Bushnell v. Bank of the West (In re Bushnell)
- Citation:
- Bushnell v. Bank of the West (In re Bushnell), Case No. 11-6083 (8th Cir. BAP May 8, 2012)
- Tag(s):
-
- Ruling:
- An owner of property in which the debtor has no legal or equitable interest is a party in interest in the debtor's bankruptcy case that may be entitled to seek and receive relief from the automatic stay. The owner is either a creditor by virtue of its right to an equitable right to force the debtor to vacate the property or simply by virtue of owning property adversely affected by the stay.
- Procedural context:
- Debtor was defending relief from stay motion by second lien holder that had purchased the debtor's premises in a foreclosure sale. The debtor objected to the standing of the former mortgage holder on the basis that it was not a creditor and therefore, not a party in interest entitled to seek relief from the automatic stay. The debtor was also collaterally attacking the validity of the state court foreclosure in an adversary proceeding and suggested that the stay should not be lifted until that proceeding was concluded. (The adversary proceeding had been dismissed with prejudice by the time of the appeal on the relief from stay motion.)
- Facts:
- Bank of the West held a second lien on and purchased the debtor's premises at a foreclosure sale. Six months later, the Order of Restitution was entered in Bank of the West's favor. The lockout was completed a month later and then the debtor re-entered the premises and filed a chapter 13 case. Bank of the West sought and received relief from the automatic stay to evict the debtor.
- Judge(s):
- Kressel, Chief Judge, Schermer (wrote the opinion), and Federman, Bankruptcy Judges.
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