But there is persuasive authority that a lease is "unexpired" for purposes of § 365(d)(3) if it has been terminated prepetition but can still be reinstated in accordance with State procedures. In In re Stoltz, 197 F.3d 625 (2d Cir. 1999), the Second Circuit construed the term "unexpired" in a Vermont case where the debtor had also suffered an adverse State court decision. The court looked to the applicable State law and found that "a debtor who retains a possessory interest in a residential tenancy has an `unexpired' lease at least until the writ of possession [the applicable writ in Vermont] is issued."
“The term ‘unexpired’ is not defined in the Bankruptcy Code itself or in its legislative history.” Brattleboro Hous. Auth. v. Stoltz (In re Stoltz), 197 F.3d 625, 629 (2d Cir.1999). Given this, we have held that “because property interests are created and defined by state law,” we should “look[ ] to state law to determine a debtor's interests, including leasehold interests, in the bankruptcy estate.”
2) Town of Corinth v. Locke, 20 A. 809 (Vt. 1890) (writ of possession put legal possession of premises in the orator); 3) In re Stolz, 197 F.3d 625, 631 (2d Cir. 1999) (holding that under Vermont law, a tenant could assume lease after the court entered the judgment of possession because the writ of possession had not been entered); and 4) Couture v. Burlington Hous. Auth. (In re Couture), 225 B.R. 58, 62 (D.Vt. 1998) (concluding that the Vermont Supreme Court would find that the Chapter 7 debtors retained possessory interest in their apartment until execution of the writ of possession).
The Bankruptcy Court distinguished the cases cited by the Appellant as both being factually different and not standing for the propositions asserted by Appellant. In both In re P.J. Clarke's Restaurant Corp., 265 B.R. 392, 398 (Bankr. S.D.N.Y. 2001), and In re Stoltz, 197 F.3d 625 (2d Cir 1999), the respective courts determined that the leases in question had not been terminated pre-petition, as the respective Debtors could have reinstated the leases because the warrants of eviction (or writ of possession in Vermont) had not been issued at the time of the bankruptcy filing. In distinguishing the Second Circuit's decision in the Stoltz case, the Bankruptcy Court held:
Vt. Stat. Ann. tit. 12, § 4854 (Lexis Supp. 2000) (providing court discretion to award reasonable attorney's fees in an ejectment action when a written rental agreement so provides and the court has awarded the plaintiff a judgment of possession). In order to evict a residential tenant for failure to pay rent, however, a landlord must follow the five-step process described inIn re Stoltz, 197 F.3d 625, 630 (2d Cir. 1999). This process requires the landlord to give proper notice, wait for the termination date in the notice to pass, obtain a judgment of possession via an ejectment action, obtain a writ of possession, and execute the writ.
Vt. Stat. Ann. tit. 12, § 4854 (Lexis Supp. 2000) (providing court discretion to award reasonable attorney's fees in an ejectment action when a written rental agreement so provides and the court has awarded the plaintiff a judgment of possession). In order to evict a residential tenant for failure to pay rent, however, a landlord must follow the five-step process described inIn re Stoltz, 197 F.3d 625, 630 (2d Cir. 1999). This process requires the landlord to give proper notice, wait for the termination date in the notice to pass, obtain a judgment of possession via an ejectment action, obtain a writ of possession, and execute the writ.
"The estate is defined broadly to include `all legal or equitable interests of the debtor in property as of the commencement of the case.'" In re Stoltz, 197 F.3d 625, 629 (2d Cir. 1999) (quoting 11 U.S.C. § 541(a)(1)); see also Atlantic Bus., 901 F.2d at 327. In determining the legal and equitable interests of the debtors in the Property, the Court must look to state law.
Pursuant to Vermont law, a landlord seeking to evict a residential tenant for failure to pay rent must: (1) give notice by certified mail or have the notice served by a law enforcement officer at least fourteen (14) days prior to the termination date in the notice; (2) wait for the termination date in the notice to pass; (3) obtain a judgment of possession by filing an action of ejectment; (4) obtain a writ of possession; and (5) execute the writ of possession. See 9 V.S.A § 4467(a); 12 V.S.A. § 4854; In re Stoltz, 197 F.3d 625, 630 (2nd Cir. 1999). Furthermore, upon a default for nonpayment Vermont law allows a tenant to redeem his or her interest in a residential lease by paying the rent arrears with interest and the costs of the suit before final judgment.
BHA appealed to this Court, and the bankruptcy court postponed its hearing regarding Stoltz's Chapter 13 reorganization plan pending the appeal. By judgment entered on November 29, 1999, this Court affirmed the district court's decision, similarly concluding that Stoltz's lease had not expired under Vermont law. Brattleboro Hous. Auth. v. Stoltz, (In re Stoltz), 197 F.3d 625, 631 (2d Cir. 1999) ("[U]nder Vermont law, a debtor who retains a possessory interest in a residential tenancy has an `unexpired' lease at least until the writ of possession is issued.") This Court did not reach the central issue in this opinion, i.e., the interplay of section 525(a), the antidiscrimination provision of the Bankruptcy Code which may, under certain circumstances, prohibit eviction of a debtor-tenant for nonpayment of prepetition rent, and section 365, the executory contract provision of the Bankruptcy Code which may, under certain circumstances, permit eviction of a debtor-tenant for nonpayment of prepetition rent. In light of this Court's decision, the bankruptcy court subsequently accepted Stoltz's Chapter 13 reorganization plan.
See supra II.A. Accordingly, we hold that the issuance of the writ of possession after strict foreclosure is a ministerial act that is not tolled by the automatic stay provision. See Tucker v. Bushway, 166 Vt. 592, 689 A.2d 426, 427 (1996) (the court discontinued an eviction action where the tenants tendered their rent after judgment but before the clerk issued the writ of possession); Town of Corinth v. Locke, 62 Vt. 411, 20 A. 809 (1890) (writ of possession put legal possession of premises in the orator); see also In re Stoltz, 197 F.3d 625, 631 (2d Cir. 1999) (holding that under Vermont law, a tenant could assume lease after the court entered the judgment of possession because the writ of possession had not been entered); Couture v. Burlington Hous. Auth. (In re Couture), 225 B.R. 58, 62 (D.Vt. 1998) (concluding that the Vermont Supreme Court would find that the Chapter 7 debtors retained possessory interest in their apartment until execution of the writ of possession). We conclude that appellant's remaining arguments are without merit.