Sion Leslie Mitrany

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------x
In re:
Chapter 13
SION LESLIE MITRANY, 	Case No. 08-40034-ess
Debtor.
------------------------------------------------------------x
MEMORANDUM DECISION ON MOTION FOR RELIEF FROM STAY
Appearances:
David Berger, Esq. 	Sion Leslie Mitrany
Tenenbaum & Berger, L.L.P. 	Debtor, pro se
26 Court Street, Penthouse
Brooklyn, New York 11242
Attorney for Movant Aydenmaya Realty, LLC
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

HONORABLE ELIZABETH S. STONG
UNITED STATES BANKRUPTCY JUDGE
Before the Court is the motion of Aydenmaya Realty, LLC (the “Movant”) for relief from
the automatic stay pursuant to Section 362 of Title 11 of the United States Code (the
“Bankruptcy Code”) in the above-captioned bankruptcy case.
JURISDICTION
This Court has jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 1334(b),
157(b)(1), and 157(b)(2)(G).
BACKGROUND
On January 3, 2008 (the “Petition Date”), Sion Leslie Mitrany, the debtor in the above-
captioned case (the “Debtor”) filed a petition for relief under Chapter 13 of the Bankruptcy
Code. Docket No. 1. On February 6, 2008, the Movant filed a motion seeking an order granting
the
Movant relief from the automatic stay pursuant to Section 362(d) of the Bankruptcy Code with
respect to the property at 153 Garfield Place, Apartment 2R, Brooklyn, NY 11215 (the
“Premises”) (the “Stay Relief Motion”). Docket No. 18.
On February 6, 2008, the Movant also filed an Affirmation in Support of Motion for
Vacatur of Automatic Stay, sworn to on February 4, 2008 (the “Affirmation in Support”), and an
Affidavit in Support of Motion for Vacatur of Automatic Stay, sworn to on January 30, 2008 (the
“Affidavit in Support”). Docket No. 18. The Affirmation in Support states that, among other
things, the Movant’s interest in the Premises is not adequately protected because the Movant “is
responsible for paying the mortgage, taxes and insurance upon the Premises, yet does not derive
any income therefrom.” Affirmation in Support ¶ 18. The Affirmation in Support also states
that “the Debtor’s skeleton petition is a bad faith filing” and that “[a] warrant of eviction has
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

2
already issued thereby terminating any possessory interest the Debtor may have had in the
Premises . . . .” Affirmation in Support ¶¶ 16, 21. The Affidavit in Support states that, among
other things, the Movant’s predecessor in interest, 153 Garfield Place, Inc. (“153 Garfield”),
“elected to exercise its right to terminate Debtor’s license and served Debtor with a Ten Day
Notice to Quit on or about March 21, 2007.” Affidavit in Support ¶ 4. The Affidavit in Support
further states that “Aydenmaya Realty is responsible for mortgage and insurance payments as
well as maintenance costs on the Premises, but [the] Debtor has been living there rent free.”
Affidavit in Support ¶ 12.
The record shows that on February 26, 2008, a hearing was held on the Stay Relief
Motion at which the Debtor and counsel for the Movant appeared and were heard. Docket Entry
dated February 26, 2008. On March 25, 2008, the Movant’s attorney filed a Consent to Change
Attorneys, dated March 17, 2008, which indicated that Tenenbaum & Berger, L.L.P. would
replace Wenig, Saltiel & Green, L.L.P., and be substituted as the Movant’s attorneys of record in
this case. Docket No. 29. On April 1, 2008, a hearing was held on the Stay Relief Motion, at
which the Debtor appeared and was heard, and the Movant did not appear. Docket Entry dated
April 1, 2008. On April 29, 2008, a hearing was held on the Stay Relief Motion, at which
counsel for the Movant appeared and was heard, the Debtor did not appear, and the Court
granted the Stay Relief Motion. Docket Entry dated April 29, 2008.
Separately, the record shows that on March 14, 2008, the Chapter 13 Trustee (the
“Trustee”) moved to dismiss the case on grounds that the Debtor had not complied with Section
521(a)(1) of the Bankruptcy Code and Interim Bankruptcy Rule 1007(b)(1), the Debtor had not
filed a Chapter 13 plan pursuant to Section 1321 of the Bankruptcy Code and Federal Rule of
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

3
Bankruptcy Procedure 3015(b), and the Debtor had not provided the Trustee with disclosure
documentation as required by the Eastern District of New York Local Bankruptcy Rule 2003-1
(the “Motion to Dismiss”). Docket No. 26. On February 27, 2008, the Court issued an Order to
Show Cause why the Debtor’s bankruptcy case should not be dismissed for failure to file the
schedules and statements required by Section 521(a)(1) of the Bankruptcy Code and Interim
Bankruptcy Rule 1007(b)(1) (the “February 27 Order to Show Cause”). Docket No. 25.
On April 28, 2008, a hearing was held on the Motion to Dismiss, at which the Debtor did
not appear, and the Court granted the Motion to Dismiss and directed the Trustee to settle a
proposed order of dismissal on 30 days’ notice, which was served on the Debtor and the Movant,
among others. Docket Entry dated April 28, 2008. On May 8, 2008, the Trustee filed a Notice
of Settlement of Proposed Order Dismissing Case (the “Trustee’s Settled Proposed Order”).
Docket No. 34. At the April 28, 2008, hearing, Steven Balamut (“Balamut”) appeared and stated
that he previously owned the Premises, that over a year ago, he allowed the Debtor to reside at
the Premises on a temporary basis, that he subsequently asked the Debtor to leave, and that the
Debtor refused to leave the Premises. See Docket Entry dated April 28, 2008. Balamut further
stated that he has since sold the building, but that the Debtor continues to live at the Premises,
without a lease or other basis for his occupancy, without paying for the use of the Premises, and
without entering into any agreement to purchase the Premises. Id.
On April 29, 2008, a hearing was held on the February 27 Order to Show Cause at which
the Movant appeared and was heard and the Debtor did not appear. Docket Entry dated April
29, 2008. As of that date, the Debtor had not cured the deficiencies noted in the record,
including that the Debtor had not complied with Section 521(a)(1) of the Bankruptcy Code and
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

4
Interim Bankruptcy Rule 1007(b)(1), the Debtor had not filed a Chapter 13 plan pursuant to
Section 1321 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 3015(b), and
the Debtor had not provided the Trustee with disclosure documentation as required by the
Eastern District of New York Local Bankruptcy Rule 2003-1, and on May 13, 2008, the Court
issued a Final Order to Show Cause why the Debtor’s bankruptcy case should not be dismissed
for each of the deficiencies noted in the record (the “Final Order to Show Cause”). Docket No.
35.
The Brooklyn Center for Psychotherapy sent a letter dated April 24, 2008, to the Court
on the Debtor’s behalf. Docket No. 36. Jordan S. Yasgur, who is identified as a creditor in the
Debtor’s petition, sent a letter dated April 25, 2008, to the Court on the Debtor’s behalf. Docket
No. 37. See Petition, Verification of Creditor Matrix/List of Creditors; Docket No. 28 (Affidavit
Pursuant to Local Rule 1009-1(a)). The Debtor sent a letter dated April 28, 2008, to the Court.
Docket No. 38. On May 13, 2008, the Court issued an Order directing the Clerk’s Office to file
the letters from the Brooklyn Center for Psychotherapy, Jordan S. Yasgur, and the Debtor under
seal. Final Order to Show Cause at 3.
DISCUSSION
The filing of a bankruptcy petition under any chapter of the Bankruptcy Code triggers a
stay of “any act to obtain possession of property of the estate or of property from the estate or to
exercise control over property of the estate” and “any act to collect, assess, or recover a claim
against the debtor that arose before the commencement of the case under this title.” 11 U.S.C.
§§ 362(a)(3), (a)(6).
The automatic stay is a fundamental debtor protection designed to promote equal
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

5
treatment among creditors and to provide the debtor with a breathing spell from the financial
pressures which drove the debtor into bankruptcy. Eastern Refractories Co. v. Forty Eight
Insulations Inc., 157 F.3d 169, 172 (2d Cir. 1998). Notwithstanding this statutory protection, the
court may modify the automatic stay for cause, including lack of adequate protection. 11 U.S.C.
§ 362(d)(1). In order to lift the stay on this basis, the burden is on the movant to make an initial
showing of cause. Sonnax Industries, Inc. v. Tri Component Products Corp. (In re Sonnax
Industries, Inc.), 907 F.2d 1280, 1285 (2d Cir. 1990). Where such a prima facie case has not
been made, the court should deny relief. In re Sonnax Industries, Inc., 907 F.2d at 1285.
Grounds for Relief from the Automatic Stay – Section 362(d)(1)
Section 362(d)(1) of the Bankruptcy Code provides that “on request of a party in interest
and after notice and a hearing, the court shall grant relief from the stay . . . (1) for cause,
including the lack of adequate protection of an interest in property of such party in interest . . . .”
11 U.S.C. § 362(d)(1). Section 362 of the Bankruptcy Code does not describe the boundaries of
“adequate protection,” but Section 361 provides examples of what may constitute adequate
protection. 11 U.S.C. § 361. See In re P.J. Clarke’s Restaurant Corp., 265 B.R. 392, 404
(Bankr. S.D.N.Y. 2001). These examples include “periodic cash payments” to protect against
any decrease in the value of a party’s interest in property. 11 U.S.C. § 361(1). Several courts
have held that “a Landlord’s right to timely payment of post-petition rent is an interest in
property entitled to adequate protection.” In re P.J. Clarke’s Restaurant Corp., 265 B.R. at 404
(citing cases). See Oligbo v. Louis (In re Oligbo), 328 B.R. 619, 651 (Bankr. E.D.N.Y. 2005).
Here, the record shows that the Debtor has not paid the Movant for his use and
occupancy of the premises. Affirmation in Support ¶ 18; Affidavit in Support ¶ 12. The record
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

6
also shows that the Movant is incurring costs with respect to the Premises without receiving
payments from the Debtor. Affirmation in Support ¶ 18; Affidavit in Support ¶ 12.
For all of these reasons, and based on the entire record, the Court concludes that under
Section 362(d)(1) of the Bankruptcy Code, the Movant’s interest in the Premises is not
adequately protected. For the same reasons, the Movant has established cause for relief from the
automatic stay.
Grounds for Relief from the Automatic Stay – Section 362(d)(2)
Section 362(d)(2) of the Bankruptcy Code provides that “on request of a party in interest
and after notice and a hearing, the court shall grant relief from the stay . . . if – (A) the debtor
does not have an equity in such property; and (B) such property is not necessary to an effective
reorganization . . . .” 11 U.S.C. § 362(d)(2). Both elements of Section 362(d)(2) must be
satisfied in order for the court to grant relief from the automatic stay. See Pegasus Agency, Inc.
v. Grammatikakis (In re Pegasus Agency, Inc.), 101 F.3d 882, 886 (2d Cir. 1996); 3 COLLIER ON
BANKRUPTCY ¶ 362.07[4] (15th ed. rev. 2007).
A debtor has no equity in a property where his license to occupy the property has
terminated and he does not have any property interest. See In re Owens, 30 B.R. 399, 403
(Bankr. S.D.N.Y. 1983) (“[A] debtor can have no equity in an expired lease nor can it be
considered necessary to an effective reorganization.”). And the Supreme Court has held that
property is only necessary to an effective reorganization where there is a “reasonable prospect
for a successful rehabilitation within a reasonable time.” United Sav. Ass’n of Texas v. Timbers
of Inwood Forest Assocs., Ltd., 484 U.S. 365, 376 (1988) (quotation omitted). The Supreme
Court further stated that “[w]hat [Section 362(d)(2)(B)] requires is not merely a showing that if
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

7
there is conceivably to be an effective reorganization, this property will be needed for it; but that
the property is essential for an effective reorganization that is in prospect.” Timbers, 484 U.S. at
475-76 (emphasis in the original).
Whether the Debtor has equity in the premises
Here, the record shows that the Debtor occupied the Premises pursuant to a license which
was terminated no later than March 1, 2007, when 153 Garfield served the Debtor with a ten-day
Notice to Quit. Affirmation in Support ¶ 6; Affidavit in Support ¶ 4; Stay Relief Motion, Exh. D
(Civil Court Decision Denying Debtor’s Motion to Vacate Judgment of Possession) at 4.
153 Garfield subsequently brought a holdover petition against the Debtor in the Civil Court of
the City of New York, County of Kings, Housing Part, Index # 65562/07, which was noticed to
be heard on April 17, 2008. Affirmation in Support ¶ 7; Affidavit in Support ¶ 5; Stay Relief
Motion, Exh. B (Holdover Petition); Stay Relief Motion, Exh. D (Civil Court Decision Denying
Debtor’s Motion to Vacate Judgment of Possession) at 1. On May 3, 2007, the Civil Court
entered a judgment of possession in favor of 153 Garfield, and on May 10, 2007, the Civil Court
issued a Warrant of Eviction against the Debtor. Affirmation in Support ¶ 8; Affidavit in
Support ¶ 6; Stay Relief Motion, Exh. C (Judgment of Possession, Warrant of Eviction); Stay
Relief Motion, Exh. D (Civil Court Decision Denying Debtor’s Motion to Vacate Judgment of
Possession) at 1-2.
The record shows that the Movant purchased the Premises from 153 Garfield, and the
Civil Court issued an order substituting the Movant as petitioner in the pending Civil Court
proceedings against the Debtor and permitting the “pleadings [and] all other papers issued in this
matter . . . to be amended nunc pro tunc.” Affirmation in Support ¶ 10; Affidavit in Support ¶ 8;
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

8
Stay Relief Motion, Exh. A (Recording and Endorsement, Real Property Transfer Report,
Customer Registration Form for Water and Sewer Billing) and Exh. E (Civil Court Order
Granting Substitution of Party and Amending of Pleadings).
The record also shows that on June 1, 2007, the Civil Court denied the Debtor’s
application for an order to show cause seeking to vacate the judgment of possession “based on
[the Debtor’s] failure to demonstrate an excusable default or to set forth a defense.” Stay Relief
Motion, Exh. D (Civil Court Decision Denying Debtor’s Motion to Vacate Judgment of
Possession) at 2. See Affirmation in Support ¶ 9; Affidavit in Support ¶ 7. On June 20, 2007,
with the assistance of counsel, the Debtor filed another order to show cause seeking to vacate the
judgment of possession (the “June 20 Order to Show Cause”). Stay Relief Motion, Exh. D (Civil
Court Decision Denying Debtor’s Motion to Vacate Judgment of Possession) at 2. See
Affirmation in Support ¶ 9; Affidavit in Support ¶ 7. On July 12, 2007, the Civil Court denied
the June 20 Order to Show Cause, holding that the Debtor “has failed to make even a threshold
showing demonstrating the existence of a meritorious defense. . . . Other than [the Debtor’s]
bald assertion, there are no other facts or evidence present in this record which tends to support
the existence of any relationship of landlord and tenant between the parties.” Stay Relief
Motion, Exh. D (Civil Court Decision Denying Debtor’s Motion to Vacate Judgment of
Possession) at 2-3. See Affirmation in Support ¶ 9; Affidavit in Support ¶ 7.
The record shows that the Debtor filed additional motions in an apparent effort to
forestall or prevent his eviction, including a guardianship motion, which the Civil Court
considered. See Affirmation in Support ¶¶ 12-13; Affidavit in Support ¶¶ 9-10; Stay Relief
Motion, Exh. F (Civil Court Motion Denying Debtor’s Motion for the Appointment of a
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

9
Guardian Ad Litem) and Exh. G (Civil Court Order Granting Debtor’s Withdrawal of
Guardianship Motion). On September 11, 2007, the Civil Court issued an order in which it
declared “all stays vacated” with respect to the Debtor’s eviction. Stay Relief Motion, Exh. F
(Civil Court Order Denying Debtor’s Motion for the Appointment of a Guardian Ad Litem). See
Affirmation in Support ¶ 12; Affidavit in Support ¶ 9. On November 2, 2007, the Civil Court
issued an order that all “stays on the execution of the warrant of eviction are hereby lifted” and
that the warrant of eviction may be executed on or after December 3, 2007. Stay Relief Motion,
Exh. G (Civil Court Order Granting Debtor’s Withdrawal of Guardianship Motion). See
Affirmation in Support ¶ 13; Affidavit in Support ¶ 10. On December 7, 2007, the Debtor
withdrew his guardianship motion, and the Court issued an order that all stays upon the Movant
were lifted. Stay Relief Motion, Exh. G (Civil Court Order Granting Debtor’s Withdrawal of
Guardianship Motion). See Affirmation in Support ¶ 13; Affidavit in Support ¶ 10.
Taken as a whole, the record shows that as of the Petition Date, the Debtor’s license to
occupy the Premises had terminated. For these reasons, the Debtor has no equity in the
Premises.
Whether the Premises are necessary for an effective reorganization “that is in prospect”
Here, the record shows that the Debtor has not complied with many of the fundamental
requirements of proceeding with a Chapter 13 bankruptcy case. At the outset, the Debtor has not
filed Schedules A, B, D, E, F, I, or J, or a Statement of Financial Affairs or Statement of
Monthly Income and Means Test Calculation, or the required pay statements received within 60
days of the Petition Date, which are among the most basic components of a bankruptcy petition.
The failure to file these documents within 45 days of the date of the filing of the petition is
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

10
grounds for dismissal of the Debtor’s bankruptcy case under Section 521(i) of the Bankruptcy
Code. See 11 U.S.C. § 521(i); 1307(c)(1).
In addition, the Debtor also has not filed a Chapter 13 plan, or made any plan payments
to the Chapter 13 Trustee, as required by Sections 1321 and 1326 of the Bankruptcy Code. See
11 U.S.C. §§ 1321, 1326. The failure to file a plan within 45 days of the date of the filing of the
petition is similarly grounds for dismissal of the Debtor’s bankruptcy case under Section 521(i)
of the Bankruptcy Code. See 11 U.S.C. § 521(i); 1307(c)(3). And the failure to make plan
payments is an additional grounds for dismissal. See 11 U.S.C. § 1307(c)(4).
Moreover, the Debtor has not provided the Trustee with disclosure documentation as
required by Eastern District of New York Local Bankruptcy Rule 2003-1. Final Order to Show
Cause; Motion to Dismiss; February 27 Order to Show Cause. This, too, is grounds for dismissal
of his case. See 11 U.S.C. § 1307(c)(1).
Over four months have passed since the Petition Date, and the Debtor has not cured these
deficiencies. In addition, the Debtor did not appear at hearings on the Motion to Dismiss and the
February 27 Order to Show Cause that were held on April 28, 2008, and April 29, 2008. On
April 28, 2008, the Court granted the Motion to Dismiss and directed the Trustee to settle an
order on 30 days’ notice, and the Trustee has settled a proposed order dismissing the Debtor’s
case. Docket Entry dated April 28, 2008; Trustee’s Settled Proposed Order.
Taken as a whole, the record shows that the Debtor has not made progress toward a
reorganization in this case, and the Debtor’s effective reorganization is not in prospect. For
these reasons, the Premises is not necessary to an effective reorganization.
For all of these reasons, and based on the entire record, the Court concludes that under
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32

11
Section 362(d)(2) of the Bankruptcy Code, the Debtor has no equity in the Premises, and the
Premises is not necessary to an effective reorganization. For the same reasons, the Movant has
established additional grounds for relief from the automatic stay.
CONCLUSION
Based on the entire record, after consideration of the submissions and the arguments of
counsel and the parties, and for the reasons set forth herein, the Stay Relief Motion is granted.
An order in accordance with this Memorandum Decision will be entered simultaneously
herewith.
Dated: Brooklyn, NY
May 16, 2008
S/Elizabeth S. Stong___________________
ELIZABETH S. STONG
UNITED STATES BANKRUPTCY JUDGE
Case 1-08-40034-ess Doc 40 Filed 05/16/08 Entered 05/16/08 17:20:32