Thandeka-Akua Yaa Asantewa Taharaka

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S. Martin Teel, Jr.

United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF COLUMBIA

In re )

)

THANDEKA-AKUA YAA ASANTEWA ) Case No. 18-00697

TAHARAKA, ) (Chapter 13)

) Not for publication in

Debtor. ) West’s Bankruptcy Reporter.

MEMORANDUM DECISION AND ORDER DENYING MOTION TO

RECONSIDER DISMISSAL OF CASE AND DISMISSING OBJECTION TO CLAIM

After a hearing held on November 15, 2019 (Dkt. No. 94), the

court dismissed this case (Dkt. No. 92) pursuant to a Motion to

Dismiss filed by the chapter 13 trustee (Dkt. No. 61} based on

denial of confirmation of the debtor’s chapter 13 plan. The

debtor has filed a motion (Dkt. No. 95) asking the court to

revisit the case in order to direct creditor CitiMortgage, Inc.

(“CitiMortgage”) to show cause why the court ought not hold

CitiMortgage in contempt and impose sanctions for its failure to

comply with this court’s Order Directing CitiMortgage to File An

Affidavit Explaining Certain Escrow Distributions (Dkt. No. 58),

and to compel CitiMortgage to comply with that order. The court

will treat the debtor’s motion, brought pursuant to Fed. R. Civ.

P. 60 (made applicable in this court by Fed. R. Bankr. P. 9024),

as a motion to reconsider the dismissal of her case, and to

vacate the dismissal in order to direct CitiMortgage to show

cause why the court ought not grant the relief sought by the

debtor. The court will deny the debtor’s motion for the

following reasons.

It Is Not Necessary To Vacate the Dismissal of Case to

Impose Sanctions. The debtor seeks reconsideration of the

dismissal of her case in order to pursue sanctions against

CitiMortgage. However, the court need not vacate the dismissal

in order to impose sanctions because it has the authority to

enter orders addressing abusive conduct notwithstanding the

dismissal. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

395-98 (1990) (district courts may enforce Rule 11 even after the

plaintiff has filed a notice of dismissal under Rule 41(a)(1)).

Because the debtor is not seeking the vacating of the dismissal

of her case in order to pursue confirmation of a chapter 13 plan,

the court will not needlessly vacate the dismissal of the case in

order to consider her motion for contempt and sanctions.

The Basis of the Debtor’s Request for Relief Is Moot. The

debtor seeks relief arising from CitiMortage’s alleged failure to

comply with the court’s Order Directing CitiMortgage to File An

Affidavit Explaining Certain Escrow Distributions. However, that

order arose during the proceedings pertaining to the debtor’s

objection to CitiMortgage’s claim, and CitiMortgage was directed

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to provide an accounting in furtherance of the fixing of the

amount of its claim. Upon dismissal of the case, the debtor no

longer had a case pending in which CitiMortgage was seeking to

have its claim concerning her property allowed. CitiMortgage’s

alleged failure to comply with the court’s order has no impact on

the administration of the case: there is no longer a case pending

within which to allow or disallow CitiMortgage’s claim. The case

having been dismissed, the court views the sound exercise of

discretion to require that it abstain from adjudicating the

objection to claim, with the validity of the proof of claim left

to be decided in some other court of competent jurisdiction. The

court already so decided in its Order Denying Motion Docketed as

Docket No. 75 (Dkt. No. 90), stating: “Any disputes concerning

the mortgagee's claim will be best resolved other than in this

case.”1 Accordingly, there is no reason to impose coercive

contempt sanctions against CitiMortgage to cure an alleged

1 In the Order Denying Motion Docketed as Docket No. 75,

the court did not specifically dismiss the debtor’s objection to

CitiMortgage’s claim, but was clearly indicating that it viewed

it inappropriate to decide the objection. This order will

include a dismissal of the objection to CitiMortgage’s claim.

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failure to comply with the court’s order.2 In any event, as

addressed next, there was no such failure to comply.

Sanctions Are Not Warranted for the Alleged Conduct at

Issue. The debtor argues that the statement filed by Cenlar, FSB

(“Cenlar”) on behalf of CitiMortgage on October 23, 2019 (Dkt.

No. 81) does not qualify as an affidavit because it was not

signed, dated, and taken under oath. The debtor is incorrect:

the document was signed and dated. Moreover, as to the necessity

that the written statement be provided under oath, 28 U.S.C.

§ 1746 states:

Wherever, under any law of the United States or under any

rule, regulation, order, or requirement made pursuant to

law, any matter is required or permitted to be supported,

evidenced, established, or proved by the sworn

declaration, verification, certificate, statement, oath,

or affidavit, in writing of the person making the same

(other than a deposition, or an oath of office, or an

oath required to be taken before a specified official

other than a notary public), such matter may, with like

force and effect, be supported, evidenced, established,

or proved by the unsworn declaration, certificate,

verification, or statement, in writing of such person

2 Nor would compensatory sanctions be warranted. The

debtor’s case was dismissed before the resolution of the

objection to claim, and as the court noted in its Order Denying

Motion Docketed as Docket No. 75 entered on the day the case was

dismissed, the debtor would not be able to confirm a plan due to

her lack of regular income and inability to cure her monthly

mortgage payment arrears even if her objection to CitiMortgage’s

claim were sustained. Accordingly, even if there had been a

failure to comply with the Order Directing CitiMortgage to File

An Affidavit Explaining Certain Escrow Distributions, there would

not have been any material effect or injury caused by

CitiMortgage’s alleged failure to comply with that order. It

follows that no compensatory contempt sanctions or compensatory

discovery sanctions would have been warranted.

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which is subscribed by him, as true under penalty of

perjury as true under penalty of perjury, and dated, in

substantially the following form:

[...]

(2) If executed within the United States, its

territories, possessions, or commonwealths: “I

declare (or certify, verify, or state) under

penalty of perjury that the foregoing is true and

correct. Executed on (date).

(Signature)”.

Zamorra M. McGee, who provided the statement on behalf of Cenlar,

“affirm[ed] under penalties of perjury” that her statements were

true and correct. This affirmation satisfies the requirements of

§ 1746. See Climate Investigations Center v. United States

Department of Energy, Case No. 16-cv-124 (APM), 2017 WL 4004417,

at *9 (the word “affirm” is substantially similar in meaning to

the terms specifically listed in § 1746). Thus, even if the

debtor’s requested relief were not mooted by the dismissal of the

case, the court would deny her motion because Cenlar’s statement

complied with the court’s order.

For all these reasons, it is

ORDERED that the debtor’s motion docketed as Docket No. 95,

which the court treats as a motion pursuant to Fed. R. Civ. P. 60

to reconsider the dismissal of her case, is DENIED. It is

further

ORDERED that the Motion for Objection to Disallow Claim

(Dkt. No. 30) is dismissed based on the court’s decision to

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abstain from hearing that objection to CitiMortgage’s claim.

[Signed and dated above.]

Copies to: Debtor (by hand-mailing); e-recipients of notification

of filings.

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