David Brian Derringer

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
David Brian Derringer
04-17330
Order Denying [147-1] Motion To Strike Affidavit by Manges regarding Debtor's
Continuing failure to comply with the terms and conditions of the Court Order
entered on 12/23/04. [143-1] by David Brian Derringer .
Received on: 2005-06-28 10:21:29.000
2005-06-28 00:00:00.000
2005-06-28 00:00:00.000
Patti Hennessy
Case 04-17330-m13 Doc 195 Filed 06/28/05 Entered 06/28/05 15:48:00 Page 1 of 5

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: DAVID DERRINGER, No. 13-04-17330 MA
Debtor.
ORDER DENYING DEBTOR’S MOTION TO STRIKE AFFIDAVIT OF
JOSEPH MANGES REGARDING DEBTOR’S CONTINUING FAILURE
TO COMPLY WITH THE TERMS AND CONDITIONS OF THE
COURT ORDER ENTERED DECEMBER 23, 2004
THIS MATTER is before the Court on the Debtor David Derringer’s Motion to Strike
Manges’ Affidavit Regarding Debtor’s Continuing Failure to Comply with the Terms and Conditions of
the Court Order entered December 23, 2004 (“Motion to Strike”). Joseph Manges filed an Affidavit
Regarding Debtor’s Continuing Failure to Comply with the Terms of and Conditions of the Court
Order Entered December 23, 2004 (“Manges Affidavit”) on February 28, 2005. Debtor asserts in his
Motion to Strike that the Manges Affidavit is “both fraudulent and designed for ‘improper purposes’ in
direct violation of Fed.R.Civ.P. Rule 11(b)(1) and must be stricken from the record.” The Motion to
Strike also requests the Court to impose sanctions against Joseph Manges pursuant to Rule 11,
Fed.R.Civ.P. for filing “this pleading meant to defraud the court, falsify the court record, and defeat
federal law Title 11 Section 362(d) without due process or opportunity to be heard in the proper
hearing for the Debtor.” The Court finds that the Debtor has failed to show adequate cause to strike
the Manges Affidavit, and will deny the Motion to Strike. In reaching this determination the Court
FINDS:
1. The Order on Chapels’ Motion to Modify Automatic Stay (“December 23, 2004 Order”)
conditioned the continuation of the automatic stay imposed by 11 U.S.C. § 362 on the Debtor
complying with certain requirements for proceeding under Chapter 13 of the Bankruptcy Code,
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including filing a proposed plan of reorganization, obtaining a preliminary hearing on confirmation, filing
amended statements and schedules, and confirming a plan.
2. The December 23, 2004 Order provided that “[i]f the Debtor fails to comply with these
deadlines, then upon the filing of an affidavit by counsel for the Chapels that the Debtor has failed to
comply, the Court will enter an order terminating the automatic stay.”
3. The Manges Affidavit was filed in accordance with the December 23, 2004 Order.
4. Affidavits must be based on personal knowledge. See 3 Am. Jur. 2d Affidavits § 13 (An
affidavit must be based on personal knowledge, and its allegations should be of the pertinent facts and
circumstances, rather than conclusions.”); Cf. Rule 56(e), Fed.R.Civ.P., made applicable to
bankruptcy proceedings by Rule 7056, Fed.R.Bankr.P. (“affidavits [in support or opposition of
motions for summary judgment] shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein.”).
5. While Debtor may not agree with the characterization of some of the statements contained in
the Manges Affidavit, there is nothing to indicate that the statements are not based on the personal
knowledge of the affiant, or that the affiant is not competent to testify to the matter stated therein.
6. Debtor also asserts that the Manges Affidavit improperly interferes with his due process
rights with regard to the requirements for obtaining relief from the automatic stay under 11 U.S.C. §
362(d). Debtor’s assertion mis-interprets the requirements for notice and a hearing under 11 U.S.C.
§ 362. The December 23, 2004 Order was issued after a final hearing on the merits of Chapels’
Motion for Relief from Stay, and the inclusion of a provision allowing for the entry of an order
terminating the stay upon filing an affidavit of default is within the Court’s discretion. See In re
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1 “A ‘drop dead’ clause ‘allows a creditor to exercise its state law remedies upon default of a
debtor under a plan without seeking further permission from the bankruptcy court.’" Id. at 1269
(quoting In re Kennedy, 177 B.R. 967, 975 (Bankr.S.D.Ala.1995)).
Mendoza, 111 F.3d 1264, 1270 (5th Cir. 1997) (bankruptcy court is not precluded “from including
‘drop dead’1 clauses in its orders, whether by agreement of the parties or sua sponte without the
parties’ agreement.”).
7. Because the Manges Affidavit is based on personal knowledge and was filed in accordance
with the December 23, 2004 Order, Debtor’s assertion that the Manges Affidavit is fraudulent and filed
for an improper purpose in violation of Rule 9011, Fed.R.Bankr.P. is without merit.
8. Finally, because Debtor’s request for stay pending appeal has been denied, Debtor’s
argument that the Manges Affidavit improperly forces forward an issue that is on appeal is inapposite.
WHEREFORE, IT IS HEREBY ORDERED that the Debtor’s Motion to Strike the affidavit of
Joseph Manges is DENIED.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
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I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
David Derringer
Box 157
Quemado, NM 87829
Joseph Manges
PO Box 669
Santa Fe, NM 87504 -669
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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