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.”

No Author Biography has been linked to this Article.

Related Articles

May 26, 2019
By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction In Ritzen Group, Inc. v. Jackson Masonry, LLC (In re Jackson Masonry, LLC),1 the Sixth Circuit reviewed circuit authority on finality of orders for appellate purposes and affirmed the district court's dismissal of an appeal from an order denying stay relief. The Court of Appeals said that, under 28...
January 13, 2019
By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division (Toledo, OH) Click here for Part 1 of 6 Click here for Part 2 of 6 Click here for Part 4 of 6 Click here for Part 5 of 6
March 14, 2021
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) Despite a split in authority, funds held by a Chapter 13 Trustee at the time a case is dismissed prior to confirmation, are subject to the trustee’s commission before any balance is returned to the debtor. In re Doll, 17-20831-MER (Bankr. D.Colo. Feb. 19,...
April 18, 2021
By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction Analyzing the new "COVID-19 discharge" provision added to Chapter 131 by Congress on December 27 as part of the coronavirus emergency response legislation, the Bankruptcy Court for the Central District of California decided in In re Ritter2 that, in order to receive such a discharge, debtors must still comply...
February 24, 2019
By Cathy Moran, Esq. (Redwood City, CA) We all get sucked in, at some time, to try and rescue a Chapter 13 bankruptcy case gone bad. Make sure that you don’t let a bad situation get worse. Get your arms around §109(g). When only a do-over will do, don’t wait around. No Payments for Months The debtor came to me...
Copy of Hildebrand-2016
A month-to-month residential lease can be assumed and defaults cured in a Chapter 13 plan. (Rucker) In re Mattoon, 2022 WL 2080184 (Bankr. E.D. Tenn. June 9, 2022) Case Summary Sarah Mattoon executed a lease with Open Doors in September of 2019. Several of Ms. Mattoon’s family members lived with her in the rented apartment including her “companion” and her...
April 5, 2020
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) During the free Academy webinar The CARES Act – Impacts on Chapter 13 on April 2, 2020, the panel – Judge Wm. Houston Brown (Retired), Amanda DeBerry and I – referred to the importance of detailing the reasons for modifications or suspensions to be related to financial hardship stemming...
November 8, 2020
By Cathy Moran, Esq., Moran Law Group (Redwood City, CA) For Californians, the CA Supreme Court’s decision in Brace this summer upended our understanding of joint tenancy and community property. For decades, we “knew” that a property couldn’t be . . . It looks like you are not signed in or registered! This content is only available to members. Join...
January 27, 2019
By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division (Toledo, OH) Click here for Part 1 Click here for Part 2 Click here for Part 3
September 18, 2022
Appendix A 1994 Revised Text of 11 U.S.C. § 330(a), with 2005's Minor Changes Highlighted(1994 version highlighted to show additions and deletions in 2005) (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed...