Opinion
Case No. 19-00745
01-05-2020
In re HARRIET WHITNEY HOME FOR SENIOR CITIZENS, Debtor.
The document below is signed.
The document corrects the prior Memorandum Decision and Order by changing:
"Moreover, to the extent that the Motion seeks such relief based on the alleged res judicata a non-existent default judgment, it is without merit."
to:
"Moreover, to the extent that the Motion seeks such relief based on the alleged res judicata effect of a non-existent default judgment, it is without merit." (Chapter 7)
Not for publication in West's Bankruptcy Reporter.
AMENDED MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS
The Motion to Dismiss and Lift Stay (Dkt. No. 12) filed by creditor Somerville Terrence will be denied without awaiting a response from the debtor. The memorandum in support of the Motion is missing several pages, but those missing pages would not alter the outcome.
The Motion seeks dismissal of this case based on the res judicata effect of what Terrence calls a default judgment entered by the Superior Court of the District of Columbia. However, although the debtor is in default in the Superior Court, the Superior Court has not entered a default judgment or any other judgment against the debtor. Accordingly, res judicata cannot apply. Terrence points to an allegation in the Superior Court that the debtor is no longer a viable business because it no longer has at least three board members to conduct business. The Motion, relying solely on treating an entry of default (not a default judgment) as having res judicata effect, does not address whether the debtor still is no longer a viable entity. In other words, even if there were a default judgment, the Motion does not show that res judicata would require a ruling that the debtor is not presently a viable entity entitled to file a bankruptcy case.
The Motion also seeks an order that "LIFTS THE AUTOMATIC STAY on proceedings involving the Harriet Whitney Home for Senior Citizens, Inc." However, no fee has been paid for filing a motion for relief from the automatic stay. Moreover, to the extent that the Motion seeks such relief based on the alleged res judicata effect of a non-existent default judgment, it is without merit. To the extent that the Motion seeks to allow the action in the Superior Court to proceed against co-defendants of the debtor, the automatic stay does not apply to suing the debtor's co-defendants for relief against them, and the Motion does not contend that the co-defendants are sued to obtain relief against the debtor by suing the co-defendants in a representative capacity on behalf of the debtor.
For all of these reasons, it is
ORDERED that the Motion to Dismiss and Lift Stay is DENIED without prejudice to seeking dismissal on meritorious grounds and to filing a motion for relief from the automatic stay with the required filing fee and stating meritorious grounds for relief from the automatic stay.
/s/ _________
S. Martin Teel, Jr.
U. S. Bankruptcy Judge Dated: January 5, 2020.
[Signed and dated above.] Copies to: E-recipients.