IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
|DO NOT PUBLISH
This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
SHARDA GURUSWAMI-NAIDU, No. 96-12909
v. A.P. No. 97-1085
Memorandum of Decision
Debtor Sharda Gursuwami-Naidu filed her Chapter 13 petition on August 27, 1996, on the
eve of a pending foreclosure of her residence. She quickly fell into default on her postpetition
mortgage payments, resulting in three motions for relief from the automatic stay by mortgage
holder and defendant Andrew Unetic. The debtor cured the postpetition defaults which were the
subject of the first two motions. This adversary proceeding involves this court's order made
pursuant to the third motion.
On January 9, 1997, the court orally granted Unetic relief from the stay effective in 30 days
if the debtor was not then current in her postpetition payments. Counsel for Unetic prepared a
written order which differed somewhat from the oral ruling; it provided that Unetic would have
relief "if Debtor fails to bring all post-petition payments current by no later than February 8,
February 8, 1997, was a Saturday. The debtor did not bring the payments current, and a
foreclosure sale was held on Monday, February 10, at 11:00 A.M. By this adversary proceeding,
the debtor seeks to void the foreclosure on the grounds that she had until the close of business
on February 10 to bring the postpetition payments current. The issue now before the court is
whether there she has a case meritorious enough to justify a preliminary injunction.
Resolution of this case depends on whether or not FRBP 9006(a) is applicable. That rule
provides that in computing any time period prescribed or allowed in a court order, if the last day
falls on a weekend then it is extended until the end of the next business day.
The debtor has a valid argument that Rule 9006(a) applied to the court's oral ruling, which
did involve a computation. The written order specified a date certain, but it appears that Rule
9006(a) applies to such orders as well. Matter of American Healthcare Management, Inc.
F.2d 827, 831 (5th Cir.1990). It therefore appears that the foreclosure sale was conducted in
violation of the automatic stay.
Unetic argues that the debtor raised the Rule 9006(a) issue as a defense to his state court
unlawful detainer action and lost, so she is barred from relitigating the issue. The court is not
convinced that this argument has merit, both because it is not clear that the issue was in fact
raised and because it is doubtful the state court had jurisdiction to hear the issue. Actions taken
in violation of the stay are void, not just voidable. In re Schwartz
, 954 F.2d 569 (9th Cir.1992).
The state court had no power to make a void act effective.
For the foregoing reasons, the court will issue a preliminary injunction as prayed by the
debtor, conditioned on her tendering a payment to Unetic by the 15th day of each month in an
amount equal to her regular monthly payment before foreclosure. Counsel for the debtor shall
submit an appropriate form of injunction.
Dated: May 8, 1997 _______________________