Rosemary McCray

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ROSEMARY McCRAY,
Debtor.
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Case No. 06-00017
(Chapter 13)
DECISION RE MOTION OF GRP REALTY, LLC
FOR RELIEF FROM AUTOMATIC STAY AND OTHER RELIEF
The instant case is the third bankruptcy case that has
interfered with the efforts of GRP Realty, LLC (“GRP”) to obtain
possession of real property located at 7247 15th Place, NW,
Washington, D.C. GRP claims to own the property by reason of a
foreclosure sale pursuant to a deed of trust which encumbered the
property. At the time of the foreclosure sale, Ronald Anderson
was the record owner of the property. Mr. Anderson’s wife,
Aquanetta Anderson, claims that prior to the foreclosure sale,
Mr. Anderson conveyed to her by deed an interest in the property
as a tenant by the entirety, but she never recorded the deed.
GRP has been pursuing a proceeding in the Superior Court for the
District of Columbia to obtain possession of the property.
The decision below is hereby signed. Dated:
February 15, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Mr. Anderson filed a petition commencing a case in this
court, Case No. 05-00394, which stayed GRP, pursuant to 11 U.S.C.
§ 362(a), from pursuing the eviction proceeding. This court
granted GRP relief from the stay to pursue the eviction
proceeding (as the Andersons’ defenses to eviction were defenses
arising under nonbankruptcy law that were entirely appropriate
for the Superior Court to adjudicate). GRP then proceeded to
litigate the eviction proceeding.
However, on the very day that the Superior Court heard GRP’s
motion for summary judgment in the eviction proceeding, Mrs.
Anderson filed a petition commencing her own case in this court,
Case No. 05-02389, again staying GRP pursuant to § 362(a) from
pursuing the eviction proceeding. GRP once again was forced to
seek relief from the automatic stay of § 362(a). At a final
hearing on Friday, January 20, 2006, the court rendered an oral
decision against Mrs. Anderson and in favor of GRP regarding
relief from the automatic stay, and the appropriate order issued
later. The court’s supplemental written decision in Mrs.
Anderson’s case explains at length the basis for granting such
relief, including Mrs. Anderson’s shameful conduct in that case,
and the court will assume the reader’s familiarity with that
decision without needlessly repeating it here.
On Sunday, January 22, 2006, two days after the court had
rendered its oral decision against Mrs. Anderson, Rosemary McCray
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filed a voluntary petition commencing this third case. On the
petition she claimed that she “is co-owner of property and
occupant at 7247 15th PL NW, Wash, DC 20012.” Once again, GRP
was subjected to an automatic stay under § 362(a) preventing its
pursuit of the eviction proceeding.
GRP has moved for relief from the automatic stay or for a
determination that no stay arose by reason of 11 U.S.C. §
362(b)(22). In relevant part, § 362(b) provides that a petition
does not operate as a stay–-
(22) subject to subsection (l), under subsection
(a)(3), of the continuation of any eviction . . . 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 the filing of the bankruptcy
petition, a judgment for possession of such property against
the debtor.
[Emphasis added.] Because GRP has not alleged that it was
McCray’s lessor, or that it had a lease or rental agreement with
her, § 362(b)(22) does not apply. However, relief from the
automatic stay is appropriate for the very same reasons relief
from the automatic stay was appropriate in Mr. and Mrs.
Anderson’s cases.
GRP additionally seeks the imposition of a so-called in rem
order which will bar the automatic stay from arising in any
subsequent bankruptcy case with respect to the property. That
remedy, well known to the bankruptcy courts prior to the
Bankruptcy Code amendments enacted in 2005, has been partially
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codified pursuant to those amendments. Specifically, in certain
instances new 11 U.S.C. § 362(d)(4) now permits entry of an order
granting relief from the automatic stay which shall have effect
for two years in any subsequent bankruptcy case. However, §
362(d)(4) is limited to a stay of an act against real property
and to “a creditor whose claim is secured by an interest in such
real property.” Here, GRP holds no claim secured by an interest
in the subject property. Instead, it claims to own the property
pursuant to a foreclosure sale (which by definition would
extinguish the security interest it had in the property).
Nevertheless, Congress gave no indication in enacting §
362(d)(4) that it intended to prevent bankruptcy courts from
employing 11 U.S.C. § 105(a) (which authorizes the court to
“issue any order . . . that is necessary or appropriate to carry
out the provisions of this title”) to enter orders, when
necessary or appropriate, to prevent the harm arising from
abusive filings. If anything, the 2005 amendments evidence a
congressional intent that the courts crack down on abusive
filings by debtors.
McCray, joined by the Andersons, has opposed GRP’s motion.
They contend that McCray has not been given an opportunity to
contest the eviction proceeding and point to arguments under
nonbankruptcy law contesting GRP’s claimed ownership of the
property and the validity of the foreclosure sale. McCray’s
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asserted right to be heard in the Superior Court and her other
nonbankruptcy law arguments are precisely the types of issues
this court has twice before said should be decided in the
Superior Court. To protect GRP from the possibility that yet a
fourth case will be commenced giving rise to an automatic stay
against its eviction efforts, it is appropriate to enter an order
that no such further filing shall have that effect for a period
of two years.
It may be added that McCray’s filing was clearly in bad
faith. She filed her petition on a Sunday following the adverse
ruling against Mrs. Anderson two days earlier in an obvious
attempt to frustrate GRP’s eviction efforts. McCray recites that
she “has filed this petition to reorganize her debts and debts as
an occupant under the Bankruptcy Code,” but on the very day of
the hearing on GRP’s motion, she filed a motion for and obtained
a dismissal of her case, as was her absolute right.
Because the dismissal of this case was with prejudice for
180 days pursuant to 11 U.S.C. § 109(g)(2), McCray is barred from
filing a new case during that 180-day period. However, if she
files a new case, the Bankruptcy Code as amended in 2005 suggests
that a § 362(a) stay nevertheless will arise. See 11 U.S.C. §
362(b)(21)(A) (providing that no stay will arise as to certain
acts, but not all acts stayed by § 362(a), if the debtor was
ineligible under § 109(g) to be a debtor in the new case). It is
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thus appropriate to bar any further filing by McCray from giving
rise to an automatic stay against GRP's eviction efforts.
Furthermore, it is appropriate to enter such relief against Mr.
and Mrs. Anderson.
Finally, the Andersons and McCray point to no other occupant
of the property. In that circumstance, it is appropriate to bar
any future filing for the next two years by anyone to give rise
to an automatic stay of GRP’s eviction efforts. GRP ought not
face the prospect of the Andersons persuading some individual to
file a case claiming to be an occupant of the property and
thereby staying GRP’s eviction efforts. In any event, the
Andersons and the McCrays have no standing to complain if the
court bars a stay from arising in some other individual’s case
with respect to GRP’s eviction efforts.
An order follows.
[Signed and dated above.]
Copies to: Debtor; Debtor’s Attorney
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