and implementation of an order granting
relief from the automatic stay is temporarily stayed under paragraph (a)(3), the
automatic stay continues to protect the debtor, and the moving party may not
foreclose on collateral or take any other steps that would violate the automatic
stay.” 20 The purpose of this Rule, added in 1999, is to give debtors the
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21 Fed. R. Bankr. P. 4001(a)(3) advisory committee notes (1999
Amendments).
22 The Order Granting Relief was entered on June 28, 2007. 	Manges mailed
the Foreclosure Notice on July 5, 2007, and it was filed with the New Mexico
state court on July 8, 2007.
-9-
opportunity to request a stay pending an appeal of the order lifting the automatic
stay prior to enforcement or implementation of the order. 21
In this case, contrary to what Appellants assert in their brief, not only was
the Foreclosure Notice mailed during the Rule 4001(a)(3) period, it was also filed
with the state court within that ten-day period. 22 Accordingly, we consider the
filing of the Foreclosure Notice with the state court as an action which potentially
violated the automatic stay.
On appeal, Appellants argue that “continuation” or “postponement” of a
foreclosure sale in a prepetition action does not violate the automatic stay. 	As
discussed below, in certain instances, case law supports such a proposition. 	The
key question is whether the actions taken by Appellants operated to postpone a
foreclosure sale which was previously pending or whether they initiated a new
sale.
The Chapels were granted the right of foreclosure by a New Mexico state
court on February 13, 2004. 	The first foreclosure sale was scheduled for April 2,
2004. 	On March 31, 2004, Derringer’s wife, Susan Nevitt, filed her Chapter 7
bankruptcy petition. 	The Chapels obtained relief from the automatic stay on
September 30, 2004, and the foreclosure sale was then scheduled for October 8,
2004. 	On October 6, 2004, Derringer filed his Chapter 13 petition. 	The Chapels
then filed a motion to modify the automatic stay on October 29, 2004. 	A
conditional order was entered on December 27, 2004.
The automatic stay was finally lifted as to the Chapels by the bankruptcy
court order dated June 28, 2005. 	Appellants then took the actions – mailed and
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23 First Nat’l Bank v. Roach (In re Roach), 660 F.2d 1316 (9th Cir. 1981).
24 Taylor v. Slick, 178 F.3d 698 (3d Cir. 1999).
25 All future references to a “Circuit” or “Circuits” are to the United States
Court of Appeals for such circuit or to courts within such circuit.
26 In re Roach, 660 F.2d at 1318.
27 Id. at 1319.
28 Taylor v. Slick, 178 F.3d at 701.
-10-
filed the Foreclosure Notice during the Rule 4001(a)(3) period – that were
determined by the bankruptcy court to be violations of the stay. It is beyond
dispute that the August 11, 2005, sale date is the product of a prepetition
foreclosure action. That does not, however, mean that the August 11, 2005, sale
date constitutes a “continuation” or “postponement” of previously scheduled
foreclosure sales.
The two primary cases relied upon by Appellants in their brief are In re
Roach (“Roach”) 23 and Taylor v. Slick (“Taylor”). 24 In Roach, the United States
Court of Appeals for the Ninth Circuit 25 held that postponement notices which
specify a new foreclosure sale date do not violate the automatic stay. 26 In support
of its conclusion, the court stated, “[t]he automatic stay does not necessarily
prevent all activity outside the bankruptcy forum[,]” and “[h]ere the [creditor]
merely maintained the status quo, and did not harass, interfere or gain any
advantage. 	This is consistent with the purpose of the automatic stay provision.” 27
In Taylor, the Third Circuit held that the continuance of a sheriff’s sale in
accordance with state law procedure during the pendency of an automatic stay
does not violate § 362(a)(1). 28 The Third Circuit also focused on the preservation
of the status quo, and stated that “[a]lthough a new proposed sale date was
announced, no act had occurred that prejudiced [debtor] or otherwise altered his
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29 Id. at 702.
30 See, e.g., In re Peters, 101 F.3d 618, 619 (9th Cir. 1996); In re St. Clair,
251 B.R. 660, 669 (D. N.J. 2000), aff’d, 281 F.3d 224 (3d Cir. 2001); In re
Townsville, 268 B.R. 95, 125 (Bankr. E.D. Pa. 2001); In re Fritz, 225 B.R. 218,
219-20 (E.D. Wash. 1997).
31 See, e.g., Worthy v. World Wide Fin. Servs., Inc., 347 F. Supp. 2d 502, 508-
09 (E.D. Mich. 2004), aff’d, 192 F. App’x 369 (6th Cir. 1006); Zeoli v. Riht
Mortgage Corp., 148 B.R. 698, 701 (D. N.H. 1993); In re Fine, 285 B.R. 700, 702
(Bankr. D. Minn. 2002); In re Heron Pond, LLC, 258 B.R. 529, 530 (Bankr. D.
Mass. 2001); Atlas Mach. & Iron Works, Inc. v. Bethlehem Steel Corp. (In re
Atlas Mach. & Iron Works, Inc.), 239 B.R. 322, 329-333 (Bankr. E.D. Va. 1998).
32 There is one unpublished decision of the United States Court of Appeals for
the Tenth Circuit that states mailing of a “Notice of Hearing Motion to Confirm
and Approve Sheriff’s Sale” was a violation of Rule 4001(a)(3). 	However, this
statement is made in a footnote and the details of the facts are not given. 	In re
Conner, 37 F. App’x 445, 448 n.3 (10th Cir. 2002).
33 Roche v. Franklin First Fed. Sav. Bank (In re Roche), 228 B.R. 102, 103
(Bankr. M.D. Pa. 1998) (emphasis added) (hereafter “Roche”).
-11-
position with respect to the property.” 29 These two cases have been cited to and
relied upon to reach the same results by courts in many cases in the Ninth and
Third Circuits. 30 Additionally, they have been relied upon by courts in the First,
Fourth, Sixth, and Eighth Circuits. 31 There are no published decisions on this
issue within the Tenth Circuit. 32
A critical requirement in reaching the conclusion that there was no stay
violation is a finding that the postponement of the foreclosure sale is done in
accordance with state law procedure. 	As stated by a Pennsylvania bankruptcy
court:
At the outset, the Court has been impressed with the sheer volume of
authority that supports the Bank’s position. 	As to whether the
postponement of a sale in accordance with state law procedure
during the pendency of the automatic stay is a violation of the
automatic stay, every court that has studied this specific issue (and
not been reversed) has found no violation. 33
In the Pennsylvania cases of Taylor and Roche, a Pennsylvania Rule of Civil
Procedure specifically authorized the creditors to “postpone” the foreclosure sale
without renotification. 	At the time, the Pennsylvania rule provided as follows:
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34 Pa. R. C. P. No. 3129.3(b). 	The rule has now been amended to permit two
postponements within a period of 130 days of the scheduled sale without giving
new notice.
35 Barnett Bank of Se. Ga., N.A. v. Trust Co. Bank of Se. Ga., N.A. (In re
Ring), 178 B.R. 570 (Bankr. S.D. Ga. 1995).
36 Id. at 574.
37 143 B.R. 295 (Bankr. D. D.C. 1992).
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If the sale is stayed, continued, postponed or adjourned to a date
certain within one hundred days of the scheduled sale, and public
announcement thereof, including the new date, is made to the bidders
assembled at the time and place originally fixed for the sale, no new
notice shall be required, but there may be only one such stay,
continuance, postponement or adjournment without new notice. 34
Here, Appellants have not brought to this Court’s attention any similar rule in
New Mexico, nor have we been able to locate one. 	Even if there were a similar
rule in New Mexico, the Appellants did not announce a “postponed” sale date at
an originally scheduled sale. 	Rather, Appellants began the sale process anew by
filing with the New Mexico state court a notice of a new foreclosure sale and
providing Derringer with notice of that sale. 	The August 11, 2005, sale was not a
“postponed” sale which somehow related back to the sale scheduled on October 8,
2004.
The August 11, 2005, date is analogous to a foreclosure sale which a
creditor attempts to conduct for the first time postpetition. 	When a foreclosure
sale is initially scheduled postpetition, case law holds that actions in furtherance
of the foreclosure sale are violations of the automatic stay. 	In In re Ring, 35 a
Georgia bankruptcy court held that advertising of a foreclosure sale prior to
obtaining relief from the automatic stay constituted a violation, stating that
“[a]dvertising for foreclosure is clearly the sort of creditor action that is stayed by
sections 362(a)(1), (3), (4) and (5).” 36 In In re Franklin Mortgage and Investment
Co., Inc., 37 a District of Columbia bankruptcy court 	held that a stay violation
occurred when creditor’s counsel sent a notice of sale to the clerk of a circuit
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38 Id. at 303.
39 23 B.R. 239 (Bankr. E.D. Pa. 1982).
40 Id. at 240.
41 483 F.3d 653 (10th Cir. 2007).
42 Id. at 655 (citation to bankruptcy court decision omitted).
43 See § 362(d) (“On request of a party in interest and after notice and a
hearing, the court shall grant relief from the stay provided under subsection (a) of
this section, such as by terminating, annulling, modifying, or conditioning such
stay . . .”) (emphasis added).
-13-
court directing the clerk to publish a notice of judicial sale. As stated by that
court, “[t]hat act, and the act alone, constituted a contempt: [creditor’s counsel]
was aware of the automatic stay, the statute unambiguously prohibited acts to
enforce the mortgage lien, and causing court publication of notice violated those
prohibitions.” 38 And in In re Demp,39 a Pennsylvania bankruptcy court found a
stay violation and held creditor’s counsel in contempt of court when he caused the
debtor’s property to be posted for sheriff’s sale postpetition. 40
After the parties to this appeal submitted their briefs, the United States
Court of Appeals for the Tenth Circuit decided the case of In re Duran
(“Duran”). 41 In Duran, the court ruled that, under § 362(e)(1), the automatic stay
terminates as a matter of law thirty days after the filing of a motion for relief,
“unless the court orders the automatic stay continued.” 42 The facts of Duran are
dissimilar to the facts of this case. 	In Duran, the bankruptcy court
unconditionally granted the motion for relief, and the creditor took immediate
steps to repossess its collateral. 	Here, instead of granting relief, the bankruptcy
court issued the December 27 Order which conditionally maintained the automatic
stay. 	Conditional orders are expressly contemplated by § 362(d) 43 and absolutely
crucial to the administration of bankruptcy cases in a varying range of
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44 For example, bankruptcy courts often enter orders agreed to by a debtor and
a mortgagee maintaining the automatic stay in place so long as certain conditions
(such as timely payments being made upon the debt) are complied with. 	If the
debtor fails to comply with the conditions, the mortgagee is then free to submit an
order to the bankruptcy court granting relief from the automatic stay. 	These
orders, colloquially referred to as “drop dead” orders, are a linchpin in the
bankruptcy process, as they allow debtors and creditors to reach agreement and
settle their differences without litigation.
-14-
circumstances. 44 The December 27 Order was entered within the time frames
contemplated under § 362(e). 	We conclude that the entry of the December 27
Order satisfied the requirements of § 362(e) and Duran and prevented the stay
from terminating as a matter of law. 	Any other ruling would eviscerate the ability
of a bankruptcy court to issue orders which allowed the automatic stay to remain
in effect so long as certain conditions were met. 	We do not believe that such a
result was intended under Duran.
The automatic stay was still in effect when Appellants mailed the
Foreclosure Notice to Derringer and caused it to be filed in the New Mexico state
court. 	These actions did not constitute a “postponement” or “continuation” of a
previously scheduled foreclosure sale. 	Instead, they served to initiate an entirely
new sale. 	The bankruptcy court’s determination that the filing and mailing of the
Foreclosure Notice was a willful violation of the automatic stay was not clearly
erroneous.
VI. 	CONCLUSION
The decision of the bankruptcy court is affirmed.
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