Opinion
Case No. 8:16-bk-07166-RCT
09-13-2016
In re HERBERT THOMAS LEWIS, JR., Debtor.
Chapter 13 ORDER OVERRULING CREDITOR'S OBJECTION TO CERTIFICATION AND DENYING MOTION FOR ORDER CONFIRMING AUTOMATIC STAY NOT IN EFFECT
THIS CASE came for hearing on September 09, 2016, on Creditor's Objection to Certification and Motion for Order Confirming Automatic Stay Not in Effect (Doc. No. 18) and Debtor's response (Doc. No. 23). For the reasons announced on the record and provided here, the Court holds that § 362(b)(22) is inapplicable and that the automatic stay is in effect.
Prior to the commencement of this case, the Hillsborough County Court awarded the Creditor a judgment for possession and writ of possession. In response, the Debtor filed a timely motion for rehearing and a motion to vacate the judgment for lack of jurisdiction, both which were pending when Debtor filed the Chapter 13 petition. Based on the judgment for possession, Creditor argues that 11 U.S.C. §362(b)(22) exception to the automatic stay applies, allowing Creditor to execute on her writ of possession.
Gloria L. Cochran v. Thomas Lewis, Case No. 2016-CC-001070, Division L, In the County Court in and for Hillsborough County Civil Division.
Under § 362(b)(22) of the Bankruptcy Code, the filing of a bankruptcy petition does not operate as a stay with respect to
the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.To qualify for the exception, a "judgment for possession" must be obtained prior to the date of the petition. Courts interpreting the statute also have ruled that a "judgment for possession" must be final to trigger the exception to the automatic stay set forth in § 362(b)(22). In re Nitzsky, 516 B.R. 846, 847 (Bankr. W.D.N.C. 2014); see also In re Tatum, Case No. 14-03676-NPO, 2015 WL 1061673, at *3 (Bankr. S.D. Miss. March 6, 2015).
Creditor had obtained a judgment for possession on July 29, 2016. Debtor filed a motion for rehearing on August 07, 2016. Debtor also filed a motion to vacate the judgement for lack of jurisdiction on August 18, 2016. Creditor responded in writing to each of these motions, but the motions were not addressed by the Hillsborough County Court before the Debtor filed bankruptcy on August 21, 2016. Accordingly, Creditor's judgment for possession was not final when Debtor filed his bankruptcy petition. Because Creditor did not obtain a "judgment for possession" as contemplated by § 362(b)(22), the exception to the automatic stay in § 362(b)(22) does not apply to this case. Accordingly, it is
Because the Court has determined that the judgment of possession was not final, and 11 U.S.C. § 362(b)(22) does not apply, the Creditor's challenges to the Debtor's certification under 11 U.S.C. § 362(l) are not addressed. The Court also does not address the additional defenses raised by the Debtor to the Creditor's Objection, including the claim that the County Court lacked jurisdiction to enter the judgment of possession or the Debtor's claim that he did not occupy the premises pursuant to a "lease or rental agreement." --------
ORDERED:
1. The Objection to Certification is OVERRULED and Motion for Order Confirming Automatic Stay Not in Effect is DENIED.
2. The automatic stay is in effect.
3. The Court's determination that the exception to 11 U.S.C. § 362(b)(22) did not apply at the time the Debtor filed his Chapter 13 petition is without prejudice to a request for relief from the automatic stay on any other basis.
ORDERED. Dated: September 13, 2016
/s/_________
Roberta A. Colton
United States Bankruptcy Judge The clerk is directed to serve a copy of this order on interested parties who are non-CM/ECF users and file a certificate of service within three (3) days of entry of this order.