Daniel Clark

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
DANIEL CLARK,
Debtor.
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Case No. 09-00726
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
DISMISSING REQUEST FOR INJUNCTIVE RELIEF
The debtor, Daniel Clark, has filed a paper (not served on
anyone else) in which he states:
I [would] like the court to issue a court order to gain
entrance to my personal belongings and equipment needed
to work [that] I have been denied by Mini U Storage . .
. . [T]hey were notified by fax on 8-26-2009[.] I
cannot work because the equipment needed and
supplies[.] [T]his is an emergency request.
This request must be denied.
I
A request for turnover must be sought by way of an adversary
proceeding. 	Fed. R. Bankr. P. 7001. 	In addition, the summons
and complaint in such an adversary proceeding must be served in
accordance with Fed. R. Bankr. P. 7004.
The provision for turnover of property, 11 U.S.C. § 542(a),
The document below is hereby signed.
Signed: September 01, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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provides, with exceptions of no relevance here, that:
an entity . . . in possession, custody, or control,
during the case, of property that the trustee may use,
sell or lease under section 363 of this title, or that
the debtor may exempt under section 522 of this title,
shall deliver to the trustee, and account for, such
property or the value of such property, unless such
property is of inconsequential value or benefit to the
estate.
The storage facility, therefore, has an obligation, if at all, to
turn over the property to the trustee, not the debtor. 	Section
542(a) makes clear that it is the trustee, not the debtor,
entitled to turnover.
II
The debtor, moreover, has not addressed whether turnover is
appropriate. 	There will be no obligation of turnover to the
trustee if the “property is of inconsequential value or benefit
to the estate” within the meaning of § 542(a), and the trustee,
as representative of the estate, has not stated a position on
that issue.
Moreover, if the storage facility has a possessory lien on
the property, the storage facility is entitled to request an
order prohibiting or conditioning turnover for use or sale by the
trustee “as is necessary to provide adequate protection of such
interest.” 	11 U.S.C. § 363(e). 	Section 542(a) ought not be read
in a manner that destroys a creditor’s right to adequate
protection under § 363(e). 	See Citizens Bank of Maryland v.
Strumpf, 516 U.S. 16, 20 (1995) (a statute will not be
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interpreted in a manner such that it destroys itself).
For these and other reasons, the turnover provision is not
self-executing. 	In re Bernstein, 252 B.R. 846, 849 (Bankr.
D.D.C. 2000).
III
The debtor has not invoked the automatic stay of 11 U.S.C.
§ 362(a), and he alleges no facts demonstrating a violation of
the automatic stay. 	If the storage facility is maintaining the
status quo, by passively retaining possession of the property
that it obtained prepetition, the storage facility is not acting
to change control of the property, and thus is not undertaking
“any act . . . to exercise control over property of the estate”
within the meaning of 11 U.S.C. § 362(a)(3). 	See In re
Bernstein, 252 B.R. at 848 (“In other words, ‘[t]he automatic
stay, as its name suggests, serves as a restraint only on acts to
gain possession or control over property of the estate.’ United
States v. Inslaw, 932 F.2d 1467, 1474 (D.C. Cir. 1991), cert.
denied, 502 U.S. 1048, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992).”);
In re Young, 193 B.R. 620, 624-25 (Bankr. D.D.C. 1996). 	But see,
e.g., 	Thompson v. General Motors Acceptance Corp., LLC, 566 F.3d
699 (7th Cir. 2009).
In any event, if the storage facility’s lien is of a
character described in 11 U.S.C. § 362(b)(3), and retention of
possession is the mode by which it may act to maintain and
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continue perfection of its lien, such continued retention of
possession would be excepted by § 362(b)(3) from the automatic
stay.
IV
In accordance with the foregoing, it is
ORDERED that the debtor’s request (Dkt. No. 19) filed on
August 28, 2009, requesting an order to gain access to his
personal belongings is DISMISSED.
[Signed and dated above.]
Copies to:
Debtor; Chapter 7 Trustee; Office of United States Trustee.
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