Titiloye A. Okupe

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
In Re: 	*
Titiloye A. Okupe, 	* 	Case No. 	05-12022PM
* 	Chapter 	13
*
Debtor, 	*
************************************* 	*
Chelsea Woods Condominium, 	*
*
*
Movant, 	*
vs. 	*
Titiloye A. Okupe, 	*
*
*
Respondent. 	*
MEMORANDUM OF DECISION
Before the court is a motion filed on behalf of Chelsea Woods Condominium for an order
terminating the automatic stay or, in the alternative, for annulment of the stay, so as to enable the
moving party to proceed with the consummation of a foreclosure sale commenced at 10:10 a.m.
on February 1, 2005, and concluded at 10:25 a.m. 	This bankruptcy case under chapter 13 of the
Bankruptcy Code was filed that same day at 10:39 a.m. There are two issues raised in this
proceeding. First, whether the foreclosure sale took place prior to the auction sale and, second,
Date signed August 11, 2005
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whether the filing of the petition in the name of the debtor by the debtor’s fiancee, Elvis
Abedoyia, accomplished a valid filing of a bankruptcy case so as to cause the implementation of
the automatic stay of 11 U.S.C. § 362(a). The debtor’s counsel argues that Mr. Abedoyia had an
oral power of attorney. However, the petition and schedules in this case were filed ostensibly
with the signature of the debtor with an unsworn declaration filed pursuant to 28 U.S.C. § 1746.
The debtor was in Nigeria at the time, and it is undisputed that Mr. Abedoyia signed her name to
the petition and schedules. The papers were not signed by him as attorney-in-fact.
First, the court finds as a fact that the foreclosure sale was consummated prior to the
filing of the Mr. Abedoyia-signed petition at 10:39 a.m. on February 1, 2005. The court finds
the testimony of Keith Litchauer fully credible, namely that the sale commenced at 10:05 a.m.
and was concluded at 10:20 a.m. This testimony was corroborated by the testimony of Dawn
Croft, the condominium manager, who arrived tardily in the courthouse vicinity at or around
10:20 a.m., ran to where the sale was to be conducted and saw that it had concluded. The court
does not find the testimony of Mr. Abedoyia credible to the effect that he filed the bankruptcy
case and arrived at the place of the sale prior to the consummation of the foreclosure.
As to foreclosure sales, numerous cases in this District stand for the proposition that the
debtor’s equity of redemption of an interest in land ceases to exist upon the fall of the
auctioneer’s hammer. See generally, In re Denny, 242 B.R. 593, 597-98 (BC Md. 1999); In re
De Souza, 135 B.R. 793 (BC Md. 1991); In re Edwards, 62 B.R. 609 (BC Md. 1986); Union
Trust Co. v. Biggs, 137 A. 509, 512 (Md. 1927); Four Star Enterprises Ltd. P’ship v. Counsel of
Unit Owners of Carousel Center Condo., Inc., 752 A.2d 1272, 1284 (Md. App. 2000); cf., Colon
v. Option One Mortgage Corp., 319 F.3d 912 (CA7 2003) (applying similar Illinois law).
Inasmuch as the debtor no longer holds either equitable or legal title to the subject property,
cause exists for relief from the automatic stay.
Even were the paper filed by Mr. Abedoyia timely, the court finds it ineffective to cause
the implementation of the automatic stay. The court first finds that the concept of an oral power
of attorney arose long after the telephone call from the debtor to Mr. Abedoyia to tell him to file
the bankruptcy petition. She may have authorized the filing of the case but the court cannot find
anything here that rose to the creation of an oral power of attorney, if such a creature ever
existed. For the purposes of this case only, the court will assume that a bankruptcy case can be
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instituted by the filing of a petition signed by an individual holding a power of attorney. But see,
In re Smith, 115 B.R. 84 (BC E.D. Va. 1990) (court-appointed guardianship required); In re
Harrison, 158 B.R. 246 (BC M.D. Fla. 1993) (document purportedly signed and verified by the
debtor, but held a nullity as no one can grant authority to verify under oath the truthfulness
statements contained in documents). While authority exists for the commencement of a
bankruptcy case under a power of attorney, see In re Hurt, 234 B.R. 1, 2-3 (BC NH 1999), the
following items are required:
(1) 	A copy of the power of attorney must be filed with the petition;
(2) 	The copy filed must be a true copy; and
(3) 	The filing of the bankruptcy case by the attorney-in-fact is within the authority
granted under the power of attorney for the execution of the petition and does not
constitute the practice of law.
See In re Eicholz, 310 B.R. 203 (W.D. Wash. 2004) (adopting a restrictive approach to what is
required). In any event, under Maryland law, a written document is required to appoint another
as an attorney-in-fact. King v. Bankerd, 492 A.2d 608, 611 (Md. 1985). The opinion of Strawn
v. Jones, 285 A.2d 659 (Md. 1972), strongly relied upon by the debtor, is inapplicable as that
case involved an actual written power of attorney and the issue was whether the agent had the
authority to do certain acts under that power of attorney. That a power of attorney be in writing
is critical. As Chief Judge Murphy observed for the Court of Appeals in Kline v. Weiss, 395
A.2d 126, 140 (Md. App. 1978), powers of attorney are strictly construed and are held to grant
only those powers that are clearly delineated.
An appropriate order will be entered.
cc: 	Titiloye A. Okupe
8473 Greenbelt Road, #102
Greenbelt, MD 20770
John Douglas Burns
6303 Ivy Lane, Ste. 102
Greenbelt, MD 20770
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Nancy L Spencer Grigsby
P.O. Box 958
Bowie, MD 20718
END OF MEMORANDUM DECISION
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