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Akhtar v. Federal National Mortgage Association

United States District Court, D. Maryland, Southern Division

January 18, 2019

SHAMIM AKHTAR, Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION et al., Appellees.

          MEMORANDUM OPINION

          Paul W. Grimm United States District Judge.

         Shamim Akhtar voluntarily dismissed her Chapter 13 bankruptcy case. She has now brought this appeal, seeking to challenge both the voluntary dismissal and a separate order allowing the Federal National Mortgage Association ("Fannie Mae") to pursue its rights in state court to take possession of her residential property in Hagerstown, Maryland. Though she has not yet filed an appellate brief, the bankruptcy trustee has argued that any appeal of the debtor's own voluntary dismissal must be frivolous and ought to be halted.

         I have thoroughly reviewed the bankruptcy court records and Ms. Akhtar's filings in this appeal, and, having done so, I see no basis on which this appeal could proceed. This Court cannot reach the merits of either of the issues Ms. Akhtar has raised, as one of those issues is moot and the other falls outside of the Court's jurisdictional authority. For these reasons, the trustee's motion to dismiss will be granted.

         FACTUAL BACKGROUND

         Ms. Akhtar filed for Chapter 13 bankruptcy protection in the U.S. Bankruptcy Court for the District of Maryland on March 8, 2018. Pet., In re Akhtar, No. 18-13022-TJC (Bankr. D. Md. Mar. 8, 2018,, ECF No. .. Her voluntary petition stated she had no more than $50, 000 in assets. See Id. at 6.

         A notice advised creditors that the filing of Ms. Akhtar's voluntary petition triggered an automatic stay against most collection activities, a form of statutory protection that generally prevents creditors from collecting debts or foreclosing on property. Notice of Appointment 1, In re Akhtar, No. 18-13022-TJC (Bankr. D. Md. Mar. 8, 2018,, ECF NO.4; see 11 U.S.C. S 362(a). Counsel for Fannie Mae soon entered a notice of appearance in the case, see ECF No. 10-1, and filed a motion for relief from the automatic stay, see Fannie Mae Mot., ECF No. 10-2. The motion indicated that Fannie Mae wished to pursue its remedies under state law to take possession of the real property at 17711 Perlite Way, Hagerstown, Maryland, see Fannie Mae Mot. 2, a property Ms. Akhtar had listed as her home address on her voluntary petition, see Pet. 2, In re Akhtar, No. 18-13022-TJC. Along with the motion, Fannie Mae enclosed state court records showing it had purchased the property at a foreclosure sale on October 9, 2013, and that a judge had ratified the sale. See Record of Sale, In re Akhtar, No. 18-13022-TJC (Bankr. D. Md. Mar. 19, 2018,, ECF No. 10, Ex. A; Order of Ratification, In re Akhtar, No. 18-13022-TJC, ECF No. 10, Ex.B.

         Ms. Aktar missed a number of filing deadlines in the bankruptcy case and failed to appear at the scheduled meeting of creditors. See Show Cause Order, In re Akhtar, No. 18-13022-TJC (Bankr. D. Md. Apr. 16, 2018), ECF No. 26. She did, however, oppose Fannie Mae's motion for relief from the automatic stay, arguing that she remained the record owner of the Hagerstown property because Fannie Mae had failed to notify her of the foreclosure sale and deed transfer. See Opp'n to Mot. for Relief, 1, ECF No. 10-5. She enclosed a copy of a deed, dated July 16, 2013, purporting to convey the property, for no consideration, from her husband, Mohammed A. Farooq, to himself and Ms. Akhtar as tenants by the entirety. See Id. at 5-6. Ms. Akhtar also argued, in effect, that Fannie Mae lacked standing to seek relief from the automatic stay because it was not a creditor. See Id. at 2.

         The bankruptcy court held a hearing on Fannie Mae's motion on June 13, 2018. See Hr'g Tr., ECF No. 11. The bankruptcy trustee, Nancy Spencer Grigsby, [1] and Ms. Akhtar had each that morning filed a motion to dismiss the case, see Bankruptcy Docket 3, ECF No. 10-17, but the judge opted to hear arguments on Fannie Mae's motion in any event, [2] see Hr'g Tr. 3. After hearing from both sides, the judge granted Fannie Mae's motion for relief, explaining:

Clearly, this is not a matter for this Court. There is no dispute that a foreclosure sale was conducted on October 9th, 2013. There is also no dispute that an order ratifying the sale was docketed April 3rd, 2015. That being the case, that sale is final .... [I]t cannot be challenged in this Court. It has to be challenged in [state] court.

Hr'g Tr. 7.

         The bankruptcy case concluded on May 4, 2018, with the court issuing two orders on that day. The first order stated the automatic stay was "lifted on the [Hagerstown] real property so as to allow [Fannie Mae] to take whatever future action may be necessary to obtain possession" of the property. Order Lifting Stay, ECF No. 10-15.

         The second order granted Ms. Akhtars's motion for a voluntary dismissal. See Dismissal Order 1, ECF No. 10-16. That order was accompanied by a notice of dismissal advising all creditors and interested parties that the automatic stay imposed by 11 U.S.C. S 362(a) was terminated in full. See Id. at 2.

         Of note for purposes of this appeal, the bankruptcy court's order contained no explicit references to 11 U.S.C. 109(g), a statutory provision that restricts a debtor's right to seek bankruptcy relief for a period of time after her case has been voluntarily dismissed. However, at the bottom of the court's order, a notation from the deputy clerk of the bankruptcy court stated: "Section 109(g)(2) is applicable, and the above-named Debtor(s) may not file another bankruptcy petition for 180 days after the date this order is entered."[3] Id. at 1.

         Ms. Akhtar filed a notice of appeal on May 15, 2018. Notice of App., ECF No. 1. The notice indicated she wished to appeal the bankruptcy court's orders lifting the automatic stay and dismissing the case. See Id. at 2. As noted in the "statement of issues" accompanying the record on appeal, Ms. Akhtar seeks to challenge the bankruptcy proceedings on two grounds. Appellant Designation 2, ECF No. 10. First, she contends that Fannie Mae was not entitled to relief from the automatic stay because it was a mere third party, as opposed to a creditor. See id Second, ...


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