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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

:

In re: :

MARTHA A. AKERS, : Adversary Proceeding No. 10-10006

Debtor. :

:

MARTHA A. AKERS, :

:

Appellant, :

v. : Civil Action No. 11-674 (JEB)

:

WINDWARD CAPITAL CORPORATION, et al., :

:

Appellees. :

_________________________________________ :

MEMORANDUM OPINION

In the latest of her many pro se actions, Appellant Martha Akers has filed a Notice of 

Appeal from adversary proceeding no. 10-10006 in the U.S. Bankruptcy Court for the District of 

Columbia. She specifically appeals the Bankruptcy Court’s decisions 1) granting summary 

judgment to Appellees Windward Capital Corporation and Mooring Financial Corporation; 2) 

dismissing her motion to reconsider rulings related to her motion to void the foreclosure sale; 

and 3) dismissing her motion to reconsider rulings relating to her motion for preliminary 

injunction. See Notice of Appeal at 1. Because none of her challenges passes muster, the Court 

will affirm the Bankruptcy Court and dismiss the case. 

I. Background

Appellant filed several complaints in the adversary proceeding in the Bankruptcy Court, 

each of which is entitled “Amended Complaint.” See Adversary Proceeding No. 10-10006, ECF 

Nos. 1, 21, 22. Like all of her pleadings, none of these is easy to follow; fortunately, they are all
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quite brief, none exceeding three pages. The first one alleges that, apparently in connection with 

property she owned, Appellant “executed a Deed of Trust and Promissory Note in the amount of 

$63,750.00 with the Lender, Windward Capital Corporation, a subsidiary of Mooring Financial 

Corporation, who is the server [sic] of the loan.” See ECF No. 1 at 1. She further alleges that on 

January 10, 2009, an electrical fire at an adjoining property damaged her property located on H 

St., N.E. See id. at 2. Appellees – who are never alleged to be insurers – were allegedly 

negligent in handling her damage claim and thereby breached their contract with her. Id. 

Plaintiff’s subsequent “Amended Complaints” recite the same allegations with even greater 

brevity. See ECF Nos. 21 & 22. 

The only claim in this adversary proceeding, therefore, is that Appellees somehow 

breached a contract with Appellant by failing to pay for fire damages to her property. Although 

Appellees subsequently foreclosed on the property, see In re Akers, 2012 WL 5419318 (D.D.C. 

Nov. 7, 2012), such foreclosure is not the subject of her suit in this case. 

Appellees moved for summary judgment on this contract claim, but the Bankruptcy Court 

did not believe they had adequately addressed the points at issue. See In re Akers, 445 B.R. 1, 3 

(Bankr. D.D.C. 2011). The court thus permitted them to file a supplemental motion for summary 

judgment, which was ultimately successful. See id. In a fairly lengthy opinion – particularly 

when juxtaposed with the cursory Complaint – Judge S. Martin Teel, Jr. granted summary 

judgment. He summarized his holding thus:

Akers contends that the force-placed insurance obtained by 

Mooring in accordance with the deed of trust was obtained for her 

benefit, and that Windward and Mooring had an obligation to 

mitigate Akers' losses by more zealously pursuing the true value of 

the insurance claim for her benefit. Windward and Mooring, in 

turn, argue that the insurance was obtained for their benefit and 

their benefit alone, and that they owed no duties to Akers with 

respect to the force-placed insurance under which Akers was not a 
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named insured. Although the court concludes that the policy was 

obtained for the mutual benefit of the lender and Akers, and that 

the Windward and Mooring did take on certain duties when they 

exercised their option to insure the property, the court also 

concludes that they did not breach those limited duties, and that the 

fact that the insurance was taken out for the mutual benefit of the 

parties does not entitle Akers to pursue policy-related damages

from Windward and Mooring. The court further concludes that 

Windward and Mooring had no affirmative duty to pursue and 

maximize recovery of the claim under the force-placed insurance 

policy on Akers' behalf. Rather, if Akers was not satisfied with 

their handling of the claim, her remedy, to the extent one exists, 

was limited to an independent right to seek recovery, as a possible 

third-party beneficiary of the policy, against Proctor [the insurer].

Id. at 5.

II. Standard of Review

On appeal from a Bankruptcy Court decision, see 28 U.S.C. § 158(a)(1) (conferring

jurisdiction on federal district courts “to hear appeals . . . from final judgments, orders, and 

decrees” of bankruptcy judges), the district court “may affirm, modify, or reverse a bankruptcy 

judge’s judgment, order, or decree or remand with instructions for further proceedings.” Fed. R. 

Bankr. P. 8013. “Findings of fact . . . shall not be set aside unless clearly erroneous.” Id. 

Questions of law are reviewed de novo, see Advantage Healthplan, Inc. v. Potter, 391 B.R. 521, 

537 (D.D.C. 2008), as are decisions on summary judgment. See In re Capitol Hill Group, 447 

B.R. 387, 393 (D.D.C. 2011). 

The party seeking to reverse the Bankruptcy Court’s findings bears the burden of proof, 

and she “must show that the court’s holding was clearly erroneous as to the assessment of the 

facts . . . and not simply that another conclusion could have been reached.” Advantage 

Healthplan, 391 B.R. at 537 (quoting In re Johnson, 236 B.R. 510, 518 (D.D.C. 1999)) (internal 

quotation marks omitted). “[A] finding of fact is clearly erroneous when, although there is 

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm 
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conviction that a mistake has been committed.” Foskey v. Plus Properties, LLC, 437 B.R. 1, 9 

(D.D.C. 2010) (citations and quotations marks omitted). In other words, the “decision 

must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” 

Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). 

III. Analysis

In appealing the Bankruptcy Court’s grant of summary judgment, Appellant raises 

several issues. She initially characterizes her opening brief as a “Complaint for the Judicial 

Council of the District of Columbia Circuit” regarding Judge Teel’s “personal bias or prejudice.” 

Appellant Br. at ECF p. 4. She also raised therein a number of odd claims about, e.g., violations 

of the Sixth and Fifth Amendments. Id. She then filed an “Amended Answer of Appellant.” 

See ECF No. 8. In this pleading, she set forth a “Statement of Issues Presented for Review.” Id.

at ECF p. 3. These, as best the Court can discern, are: 1) not permitting a jury trial; 2) permitting 

supplemental briefing by Appellees; 3) foreclosing Appellant’s ability to seek damages from the

insurer; 4) considering unsworn and unauthenticated documents; and 5) permitting foreclosure. 

Id. at ECF pp. 3-5. The Court will address them sequentially. 

A. Jury Trial

Appellant contends that she “submitted a proper Complaint for a jury trial,” id. at ECF p.

5, yet the Bankruptcy Court “abused its discretion by not transferring the Jury trial demand 

case.” Id. at ECF p. 3. She claims that, notwithstanding its knowledge of the appellant’s 

“mental, financial and physical damages as well as being forced to represent herself with 

edification disadvantages,” the Bankruptcy Court “calculatedly denied [her] of the 7th . . . and 

5th Constitutional Rights and due process . . . without even one hearing for rebuttal on the 

accurateness of the competing inferences.” Id. at ECF p. 5. 
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Insofar as Appellant argues that the resolution of her case on summary judgment deprives 

her of her Seventh Amendment right to a jury trial, see U.S. Const. amend. VII (“In Suits at 

common law . . . the right of trial by jury shall be preserved . . . .”), she is mistaken. “The 

Seventh Amendment is not violated by proper entry of summary judgment, because such a ruling 

means that no triable issue exists to be submitted to a jury.” Shannon v. Graves, 257 F.3d 1164, 

1167 (10th Cir. 2001) (citing Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-20 

(1902)); see Harris v. Interstate Brands Corp., 348 F.3d 761, 762 (8th Cir. 2003) (“A grant of 

summary judgment does in itself not violate the Seventh Amendment.”); see also Manaia v. 

Potomac Elec. Power Co., 268 F.2d 793, 799 (4th Cir. 1959) (rejecting Seventh Amendment 

argument with respect to grant of judgment notwithstanding the jury verdict, noting that parties 

“seem to recognize that no constitutional question arises when the court withdraws from the jury 

a case in which there is no issue of fact requiring the jury's determination”).

B. Permitting Supplemental Briefing

Appellant next argues that the Bankruptcy Court “advocated” for Appellees, presumably 

by allowing them to supplement their motion for summary judgment. In Appellant’s view, the 

grant of leave to supplement the motion amounted to the “creation” of an issue that neither she 

nor Appellees had raised. This is incorrect. A fair reading of Appellant’s complaint indicates 

that she believed herself entitled to damages for harm allegedly sustained as a result of the fire in 

the adjacent building and to the proceeds of any insurance claim. In other words, the complaint 

raised two issues: what duty, if any, did Appellees owe her with regard to the force-placed 

insurance policy, and, if any duty were owed, did Appellees breach it? It was reasonable for the 

Bankruptcy Court to require the moving parties to brief these issues, and it was within its 

discretion to permit Appellees to supplement the record. Cf. Lujan v. National Wildlife Fed’n,
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497 U.S. 871, 894-98 (1990) (discussing with approval district court’s rejection of supplemental 

affidavits as untimely and in violation of its briefing order); Hynes v. Squillace, 143 F.3d 653, 

656 (2d Cir. 1998) (concluding that district court did not abuse its discretion in considering 

defendants’ supplemental evidence which had not been submitted to magistrate judge to whom 

matter had been referred for a report and recommendation). 

As part of this argument, Appellant contends that the Bankruptcy Judge “ha[d] a personal 

bias or prejudice,” that his rulings were in some way intended for “coercion,” or otherwise 

demonstrated a bias against her. Appellant’s Br. at ECF p. 4. Ordinarily, a judge shall 

disqualify himself “in any proceeding in which his impartiality might reasonably be questioned,” 

28 U.S.C. § 455(a), or “[w]here he has a personal bias or prejudice concerning a party.” Id. §

455(b)(1). The standard for disqualification under Section 455 is an objective one: “whether a 

reasonable and informed observer would question the judge’s impartiality.” See In re Brooks, 

383 F.3d 1036, 1043 (D.C. Cir. 2004) (citing United States v. Microsoft Corp., 253 F.3d 34, 114 

(D.C. Cir. 2001)) (internal quotation marks omitted). There is a presumption against 

disqualification, and the moving party must demonstrate by clear and convincing evidence that 

disqualification is required by Section 455(a). Cobell v. Norton, 237 F. Supp. 2d 71, 78 (D.D.C. 

2003).

Plaintiff offers no evidence – clear, convincing, or otherwise – of judicial bias or 

evidence showing that Judge Teel should have recused himself. Her objections pertain to the 

substance of his rulings, and a judge’s legal decisions generally are not sufficient grounds to 

substantiate a claim of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994); Cotton v. 

Washington Metro. Area Transit Auth., 264 F. Supp. 2d 39, 42 (D.D.C. 2003) (denying motion 

for recusal where “claim of bias is predicated entirely upon the [magistrate judge’s] rulings with 
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respect to the conduct of discovery in the instant action, and rulings regarding discovery and 

other issues in three other actions filed by Plaintiffs’ counsel”). 

C. Damages From Insurer

Appellant also asserts that “the [order on summary judgment] does not create a[n] option 

for the Appellant to pursue damages independently.” Amended Br. at ECF p. 3. The Court 

trusts this means that Appellant believes her ability to proceed against Proctor, the insurer, is 

foreclosed by the Bankruptcy Court’s ruling. This is not so. Judge Teel clearly stated: “[I]f 

Akers was not satisfied with [Appellees’] handling of the claim, her remedy, to the extent one 

exists, was limited to an independent right to seek recovery, as a possible third-party beneficiary 

of the policy, against Proctor.” 445 B.R. at 5. His ruling in no way precluded her right to 

enforce the force-placed insurance policy, even though she had not been a named insured. See 

also id. at 9.

D. Unsworn/Unauthenticated Documents

Appellant also contends that, in rendering its decision on summary judgment, the 

Bankruptcy Court relied on evidence presented by Appellees “that [was] in large part 

inadmissible.” Amended Br. at ECF p. 4. She mentions “conflicting, unsworn and 

unauthenticated documents,” id. at ECF p. 3, but the Court is at a loss to determine which 

materials she deems objectionable. The only one she mentions is “defendants version of 

insurance policy provisions [sic].” Id. She also refers to “Def.’s Mot. Exs.D1-10 [sic],” id., but 

neither Appellees’ initial motion for summary judgment nor their supplemental one contained 

numbered exhibits, see No. 10-10006, ECF Nos. 74, 102 – they used letter designations – so the 

Court does not know to which exhibits she refers.
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As to the “insurance policy provisions” she complains about, the Court can only conclude 

that this refers to insurance-related provisions in the deed of trust, since no insurance policy was 

attached to Appellees’ Motions. The deed of trust, which appears as Exhibit B to their initial 

motion for summary judgment and to their supplemental motion, was indeed authenticated by 

Liz Schalow in two sworn affidavits. See ECF No. 74 (Motion for Summary Judgment), Exh. G 

(Affidavit of Liz Schalow), ¶ 2 (“A true and correct copy of said Deed of Trust is attached to the 

Motion as Exhibit B . . . .”) (underlining deleted); ECF No. 102 (Supplemental Motion), Attach. 

7. Appellant is just plain wrong.

Even if the Court were able to identify the challenged materials beyond the insurance 

policy, Appellant would still not prevail. To the extent documents “conflict,” it is the 

Bankruptcy Court’s role to determine if a material dispute of fact exists. Judge Teel found none, 

and that determination is never challenged. As for “unsworn and unauthenticated documents,” 

Rule 56 of the Federal Rules of Civil Procedure, which are incorporated in the Bankruptcy 

Rules, see Fed. R. Bankr. P. 7056, does not require such authentication. Recent amendments to 

Rule 56 “eliminate[] the unequivocal requirement that documents submitted in support of a 

summary judgment motion must be authenticated.” Akers v. Beal Bank, 845 F. Supp. 2d 238, 

243 (D.D.C. 2012) (citation omitted), aff’d, No. 12-7045, 2012 WL 4774676 (D.C. Cir. Oct. 2, 

2012) (per curiam). As the advisory notes make clear, “The requirement that a sworn or 

certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or 

declaration is omitted as unnecessary . . . .” Fed. R. Civ. P. 56(c) advisory committee’s note on 

2010 Amendments. Appellant’s authentication argument about unknown documents, therefore, 

is groundless.
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To the extent Appellant is challenging any substantive component of Judge Teel’s 

decision regarding insurance and claims – which she at no point actually does in any 

comprehensible way – the Court’s review has yielded no reason to believe that the Bankruptcy 

Court’s detailed and thorough opinion erred on these issues.

E. Foreclosure

Appellant also appeals the Bankruptcy Court’s decision not to address her foreclosure 

claim in connection with Appellees’ motion for summary judgment. As Judge Teel correctly 

explained, “The complaint and the amended complaint did not raise this claim. Indeed, this 

claim is based on events arising after the filing of the amended complaint, and, accordingly, 

could only be asserted via a supplemental complaint.” 445 B.R. at 9. In any event, he added that 

she “remains free to pursue, outside of this adversary proceeding, the issue of whether the 

foreclosure sale was void for lack of proper notice.” Id. As the claim was not a part of her suit, 

it surely was not error for the Bankruptcy Court not to address it.

F. Preliminary Injunction

Plaintiff’s Notice of Appeal also mentions that she is appealing the dismissal of her 

motion to reconsider rulings relating to her motion for preliminary injunction. See Notice of 

Appeal at 1. This Court in a previous decision several weeks ago has already affirmed the 

Bankruptcy Court on this issue. See In re Akers, 2012 WL 5419318 (D.D.C. Nov. 7, 2012). 
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IV. Conclusion

The Court, therefore, will affirm the decisions of the Bankruptcy Court, and this case will 

be dismissed. An Order accompanies this Memorandum Opinion.

/s/ James E. Boasberg 

 JAMES E. BOASBERG

Date: November 30, 2012