In re Sweetenburg, No. 12-31023, 2012 WL 1835517, at *2–*4 (Bankr. W.D.N.C. May 18, 2012) (Beyer)

Landlord entitled to stay exception in § 362(b)(22), to in rem stay relief and to damages and attorney fees when debtor failed to list landlord with prepetition judgment for possession and failed to certify that lease defaults could be cured. “Section 362(l), read in conjunction with section 362(b)(22), keeps the stay in place for thirty days if the debtor meets very specific conditions. . . . With the filing of the petition, (1) the debtor must certify that there are circumstances under which the debtor would be permitted to cure the entire monetary default . . . (2) a deposit is to be made with the filing of the petition with the clerk for the rent that would become due within the 30-day period after the filing of the petition. . . . The proper steps for a debtor are not very difficult or cumbersome. . . . Subsections 362(b)(22) and (l) give special protections for landlords who were in the process of eviction and taking possession of the property prior to filing. The provisions of subsections 362(b) and (l) are unusual and other creditors are not provided with the same automatic, swift, and immediate mechanism that is meant to provide a quick and easy remedy for landlords who are entitled to possession of leased property. The remedy does not require a hearing or an order of the court unless all of the conditions are met by the debtor. . . . [I]t does not address the situation where a debtor subject to a judgment for possession does not reveal the judgment, which is the context in which this matter came before the court. . . . Had the Debtor made the mandatory disclosure of the lessor with a prior judgment and not included the required certification, the clerk would have immediately sent a certified copy of the absence of the certification and the applicability of the exception to the stay under subsection (b)(22) and, presumably, the Landlord would have been able to proceed . . . . Alternatively, if the Debtor had made the disclosure, certified a right to cure, and served it as required, then the Landlord would have been entitled to object and have a hearing held within 10 days of his objection. . . . The Debtor should not be entitled to more protection for her failure to make the disclosure or otherwise comply with the duties of certification and deposit of rent, yet that is what occurred in this case. . . . The lease has terminated and a final Writ of Possession was granted. There is no right to cure the monetary default pursuant to state law and no certification of right to cure was made by the Debtor. The Debtor made no deposit of the rent due to the clerk when the petition was filed. . . . Debtor’s failure to comply with section 362 on the date of the filing of the petition resulted in a delay of remedy that is contrary to the simple and swift protections anticipated and intended by section 362. . . . The exception to the stay is effective immediately. The Landlord is entitled to possession of the Property, the stay exception shall apply in rem as to enforcement against the Property for eviction of the Debtor and any other occupants of the Property, and eviction from this Property is not stayed by any future bankruptcy proceedings. The Landlord may file a claim in the case for damages under the lease in accordance with bankruptcy law. Furthermore, the attorney for the Landlord is approved and entitled to fees for the bringing of this action to be paid by the Debtor as shall be submitted by proof of claim or application to the court.”

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