Wilson v. Desert Realty, Inc., et al. (In re Wilson)

Summarized by Lars Fuller , BakerHostetler
9 years 9 months ago

Citation:

BAP No. NV-14-1589-DFB (BAP 10th Cir. May 31, 2016) (unpublished)

Tag(s):

Ruling:

The BAP for the 9th Circuit affirmed the ruling of the bankruptcy court (D. Nev.) dismissing debtor's adversary proceeding alleging that defendants intentionally violated the automatic stay. BAP agreed with bankruptcy court that debtor never satisfied elements of 362(l)(1), which required deposit of full rent due within 30 days of bankruptcy filing, notwithstanding that debtor was co-tenant in apartment. BAP also found no error in bankruptcy court's denial of debtor's motions for postjudgment relief. BAP affirmed rejection of debtor's arguments of due process violations, based on debtor's notice of hearing on motion to dismiss, and attendance at hearing. BAP further noted that debtor failed to demonstrate damages, after having remained in continuous possession of leased premises for at least six months postpetition.

Procedural context:

Debtor commenced adversary alleging willful violation of automatic stay, and bankruptcy court granted defendants' moved to dismiss. Debtor appealed to BAP.

Facts:

Debtor and her sister sought to remain in possession of leased residential apartment without paying rent through countless motions, filings, and appeals, as well as filing statements and schedules attesting to false facts under penalty of perjury, seeking to delay remedies of landlord, both in state and bankruptcy court. After attempting multiple paths to re-take possession, and obtaining multiple orders for relief from stay, Debtor sued landlord and related defendants alleging willful violation of the automatic stay. Debtor filed bankruptcy under chapter 7 and tendered rent due in 30 days following prepetition under 362(l)(1). The Clerk of Bankruptcy Court delivered the tendered rent to landlord. Landlord filed response asserting that tendered rent was insufficient for amount due within 30 days of petition. Following hearing, bankruptcy court entered order setting forth amounts for required for debtor to pay to landlord to trigger protections of 362(l)(1). Debtor failed to comply, and court entered order for relief from stay. Previously, debtor and her sister had filed a myriad of pleadings seeking to prevent and delay the landlord from re-taking possession.

Judge(s):

Dunn, Faris Barash

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