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Court Affirms Lifting Automatic Stay

After debtor received multiple opportunities to comply with bankruptcy court directives, the bankruptcy court did not err in lifting the automatic stay and dismissing her chapter 13 petition, says a Harrisonburg U.S. District Court.

Court orders

The bankruptcy court dismissed petitioner’s case, finding that she failed to make required plan payments and that her amended plan was not feasible or confirmable.

The trustee and appellee Structured Asset Securities (SAS) argue that the only appealable order in this case is the bankruptcy court’s Aug. 3, 2016, order of dismissal without prejudice. The court agrees that the bankruptcy court’s July 8 order is not appealable, as it merely continued a hearing and thus does not constitute a final judgment, order or decree. However, this court will consider the July 6 ruing lifting the stay and enforcing the May 9 order on appeal.

Appellant’s challenge to SAS’ standing is not relevant to this appeal. Debtor agreed to the May 9 order, which explicitly detailed the terms by which debtor would benefit from the imposition of the stay. She repeatedly failed to comply with the terms of that order by not making plan payments and failing to achieve a confirmed plan by July 6. The bankruptcy court did not lift the stay at the first opportunity, but granted debtor additional time to reach compliance. She still failed to do so. There are sufficient reasons for lifting the stay entirely apart from the merits of SAS’ notice of default or debtor’s purported failure to make mortgage payments. Debtor’s failures to comply with the requirements of the May 9 order are unrelated to any possible issues of SAS’ standing and debtor may not raise the question on appeal when it did not form the basis for any appealable order of the bankruptcy court.

Counsel withdrew

The bankruptcy court did not dismiss debtor’s case because she failed to obtain new counsel. She initially filed her petition pro se, and the court did not dismiss her petition before she obtained counsel, and did not dismiss her case as a result of counsel’s motion to withdraw.

Finally, debtor argues the bankruptcy court violated her rights under the Americans with Disabilities Act. She alleges her purported cognitive impairments and March 14, 2016 surgery rendered her disabled under the ADA and the bankruptcy court was required to give her reasonable accommodation. While debtor did ask for an extension of time, she did not ask for it as an accommodation under the ADA. At no point in the hearing did she even reference the ADA. Leaving aside whether debtor would be otherwise entitled to accommodations for her purported disabilities, it is clear that any such duty to provide accommodations would be triggered by debtor’s request. She asked the bankruptcy court for ADA accommodations only once – at the June 1 hearing. She received the extension she asked for and she did not ask for ADA accommodations again. This court finds the bankruptcy court did not err as a matter of law or in fact in failing to grant debtor additional, unrequested ADA accommodations.

Coomes v. Structured Asset Securities (Urbanski) No. 5:16cv48, June 27, 2017; USDC at Harrisonburg, Va.; Kathryn H. Kellam for appellee. VLW 017-3-325, 15 pp.