In Re Exum; Case No. 08-10079-RGM; January 17, 2008
The Debtor’s home was foreclosed on prior to the bankruptcy filing. The new owners filed an Unlawful Detainer to remove the debtor from the property and obtained a Writ of Possession. Before the writ was executed, debtor filed for bankruptcy. The new owners filed this motion, which is really a motion for relief from the automatic stay, to proceed with evicting the debtors from the residence.
To decide the case, the court cited Bankruptcy Code §362(b)(22), which provides that the automatic stay does not apply to “the continuation of any eviction, unlawful detainer action, or similar proceeding 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 filing of the bankruptcy petition, a judgment for possession of such property against the debtor.” Id. The court then noted that this provision, actually, doesn’t apply since the debtor did not obtain possession under a “lease or rental agreement.”
The court said, because this provision didn’t apply, and even if it did, the automatic stay does not apply to the owner’s of the residence and the court terminated the automatic stay to allow the new owners to execute their writ of possession.
