In re Shrum

597 B.R. 845
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedApril 1, 2019
DocketCase No. 19-41957
StatusPublished
Cited by5 cases

This text of 597 B.R. 845 (In re Shrum) 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 Shrum, 597 B.R. 845 (Mich. 2019).

Opinion

Phillip J. Shefferly, United States Bankruptcy Judge

Introduction

This matter involves a dispute between a pro se Chapter 13 debtor and her landlord over the application of the automatic stay of § 362(a) of the Bankruptcy Code to a judgment of possession that the landlord obtained against the debtor before she filed her Chapter 13 case. The dispute centers on an exception to the automatic stay under § 362(b)(22), and on two exceptions to that exception under § 362(l )1 (1) and (2). For the reasons explained in this opinion, the Court holds that (i) the automatic stay of § 362(a)(3) applies to the landlord's acts to enforce his judgment of possession; (ii) the § 362(b)(22) exception to the automatic stay did not apply during the first 30 days of this case but does apply after the first 30 days; (iii) the landlord willfully violated the automatic stay during the first 30 days of the case; and (iv) the automatic stay is not extended as to the landlord beyond the first 30 days of the case.

Jurisdiction

This is a core proceeding under 28 U.S.C. § 157(b)(2)(G), over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(a) and 157(a).

Facts

The following facts are taken from the Court file and are not in dispute.

Carrie Marie Shrum ("Debtor") leased a single family home located at 16747 22 Mile Road, Macomb, Michigan 48044 ("Property") from Joseph R. Van Assche III ("Landlord"). The rent was $ 1,150.00 per month. For a time, the Debtor and the Landlord got along well. At some point, the relationship deteriorated, although the Debtor and the Landlord do not agree on the reasons why.

In October, 2018, the Landlord filed an eviction proceeding in the 41A Judicial District Court for the State of Michigan ("State Court"). On January 11, 2019, the State Court entered a Possession Judgment ("Judgment") in favor of the Landlord. The Judgment states that the Landlord "has a right to recover possession" of the Property and that "there is now due to the [Landlord] for nonpayment of rent and other money due under the lease" a total of $ 3,834.00. The Judgment expressly states that "no money judgment is entered at this time." The Judgment provides that the Landlord may apply for an order evicting the Debtor from the Property if the Debtor does not pay the total amount due or move out of the Property by January 22, 2019.

The Debtor did not pay the $ 3,834.00 nor did she move out of the Property by *849January 22, 2019. However, she did file a motion for a new trial. The State Court scheduled a hearing on February 15, 2019 on the Debtor's motion at the same time as a hearing that it scheduled on the Landlord's application for an eviction order.

On February 13, 2019, two days prior to the hearing in State Court, the Debtor filed a pro se Chapter 13 petition.2 In her answer to question no. 11 on her petition, the Debtor stated that the Landlord had obtained an eviction judgment against her and that the Debtor had filled out an Official Form 101A, Initial Statement About an Eviction Judgment Against You. On the same day that she filed her petition, the Debtor also filed Official Form 101A (ECF No. 7), served it by mail on the Landlord, and paid $ 1,150.00 to the Bankruptcy Court Clerk for rent for the Property for the first 30 days of her bankruptcy case. The Debtor's Official Form 101A contains the following two certifications:

? Under the state or other nonbankruptcy law that applies to the judgment for possession (eviction judgment) , I have the right to stay in my residence by paying my landlord the entire delinquent amount.
? I have given the bankruptcy court clerk a deposit for the rent that would be due during the 30 days after I file the Voluntary Petition for Individuals Filing for Bankruptcy (Official Form 101).

Notwithstanding the filing of the bankruptcy case, the hearing in the State Court went forward as scheduled on February 15, 2019. Both the Debtor and the Landlord were represented by counsel at the hearing. At the beginning of the hearing, the Debtor's counsel advised the State Court that the Debtor had filed a Chapter 13 bankruptcy petition. The Debtor's counsel argued that the automatic stay of § 362(a) of the Bankruptcy Code stayed the hearing before the State Court. The Debtor's counsel acknowledged that there is an exception to the automatic stay in § 362(b)(22) for the continuation of an eviction proceeding by a lessor against a tenant of residential property where the lessor obtained a judgment of possession prior to the filing of the bankruptcy petition. However, the Debtor's counsel explained that this exception did not apply during the first 30 days of the Debtor's bankruptcy case because the Debtor had filed Official Form 101A and had deposited with the Bankruptcy Court Clerk the rent that would become due for the Property during the first 30 days of her bankruptcy case.

The Landlord's counsel admitted that he had seen a copy of the bankruptcy petition, but argued that the Debtor's Official Form 101A contained a false certification that the Debtor had the right to cure the monetary default that gave rise to the Judgment. The Landlord's counsel pointed out that the Judgment only permitted the Debtor to pay the $ 3,834.00 by January 22, 2019, and the Debtor had failed to do so. As a result, the Landlord's counsel argued, the Debtor's Official Form 101A did not have the effect of delaying for 30 days the application of § 362(b)(22)'s exception to the automatic stay.

The State Court agreed with the Landlord's counsel that the Landlord was not stayed from requesting an eviction order *850at the hearing. The State Court denied the Debtor's request for an adjournment of the hearing and proceeded with the hearing. Following arguments, the State Court denied the Debtor's motion for a new trial and granted the Landlord's request for an eviction order. Because of the Debtor's personal circumstances regarding her family's occupancy of the Property, the State Court decided to give the Debtor another ten days before issuing the eviction order, but stated that it would not delay the eviction order beyond February 25, 2019. The State Court entered an order on February 26, 2019 that memorialized its rulings made at the February 15, 2019 hearing.

Having lost in State Court and facing imminent eviction, on February 19, 2019, the Debtor filed in this Court a First Day Debtor's Emergency Ex Parte Motion for Injunction/Order to Immediately Stop Eviction in Violation of the Automatic Stay, Award Sanctions, and First Day Motion to Extend Stay as to All Creditors ("Motion") (ECF No. 17). The Motion requests various forms of relief. First, the Motion requests that the Court hold that § 362(b)(22)'s exception to the automatic stay did not apply for the first 30 days of the Debtor's case because of the Debtor's Official Form 101A.

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Bluebook (online)
597 B.R. 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shrum-mieb-2019.