Kevin Parker

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
KEVIN DONNELL PARKER,
Debtor.
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Case No. 08-00278
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE
DEBTOR’S MOTION FOR RECONSIDERATION
The debtor commenced this case by the filing of a voluntary
petition on April 25, 2008. 	On his petition, the debtor
indicated that his landlord, United Dominion Realty Trust
(“United Dominion”), has a pre-petition judgment against the
debtor for possession of the debtor’s residence. 	According to 11
U.S.C. § 362(b)(22), the filing of a petition “does not operate
as a stay-”
subject to subsection (l), under subsection (a)(3), of
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 the filing of the
bankruptcy petition, a judgment for possession of such
property against the debtor . . . .
The Memorandum Decision and Order below is hereby
signed. Dated: May 8, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Under 11 U.S.C. § 362(l), debtors who wish to avoid the immediate
applicability of § 362(b)(22) must file with their petition and
serve upon their landlord a certification under penalty of
perjury that, (1) under nonbankruptcy law, circumstances exist
under which the debtor would be permitted to cure the monetary
default that gave rise to the judgment for possession, and (2)
that the debtor has deposited with the clerk any rent that would
become due during the 30-day period after the filing of the
bankruptcy petition. 	If the debtor so certifies, and if that
certification is not successfully opposed by the landlord, §
362(b)(22) will not apply until 30 days after the date of the
filing of the petition.
In the instant case, the debtor certified on his original
petition that under nonbankruptcy law there are circumstances
under which the debtor would be permitted to cure the entire
monetary default that gave rise to the judgment for possession.
The debtor did not, however, certify on his petition that he had
included the deposit of any rent that would become due during the
30-day period after the filing of the petition, and the debtor
did not in fact make any such payment into the court’s registry.
In disposing of United Dominion’s Objection to Debtor’s §
362(l)(1) Certification (DE No. 15, filed May 1, 2008), the court
determined that the debtor’s failure to make any certification
regarding the payment of rent that would become due during the
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30-day period after the filing of the petition constituted a
failure to make a certification of the type contemplated under §
362(l)(1) and that “§ 362(l)(4)(A) applies and . . . § 362(b)(22)
applied immediately upon the filing of this case ‘and relief from
the stay provided under subsection (a)(3) shall not be required
to enable the lessor to complete the process to recover full
possession of the property.’”
On May 5, 2008, ten days after the filing of the petition
and after the court issued its memorandum decision and order
regarding the applicability of § 362(b)(22) to United Dominion’s
pre-petition judgment for possession of the debtor’s residence,
the debtor filed a “Certification of Intent to Cure Monetary
Default For Residential Property” (DE No. 21) in which the debtor
certifies that he “is submitting the certification of intent to
cure monetary default and submitting the rent payment with this
court.” 	With his Certification of Intent to Cure, the debtor
also deposited $1,952.00 into the court’s registry. 	The debtor’s
certification is, in effect, an attempt to amend the voluntary
petition to include the requisite § 362(l)(1) certification and
to prevent the applicability of § 362(b)(22). 	On May 7, 2008,
the debtor filed a motion for reconsideration of the court’s
order sustaining the landlord’s objection to the debtor’s §
362(l)(1) certification (DE No. 22), contending that the debtor
was not properly served and that the court ruled upon the
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objection without scheduling a hearing or notifying the debtor of
the objection.
For reasons explained in more detail below, the court will
deny the debtor’s motion for reconsideration. 	Moreover, the
court concludes that the debtor’s May 5, 2008 certification (DE
No. 21), having been filed ten days after the filing of the
original petition, is untimely and does not disturb the court’s
earlier finding that § 362(b)(22) applied immediately upon the
filing of the petition in this case and continues to apply
notwithstanding the debtor’s subsequent filing of what purports
to be a certification of intent to cure.
I
When a debtor’s landlord has a pre-petition judgment for
possession of the debtor’s residence, section 362 provides
unambiguous instructions for what the debtor must do - and when -
in order for the automatic stay to apply to prevent the landlord
from continuing any eviction, unlawful detainer action, or
similar proceeding against the debtor. 	First, section 362(l)(1)
provides that:
Except as otherwise provided in this subsection,
subsection (b)(22) shall apply on the date that is 30
days after the date on which the bankruptcy petition is
filed, if the debtor files with the petition and serves
upon the lessor a certification under penalty of
perjury that
(A) under nonbankruptcy law applicable in the
jurisdiction, there are circumstances under which the
debtor would be permitted to cure the entire monetary
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default that gave rise to the judgment for possession,
after that judgment for possession was entered, and
(B) the debtor (or an adult dependent of the
debtor) has deposited with the clerk of the court, any
rent that would become due during the 30-day period
after the filing of the bankruptcy petition.
[Emphasis added.] By its own terms, the 30-day grace period
provided to debtors under § 362(l)(1) is only available to those
debtors who file the necessary certification with the petition.
Although Congress could have provided debtors with a limited
opportunity to amend their petition to supply an omitted
certification, Congress instead elected to impose immediate
consequences and to immediately permit landlords with pre-
petition judgments for possession of the debtor’s residence to
continue with “any eviction, unlawful detainer action, or similar
proceeding” if the debtor fails to file the required § 362(l)(1)
certifications at the commencement of the case. 	Specifically,
the unambiguous language of § 362(l)(4) provides that:
If a debtor . . . indicates on the petition that there
was a judgment for possession of the residential rental
property in which the debtor resides and does not file
a certification under paragraph (1) or (2) -
(A) subsection (b)(22) shall apply immediately upon
failure to file such certification and relief from
the stay provided under subsection (a)(3) shall not
be required to enable the lessor to complete the
process to recover full possession of the property .
. . .”
[Emphasis added.] 	The debtor’s failure to file the requisite §
362(l)(1) certification with his petition immediately triggered
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the applicability of § 362(b)(22), and there is nothing in § 362
that purports to allow a debtor to amend or supplement his
petition 10 days after the petition date in an effort to somehow
render § 362(b)(22) retroactively inapplicable. 	The statute, as
written, is inflexible with respect to the deadline for filing a
§ 362(l)(1) certification, and the debtor’s May 5, 2008
certification was simply filed too late to trigger the
protections of § 362(l)(1).
In enacting § 362(b)(22) and § 362(l)(4), Congress provided
a mechanism under which, from the outset of the case and unless
the debtor makes very specific certifications at the time he
files his petition, landlords can know with certainty whether or
not the stay applies to their continued enforcement of pre-
petition judgments for possession of the debtor’s residence. 	A
rule such as this has the benefit of certainty, and permitting
subsequent amendment of the petition by the debtor in order to
render § 362(b)(22) inapplicable would render § 362(l)(4)’s
language as to the immediate applicability of § 362(b)(22)
meaningless. 	The automatic stay ought not be a moving target,
being deemed immediately inapplicable upon the filing of the
petition based upon the debtor’s failure to make the necessary
certifications under § 362(l), yet applicable if the debtor, on
his own schedule, decides to later amend his petition to invoke
the protections of § 362(l), which Congress determined to make
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available to debtors only at the commencement of the case. 	If
amendment of the petition were given retroactive effect, United
Dominion would be faced with a statutory scheme that makes the
stay inapplicable at one moment, but then imposes it later at the
whim of the debtor. 	A statutory scheme such as that would
necessarily subject landlords to additional expense. 	Congress
has clearly provided in § 362(l)(4) that the stay does not apply
the moment the debtor fails to make a required certification on
the petition, thereby giving the debtor’s landlord a green light
to continue enforcing a judgment for possession, which the debtor
cannot then change into a red light by belatedly amending the
petition. 	The Code simply does not allow for the debtor to file
the required § 362(l)(1) certifications throughout the pendency
of his case rather than with his petition, and to so permit would
be prejudicial to United Dominion and result in the type of delay
and uncertainty that §§ 362(b)(22) and (l)(4) were likely
intended to prevent. 	For all of these reasons, the court finds
that the debtor’s May 5, 2008 certification did not satisfy the
requirements of § 362(l)(1).
II
In his motion for reconsideration, the debtor complains that
he was not properly served with United Dominion’s objection and
that the court ruled on the objection without scheduling a
hearing or notifying the debtor of the objection. 	The debtor’s
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1 	The clerk of court made such an entry on the docket in
this case prior to United Dominion’s filing of its objection, yet
it is unclear whether United Dominion was properly served with a
certified copy of the docket, as required under § 362(l)(4)(B).
Under the circumstances, the court deemed it appropriate to
clarify through its memorandum decision and order that because
the debtor’s attempted § 362(l)(1) certification was materially
deficient, it was insufficient to trigger the protections of §
362(l)(1).
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failure to make the necessary § 362(l)(1) certifications on his
petition is a matter of record in this case, and as a matter of
law, the failure to make those certifications triggered the
applicability of § 362(b)(22). 	The basis for the court’s
memorandum decision and order was the debtor’s failure to certify
on his petition that he had deposited with the clerk of court any
rent that would become due during the 30-day period after the
filing of the bankruptcy petition, and even if United Dominion
had not filed an objection to the debtor’s § 362(l)(1)
certification, section 362(l)(4)(B) expressly provides that, when
such a certification is missing, “the clerk of court shall
immediately serve upon the lessor and the debtor a certified copy
of the docket indicating the absence of a filed certification and
the applicability of the exception to the stay under subsection
(b)(22).” 1 	To the extent the clerk of court is authorized to
indicate on the docket that a missing certification has triggered
the applicability of § 362(b)(22), the court is equally empowered
to make a sua sponte ruling by way of a memorandum decision and
order that a missing certification triggered the applicability of
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2 	Had United Dominion filed an objection that challenged
the veracity of any certifications made by the debtor (which it
did not), and had the court purported to adjudicate such a
dispute (which it did not), the debtor would have been entitled
to notice and a hearing pursuant to § 362(l)(3)(A).
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§ 362(b)(22). 2 	For these reasons, the court rejects the debtor’s
contention that reconsideration is warranted based upon improper
service or lack of notice and a hearing.
In further support of his motion for reconsideration, the
debtor contends that he has a right to certify his intent to cure
the monetary default. 	As explained above, the debtor was
required to exercise his right to certify the intent to cure when
he filed his petition, or not at all. 	The debtor does not
contend that he made the necessary certification on his original
petition and his argument regarding a debtor’s right to certify
an intent to cure therefore lacks merit. 	It is thus
ORDERED that the debtor’s motion for reconsideration and
request for hearing (DE No. 22) is DENIED. 	It is further
ORDERED that the debtor’s Certification of Intent to Cure
Monetary Default (DE No. 21) does not constitute a timely or
effective certification under 11 U.S.C. § 362(l)(1). 	It is
further
ORDERED that 11 U.S.C. § 362(b)(22) applied immediately upon
the filing of the petition in this case and pursuant to §
362(b)(22), the automatic stay imposed by 11 U.S.C. § 362 shall
not apply to prevent the debtor’s landlord, United Dominion
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Realty Trust, from enforcing its prepetition judgment for
possession of the debtor’s residence. 	It is further
ORDERED that the clerk of court shall return to the debtor
the $1,952.00 payment made by the debtor into the court’s
registry.
[Signed and dated above.]
Copies to: Debtor; Chapter 13 Trustee; Stephen Nichols.
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