Summary:
The Debtor leased a town home from Brett Mestel for $1,395/month, with a term running from August 2009 until September 2011 and month-to-month thereafter. In February 2012, Mestel commenced an eviction action after the Debtor fell behind in rent payments. Summary Ejectment was granted on April 16, 2012, and the ten-day appeal period ran on April 27, 2012. The Debtor filed Chapter 13 bankruptcy on April 30, 2012. Thereafter, the Mecklenburg Sheriff served the Debtor with a Writ of Possession, requiring her to vacate prior to May 9, 2012. The Sheriff and Mestel first learned of the Chapter 13 bankruptcy on May 9, 2012, when seeking to evict the Debtor. Eviction efforts were immediately halted and Mestel sought a “comfort order” clarifying that the automatic stay did not apply to the eviction.
While 11 U.S.C. § 362(a) prevents creditors from taking actions against the debtor or property of the estate, it is subject to an exception as § 362(b)(22) for “the continuation of any eviction ... 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.” 11 U.S.C. § 362(l) does keep the stay in place for thirty days if the Debtor either cures the default or both certifies that circumstance would allow her to cure the monetary default and deposits with the Clerk of Court the rent that would come due during the next thirty days.
In the present case, the Debtor did not disclose in her bankruptcy petition that Mestel had obtained a judgment for possession of her residence. This disclosure is a prerequisite for obtaining the remedy allowed in § 362(l). Further, as the lease had terminated and the Summary Ejectment order was final, the Debtor had no right to cure the monetary default. Accordingly, Mestel was entitled to immediate possession of the property.
For a copy of the opinion, please see:
Sweetenburg- Automatic Stay and Residential Rental Property.pdf
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