In re D'Mello

473 B.R. 207, 2011 WL 8197407, 2011 Bankr. LEXIS 5486
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedMay 27, 2011
DocketNo. 11-50507
StatusPublished

This text of 473 B.R. 207 (In re D'Mello) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re D'Mello, 473 B.R. 207, 2011 WL 8197407, 2011 Bankr. LEXIS 5486 (Mich. 2011).

Opinion

OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, THE CHARTER TOWNSHIP OF YPSILANTI’S MOTION FOR DETERMINATION THAT THE AUTOMATIC STAY DOES NOT APPLY, ETC. (DOCKET # 14)

THOMAS J. TUCKER, Bankruptcy Judge.

I.Introduction and background

This case is before the Court on the motion filed by The Charter Township of Ypsilanti (“Ypsilanti Township” or the “Township”), entitled “CHARTER TOWNSHIP OF YPSILANTI’S EX PARTE MOTION FOR DETERMINATION THE AUTOMATIC STAY PROVISION OF 11 USC § 362(a) DOES NOT APPLY TO WASHTENAW CIRCUIT COURT CASE CHARTER TOWNSHIP OF YPSILANTI v. CORMELLO, LLC, et al., CASE NO. 08-990-CZ AND DEBTOR DOMINIC D’MELLO AND TO WAIVE NOTICE PROVISIONS OF F. BANKRUPTCY RULE 4001(a)(3)” (Docket # 14, the “Motion”). The Debtor objected to the Motion, and the Court held a hearing on May 25, 2011. At the conclusion of the hearing, the Court directed Ypsilanti Township to file certain documents no later than that day, and took the Motion under advisement. The Township filed the required items, on May 25, 2011 (Docket # 27). The Motion is now ready for decision.

During the hearing, in response to questions from the Court, the Township clarified and narrowed the relief it is seeking with its Motion. As stated during the hearing, the Township is now seeking an order determining that the automatic stay provisions of 11 U.S.C. § 362(a) do not apply, because of the exception to the automatic stay contained in 11 U.S.C. § 362(b)(4), to efforts by Ypsilanti Township and the Washtenaw County Circuit Court to enforce some, but not all, of the provisions of that court’s January 12, 2011 order entered in Case No. 08-990-CZ, Charter Township of Ypsilanti v. Cormello, LLC, et al. The Circuit Court’s January 12, 2011 order is a mandatory injunction requiring the Debtor in this bankruptcy case, Dominic D’Mello, and the debtor in another case pending before this Court, Cormello, LLC,1 to perform certain actions at the property located at 953 E. Michigan Avenue, previously known as the Ypsilanti Mobile Village (the “Property”). After finding that the Property “does constitute a serious public nuisance,” the Circuit Court ordered that the nuisance “be abated as follows:”

1. Defendant Cormello LLC and Defendant Dominic D’Mello shall remove, within 30 days, all of the abandoned and condemned mobile homes units currently located at 953 E. Michigan Ave.

2. Defendant Cormello LLC and Defendant Dominic D’Mello shall remove, within 30 days, the three abandoned and condemned buildings/structures and sheds currently located at 953 E. Michigan Ave.

3. Defendant Cormello LLC and Defendant Dominic D’Mello shall remove, within 30 days, all mail boxes, signs, dish satellites, street lampposts, and landscape edging currently located at 953 E. Michigan Ave.

4. Defendant Cormello LLC and Defendant Dominic D’Mello shall remove, within 30 days, all blight, garbage, rub[209]*209bish, tires, furniture, appliances, toys, etc., currently located at 953 E. Michigan Ave.

5. Defendant Cormello LLC and Defendant Dominic D’Mello shall remove, within 60 days, all abandoned tie downs from former mobile homes, all concrete pads, and all utility infrastructure located above ground, and to remove or cap all sewer lines, currently located at 953 E. Michigan Ave.2

In the next paragraph of the January 12 order, the Circuit Court took under advisement the Township’s request that the Defendants be required to take certain other actions at the Property:

C. In regards to the relief sought by Plaintiff Township for (i) removal of all roadways, (ii) restoration of the grade of the property to fill in all of the gullies created by erosion and utility crocks, and (iii) removal of soil contaminated by sewage backup and treatment with lime followed by placement of new soil to match existing grade, those items are taken under advisement.3

During the May 25 hearing in this Court, the parties advised that the Circuit Court has not yet made a ruling on the above matters taken under advisement.

On March 9, 2011, the Circuit Court entered an order finding Dominic D’Mello in contempt of its January 12 order, and ordered that D’Mello may purge himself of the contempt finding if he complied with the January 12 order no later than April 2, 2011. That same order scheduled a hearing for April 13, 2011 to review whether D’Mello had purged himself of the court’s contempt finding.4 The March 9 order further provided that if D’Mello “does not purge himself’ of the Court’s contempt finding by the deadline, D’Mello “shall be remanded into the custody of the Washte-naw County Jail until such time as the terms of the January 12, 2011 order are complied with.”5

The Circuit Court held the contempt purge hearing on the afternoon of April 13, 2011. Essentially, the Circuit Court did not take further action at that hearing, because Dominic D’Mello had filed the present Chapter 7 bankruptcy case, that morning. Instead, the Circuit Court stated that the Township “needs to go back to the Bankruptcy Court for further instruction” regarding the automatic stay.6 The Township then filed the present Motion, on April 29, 2011.

II. Jurisdiction

This Court has subject matter jurisdiction over this case and this contested matter under 28 U.S.C. §§ 1334(b), 157(a) and 157(b)(1), and Local Rule 83.50(a) (E.D. Mich.). This matter is a core proceeding under 28 U.S.C. §§ 157(b)(2)(G) and 157(b)(2)(0).

III. Discussion

A. The Township’s basic position and relief now sought

As noted earlier, during the hearing on the Motion, the Township narrowed and clarified the relief it is seeking in its Motion. This opinion and order will address only the Township’s relief request as so narrowed. The Court deems the Township to have abandoned any other request for relief contained in the Motion.

[210]*210The Township seeks an order determining that the automatic stay does not apply to the enforcement of some of the actions required of Mr. D’Mello by the Circuit Court’s January 12 order. The Township seeks such relief to permit enforcement of the January 12 order against D’Mello only with respect to things that D’Mello can personally, physically do without spending any money to rent or buy equipment or to hire someone else to help do the work. The Township contends that to this extent, the automatic stay does not apply to the enforcement of the January 12 order. By contrast, the Township does not make such contention with respect to any actions required by the January 12 order the D’Mello cannot

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
473 B.R. 207, 2011 WL 8197407, 2011 Bankr. LEXIS 5486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dmello-mieb-2011.