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In Re: Martha A. Akers v. Windward Capital Corporation

November 7, 2012


Adversary Proceeding No. 10-10006

The opinion of the court was delivered by: James E. Boasberg United States District Judge


Pro se Appellant Martha A. Akers, who has been involved in lengthy bankruptcy proceedings, appeals an order of the Bankruptcy Court denying her motion for a preliminary injunction to halt the foreclosure of a commercial property she owned. As she offered no basis for the Bankruptcy Court to believe she would succeed on the merits of her underlying claim, it correctly denied her Motion. This Court will thus affirm that decision.


As best the Court can discern from Appellant's rather opaque pleading, she owned a commercial building located at 1368 H St. in Northeast Washington. See Appellant Br. at 4. "On July 26, 2000, [she] executed a promissory note in the loan amount of $63,750.00 with the lender," Appellee Windward Capital Corporation, and executed a Deed of Trust to secure the loan. Id. According to Windward and Appellee Mooring Financial Corporation, the loan servicer, when Appellant initiated Chapter 13 Bankruptcy proceedings on December 5, 2007, she was in default under the terms of the promissory note. See Appellees Br. at 5-6.

On January 14, 2008, as part of her amended plan of reorganization, Akers "agreed to make direct payments to the Lender according [to] the terms of the loan in the monthly installment amount of $468.00." Id. at 6. Appellant thereafter defaulted and has not made a payment since December 2008. Id. As a result, Windward filed its Motion for Relief from Stay in January 2010 with the Bankruptcy Court, seeking to foreclose on the property. See 07-br-662, ECF No. 232 (Motion Seeking Relief from Automatic Stay). Appellant in response filed a Complaint for Breach of Contract against Appellees. See 10-ap-10006, ECF No. 1 (Amended Complaint for Breach of Contract). After a hearing on February 25, 2010, the Bankruptcy Court granted Appellees' Motion and terminated the stay. See 07-br-662, ECF No. 253 (Order Terminating Automatic Stay). Appellant thereafter thrice filed motions in the Bankruptcy Court for injunctive relief to prevent the foreclosure, and each motion was denied. See 10-ap-10006, ECF Nos. 27 (Order of May 4, 2010, denying Motion for Preliminary Injunction), 45 (Memorandum Decision and Order of June 29, 2010, denying Amended Motion for Preliminary Injunction), 62 (Memorandum Decision and Order of July 25, 2010, denying Emergency Motion for Preliminary Injunction). The Bankruptcy Court's ruling on the second of these Motions is the subject of this interlocutory appeal. See 10-ap-10006, ECF No. 47 (Notice of Appeal filed right after denial of second motion on June 29, 2010).

The Court will thus discuss in more detail the content of Appellant's second Motion for Preliminary Injunction. Filed on May 26, 2010, this Motion sought to enjoin Windward's right to foreclose on the property. In the sole paragraph arguing her likelihood of success on the merits, Appellant stated, "The Defendant violated provisions of the Deed of Trust and Section 6 of RESPA (12 U.S.D. 2605) constituting an impairment of an obligation of contract prohibited by Article 1, Section 10, Clause 1 of the United States Constitution. . . . This violates the separation of powers principle inherent in the constitutional frame work [sic]." See 10-ap-10006, ECF No. 35 (Motion for Preliminary Injunction) at 2. In denying the Motion, Judge Martin Teel of the Bankruptcy Court noted first that Appellant had failed to support her Motion with affidavits as required by LCvR 65.1. See id., ECF No. 45 (Memorandum Decision and Order of June 29, 2010, denying Amended Motion for Preliminary Injunction) at 2. "In any event," continued the Opinion, "the motion . . . sets forth no basis for concluding that Akers has a likelihood of succeeding on the merits. The motion only sets forth insufficient conclusory assertions of wrong unsupported by any specific recitation of facts establishing a wrong." Id. at

3. The Court also found no showing of irreparable harm. Id. at 3-4.

Appellant immediately filed a Notice of Appeal in this case on June 29. See 10-ap- 10006, ECF No. 47 (Notice of Appeal). Meanwhile, the foreclosure occurred on June 30, 2010. See Appellees' Br. at 7. The case was initially assigned to Judge Ricardo Urbina, who retired before ruling on the appeal. The case was then transferred to this Court in April 2012. The Court apologizes to the parties for the delay in rendering a decision. Although the matter has shuttled between judges, there is no justifiable reason for the length of the delay here.

II.Standard of Review

"In reviewing a preliminary injunction, we 'exercise plenary review over the [bankruptcy court's] conclusions of law and its application of law to the facts, but review its findings of fact for clear error.'" Bartok v. DeAngelis, 2012 WL 664928, at *4 (D.N.J. Feb. 29, 2012) (citing In re Vertientes, Ltd., 845 F.2d 57, 59 (3d Cir. 1988) (alteration in original)). "We review the [bankruptcy] court's ultimate decision to issue an injunction for abuse of discretion." Id. (citation omitted; alteration in original); see also In re SK Foods, L.P., 2010 WL 5136187, at *4 (E.D. Cal. 2010) ("district court[s] review a bankruptcy court's decision to grant or . . . deny the preliminary injunction and the scope of injunctive relief for an abuse of discretion") (citing Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)).


Appellant argues on appeal that the Bankruptcy Court erred in denying her Motion for Preliminary Injunction. In responding to her appeal, Appellees first interpose procedural objections, arguing that Appellant's brief was untimely filed here and that she may not appeal from an interlocutory order. They then move to the merits, contending that the Bankruptcy Court correctly determined that Appellant "failed to demonstrate the likelihood of prevailing on the merits and irreparable ...

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