REVISED March 2, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60394

Summary Calendar

In the Matter of: NANCY BARNER

Debtor

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NANCY BARNER

Appellant

v.

SAXON MORTGAGE SERVICES, INC. Servicer for Deutsche Trust Company

Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

Appellee Saxon Mortgage Services, Inc.(“Saxon”), conducted a foreclosure

sale of Appellant Nancy Barner’s (“Barner”) principal residence a day after her

bankruptcy filing and subsequently moved for a determination that the

United States Court of Appeals

Fifth Circuit

F I L E D

February 15, 2010

Charles R. Fulbruge III

Clerk
No. 09-60394

2

automatic stay was not in effect at the time of the sale. The bankruptcy court,

citing an order issued in Barner’s previous bankruptcy, granted the motion and

the district court affirmed. Barner appeals, arguing that the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005 (“BAPCPA”) precludes

application of the prior order. Because no provision of BAPCPA affected the

continued vitality of pre-BAPCPA orders, we AFFIRM.

I. BACKGROUND

Barner filed her first bankruptcy case, under Chapter 7 ofthe Bankruptcy

Code, on October 18, 2004. At the time, Deutsche Bank Trust owned a deed of

trust secured by Barner’s principal residence and serviced by Saxon. On

December 14, 2004, the bankruptcy court entered an order (“2004 order”) lifting

the automatic stay as it applied to Barner’s residence. Barner’s case was

subsequently dismissed.

On February 1, 2007, one day before the scheduled foreclosure sale of her

residence, Barner filed a second bankruptcy petition, this time under Chapter

13. Saxon proceeded with the sale and, on June 27, filed a motion seeking a

determination thatthe automatic stay was notin effect as to the residence atthe

time of the sale. After a hearing on the merits, the bankruptcy court ruled that

the stay was not in effect because of the 2004 order. The court relied on Jefferson

v. Mississippi Gulf Coast YMCA, Inc., 73 B.R. 179, 182 (S.D. Miss. 1986), which

held that the automatic stay does not bar foreclosure proceedings “where an

Order . . . was entered lifting the stay . . . in a previous bankruptcy involving the

same debtors, the same creditors and the same property.” The court therefore

issued an order stating that the sale was not a violation of the automatic stay.

Barner appealed that order, and the district court affirmed. She now

appeals to this court.
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II. DISCUSSION

“We review a district court’s affirmance of a bankruptcy court decision by

applying the same standard of review to the bankruptcy court decision that the

district court applied.” In re Martinez, 564 F.3d 719, 726 (5th Cir. 2009). We

therefore review factual findings for clear error and conclusions of law de novo.

Id.

Barner raises three issues on appeal: that provisions of BAPCPA, which

became effective before her second filing, prohibited enforcement of the order

from her prior bankruptcy; that BAPCPA effectively overruled Jefferson v.

Mississippi Gulf Coast YMCA, Inc., supra; and that the Federal Rules of

Bankruptcy Procedure required Saxon to bring an adversary proceeding to

determine whether the automatic stay was in effect atthe time ofthe foreclosure

sale. Neither party challenges Jefferson’s holding under pre-BAPCA law, which

would be an issue of first impression before this court. Therefore, we do not

address it.

Barner argues first that 11 U.S.C. §§ 362(d)(4) and (b)(20) prohibit

enforcement of the 2004 order lifting the automatic stay as to her residence.

Subsection (d)(4) provides that the bankruptcy court may grant relief from the

automatic stay as to real property when it finds that the filing of the bankruptcy

petition was “part of a scheme to delay, hinder, and defraud creditors” that

involved multiple bankruptcy filings affecting the real property. 11 U.S.C.

§ 362(d)(4)(B). Orders granted under (d)(4) “shall be binding in any other case

under this title purporting to affect such real property filed not later than

2 years after the date of the entry of such order by the court.” 

Subsection (b)(20), in turn, is the exception to the automatic stay allowing

for enforcement of (d)(4) orders from prior cases. Ittoo provides that such a (d)(4)

order may be enforced for 2 years after the date of its entry.
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That the order lifting the automatic stay was entered prior to the effective

date of BAPCPA relieves it from compliance with § 362(d)(4). That provision did

not exist, in any form, at the time the order was entered, and BAPCPA, which

added the provision, stated clearly that its provisions were not to apply

retroactively to cases filed before its effective date. Pub. L. No. 109-8

§ 1501(b)(1). Barner’s first bankruptcy was such a case, and so § 362(d)(4) is

irrelevant to orders issued in that case.

Because the 2004 order was not entered under subsection (d)(4), the

limitation of subsection (b)(20), which provides that (d)(4) orders may suspend

the automatic stay for no longer than two years after their entry, is also

inapplicable. The provision applies exclusively to an “order under subsection

(d)(4) as to such real property in any prior case under this title.” Not being a

(d)(4) order, the 2004 order is unaffected by subsection (b)(20). 

Barner’s second argument is that BAPCPA implicitly overturned Jefferson

with respect to in rem orders issued before it became effective. Jefferson held

that “principles of res judicata or collateral estoppel” allowed the application of

an order under (pre-BAPCPA) § 362(d) suspending the automatic stay in a

subsequent bankruptcy case “involving the same debtors, the same creditors and

the same property.” 73 B.R. at 182 (internal citations omitted). The law, at the

time, allowed entry of an order providing relief from the automatic stay with

respect to property “for cause, including the lack of adequate protection of an

interest in property of such party in interest.” 11 U.S.C. § 362 (1994). The law

did not limit the length of time that such an order could remain in effect. 

Whether or not BAPCPA overturned Jefferson prospectively, it did not

modify or affect orders issued in cases filed before its effective date. Pub. L.

No. 109-8 § 1501(b)(1). Further, none of the amendments made to § 362(b) affect

the validity of such orders. Jefferson’s applicability to pre-BAPCPA cases, and

orders issued in them, is therefore unchanged. 
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Finally, Barner contends that Rule 7001 of the Federal Rules of

Bankruptcy Procedure required Saxon to seek relief in an adversary proceeding,

rather than by motion. Rule 7001, in relevant portion, requires an adversary

proceeding “(2) to determine the validity, priority, or extent of a lien or other

interest in property” and “(9) to obtain a declaratory judgment relating to any

of the foregoing.” Rule 4001(1), however, provides that a motion is the proper

means to seek “relief from an automatic stay provided by the Code.” 

In this case, Saxon did not seek an in rem order or a lien. Rather than ask

the court to determine the fact or extent of its interest in Barner’s residence,

Saxon moved for the court to “enter an order determining that because the

automatic stay had been previously lifted and the subject property abandoned

from the estate of the debtor in [the previous case] that the automatic stay was

not in effect when the subject bankruptcy was filed on February 2, 2007, and

that the foreclosure sale conduct on FEBRUARY 2, 2007, was not invalid.” This

requested relief does not fall within the bounds of Rule 7001.

Further, Barner’s substantial rights were unaffected by Saxon’s seeking

relief by motion rather than by adversary proceeding. See FED. R. BANKR.

P. 9005; FED. R. CIV. P. 61. The parties had a full hearing on the merits before

the bankruptcy court and the ability to litigate all questions of law there and

before the district court. If there was error in proceeding by motion, it was

harmless.

III. CONCLUSION

For the reasons discussed above, the district court’s decision is

AFFIRMED.