Steele v. NREA VB III, LLC

[INTENDED FOR PUBLICATION]
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In re:
Dana M. Steele,
Debtor.
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Case No. 24-30467
Chapter 7
Judge Crist
Dana M. Steele,
Plaintiff,
v.
NREA VB III, LLC and
Laurence A. Lasky,
Defendants
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Adv. No. 24-3011
NREA VB III, LLC,
Third-Party Plaintiff
v.
Laurence A. Lasky, Esq. and
Lasky & Sharrer,
Third Party Defendants.
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This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: September 24, 2026
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OPINION AND ORDER ON DEFENDANT NREA VB III, LLC’S MOTION TO
DISMISS FIRST AMENDED COMPLAINT AND MOTION FOR
A MORE DEFINITE STATEMENT (DOC. 106)
I. 	Introduction
This adversary proceeding, distilled to its essence, concerns whether an entry of restitution
entered by the Dayton Municipal Court, agreed to by the Debtor Dana M. Steele (“Ms. Steele,”
“Plaintiff,” or “Debtor”) prior to filing her underlying chapter 7 bankruptcy case, was a “judgment
for possession” as that term is used in the eviction exception to the automatic stay set forth in 11
U.S.C. § 362(b)(22).1 Thus, Landlord and Defendant NREA VB, III’s (“NREA”) motion to
dismiss this adversary proceeding puts interpretation of the eviction exception front and center.
This is an issue on which there is not much clarity in the case law, perhaps because what constitutes
a “judgment for possession” is peculiar to the state law governing the eviction process. Moreover,
this is a unique circumstance in which the Debtor had agreed to the eviction action before a
Magistrate of the Dayton Municipal Court, twice, which was based on alleged illegal felony drug
activity, and in which Debtor had ample time to vacate the residential property before she was
ultimately evicted, after she failed to leave by an agreed date. But this adversary proceeding has
also been complicated by what is alleged to have been aggressive, if not vindictive tactics by the
landlord or its counsel, that has led to numerous filings in this Court, not to mention a missing cat.
The allegations in the First Amended Complaint, as corroborated by the public records and
documents submitted, reveal that Ms. Steele, by and through counsel, had agreed at a summary
hearing before the Dayton Municipal Court on January 11, 2024, that she would vacate the rental
property by March 15, 2024. Although that agreement was not reduced to a court entry until March
12, 2024, allegedly due to overreaching by the landlord’s counsel when preparing a proposed
agreed entry which prompted a second hearing on February 29, 2024, to confirm what Ms. Steele
and the landlord had actually agreed to on January 11, 2024, once the entry was prepared and
signed by the Dayton Municipal Court that was a “judgment for possession” as the only steps left
were either for Ms. Steele to voluntarily vacate the property by March 15, 2024 or for the landlord
to obtain a writ of restitution, if she did not. Landlord NREA VB, III (“NREA”) did obtain a writ
of restitution postpetition on March 21, 2024, following the agreed-upon date for Ms. Steele to
1 Hereinafter, unless otherwise noted, all sections cited are sections of title 11 of the United States Code (the
“Bankruptcy Code”).
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vacate. Just because the agreement and entry did not require her to vacate until March 15, 2024,
did not make it any less of a “judgment for possession” given that there were no other options or
alternatives allowed under the agreement and entry—once 11:59 p.m. passed on March 15, 2024,
if Ms. Steele was not out the landlord would be entitled to a writ of restitution “forthwith.”
In short, based on the largely undisputed facts alleged in Ms. Steele’s First Amended
Complaint (Doc. 93), which are taken as true, and the state court records referenced therein, and
after examining the forcible entry and detainer process under Ohio law, it became clear to this
Court that an entry of restitution that finally determined the sole issue of possession, particularly
the agreed entry entered into by Ms. Steele, qualified as a “judgment for possession” under
§ 362(b)(22) such that there was no violation of subsection (a)(3) of the automatic stay simply by
virtue of NREA continuing the eviction action postpetition. To hold otherwise would essentially
nullify § 362(b)(22), at least for eviction actions governed by Ohio law, and would not be in
keeping with the reason that Congress enacted this exception to the automatic stay as part of the
Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) in 2005. See Pub. L.
No. 109-8, § 1501 (2005). Thus, the eviction exception in § 362(b)(22) was applicable, Ms. Steele
did not (or could not) invoke § 362(l), and Count I of the First Amended Complaint asking for a
declaratory judgment that the eviction exception was inapplicable does not state a plausible claim
and will be dismissed. However, the eviction exception, construed narrowly as it must be, does not
absolve any actions taken by NREA, its agents or contractors, or its Attorney Laurence Lasky
(“Mr. Lasky”) from any potential liability given that it only permits action to regain possession of
residential real property. Thus, there remains a plausible claim under Count II for damages under
§ 362(k)(1) for violation of subparagraph (a)(3) of the automatic stay (§ 362) with respect to, at a
minimum, actions involving Ms. Steele’s personal property.
Because the intersection of landlord-tenant law and the Bankruptcy Code is something that
comes up frequently, hopefully this Opinion and Order will not only lead to the resolution of this
adversary proceeding but will also provide some guidance for future cases involving forcible entry
and detainer actions under Ohio law so that parties can assess where the line is drawn and how to
avoid stepping over it.
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II. 	Jurisdiction
This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b)
and Amended General Order No. 05-02 (Amended Standing Order of Reference) entered by the
United States District Court for the Southern District of Ohio, pursuant to 28 U.S.C. § 157(a), on
September 16, 2016. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (G),2 and
this Court has constitutional authority to enter a final judgment. In re Nicole Gas Prod., 519 B.R.
719, 723, 725 (Bankr. S.D. Ohio 2014).
NREA raises Federal Rule of Civil Procedure (“Civil Rule”) 12(b)(1) in its Motion to
Dismiss, which is a defense for “lack of subject-matter jurisdiction.” However, NREA does not
elaborate on why it believes this Court would lack subject matter jurisdiction, and case law
supports the Court’s exclusive jurisdiction over this adversary proceeding to determine whether a
violation of the stay has occurred. In re Legacy Beavercreek of Dayton Operating Co., 678 B.R.
558, 569 (Bankr. S.D. Ohio 2026) (“[I]interpreting the application of the automatic stay arising
from a case under the Bankruptcy Code is often fundamental to the protection of debtors in
bankruptcy and this Court’s jurisdiction over those debtors and their property.”); Grine v.
Chambers (In re Grine), 439 B.R. 461, 464-65 (Bankr. N.D. Ohio 2010) (“Proceedings to
determine whether the automatic stay has been violated are core proceedings that the court may
hear and determine.” (citing 28 U.S.C. § 157(b)(1) and (b)(2)); In re Bunting Bearings, 302 B.R.
210, 213 (Bankr. N.D. Ohio 2003)). Moreover, NREA has elsewhere argued within this adversary
proceeding that this Court has subject matter jurisdiction over its third-party indemnity and
contribution claims in this adversary proceeding, such that they appear to concede that jurisdiction
exists over the First Amended Complaint.3 See NREA’s Brief in Supp. of this Court’s Jurisdiction
Over its Third-Party Indemnity and Contrib. Claims (Doc. 123) (Feb. 26, 2026). Perhaps NREA
cited Civil Rule 12(b)(1) as part of its argument that Ms. Steele did not meet the jurisdictional
requirement to invoke the Declaratory Judgment Act – that there is no case or controversy upon
which the Court can enter a declaratory judgment. That argument is unavailing and will be
2 See In re Rinegard-Guirma, 654 B.R. 390, 396 (Bankr. D. Or. 2023) (concluding that motions to seek determinations
regarding the scope of the automatic stay “are analogous to motions to terminate, annul, or modify the automatic stay”
which are core matters under 28 U.S.C. § 157(b)(2)(G)).
3 The Court is not opining on its subject matter jurisdiction over NREA’s third-party indemnity and contribution claims
at this time, and no inference should be drawn from the Court’s reference herein to NREA’s filing on that issue. In
other words, the Court reserves judgment on that issue.
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addressed below. It is beyond reasonable debate that this Court has subject matter jurisdiction over
the claims raised in the First Amended Complaint that ultimately involve examination of the
application of the automatic stay to property of the estate.
III. 	Background
A. 	Overview
The Debtor in the underlying chapter 7 bankruptcy case, Dana Steele, filed her Voluntary
Petition (the “Petition”) under chapter 7 on March 14, 2024 (the “Petition Date”) and just over a
month later, on April 18, 2024, represented by a new co-counsel,4 filed her Complaint – 11 U.S.C.
§[]362(k) (Doc. 1) (the “Complaint”) initiating this adversary proceeding. See Case No. 24-30467
(Doc. 1); Adv. No. 24-3011 (Doc. 1).5 In the Complaint, Ms. Steele only listed NREA as a
Defendant.
The events that occurred in the months leading up to her bankruptcy and within the short
period of time from the Petition Date (March 14, 2024) up until her eviction on April 4, 2024, are
at issue in this litigation. More specifically, this adversary proceeding concerns the applicability
of the automatic stay to the eviction of Ms. Steele from her rented home on April 4, 2024, as well
as the damage and disposal of her personal property, by Ms. Steele’s Landlord NREA, which was
represented by Mr. Lasky prior to and during the eviction process in Dayton Municipal Court and
initially in Ms. Steele’s bankruptcy case and in this adversary proceeding, up until the time he
withdrew as NREA’s counsel and later became a Third-Party Defendant along with his law firm.
After an initial flurry of filings, on January 2, 2026, Ms. Steele filed her First Amended Complaint
– 11 U.S.C. §[]362(k) (Doc. 93) (the “First Amended Complaint”), which added Mr. Lasky as a
Defendant. Though there have been numerous filings in this adversary proceeding since it was
inherited by the above-signed Bankruptcy Judge, now primarily before the Court are NREA VB
III, LLC’s Motion to Dismiss and Motion for a More Definite Statement (Doc. 106) (the “Motion
to Dismiss”) filed on January 16, 2026, and Plaintiff’s Response in Opposition to NREA VB III,
4 Ms. Steele was originally represented only by Timothy M. Cooper with Recovery Law Group, APC out of Cleveland,
Ohio when she filed her chapter 7 case. See Petition at 7.
5 Citations to docket entries hereinafter will be to those in Adversary Proceeding No. 24-3011, unless otherwise noted.
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LLC’s Motion to Dismiss First Amended Complaint and Motion for a More Definite Statement
(Doc. 117) (the “Response”) filed on February 2, 2026.
The following background is derived from the factual allegations in the First Amended
Complaint6 as well as the dockets of both Ms. Steele’s underlying chapter 7 bankruptcy case and
this adversary proceeding, and as referenced by Ms. Steele in her First Amended Complaint, the
docket of the Dayton Municipal Court, of which this Court takes judicial notice pursuant to Federal
Rule of Evidence 201(c)(1), made applicable to this adversary proceeding by Federal Rule of
Bankruptcy Procedure (“Bankruptcy Rule”) 9017. The Court may take such judicial notice in the
context of ruling on the Motion to Dismiss without converting it to a motion for summary
judgment. See KBC Asset Mgmt. N.V. v. Omnicare, Inc. (In re Omnicare, Inc. Sec. Litig.), 769
F.3d 455, 466 (6th Cir. 2014) (“if a plaintiff references or quotes certain documents, or if public
records refute a plaintiff’s claim, a defendant may attach those documents to its motion to dismiss,
and a court can then consider them in resolving the Rule 12(b)(6) motion without converting the
motion to dismiss into a Rule 56 motion for summary judgment.” (citing Weiner v. Klais & Co.,
Inc., 108 F.3d 86, 89 (6th Cir. 1997)). “Fairness and efficiency require this practice.” In re
Omnicare, 769 F.3d at 466.7
B. 	The Events Preceding and Surrounding the Eviction
1. 	The Lease
6 Background derived from the allegations of the First Amended Complaint is not, at this time, established fact, but
on a motion to dismiss the Court must accept all factual allegations as true. See infra., § IV.A.
7 See also Rieser v. Moorman (In re Equity Land Title Agency, Inc.), 370 B.R. 154, 157 n.1 (Bankr. S.D. Ohio 2007)
(Waldron, J.) (“The Defendants correctly note the court’s review of the Clayton decision is a matter of judicial notice
of the court’s records and may be reviewed on a motion to dismiss.” (citing Papasan v. Allain, 478 U.S. 265, 268
(1986)); see also Mehdipour v. Anchor Commer. Bank (In re Chariots of Palm Beach, Inc.), Nos. 17-19455-MAM,
17-19458-MAM, 18-01360-MAM, 2019 Bankr. LEXIS 3013, at *5, 2019 WL 4744900, at *2 (Bankr. S.D. Fla. Sept.
27, 2019) (“Courts may take judicial notice of public records including proceedings in its own docket as well as
proceedings in other courts without the need to convert a motion to dismiss into a motion for summary judgment.”
(quoting In re All Am. Semiconductor, Inc., 427 B.R. 559, 564-65 (Bankr. S.D. Fla. 2010) (citing Universal Express,
Inc. v. United States Sec. and Exch. Comm’n, 177 F. App’x 52, 53-54 (11th Cir. 2006))); Anchieta v. Wells Fargo
Bank, N.A. (In re Anchieta), No. 8-23-08026-las, 2025 Bankr. LEXIS 1513, at *50, 2025 WL 1748387, at *17 (Bankr.
E.D.N.Y. June 24, 2025) (“A court may also take judicial notice of matters of public record, including documents
filed in other court proceedings, when considering a motion to dismiss.” (citing Kramer v. Time Warner Inc., 937 F.2d
767, 773-74 (2d Cir. 1991); “Additionally, a court may ‘take judicial notice of its own orders’ and ‘its own records.’ ”
(quoting Rosado-Acha v. Red Bull GmbH, No. 15 Civ. 7620, 2016 U.S. Dist. LEXIS 84543, at *7, 2016 WL 3636672,
at *7 (S.D.N.Y. June 29, 2016) (further citations omitted)).
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On November 25, 2022, Ms. Steele signed a residential lease agreement (the “Lease”) with
NREA8 “for the use and occupancy of real property located at 1351 Oakdale Avenue, Dayton,
Ohio 45420 (the ‘[Real] Property’).”9 First Am. Compl. at 2, ¶ 4. Ms. Steele was a co-signer on
the Lease with her stepfather, David Luttrell (“Mr. Luttrell”), and her brother, Damon Steele. Ms.
Steele’s minor child also lived at the Real Property. Id. at 2, ¶¶ 5-6. The lease term for 1351
Oakdale was from December 21, 2022, through December 20, 2023, and would automatically
renew as a month-to-month lease following the end of the term. Id. at 2, ¶ 7.
2. 	Public Use Nuisance and the Eviction Action
On October 2, 2023, Dayton police served a search warrant at 1351 Oakdale after receiving
an anonymous tip that Mr. Steele was involved with drugs, and police allegedly discovered traces
of methamphetamine during the search. Id. at 12-13, ¶ 75. On or about October 17, 2023, the City
of Dayton served NREA, as the owner of the Real Property, with a “nuisance- abatement
notification[] alleging that illegal activity (felony drugs) was occurring on the Property.” Id. at 3,
¶ 14. The notification, titled a Notification by the City of Dayton – Public Use Nuisance10 (the
“Nuisance-Abatement Notification”) – gave NREA fifteen (15) days “to file an eviction action
naming Damon Steele, Megan Koch [11] and Dana Steele (the persons allegedly responsible for the
nuisance) to vacate the Property.” Id. at 3, ¶ 14 n.3.
8 In a number of the filings preceding the Complaint filed in this adversary proceeding, as well as the First Amended
Complaint, Ms. Steele refers to the entity identified in her Lease, which is “VineBrook Homes, LLC, a Delaware
limited liability company, as the authorized agent for NREA VB III, LLC, the owner of property described in Section
2 (collectively, the ‘Lessor’)[.]” Ex. A to First Am. Compl. (Doc. 93-1) at 1, § 1; see also Ex. “A” to Motion of
Vinebrook Homes LLC for NREA VB III, LLC for Relief from Stay as to 1351 Oakdale Ave, Dayton, OH 45420 (Estate
Doc. 9-1) (appearing to be the original copy of the Lease that was refiled as Exhibit A to the First Amended Complaint
based on the overlapping ECF-stamps in the header and which was reviewed for purposes of obtaining the words
covered by the Exhibit A sticker on the copy of the Lease attached to the First Amended Complaint). However, in the
First Amended Complaint Ms. Steele noted that “upon review of the applicable records maintained by the Ohio
Secretary of State, Vinebrook Homes, LLC, a Delaware limited liability company, was merged out of existence in May
2015.” First Am. Compl. at 2, n.2. Either way, Plaintiff named the Owner of the Real Property, NREA VB III, LLC,
as the original Defendant in the Complaint and one of two Defendants in her First Amended Complaint.
9 The Real Property is also sometimes referred to herein as “1351 Oakdale.”
10 A copy of this document was later filed with the Court by Third-Party Defendants as Exhibit A (Doc. 111-1) with
their Third-Party Defendants’ Exhibit List (Doc. 111).
11 Ms. Koch was allegedly Mr. Steele’s girlfriend.
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Outside the 15-day window given in Nuisance-Abatement Notification, on November 22,
2023, NREA, by and through its counsel Mr. Lasky, filed a Complaint in Forcible Entry and
Detainer – Two Counts (the “FE&D Complaint”)12 against Ms. Steele, Mr. Luttrell, and “All
Others” at 1351 Oakdale Avenue, Dayton, Ohio 45420 in the Dayton Municipal Court, captioned
Vinebrook Homes LLC for NREA VB III LLC v. Dana Steele, et al., Dayton M.C. No. 2023 CVG
6454 (the “Eviction Action”). Therein, NREA sought to evict Ms. Steele, Mr. Luttrell, and the
others, and sought “a money judgment against [Ms. Steele and Mr. Luttrell] for alleged failure to
pay rent[.]” Id. at 2, ¶ 11; Exs. D, E, F.13 The FE&D Complaint filed in the Eviction Action was
later amended by Mr. Lasky on December 18, 2023, to seek to evict the occupants of the Real
Property based on alleged illegal activity. Id. at 3, ¶ 14. After Ms. Steele was served “with a
summons in the Eviction Action on NREA’s Amended Complaint,” a summary hearing was held
before a magistrate of the Dayton Municipal Court on January 11, 2024. Id. at 3, ¶¶ 16-17. As Ms.
Steele alleges, “[i]nstead of proceeding that day, the parties agreed to terms to resolve the Eviction
Action.” Id. at 3, ¶ 17.
Although it appears there was later an issue with reducing the terms to writing, perhaps
because Attorney Mark Donatelli appeared at the January 11, 2024 hearing instead of Mr. Lasky,
“[t]he terms were read in the [Dayton Municipal Court’s] record for the Eviction Action as
follows[:]”
a. 	Plaintiff would vacate the premises on or before midnight on March 15,
2024, and
b. 	If Plaintiff failed to vacate the premises before the expiration of such
time, a writ of restitution would be issued forthwith.
Id. at 3-4, ¶ 17.a and b. On or about January 16, 2024, Mr. Lasky prepared an entry for review by
Attorney Eric E. Willison, who represented Ms. Steele in the Eviction Action; “[h]owever, the
terms contained in the document [Mr. Lasky] prepared” allegedly differed from the agreement
read into the record. Id. at 3, 4 ¶¶ 13, 18. Ms. Steele attached a copy of Mr. Lasky’s proposed
Agreed Entry (the “Proposed Entry”) as Exhibit C to her First Amended Complaint, and the main
12 A copy of this Complaint was later filed with the Court by Third-Party Defendants as Exhibit 2 (Doc. 111-1) with
their Third-Party Defendants’ Exhibit List (Doc. 111).
13 Unless otherwise noted in this Opinion and Order, all references to Exhibits are to the Exhibits attached to the First
Amended Complaint.
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difference is that in addition to the requirement that Ms. Steele vacate the Real Property by
midnight on March 15, 2024, it contained additional terms requiring Ms. Steele to repay missed
rent to the tune of “$3,705 on or before February 1, 2024” and to “pay February 2024 rent on
time.” Ex. C to First Am. Compl. at ¶¶ 1-5. Mr. Lasky then, allegedly, on February 15 and 21,
2024, attempted to get his Proposed Entry entered by the Dayton Municipal Court through a
“Motion to Journalize” and a “Motion for Emergency Hearing,” which prompted the Dayton
Municipal Court to hold a hearing on Mr. Lasky’s motions on February 29, 2024. Id. at 4, ¶ 22.
“[U]pon the suggestion of Mr. Willison, the Magistrate listened to the audio recording of the
January 11, 2024, summary proceeding” and “determined that, contrary to [Mr. Lasky’s]
assertions, there was no agreement to pay rent and the only terms agreed to[] were that [Ms. Steele]
would ‘vacate the Property by the 15 th of March and that any failures for her to do so a writ could
be issued.’ ” Id. (emphasis in original).
As further alleged by Ms. Steele, “[o]n March 12, 2024, the Magistrate and Judge [of the
Dayton Municipal Court] filed an Entry stating the terms of the parties’ January 11, 2024[]
agreement.” Id. at 5, ¶ 24. Ms. Steele represents that “[a] true and accurate copy of the March 12,
2024[] Entry is attached hereto as Exhibit D.” Ex. D to First Am. Compl. (Doc. 93-4) (the “March
12 Entry”). The March 12 Entry is a one (1) page document, signed by both a Magistrate and Judge
of the Dayton Municipal Court, filed in the Eviction Action on said date, which states as follows:
This matter came before the Magistrate for hearing on February 29,
2024 on Plaintiff’s motion to journalize an agreement made between the
parties in Court on January 11, 2024.
The parties agreed to the following terms:
1. 	Defendant agrees to vacate the premises on March 15, 2024 by
midnight.
2. 	If Defendant fails to vacate the premises by March 15, 2024, a writ
of restitution shall issue forthwith.
March 12 Entry (Ex. D to First Am. Compl.).
Mr. Lasky allegedly filed a Praecipe for Writ of Restitution on behalf of NREA on March
12, 2024. First Am. Compl. at 5, ¶ 26-27. And on March 14, 2024, allegedly “submitted and
received the [Dayton Municipal Court] Judge’s signature on a form Entry Granting Default
Judgment and Scheduling Matter for Hearing to determine monetary damages,” but neither the
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referenced Praecipe nor Entry Granting Default Judgment were attached to the First Amended
Complaint. Id. at 5, ¶ 27. The online docket of the Dayton Municipal Court for the Eviction Action
indicates that a Praecipe for Writ of Restitution was filed on March 12, 2024, and that a “Motion
finding of Granted entered for the Motion for Default Judgment that was filed by Lasky & Scharrer
– Plaintiff Attorney on 03/01/2024” was entered on March 14, 2024. See Docket for Eviction
Action, https://clerkofcourt.daytonohio.gov/PA/CvCaseSummary.cfm?cid=aldFSzhlNFIybkU9.
3. 	Chapter 7 Bankruptcy
Ms. Steele filed her Petition for chapter 7 bankruptcy relief on March 14, 2024, at 9:38
p.m.14 (Eastern Prevailing Time). First Am. Compl. at 5, ¶ 28. The next day, at allegedly 7:12 a.m.
(PDT) and 7:20 a.m. (PDT), or 10:12 a.m. (EDT) and 10:20 a.m. (EDT), Ms. Steele’s bankruptcy
counsel faxed notification of her chapter 7 filing to the Clerk’s office of the Dayton Municipal
Court15 and then to Mr. Lasky’s office, respectively. First Am. Compl. at 5, ¶¶ 29-30. The online
docket for the Eviction Action indicates that a “Notice of Bankruptcy filing” was docketed at
1:59PM on March 16, 2024, followed by a “Bankruptcy Stay document imaged.”16
Along with her Petition, Ms. Steele filed a Statement of Intention (Case No. 24-30467, Doc.
2) (the “Statement of Intention”) in which she listed a residential lease with Vinebrook Homes
LLC to be assumed, although Official Form 108 makes clear that Part 2 is only for unexpired
leases of personal property and the debtor filling out the form should “not list real estate leases.”
Statement of Intention at 2, Part 2.
4. 	Motion for Stay Relief
The very first filing in Ms. Steele’s chapter 7 case by another party came only five days
later, on March 19, 2026, namely the Motion of Vinebrook Homes LLC for NREA VB III, LLC for
Relief from Stay as to 1351 Oakdale, Dayton, OH 45420 (Case No. 24-30467, Doc. 9) (the “Motion
14 Paragraph 28 of the First Amended Complaint alleges the Petition was filed at 9:48 p.m., but the ECF-stamp on the
Petition shows “21:38:11.” Petition at 1-46.
15 The Magistrate’s Order entered in the Eviction Action on April 3, 2024 corroborates this allegation, stating that the
“Notice of Bankruptcy Case Filing” was transmitted to the Dayton Municipal Court by fax. Magistrate’s Order,
Vinebrook Homes, LLC for NREA VB III, LLC v. Steele, Dayton M.C. No. 2023 CVG 6454 (Apr. 3, 2024) (the “April
3 Magistrate’s Order”) (Ex. F to First Am. Compl.).
16 No images of the filings on the Dayton Municipal Court’s docket are available online.
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for Stay Relief”).17 Therein, “Vinebrook Homes, LLC for NREA VB III, LLC, by and through
their Attorney, Laurence A. Lasky,” moved for relief from the automatic stay to “proceed under
state law for restitution of the premises” on the basis that Ms. Steele was “in default under the
terms of the Lease for non-payment of rent” owing, “[a]s of the filing of this Motion, . . . no less
than $6,125.00 for November 2023, December 2023, January 2024, February 2024 and March
2024 rent, and late fees and other charges allowable under the Lease.” Mot. for Stay Relief at 1-2,
¶¶ 5, 6. A copy of the Vinebrook Homes Lease Agreement was attached to the Motion for Stay
Relief. See Case No. 24-30467 (Doc. 9-1).
5. 	Continuation of the Eviction Action and the April 3, 2024
Magistrate’s Order
On March 20, 2024, a Judge of the Dayton Municipal Court signed the writ of restitution
(the “Writ of Restitution”). First Am. Compl. at 5, ¶ 32. “A true and authentic copy of the writ of
restitution is attached” to the First Amended Complaint as Exhibit E. Id. at 5, ¶ 33. A second copy
of the Writ of Restitution, also part of Exhibit E, bears two file-stamps: one of the Dayton
Municipal Court Bailiff’s Office, March 21, 2024 at 8:54 AM, the second of the Dayton Municipal
Court Clerk of Court, March 22, 2024 at 8:38 AM. Ex. E to First Am. Compl. at 2. Ms. Steele
asserts that “[n]othing in the [Dayton Municipal Court] file reflects that after issuance of the writ
of restitution either the [Dayton Municipal Court] or [NREA or Mr. Lasky] properly served [Ms.
Steele] with a Notice of Eviction as required by Dayton Municipal Court Rules 3.7(K).” First Am.
Compl. at 5, ¶ 34.
The first eviction attempt occurred on March 28, 2024. Id. at 6, ¶ 37.18 Ms. Steele alleges
that when “the Dayton Municipal Court bailiff [(the “Bailiff”)] and NREA’s representatives
appeared at the Property to eject [her] and the other occupants” she informed them of her
bankruptcy case and put them “in touch with Mr. Cooper, Plaintiff’s [former] bankruptcy attorney,
and the Dayton Municipal Court bailiff and NREA’s representatives left for the day.” Id. The
Bailiff returned to 1351 Oakdale, at Defendants’ urging, on April 1, 2024, and “caused the locks
17 Vinebrook Homes, LLC for NREA VB III, LLC, as a creditor, also filed and served a Notice of Motion for Relief
from Stay [] as to 1351 Oakdale Ave., Dayton, OH 45420 (Case No. 24-30467, Doc. 10).
18 The April 3 Magistrate’s Order corroborates this allegation as well. April 3 Magistrate’s Order at 1 (Ex. F to First
Am. Compl.).
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to be changed.” Id. at 6, ¶ 38. After discussions between the Bailiff and Ms. Steele’s attorneys,
“Mr. Cooper and/or Mr. Willison,” Ms. Steele was given a key to the changed locks but was
advised the Dayton Municipal Court “would hold an emergency hearing to consider the matter.”
Id. at 6, ¶ 39. On April 2, the Dayton Municipal Court held an emergency hearing to determine the
applicability of the automatic stay to the eviction. Id. at 6, ¶ 41. Ms. Steele and her attorney, Mr.
Willison, and NREA and its attorney, Mr. Lasky, appeared before the Magistrate and made their
arguments.19 Id.
On April 3, 2024, the Magistrate for the Dayton Municipal Court entered the Magistrate’s
Order (the “April 3 Magistrate’s Order”) concluding that the exception to the automatic stay in
§ 362(b)(22) applied to Ms. Steele’s eviction and that Ms. Steele should vacate the property by the
end of the day. Id. at 7, ¶ 43; Ex. F to First Am. Compl. In particular, the April 3 Magistrate’s
Order recounted the history of the Eviction Action, acknowledged that Ms. Steele had filed a
chapter 7 bankruptcy, quoted § 362(b)(22), and concluded as follows:
In this case, the Magistrate finds that the Court’s March 12, 2024
entry journalizing and adopting the agreed entry is equivalent to a judgment
for possession and that the judgment predates Defendant’s March 14, 2024
filing 	for 	bankruptcy 	protections. 	Therefore, 	pursuant 	to 	11 	USCS
362(b)(22) [sic], the bankruptcy automatic stay does not apply and the
move-out may proceed.
DEFENDANTS MUST VACATE THE PROPERTY BY 11:59
PM ON APRIL 3, 2024. THE BAILIFF WILL EXECUTE THE WRIT
ON APRIL 4, 2024.
April 3 Magistrate’s Order at 2 (emphasis in original) (Ex. F to First Am. Compl.). Mr. Willison,
Ms. Steele’s eviction counsel, faxed to the Dayton Municipal Court and emailed to Mr. Lasky
objections to the Magistrate’s Order, which were filed at 9:09 a.m. on April 4, 2024. Id. at 8, ¶ 47.
Mr. Willison also filed a Motion to Stay Set Out in the Dayton Municipal Court. Id. at 8, ¶ 48.
At about 10:15 a.m. on April 4, 2024, the Bailiff and representatives of NREA “appeared
at the Property and gave [Ms. Steele] fifteen (15) minutes to gather minimal belongings and leave
with orders to never return.” Id. at 8, ¶ 51. At about 10:30 a.m., the Bailiff locked the doors. Id. at
19 The arguments are summarized in the First Amended Complaint but are not recounted herein as they do not appear
to be germane at this time. See First Am. Compl. at 6-7, ¶ 42.a-c.
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8, ¶ 52. “The vast majority of [Ms. Steele’s] personal property remained inside the Property,
including [her] pet cat.” Id. Ms. Steele “drove by the Property at 3:35 p.m.” concerned “largely
about the welfare of her cat.” Id. at 8, ¶ 53. “Unfortunately, [Ms. Steele] did not see the cat.” Id.
Ms. Steele did notice that some of her personal property had been “dismantled, ruined, and/or cut
up and piled outside near the door[,]” including her couch, on which a makeshift sign had been
placed that read, “F*** yo couch.” Id.; Photograph (Ex. G to First Am. Compl.). James E. Nobile
(“Mr. Nobile”), Ms. Steele’s new counsel in this adversary proceeding (and co-counsel in her
chapter 7 case), emailed Mr. Lasky to request “information about the disposition or whereabouts
of Plaintiff’s personal possessions, and about Plaintiff’s cat.” Id. at 9, ¶ 56; Email dated Apr. 8,
2024 at 2:46 p.m. (Ex. H). On April 10, 2024, Mr. Lasky responded by email to say “[o]ur client
has located the cat.” Id. at 9, ¶ 58; Email dated Apr. 10, 2024 (Ex. I). Mr. Lasky then asked, “[h]ow
do you suggest we get the cat to your client?” Id. Mr. Nobile responded by email to Mr. Lasky
instructing NREA’s representative to call Ms. Steele’s daughter to arrange to pick up the cat. Id.
at 9, ¶ 60. However, as recounted in the First Amended Complaint, despite numerous alleged
follow-up emails by Mr. Nobile to Mr. Lasky, the cat was never returned to Ms. Steele, and Mr.
Lasky made conflicting statements about the cat’s status at the hearing held in this Court on
Thursday, April 11, 2024, stating the cat “was being well cared for and that arrangements would
be made for [Ms. Steele’s] representative to pick it up.” Id. at 10, ¶ 61.e. But in an email the
following day, Mr. Lasky informed Mr. Nobile that “his ‘understanding is that the cat was picked
up Wednesday night.’ ” Id. at 10-11, ¶¶ 61.e, 63.a. (emphasis in original).
C. 	Ms. Steele’s Filings in this Court During and After Her Eviction
1. 	Motion to Determine 11 U.S.C. § 362(b)(22) Inapplicable
On the morning of the day that Ms. Steele was evicted, April 4, 2024, and prior to the
deadline to respond to the Motion for Stay Relief, Ms. Steele filed a Motion to Determine 11 U.S.C.
§ 362(b)(22) Inapplicable (Case No. 24-30467, Doc. 11) (Apr. 4, 2024) (the “Motion to Determine
§ 362(b)(22) Inapplicable”).20 Id. at 8, ¶ 50. Therein, Ms. Steele asked for “an Order determining
that the limited exception provided under subsection 362(b)(22) is inapplicable to the forcible entry
and detainer case filed in the Dayton Municipal Court and titled Vinebrook Homes LLC for NREA
20 This motion was later withdrawn as moot following the eviction on April 18, 2024 (Case No. 24-30467, Doc. 17).
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VB III LLC v. Dana Steele, et al., Case No. 2023 CVG 6454 (Dayton, Ohio MC 2023)[,]” which
was filed on November 22, 2023 (Case No. 24-30467, Doc. 11). She further asserted that the Entry
prepared and signed by a Magistrate Ebony Wreh of the Dayton Municipal Court (the
“Magistrate”) on March 12, 2024, also signed by Judge Franklin Gehres, was not “final” even if it
was 	“the ‘equivalent’ 	of 	a 	judgment 	for 	possession[.]” Mot. 	to 	Determine § 362(b)(22)
Inapplicable at 7, § II.A.
2. 	Response to Motion for Stay Relief
The next day, April 5, 2024, Ms. Steele filed a Response in Partial Opposition to Motion
for Relief from Stay Filed by Vinebrook Homes LLC for NREA VB III, LLC as to 1351 Oakdale
Ave., Dayton, OH 45420 (ECF 9) (Doc. 12) (the “Response in Partial Opposition”). First Am.
Compl. at 9, ¶ 55. Therein, Ms. Steele complained that movant had continued with its eviction
case before obtaining an order on its Motion Relief from Stay. Resp. in Partial Opp. at 1, ¶ 3. And
she recounted the events occurring since she filed her Petition, which are similar to allegations she
now makes in her First Amended Complaint. Id. at 2-4, ¶ 4.a.-p. However, Ms. Steele stated that
she “does not oppose Vinebrook’s [Motion for Stay Relief] as it relates to possession of the
Property.” Id. at 5. But she did oppose Vinebrook’s “right to possess, control or otherwise destroy
or dispose of her personal property.” Id. at 6.
3. 	Agreed Order for Stay Relief and Withdrawal of Motion to Determine
§ 362(b)(22) Inapplicable
The Court held a telephonic status conference in Ms. Steele’s chapter 7 case on April 11,
2024. (Case No. 24-30467, Doc. 13). Messrs. Cooper and Nobile appeared for Ms. Steele, and Mr.
Lasky appeared for NREA (Case No. 24-30467, Apr. 11, 2024 Docket Entry). Following the status
conference, on April 17, 2024, the Court entered an Agreed Order Granting Motion for Relief from
Stay Filed by Vinebrook Homes, LLC for NREA VB III, LLC (ECF 9) (Case No. 24-30467, Doc.
16) (the “Agreed Order for Stay Relief”). The recited agreement of Vinebrook Homes, LLC for
NREA VB, LLC was stated as follows:
1. 	Upon entry of this Agreed Order, the relief sought in Vinebrook’s
Motion for Relief from Stay is GRANTED.
2. 	By agreeing hereto without further notice of hearing, the Debtor does
not waive any rights she may have against Vinebrook concerning her
eviction from the Property or the disposition of her personal property.
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Agreed Order for Stay Relief at 2, ¶¶ 1-2. The next day, April 18, 2024, Ms. Steele’s bankruptcy
attorneys filed a Notice of Withdrawal of: Motion to Determine 11 U.S.C. § 362(b)(22)
Inapplicable (ECF 11) (Doc. 17), stating she would “deal with the issues raised therein in
separately filed motions or pleadings.”
4. 	Ms. Steele’s Complaint
On April 18, 2024, the same day that Ms. Steele withdrew her Motion to Determine
§ 362(b)(22) Inapplicable, she filed her Complaint – 11 U.S.C. §[]362(k) (Case No. 24-30467,
Doc. 18) (the “Complaint”) against NREA initiating this adversary proceeding. (Doc. 1.) The
Complaint contained two Counts: “Count I – Declaratory Relief – §[]362(b)(22) Inapplicable” and
“Count II – 11 U.S.C. §[]362(k).” She claimed that by continuing the Eviction Action against her
after she filed bankruptcy, NREA had violated the automatic stay under § 362(a)(1), (3), and (6),
and was therefore liable for damages under § 362(k).
5. 	Answer to Complaint
On May 16, 2024, NREA, by and through Mr. Lasky as counsel, filed a two-page Answer
of Defendant NREA VB III, LLC (Doc. 4) to the Complaint (the “Answer”). Therein, NREA
admitted certain matters, denied others, and asserted various affirmative defenses, including failure
to state a claim upon which relief can be granted.21 NREA also attached the original Eviction
Complaint filed in the Eviction Action on November 22, 2023, as well as the Amended Complaint
in Forcible Entry and Detainer – Two Counts, filed on December 18, 2023, which actually just
contained one count for eviction based on Ms. Steele’s alleged illegal activity—felony drug use—
on the Real Property, to which the Nuisance-Abatement Notification was attached.22
6. 	Pretrial Orders, Extensions of Trial Schedule, and Other Filings
On the same day the Answer was filed, this Court entered an Order Governing Pretrial
and Trial Procedures in Adversary Proceedings . . . , Ordering Preliminary Pretrial Statement,
and Ordering Other Matters (Doc. 1) (Doc. 5), which required the parties to file Preliminary
21 Mr. Lasky, as NREA’s counsel, also asserted in its Sixth Defense that “debtor’s counselors’ failure to likewise use
due care in failing to utilize Form 101B does not translate into a cause of action for the Debtor herein . . . .” Compl.
at 2, ¶ 9. And, oddly, NREA made a jury demand. Compl. at 3.
22 Beyond the Public Use Nuisance notification and allegations of illegal drugs being present on the Property, the
Court has no allegations before it as to Ms. Steele’s involvement and obviously makes no conclusions in that regard.
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Pretrial Statements by June 18, 2024. The parties timely filed those Preliminary Pretrial Statements
(Docs. 9 and 10). Each party’s statements of the case therein essentially focused on whether the
exception in § 362(b)(22) to the automatic stay did or did not apply to NREA’s continued
prosecution of the Eviction Action in Dayton Municipal Court, and therefore whether Ms. Steele
is entitled to recover damages under § 362(k). The parties seemingly agreed upon discovery and
dispositive motion deadlines that would have culminated in a trial in late December 2024. An
Order Setting Pretrial Conference by Phone in Adversary Proceeding (Doc. 1) (Doc. 13) was
entered on June 26, 2024, setting the conference for July 18. On July 17, 2024, new counsel for
NREA with Taft, Stettinius & Hollister, LLP (“Taft”) filed Notices of Appearance (Docs. 17 and
18).
The pretrial conference was held on July 18, 2024, and this Court entered a Final Pretrial
Order (Doc. 20) (the “Final Pretrial Order”) on July 19, 2024, which set various filing dates, set
discovery cut-off dates, scheduled a trial, and ordered other matters.23
On November 13, 2024, the parties submitted a Joint Stipulation Permitting Defendant to
File Amended Answer to Plaintiff’s Complaint (Doc. 22), to which an Amended Answer and
Affirmative Defenses of NREA VB III, LLC USA, Inc. (the “Amended Answer”) was attached. The
Amended Answer (Doc. 23) was separately filed the same day. Both the Joint Stipulation and
Amended Answer were signed only by NREA’s new counsel at Taft, not by Mr. Lasky. NREA
continued to assert in its Amended Answer that Plaintiff’s “Complaint fail[ed] to state a claim
against NREA upon which relief can be granted.” Am. Answer at 20, ¶ 1.
On January 10, 2025, the Court entered a Joint Stipulation and Consent Order (Doc. 24)
(the “Joint Stipulation and Consent Order”) that extended the discovery cut-off dates, cancelled
the existing trial date, and ordered other matters, as well as set a new schedule culminating in a
deadline to respond to motions for summary judgment by August 15, 2025, with no rescheduled
trial date. The parties represented that they believed these extensions would allow them to continue
discussions “aimed at resolving this matter in the most efficient manner possible . . . .” Joint Stip.
and Consent Order at 2. On March 21, 2025, NREA filed a Second Amended Answer and
Affirmative Defenses of NREA VB III, LLC USA, Inc. (Doc. 27) (the “Second Amended Answer”),
23 Also in the Final Pretrial Order, the Court set a deadline of December 31, 2024 for either: (a) the parties to brief
“the issue of whether Defendant is entitled to a jury trial on either of the Plaintiff’s claims[]” or (b) Defendant to waive
its jury demand. Final Pretrial Order at 2.
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and a corresponding Joint Stipulation (Doc. 28) to permit NREA to file that Second Amended
Answer was filed on March 26, 2025.
Almost two months later, on May 20, 2025, the Court entered another Joint Stipulation and
Consent Order (Doc. 30) (the “Second Joint Stipulation and Consent Order”) submitted by the
parties, on the same basis (allowing the parties to continue discussions to resolve this matter),
which set a new schedule culminating with final trial briefs being due on October 12, 2025, but
left a trial date to be determined. Second Joint Stip. and Consent Order at 2. Discovery then heated
up, as indicated by a Motion to Compel (Doc. 31) filed by Ms. Steele on May 23, 2025, a status
conference held on May 28, 2025, and another Joint Stipulation and Consent Order (Doc. 35) (the
“Third Joint Stipulation and Consent Order”) entered on May 29, 2025, immediately followed by
a Motion to Quash and for Protective Order (Doc. 36) filed by NREA, seeking to quash a
deposition subpoena that Ms. Steele issued to NREA’s prior Counsel, Mr. Lasky. The Third Joint
Stipulation and Consent Order further extended the case schedule (on the same basis), such that
final trial briefs would be filed by December 16, 2025. Third Joint Stip. and Consent Order at 2.
This adversary proceeding was transferred to the current Bankruptcy Judge on June 3,
2025. On June 6, 2025, Mr. Lasky moved to withdraw as counsel for NREA, as Defendant (Doc.
38), because NREA had hired replacement counsel. In addition, also on June 6, 2025, attorneys
with Taft filed a Notice of Substitution of Counsel for Defendant NREA VB III, LLC (Doc. 39).
The Order (Doc. 41) permitting Mr. Lasky to withdraw as counsel for Defendant NREA was
entered on June 13, 2025. Also on June 13, 2025, the Court entered another Joint Stipulation and
Consent Order (Doc. 42) (the “Fourth Joint Stipulation and Consent Order”), which appeared to
duplicate the Third Joint Stipulation and Consent Order, except that it contained a Certificate of
Service.
Without reciting all the prior filings concerning discovery, the Court entered a Stipulated
Protective Order (Doc. 46) on June 16, 2025, and then entered an Order Scheduling a Hearing on
the Contested Matters (Docs. 31, 36 & 47), Requiring Filings, and Ordering Other Matters (Doc.
51) (the “Scheduling Order”) on July 11, 2025, scheduling an evidentiary hearing on August 15,
2025, on three discovery-related motions. On August 8, 2025, the Court entered a Stipulation and
Consent Order (Doc. 57), by which the parties agreed that Ms. Steele’s Motion to Compel (Doc.
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31) was moot and that her Motion to Compel (Doc. 36) and NREA’s Opposition (Doc. 49) were
withdrawn.
On August 12, 2025, the parties submitted the Stipulations of the Parties (Doc. 60) in
accordance with the Court’s Scheduling Order although they were very limited in scope. On
August 14, 2025, the Court held a hearing on the remaining contested discovery matters, rendered
an oral decision on August 22, 2025, and on August 27, 2025 issued its Order in Accordance with
Court’s Oral Decision Denying: (I) Defendant NREA VB III, LLC’s Motion to Quash and for
Protective Order, (II) Montgomery County Prosecutor’s Office’s Motion to Quash Subpoena
Duces Tecum (Doc. 47), and (III) Requiring a Status Report (Doc. 63).
On October 7, 2025, Ms. Steele filed a Motion for Contempt (Doc. 65) against the
Montgomery County, Ohio Prosecutor. NREA then filed, on October 14, 2025, an unopposed
Motion for Leave (Doc. 66) to file a Third Amended Answer and to assert a Third-Party Complaint.
On October 22, 2025, the Court entered an Order (Doc. 68) (the “Order Granting Leave”) granting
NREA’s Motion for Leave, although this Court noted that it might not have the ability to enter a
final judgment on the Third-Party Complaint in accordance with Article III of the United States
Constitution. Order Granting Leave at 2-3. The next day, October 23, 2025, NREA filed its Third
Amended Answer, Affirmative Defenses, and Third-Party Complaint of NREA VB III, LLC (Doc.
69) (in part, the “Third-Party Complaint”) which added a third-party claim for indemnification and
contribution against Mr. Lasky and his firm, Lasky & Scharrer. The former Counsel turned
Third-Party Defendant, Mr. Lasky, along with his law firm Lasky & Scharrer, filed a Motion of
Third-Party Defendants to Stay Proceedings on Third-Party Complaint (Doc. 77) (the “Motion to
Stay”) on November 13, 2025.
On December 2, 2025, Ms. Steele filed her Plaintiff’s Motion for Leave to File First
Amended Complaint (Doc. 82) (“Plaintiff’s Motion for Leave”) in which she sought to name Mr.
Lasky as an additional Defendant “and to include specific allegations surrounding LASKY’s
[Montgomery County Prosecutor’s Office] activity that could be connected to Plaintiff’s stay
violation claims.” Pl.’s Mot. for Leave at 5, ¶ 14.
In the meantime, on December 16, 2025, Mr. Lasky and the Lasky & Scharrer law firm
filed 	Third-Party 	Defendants’ 	Supplemental 	Motion 	to 	Stay 	Proceedings 	(Doc. 	84) 	(the
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“Supplemental Motion to Stay”)24 asking this Court to defer consideration of the proposed First
Amended Complaint “until pending state court proceedings are resolved” in order to avoid
“duplicative litigation[.]” Suppl. Mot. to Stay at 1. A copy of a Motion for Summary Judgment
filed by Mr. Lasky and Lasky & Scharrer in a case captioned Vinebrook Homes, LLC v. Lasky,
Case No. 2025 CV 05798, in the Common Pleas Court of Montgomery County, Ohio, Civil
Division, filed on December 11, 2025, was attached, which likewise concerned claims asserted by
NREA, or an affiliate, against the new Third-Party Defendants regarding the Eviction Action.
On January 1, 2026, the Court entered an Order (Doc. 91) scheduling a hearing for February
3, 2026 at 10:00 a.m. on the Third-Party Defendants’ Motion to Stay Proceedings on Third-Party
Complaint (Doc. 77) and NREA’s Response in Opposition (Doc. 81). The next day, Ms. Steele
filed her First Amended Complaint (Doc. 93), which is further described below.
7. 	First Amended Complaint
As noted above, on January 2, 2026, Ms. Steele filed her First Amended Complaint. Similar
to the prior Complaint, it contained two counts: “Count I – Declaratory Relief – §[]362(b)(22)
Inapplicable” and “Count II – 11 U.S.C. §[]362(k).” First Am. Compl. at 13-18. Once again, Ms.
Steele set out two claims. Count I, which is virtually unchanged, seeks declaratory relief deeming
the stay exception in 11 U.S.C. § 362(b)(22) inapplicable. Count II, which is also virtually
unchanged, seeks attorney fees and actual and punitive damages for a violation of the stay under
11 U.S.C. § 362(k).
The factual allegations were largely the same; however, Ms. Steele added certain
allegations concerning actions by Mr. Lasky, who had already been brought in by NREA as a
Third-Party Defendant, along with his law firm, but was now also a Defendant to the First
Amended Complaint based upon his involvement in representing NREA in the Eviction Action.
See, e.g., First Am. Compl. at 6-7, ¶ 42 (newly added paragraph with subparagraphs a, b, and c,
concerning Mr. Lasky’s representations or statements to the Magistrate of the Dayton Municipal
Court at the hearing held on April 2, 2024, regarding the applicability of § 362(b)(22) and whether
the Eviction Action could proceed). Ms. Steele also added new paragraphs 69 through 80, which
concern a letter regarding Mr. Lasky’s brief assignment to Ms. Steele’s criminal case as an
24 The Third-Party Defendants filed an Amended Supplemental Motion to Stay Proceedings (Doc. 88) on December
23, 2025, to which an expanded Certificate of Service was attached.
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Assistant County Prosecutor for Montgomery County, Ohio, and other aspects of Ms. Steele’s
on-going criminal case. In particular, an affidavit in support of the October 2, 2023 search warrant
indicated that the Dayton Police Department found methamphetamine residue in the trash outside
the Property; witnessed Ms. Steele’s brother, Damon Steele, cleaning out one or more of the
garbage receptacles; and found a shotgun and crystalline and liquid methamphetamine in or on the
Property during the search. See First Am. Compl. at 12-13, ¶ 75.a.-e.; Search Warrant (Ex. M to
First Am. Compl.) (Doc. 93-13). Ms. Steele also alleges, “upon information and belief,” that Mr.
Lasky “was not randomly assigned to Plaintiff’s criminal case prosecution.” Id. at 13, ¶ 77.25
Overall, the First Amended Complaint is 18 pages with 99 numbered paragraphs, whereas
the original Complaint was 15 pages with 86 numbered paragraphs; however, the First Amended
Complaint is substantially the same, including fairly detailed factual allegations concerning the
events leading up to Ms. Steele’s bankruptcy filing, continuation of the Eviction Action, and filings
in Ms. Steele’s chapter 7 bankruptcy case. The main difference is that this time, Ms. Steele seeks
to hold NREA and Mr. Lasky jointly and severally liable or, as appropriate, separately liable. First
Am. Compl. at 18.
Distilling Count I of the First Amended Complaint to its essence, Ms. Steele asserts as
follows:
88. 	Plaintiff is entitled to a declaratory ruling that the exception provided by 11
U.S.C. §[]362(b)(22) is inapplicable to any order coming from the [Dayton
Municipal Court] prior to March 14, 2024, at 9:[3]8 p.m., and specifically,
the March 12, 2024, “Entry”.
89. 	Because the automatic stay under 11 U.S.C. §[]362(a) was in full force and
effect after 9:[3]8 p.m. on March 14, 2024, any actions taken thereafter by
Defendant, or 	indeed the [Dayton Municipal 	Court], inclusive of 	the
Magistrate’s Order dated April 3, 2024 (Exhibit F) are invalid and without
legal force or effect. Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th
Cir. 1993).
First Am. Compl. at 15, ¶¶ 88-89. Piggybacking on Count I, in Count II of the First Amended
Complaint Ms. Steele seeks damages under § 362(k), both actual and punitive:
25 This allegation, however, does not appear to be relevant to the issue of whether § 362(b)(22) applies to NREA or
Mr. Lasky’s activities in the Eviction Action. Rather, it appears to ultimately relate to the issue of whether punitive
damages would be warranted.
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95. 	Plaintiff has suffered injuries caused by Defendants’ willful violations of the
automatic stay, which include but are not limited to the following: a.
Premature dispossession of the Property;
a. 	Premature dispossession of the Property;
b. 	Permanent dispossession and destruction of the vast majority of her
personal property;
c. 	Continuing and permanent[] dispossession of Plaintiff’s pet cat;
d. 	Extreme emotional distress;
e. 	Trauma and emotional distress for her child.
96. 	Defendants have acted egregiously and vindictively towards Plaintiff.
97. 	Defendants have acted in bad faith and with reckless disregard for the law.
98. 	Plaintiff is entitled to recover her actual damages, costs and reasonable
attorney fees and expenses.
99. 	Plaintiff, under these circumstances, is entitled to recover appropriate punitive
damages.
Id. at 17-18, ¶¶ 95-99.
8. 	More Filings
On January 7, 2026, after filing her First Amended Complaint, Ms. Steele jumped into the
fray of the third-party matters by filing a Response in Opposition to Third Party Defendant’s
Supplemental Motion to Stay Proceedings (ECF AP 84) (Doc. 99) (the “Response in Opposition
to Motion to Stay”). As with Mr. Lasky and Lasky & Scharrer’s original Motion to Stay, Ms.
Steele’s Response in Opposition to Motion to Stay focused on § 362(b)(22) and related issues,
arguing that the Entry of Restitution “was neither final nor non-appealable.” Resp. in Opp. to Mot.
to Stay at 6, ¶ 20. In response, Mr. Lasky and Lasky & Sharrer filed their Response to
Memorandum in Opposition to Pending Motion for Stay (Doc. 101).
On January 15, 2026, the Court entered the Agreed Order Modifying Order Scheduling
Hearing (Doc. 91) on Third Party Defendants’ Motion to Stay (Doc. 77) (Doc. 104), moving the
hearing from February 3 to 12, 2026. Meanwhile, the Court held a telephonic hearing on January
20, 2026, on Ms. Steele’s Motion to Hold Montgomery County, Ohio Prosecutor in Contempt
Pursuant to Fed. R. Civ. P. 45(g) (Doc. 65).
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9. 	Defendant NREA’s Motion to Dismiss and Motion to Strike, and Ms.
Steele’s Response
As noted above, NREA filed its Motion to Dismiss on January 16, 2026, supposedly
pursuant to Civil Rule 12(b)(1) and (b)(6), made applicable by Bankruptcy Rule 7012(b). In the
alternative, NREA included a Motion for a More Definite Statement, pursuant to Civil Rule 9(g),
made applicable by Bankruptcy Rule 7009, and Civil Rule 12(e). As NREA summarized therein:
The primary question before the Court is whether NREA’s actions
in evicting [Ms.] Steele, based upon a prepetition judgment, qualify for the
exemption to the automatic stay set forth in 11 U.S.C. § 362(b)(22).
Through her First Amended Complaint, Plaintiff alleges NREA’s actions
were not exempt and seeks damages from NREA and its former counsel
because the act of evicting [Ms.] Steele occurred after she had filed her
bankruptcy petition. Irrespective of the bankruptcy filing, 11 U.S.C.
§ 362(b)(22) makes it clear that an eviction based on a final prepetition
judgment for possession entered before her bankruptcy filing is exempted
from the automatic stay set forth in 11 U.S.C. § 362(a).
Mot. to Dismiss at 4, § I. Moreover, NREA asserts that its postpetition actions were simply the
continuation of the eviction and the “post-petition issuance of the writ of restitution was merely a
ministerial act,” such that the First Amended Complaint does not state a valid claim and “[e]ven
accepting the pleaded facts as true, the Complaint fails to state a claim, and it should be dismissed
as to NREA.” Id. NREA further argued that its actions could not be a willful violation of the stay
because it relied on a colorable court order from the Dayton Municipal Court, the Plaintiff failed
to invoke the procedure under § 362(l) when a prepetition judgment for possession existed, and
the Declaratory Judgment count was plead incorrectly and legally defective, and also that the
Plaintiff failed to properly plead special damages under Civil Rule 9(g). Id. at 12-17, § V.26
NREA’s Motion to Dismiss avers that “[e]ven accepting the allegations in the Amended
Complaint as true, Plaintiff fails to state any viable claim directly against NREA.” Mot. to Dismiss
at 9, ¶ 18. At the same time, NREA asserts that “[w]hen a creditor proceeds under a facially valid,
‘colorable’ court order or legal authority, any stay violation should not be considered ‘willful’ for
purposes of damages.” Mot. to Dismiss at 12, ¶ 30 (citing In re Univ. Med. Ctr., 973 F.2d 1065
(3d Cir. 1992); Cal. Coast Univ. v. Aleckna (In re Aleckna), 13 F.4th 337 (3d Cir. 2021)). And
26 As noted in the Jurisdiction section of this Opinion and Order, NREA also referenced Civil Rule 12(b)(1) as a basis
for its Motion to Dismiss, but does not elaborate on this point, except to mention jurisdiction in passing in the context
of the Declaratory Judgment Act.
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because Ms. Steele did not invoke the procedure under § 362(l), the automatic stay exception of
§ 362(b)(22) applied, such that no automatic stay was ever in effect as to the Eviction Action and
NREA was entitled to proceed to evict Ms. Steele. Mot. to Dismiss at 13-15, ¶¶ 33-41. NREA
further asserts that there is no “case of actual controversy” that would satisfy the Declaratory
Judgment Act’s requirement, wherein Ms. Steele asks the Court “to declare that 11 U.S.C.
§ 362(b)(22) ‘is inapplicable to any order coming from the [Dayton Municipal Court] prior to
March 14, 2024, at 9:48 p.m., and specifically, the March 12, 2024 ‘Entry’.’ ” Mot. to Dismiss at
17, ¶ 49 (citing First Am. Compl., ¶ 88 (emphasis in original)). However, NREA also asserts that
Ms. Steele’s “claim for declaratory judgment is entirely subsumed within her second cause of
action” such that it is “procedurally unnecessary and redundant.” Mot. to Dismiss at 16, ¶ 44. As
to Ms. Steele’s “demand for emotional distress and punitive damages[,]” NREA asserts that “[h]er
bare, speculative assertions of emotional and property-related harm, . . . do not satisfy Rule 9(g)’s
requirement that special damages be specifically stated . . . .” Mot. to Dismiss at 19, ¶ 55.
On January 21, 2026, NREA filed a Notice of its Motion to Dismiss (Doc. 109), giving
parties twenty-one days to respond.
On February 9, 2026, in and amongst the parties gearing up for a hearing on the Motion to
Stay filed by Mr. Lasky and Lasky & Sharrer (see Docs. 110-115), Ms. Steele filed her Motion to
Strike and/or to Summarily Deny Defendant, NREA VB III, LLC’s Motion to Dismiss First
Amended Complaint and Motion for a More Definite Statement (AP ECF 106 & 108) (Doc. 116).
Then, on February 11, 2026, Ms. Steele filed her Response in Opposition to NREA VB III, LLC’s
Motion to Dismiss First Amended Complaint and Motion for a More Definite Statement (ECF AP
106) (Doc. 117) (the “Response”). Pursuant to LBR 9013-1(c) a reply memorandum was due
within seven days after the date of service of the Response, so by February 11, 2026, but NREA
did not file a reply.
Within her Response, Ms. Steele first asserts that NREA and Mr. Lasky violated subsection
(a)(1) of the automatic stay, essentially by continuing the Eviction Action. Resp. at 6, § III.A.1.
Ms. Steele also argues that NREA and Mr. Lasky violated the automatic stay by “engaging in the
specifically described various and multiple acts to obtain possession of property of the estate or of
property from the estate or to exercise control over property of the estate – (11 U.S.C. §[]362(a)(3)
emphasis added); (to wit: Plaintiff’s possessory rights in the Property, Plaintiff’s personal property,
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and Plaintiff’s pet cat, ‘DJ Gucci DJ’).” Resp. at 6, § III.A.1 (citing First Am. Compl. at ¶¶ 1-54,
93b, 94a-i). Of note, nowhere in the Response does Ms. Steele assert that NREA or Mr. Lasky
violated subsection (a)(6) of the automatic stay (§ 362), instead focusing on subsections (a)(1) and
(a)(3). Resp. at 5, § III.A.
Also within her Response, Ms. Steele takes issue with the two cases mentioned above cited
by NREA, as involving a specific limitation on potential damages, but not having to do with
establishing a claim under § 362(k)(1) for damages for violation of the automatic stay. See Resp.
at 8-11, § III.A.2 (discussing Univ. Med. Ctr., 973 F.2d 1065 and Cal. Coast Univ., 13 F.4th 337).
Ultimately, Ms. Steele’s response is that she is not required to prove all of her claims at this time;
rather, because they have been adequately pled, she will have “to prove these damages with
adequate evidence at trial.” Resp. at 12 (citing Dawson, 665 B.R. at 804-05). And that she “has no
quarrel with the Court weighing in on [the] issue of whether 11 U.S.C. § 362(b)(22) applied.”
Resp. at 13, § III.B. And Ms. Steele appears to agree with Mr. Lasky that a defendant in an FE&D
action needs to seek a stay of execution and post a bond, lest “all issues relating to forcible entry
and detainer are rendered moot.” Resp. at 15, n.2 (citing Tripp v. French, 2002-Ohio-6996, at ¶ 8
(9th Dist.) (other citations omitted). Ms. Steele, however, skips over the necessary step of seeking
a stay of judgment of restitution under R.C. § 1923.14 in order to preserve a right of appeal. This
issue is discussed in-depth in the analysis below. Moreover, the acknowledgment of a right of
appeal implicitly concedes that the March 12 Entry for restitution of the Real Property was final
and appealable. See Resp. at 15-17, § III.B.1.
Interestingly, Ms. Steele further avers in her Response that “some question should be raised
about what really constitutes a ‘judgment for possession’ under Ohio law.” Resp. at 17, § III.B.1.
She posits that “it would be connected only to the writ of restitution – which under these
circumstances could not issue until after March 15, 2024 – and in fact did not issue until March
20, 2024.” Id. In conjunction, she argues that only non-appealable final judgments for possession
fall within the narrow application of the exception in § 362(b)(22). Resp. at 17-18, § III.B.2. This
will also be addressed in-depth in the analysis below. Last, Ms. Steele asserts that § 362(l) was
inapplicable, but in doing so confirms that she “never attempted to invoke the exception to the
exception found in 11 U.S.C. §[]362(l) because “[s]he knew and understood that (sooner than later)
she would be obligated to leave.” Resp. at 18, § III.B.3. And she argues that § 362(l) did not apply
because she was being evicted for a “non-monetary default[.]” Resp. at 19, § III.B.3. Last, Ms.
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Steele contends that In re Maggiore, No. 16-60234, 2016 Bankr. LEXIS 972, 2016 WL 1238852
(Bankr. N.D. Ohio Mar. 29, 2016) is “inapposite” because “had the Judge been confronted with
the precise issue he would have addressed whether the underlying judgment remained appealable
(which it was) and ruled consistently with decisions finding that determinative.” Resp. at 19,
§ III.B.4.
10. 	Subsequent Proceedings and Filings
The hearing on Mr. Lasky and Lasky & Sharrer’s Motion to Stay was held on February 12,
2026, with all parties and counsel in attendance. On February 16, 2026, the Court entered an Order
(Doc. 119) concerning Ms. Steele’s motion to hold the Montgomery County, Ohio Prosecutor in
contempt pursuant to Civil Rule 45(g) (Doc. 65), which Ms. Steele’s counsel decided not to further
pursue as a result of the discussion on the record at the hearing held on January 20, 2026. And on
February 20, 2026, this Court entered its wide-ranging Order (Doc. 121) (the “Order Denying
Motions and Setting Deadlines”) ruling on a number of matters filed with the Court and argued at
the hearing held on February 12, 2026, as detailed therein. As noted in the Order Denying Motions
and Setting Deadlines, in the Third-Party Defendants’ last filing, the Third-Party Defendants’
Response to Plaintiff’s Supplemental Memorandum (and Motion in Limine Re) (Doc. 115), filed
on February 5, 2026, they “pivoted to arguing that all the claims against Mr. Lasky and his firm
should be dismissed . . . .” Order Denying Motions and Setting Deadlines at 5. But consideration
of dismissal of this adversary proceeding at that point was premature. As explained therein:
The Court advised the parties it would not be considering dismissal
of this adversary proceeding at the Hearing, particularly given that the
Third-Party Defendants: (1) had not filed a motion to dismiss either the
Third-Party Complaint or the First Amended Complaint; and (2) had
already filed an Answer of Third-Party Defendants, Laurence Lasky and
Lasky & Scharrer to Plaintiff’s First Amended Complaint (Doc. 105).
Further, with respect to the implication that this Court would be bound by
the Dayton Municipal Court’s prior determination that the automatic stay
did not apply due to the exception in 11 U.S.C. § 362(b)(22), and although
the parties did not brief the issue, the Court advised that based on decisions
by the United States Court of Appeals for the Sixth Circuit, while non-
bankruptcy courts may independently determine whether the automatic stay
applies and proceed when they determine it does not, that comes with a
major practical caveat: Succinctly put, they “proceed[] at their own risk.”
See NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 939-40 (6th Cir.
1986). Moreover, the Rooker-Feldman doctrine does not preclude this
Court from determining the applicability of the automatic stay in this
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adversary proceeding. See, e.g., McClafferty v. DeWine (In re McClafferty),
571 B.R. 267, 273 (Bankr. N.D. Ohio 2017) (concluding that “the Rooker-
Feldman doctrine does not prohibit all federal cases that are somehow
related to a prior state-court decision.” (citing Hamilton v. Herr (In re
Hamilton), 540 F.3d 367, 372 (6th Cir. 2008)).
As a result, counsel for the Third-Party Defendants asked for leave
to file a motion to dismiss and given that there is already a pending motion
to dismiss the First Amended Complaint, filed by Defendant, the Court
stated that it would permit the Third-Party Defendants to do the same.
Order Denying Motions and Setting Deadlines at 5-6 (footnote 2 omitted).
As a result of the hearing held on February 12, 2026, the Third-Party Defendants’ Motion
to Stay (Doc. 77) and Amended Supplemental Motion to Stay (Doc. 88) were denied without
prejudice, and the Third-Party Defendants were granted leave to file: “(a) a motion to dismiss the
First Amended Complaint (Doc. 93), pursuant to [Civil Rule 12] . . . , and (b) an answer or motion
to 	dismiss 	the Third-Party 	Complaint 	(Doc. 	69) . . . and/or 	motion 	for 	abstention 	of 	the
[T]hird-[P]arty Complaint, pursuant to Bankruptcy Rules 5011(b) and 9014, and 28 U.S.C.
§ 1334(c).” Additionally, the Motion in Limine (Doc. 114) was denied as moot, and Ms. Steele’s
Motion to Strike (Doc. 116) was denied based on the following analysis:
Finally, because Plaintiff obtained leave to, and did, file her First
Amended Complaint (Doc. 93) on January 2, 2026, which replaced
Plaintiff’s 	original 	Complaint 	– 	11 	U.S.C. 	§ 	362(k) 	(Doc. 	1) 	(the
“Complaint”) for all purposes, [] Defendant was entitled to another
opportunity to move or answer in response pursuant to Civil Rule 15(a)(3),
made applicable to this adversary proceeding by Bankruptcy Rule 7015.
See, 	e.g., 	Wesley 	v. 	Rigney, 	913 	F.Supp.2d 	313 	(E.D. 	Ky. 	2012).
Accordingly, Plaintiff’s Motion to Strike (Doc. 116) is DENIED.
Order Denying Motions and Setting Deadlines at 8 (footnote 3 omitted) (emphasis in original).
Mr. Lasky and Lasky & Sharrer did not file a motion to dismiss the First Amended
Complaint, for which they had been granted leave under the Order Denying Motions and Setting
Deadlines. Instead, on March 3, 2026, they filed Third-Party Defendant’s Motion for Leave to File
Motion for Summary Judgment (Doc. 124) (the “Motion for Leave”), arguing that “the First
Amended Complaint should . . . be dismissed as to him with prejudice.” Mot. for Leave at 2. At
its core, the proposed Motion for Summary Judgment Dismissing First Amended Complaint (Doc.
124-1), which was attached to the Motion for Leave, asserts that § 362(b)(22) applied to except
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the prosecution of the Eviction Action from the automatic stay. See Mot. for Summ. J. at 12 (Doc.
124-1) (“The only two questions of relevance before this Court are whether the March 12, 2024
[Judgment] constituted a judgment for possession? And if so, what is the resulting effect on
Steele’s underlying amended complaint against Lasky?”).
On March 5, 2026, the Third-Party Defendants also filed an Answer (Doc. 126) to NREA’s
Third-Party Complaint (Doc. 69), along with a Motion to Dismiss Third-Party Complaint or, in
the alternative, Motion to Abstain from Exercising Jurisdiction to Hear Third-Party Complaint
(Doc. 127). On March 11, 2026, Ms. Steele filed a Response in Opposition to Laurence A. Lasky’s
Motion for Leave to File Motion for Summary Judgment or in the Alternative for Relief Under
Fed. R. Civ. P. 56(d) (ECF 124) (Doc. 130) (the “Response to Motion for Leave”), in which she
asked the Court to either deny or defer ruling on the Motion for Leave, pursuant to Civil Rule
56(d), “until after Plaintiff has reported to the Court that she has completed her discovery as to
[Mr. Lasky].” Resp. to Mot. for Leave at 4, ¶ 10. Mr. Lasky filed a Reply (Doc. 132) to the
Response to Motion for Leave on March 17, 2026, in which he asserted that “[r]espectfully, no
testimony of Lasky can or would change what the pre-existing court records of the Dayton
Municipal Court are, or this Court’s interpretation of them.” Reply at 3. Therein, Mr. Lasky asked
the Court to “rule only upon the purely legal issues related to Plaintiff’s §[]362(k) causes of action,
which does not require this Court to take into consideration Lasky’s affidavit.” Reply at 3.
D. 	Joint Request for Mediation
Following some further discovery activity, NREA, as Defendant and Third-Party Plaintiff,
and Ms. Steele, as Plaintiff, filed a Joint Request for Mediation (Doc. 142) (the “Request for
Mediation”) on June 5, 2026, to request mediation of all issues raised in this adversary proceeding.
However, on the local form provided on this Court’s website they checked the box to indicate that
not all parties were requesting mediation. Specifically, Mr. Lasky and his law firm Lasky &
Scharrer did not join in the Request for Mediation. Therefore, in accordance with this Court’s
Mediation Procedures,27 which provide that “[i]f the Request for Mediation does not certify that
all parties consent, the Request for Mediation may be set for hearing[,]” the Court scheduled a
telephonic status conference through a virtual docket entry (Doc. 143) on June 18, 2026. The
27 Available in pdf format on the Court’s website at https://www.ohsb.uscourts.gov/content/mediation-program-
procedures.
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following day Third-Party Defendants Mr. Lasky and Lasky & Scharrer, simply referred to therein
as “Lasky,” filed a Motion for Leave to Supplement Motion for Summary Judgment Dismissing the
First Amended Complaint as to Lasky (Doc. 145), which was one of a string of filings through
which Lasky has sought to stay or dismiss the claims against them in this Court.28
E. 	Status Conference on Request for Mediation
Counsel for Ms. Steele, NREA, and Lasky, participated in the telephonic status conference
on June 23, 2026, to discuss the Request for Mediation and the scope of mediation. After some
discussion, it became clear that the one issue the parties all agreed upon was that they wanted this
Court to rule on the applicability of the eviction exception to the automatic stay in § 362(b)(22) to
the facts alleged in this adversary proceeding as the lynchpin to facilitating the resolution of this
adversary proceeding, by mediation or otherwise. And in response to a follow-up question by the
Court, the parties agreed that the Court had all the necessary filings before it to rule on this legal
issue.
IV. 	Analysis
A. 	Civil Rule 12(b)(6)
NREA seeks to dismiss the First Amended Complaint for failure to state a claim under
Civil Rule 12(b)(6). A claim may be dismissed for “failure to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Civil Rule 12(b)(6) motion, a reviewing court
“must construe the complaint in the light most favorable to the plaintiff, accept all factual
allegations as true, and determine whether the complaint ‘contains enough facts to state a claim to
relief that is plausible on its face.’ ” Sutton v. Berkley (In re Berkley), No. 24-1072, 2025 Bankr.
28 Including all Exhibits, namely JJ, KK, LL, MM, and NN, this filing was 579 pages. This supplemented Lasky’s
prior Third-Party Defendant’s Motion for Leave to File Motion for Summary Judgment (Doc. 124), filed on March 3,
2026, to which Exhibit U was attached, and which incorporated by reference Exhibits A through T (Doc. 111), a
99-page submission filed in conjunction with what began as a Motion of Third-Party Defendants to Stay Proceedings
on Third-Party Complaint (Doc. 77), filed by Lasky on November 13, 2025, itself a 90-page submission, followed by
Third-Party Defendants’ Supplemental Motion to Stay Proceedings (Doc. 84), a 49-page filing, and Third-Party
Defendants’ Amended Supplemental Motion to Stay Proceedings (Doc. 88). Ultimately, at the hearing held on
February 12, 2026, Lasky attempted to conduct a full-blown trial to support a request for dismissal, which the Court
declined to entertain and resulted in the Order (Doc. 121) entered on February 20, 2026, denying Lasky’s Motion to
Stay (Doc. 77) and Amended Supplemental Motion to Stay (Doc. 88), but also granting Lasky leave to file a motion
to dismiss the First Amended Complaint, time to answer, move to dismiss or abstain from hearing the Third-Party
Complaint, and setting a deadline for NREA, as Third-Party Plaintiff to file a brief concerning this Court’s subject
matter jurisdiction to hear and determine the Third-Party Complaint.
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LEXIS 227, at *6 (Bankr. N.D. Ohio Feb. 5, 2025) (quoting U.S. v. Ford Motor Co., 532 F.3d 496,
502 (6th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 569 (2007))). The
plausibility standard requires that there be “more than a sheer possibility that a defendant has acted
unlawfully” and that “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcraft v. Iqbal, 556
U.S. 662, 678 (2007). Analyzing plausibility is a context-specific task. See Berkley, 2025 Bankr.
LEXIS 227, at *7 (citing Iqbal, 556 U.S. at 663). And courts may “draw upon [their] ‘judicial
experience and common sense’ to decide whether the claims are ‘plausible.’ ” Crawford v. Tilley,
15 F.4th 752, 762 (6th Cir. 2021) (quoting Iqbal, 556 U.S. at 679).
The general threshold for a complaint to survive a Civil Rule 12(b)(6) defense is “a short
and plain statement of the claim showing that the pleader is entitled to relief[,]” which allows the
defendant fair notice of the claim and its grounds. Fed. R. Civ. P. 8(a)(2);29 Twombly, 550 U.S. at
555. This standard requires more than reliance on mere conclusory allegations or unsupported legal
conclusions. Go-Mart v. Bazell (In re Bazell), 677 B.R. 836, 843(Bankr. S.D. Ohio 2026) (citing
Twombly, 550 U.S. at 570)). Under Civil Rule 8, a “complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.” Berkley, 2025 Bankr. LEXIS 227, at *8, 2025 WL 426476, at *3 (citing Bishop v.
Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008)). Although factual allegations by the non-
moving party must be taken as true and all inferences drawn in favor of the non-moving party, “a
legal conclusion couched as a factual allegation” need not be taken as true. Cincinnati Life Ins. Co.
v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
Civil Rule 12(b)(6) exists for the purpose of permitting NREA “to test whether, as a matter
of law,” Ms. Steele “is entitled to relief even if everything alleged in” her First Amended
Complaint “is true.” McKee Foods Corp. v. Pitney Bowes, Inc., No. 1:06-cv-80, 2007 U.S. Dist.
LEXIS 20630, at *4-5 (E.D. Tenn. Mar. 22, 2007) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th
Cir. 1993)). “A complaint should not be dismissed for failure to state a claim unless ‘it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
29 Civil Rule 8(a) is made applicable to this adversary proceeding by Bankruptcy Rule 7008, with certain additional
requirements for alleging jurisdiction and stating whether the pleader consents to the entry of final orders by the
bankruptcy court, neither of which are presently at issue.
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him to relief.’ ” McKee Foods, 2007 U.S. Dist. LEXIS 20630 at *5 (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957); Arrow v. Fed. Reserve Bank, 358 F.3d 392, 393 (6th Cir. 2004)).
B. 	Consideration of Attachments to a Complaint Under Civil Rule 10(c)
Plaintiff included thirteen (13) attachments to the First Amended Complaint, labeled
Exhibits A-M (collectively, the “Exhibits”). The Exhibits, which Ms. Steele represents are “true
and authentic copies,” are as follows:
(A) 	the Lease;
(B) 	the deed to the Real Property;
(C) 	Mr. Lasky’s “Agreed Entry” proposed on or about January 16, 2024;
(D) 	the March 12 Entry for restitution of the Real Property;
(E) 	the Writ of Restitution;
(F) 	the April 3 Magistrate’s Order;
(G) 	the photograph of Ms. Steele’s personal belongings, post-eviction (and the
makeshift sign);
(H) 	an email from Ms. Steele’s bankruptcy counsel dated April 8, 2024, asking
about “the disposition or whereabouts of Plaintiff’s personal possessions,
and about Plaintiff’s cat”;
(I) 	an email from Mr. Lasky dated April 10, 2024 to Ms. Steele’s bankruptcy
counsel stating that NREA “ ‘located the cat’ and asked for suggestions as
to how to get the cat to Plaintiff”;
(J) 	an email from Ms. Steele’s counsel to Mr. Lasky, dated April 16, 2026,
asking about the whereabouts of the cat and other matters;
(K) 	a letter from Mr. Lasky to Ms. Steele’s bankruptcy counsel, sent on or about
November 7, 2024, disclosing his role as an Assistant County Prosecutor
for Montgomery County, Ohio in the criminal division and his random
assignment to Ms. Steele’s criminal case;
(L) 	a state court subpoena ad testificandum signed by Mr. Lasky on October 8,
2024, for Detective Jason M. Barnes with the Dayton, Ohio P.D. to appear
and testify before a grand jury on October 23, 2024; and
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(M) 	a Search Warrant dated September 29, 2023, which was executed on
October 2, 2023 at the Real Property.
Civil Rule 10(c), which is made applicable to this proceeding through Bankruptcy Rule
7010, states that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” Courts have typically defined an “ ‘instrument’ . . . as ‘a written legal
document that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will,
promissory note, or share certificate.’ ” LaGuardia v. Designer Brands, Inc., No. 2:20-cv-2311,
2020 U.S. Dist. LEXIS 199262, at *11, 2020 WL 6280910, at *4 (S.D. Ohio Oct. 27, 2020) (citing
Gooden v. Batz, No. 3:18-cv-302, 2019 U.S. Dist. LEXIS 122610, at *13, 2013 WL 3318164, at
*4 (S.D. Ohio July 22, 2019) (citing Instrument, Black’s Law Dictionary (11th ed. 2019) and
collecting cases)).
Additionally, under Sixth Circuit precedent, documents attached to the pleadings that are
“referred to in the pleadings and . . . integral to the claims . . . may be considered without converting
a motion to dismiss into one for summary judgment.” Commer. Money Ctr., Inc. v. Ill. Union Ins.
Co., 508 F.3d 327, 335-36 (6th Cir. 2007) (citing Jackson v. City of Columbus, 194 F.3d 737, 745
(6th Cir. 1999)). Ms. Steele mentions and relies on each of the Exhibits attached to the First
Amended Complaint. Therefore, the Court will consider the attached Exhibits as incorporated
within the First Amended Complaint. See also In re Bazell, 677 B.R. at 843-44 (collecting cases
and summarizing Sixth Circuit case law allowing for consideration of documents attached to a
complaint in the motion to dismiss context.). Moreover, as discussed below, it is appropriate for
the Court to consider the docket of the Dayton Municipal Court for the Eviction Action in order to
put the allegations in and orders attached to the First Amended Complaint in context.
C. 	Declaratory Judgment Act
Ms. Steele’s first count (Count I) seeks a “declaratory ruling” from this Court that
Ҥ 362(b)(22) is inapplicable to any order coming from [Dayton Municipal Court] prior to March
14, 2024, at 9:[3]8 p.m., and specifically, the March 12, 2024, ‘Entry’.” First Am. Compl. at 15,
¶ 88. NREA’s invocation of the stay exception in § 362(b)(22) is a possible defense to Ms. Steele’s
second count for a violation of § 362(k). Ms. Steele does not explain how the Declaratory Judgment
Act applies in this adversary proceeding; however, it is clear that the parties fervently dispute
whether the eviction exception applied to NREA’s acts to continue the Eviction Action. And
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regardless of whether the Declaratory Judgment Act applies, the Court will still have to analyze
the applicability of § 362(b)(22) to reach a conclusion regarding Ms. Steele’s second count (Count
II) alleging a violation of the automatic stay and seeking damages under § 362(k).
Nevertheless, the Declaratory Judgment Act, as set forth in 28 U.S.C. § 2201(a), allows a
court to “declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought” regarding “a case of actual
controversy within its jurisdiction.” A controversy is a “real, substantial” conflict between “parties
having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Sankyo
Corp. v. Nakamura Trading Corp., 139 Fed. App’x. 648, 650 (6th Cir. 2005) (quoting Babbit v.
United Farm Workers Nat’l Union, 442 U.S. 289, 297-97 (1979)). Additionally, “[b]ankruptcy
courts are authorized to issue declaratory judgments in adversary proceedings which are within
their jurisdiction.” Peters v. Fernandez (In re SCS Logistics, Inc.), 673 B.R. 397, 408 (Bankr. S.D.
Ohio 2025) (citing Korhumel Inc. v. Korhumel Indus. Inc., 103 B.R. 917, 921 (N.D. Ill. 1989)).
Though NREA questions in its Motion to Dismiss whether there is a live case or controversy, it is
clear that an actual controversy exists as to whether NREA (and Mr. Lasky) violated the automatic
stay by carrying out Ms. Steele’s eviction during her bankruptcy case, and Ms. Steele has alleged
actual harm and damages flowing from this action in her First Amended Complaint. Even though
Ms. Steele has already been evicted, the dispute as to whether NREA or Mr. Lasky owe her any
damages for the events of the eviction pursuant to § 362(k)(1) are ripe for consideration. This
Court has jurisdiction to decide this controversy as described above in Section II. Therefore, there
is a live case or controversy over which this Court has subject matter jurisdiction, although NREA
makes a fair point that because Ms. Steele has a right of action under § 362(k)(1), it may not have
been necessary or it may have been duplicative for Ms. Steele to seek a declaratory judgment with
respect to the applicability of the eviction exception in § 362(b)(22), but it is not prohibited.
The Declaratory Judgment Act gives a federal court “unique and substantial discretion in
deciding whether to declare the rights of litigants.” Western World Ins. Co. v. Hoey, 773 F.3d 755,
758 (6th Cir. 2014) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). “[A] bankruptcy
court is a ‘Court of the United States’ and accordingly has the power to hear and decide matters
under the Declaratory Judgment Act.” Golden v. Nat’l Collegiate Student Loan Tr. 2006-4 (In re
Golden), 671 B.R. 544, 586 (Bankr. E.D.N.Y. 2025). Further, bankruptcy courts have “the power
to issue declaratory judgments when the matter in controversy regards the administration of a
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pending bankruptcy estate.” Id. (quoting Sears, Roebuck and Co. v. O'Brien, 178 F.3d 962, 964
(8th Cir. 1999)). Accordingly, there is no issue with this Court entertaining Count I of the First
Amended Complaint.
Further, 	this 	Court’s 	determination 	of 	applicability 	of 	the 	eviction 	exception 	in
§ 362(b)(22) would not violate res judicata or otherwise be an abuse of procedure. Though the
state court considered the applicability of § 362(b)(22) during the eviction action with its April 3,
2024 Magistrate’s Order, it is well-settled law that state and bankruptcy courts have concurrent
jurisdiction to determine the applicability of the automatic stay, and “[t]he bankruptcy court from
which the automatic stay originated nonetheless has the final say.” JJW Metal Corp. v. Municipio
Autonomo de Carolina (In re JJW Metal Corp.), No. 22-00030, 2024 Bankr. LEXIS 1450, at *24,
2024 WL 3083388, at *9 (Bankr. D.P.R. June 20, 2024) (quoting In re Mid-City Parking, Inc., 332
B.R. 798, 804 (Bankr. N.D. Ill. 2005)). And “while nonbankruptcy courts may independently
determine whether the automatic stay applies and proceed when they determine it does not . . . they
‘proceed at their own risk.’ ” McClafferty v. DeWine (In re McClafferty), 571 B.R. 267, 274
(Bankr. N.D. Ohio 2017) (quoting NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 940 (6th
Cir. 1986)); In re Shrum, 597 B.R. 845, 854 (Bankr. E.D. Mich. 2019) (similar). This Court has
jurisdiction to decide issues related to an alleged violation of the automatic stay, and this issue is
integral to that decision. See Sec. II.
D. 	Jurisdiction to Decide Whether the Automatic Stay Applies
Although Mr. Lasky did not move to dismiss the First Amended Complaint, despite the
Court granting him leave to do so, argues that the March 12 Entry was a final, appealable order
under Ohio law and fell within the exception under § 362(b)(22). Lasky also argues that this Court
lacks jurisdiction to consider the finality of a state court ruling and should be bound by the Dayton
Municipal Court’s decisions regarding the eviction and its relation to § 362(b)(22) within the April
3 Magistrate’s Order. See Docs. 105, 115, and 124. Given that this is a threshold issue to the
Court’s legal analysis of the Motion to Dismiss, the Court will address it here, even if it was not
otherwise put before the Court on the filings concerning the Motion to Dismiss, because the Court
may consider subject matter jurisdiction sua sponte at any time. Vander Boegh v. EnergySolutions,
Inc., 772 F.3d 1056, 1064 (6th Cir. 2014). Moreover, Mr. Lasky is a Defendant to the First
Amended Complaint and has raised the issue of subject matter jurisdiction.
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It is well-established that when an action is pending before another court, in this case the
Eviction Action before the Dayton Municipal Court, that Court “has jurisdiction to decide whether
the proceeding is subject to the stay.” In re Kelly, No. 14-32333, 2014 Bankr. LEXIS 4663, at *4
n.3 (Bankr. N.D. Ohio Nov. 7, 2014) (Gustafson, J.) (quoting Dominic’s Rest. of Dayton, Inc. v.
Mantia, 683 F.3d 757, 760 (6th Cir. 2012) (citing in part Edward Cooper Painting, Inc., 804 F.2d
at 939) (other citations omitted)). However, this jurisdiction is not exclusive of the Bankruptcy
Court’s concurrent jurisdiction to rule on the issue in the context of this adversary proceeding. See
28 U.S.C. § 1334(b) (“the district courts [30] shall have original but not exclusive jurisdiction of all
civil proceedings arising under title 11, or arising in or related to cases under title 11.”) And “[i]f
the non-bankruptcy court’s initial jurisdictional determination is erroneous, the parties run the risk
that the entire action later will be declared void ab initio.” Kelly, 2014 Bankr. LEXIS 4663, at *4
n.3 (quoting Chao v. Hospital Staffing Servs., Inc., 270 F.3d 374, 384-85 (6th Cir. 2001) (citations
omitted).
This Court has previously analyzed its jurisdiction in this adversary proceeding to
determine whether the eviction exception to the automatic stay (§ 362(b)(22)) applied to the
matters that occurred in the Dayton Municipal Court during the pendency of this bankruptcy, in
its Order Denying Motions and Setting Deadlines (see pages 5-6), the language of which is cited
above in Section III.B.10. This Court has also previously analyzed a similar situation in In re
Legacy Beavercreek of Dayton Operating Co., wherein it wrote that “while state courts have
concurrent jurisdiction to determine whether the automatic stay applies in an action pending before
the state court, bankruptcy courts have concurrent jurisdiction over the same issue, with the ability
to have the final word.” 678 B.R. at 570. It is well-settled law that state and bankruptcy courts
have concurrent jurisdiction over issues arising from the stay, with the bankruptcy court having
the last word over interpreting and enforcing its own automatic stay. Chao, 270 F.3d at 384-85.
The Rooker-Feldman doctrine is no bar to this Court exercising subject matter jurisdiction,
as also discussed in In re Legacy Beavercreek of Dayton Operating Co. (678 B.R. at 573-77), and
as the Bankruptcy Appellate Panel for the Sixth Circuit analyzed in Wohleber v. Skurko (In re
30 As in almost all districts in the United States, pursuant to 28 U.S.C. § 157(a), the United States District Court for
the Southern District of Ohio has referred “all cases under title 11 and . . . all proceedings arising under title 11 or
arising in or related to a case under title 11” to the Bankruptcy Judges for this District, through the Amended General
Order No. 05-02 (Amended Standing Order of Reference) entered on September 16, 2016.
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Wohleber), 596 B.R. 554, 565-66 (holding that “[b]ecause the state court and bankruptcy
proceedings are proceeding in parallel, Rooker-Feldman does not apply, and the bankruptcy court
has jurisdiction to adjudicate the stay violation claim.” (footnote omitted)). This conclusion is also
bolstered by the Supreme Court of the United States’ recent decision in T.M. v. University of
Maryland Medical System Corporation, which provides as follows:
The Court today neither expands nor constrains Rooker-
Feldman. Instead, the Court leaves the doctrine as it found it:
narrowly 	confined 	to 	“cases 	brought 	by 	state-court 	losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments.” Exxon, 544
U. S., at 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454.
T.M. v. Univ. of Md. Med. Sys. Corp., 146 S. Ct. 1739, 1753-54 (2026).
In this situation, this bankruptcy case was pending when the Dayton Municipal Court
entered its April 3 Magistrate’s Order, such that both courts had jurisdiction to opine on the impact
of the automatic stay on the Eviction Action, but this Court has the final word regarding the scope
of the automatic stay arising from the underlying bankruptcy case, to the extent it determines the
automatic stay applied. See Hamilton, 540 F.3d at 373-74; Edward Cooper Painting, Inc., 804
F.2d at 939-40. In fact, when the automatic stay does apply “to an action directed at the debtor or
[their] property,” the Sixth Circuit Court of Appeals has held that “jurisdiction is exclusive in the
bankruptcy court.” Chao, 270 F.3d at 383.
Accordingly, this Court has jurisdiction to decide the claims before it and is not bound by
the Dayton Municipal Court’s assessment of § 362(b)(22), although this Court reaches a similar
conclusion, at least with respect to NREA’s ability to have proceeded with the Eviction Action to
regain possession of the Real Property. However, the issue not addressed in the April 3
Magistrate’s Order (which also does not appear to have been adopted by a Judge of the Dayton
Municipal Court), is the scope of the eviction exception in § 362(b)(22) and whether that also
permitted NREA and Mr. Lasky to exercise control over Ms. Steele’s personal property. Because
this Court concludes that the eviction exception does not apply to permit a landlord to damage,
destroy, or dispose of a tenant debtor’s personal property, that means the April 3 Magistrate’s
Order, if in conflict, must give way, because in this regard the automatic stay still applied.
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As discussed further below, because exceptions to the automatic stay are construed
narrowly and because the language of § 362(b)(22) only excepts from subsection (a)(3) of the
automatic stay (§ 362) the continuation of the eviction, there is a plausible claim that NREA and
Mr. Lasky may have violated the automatic stay when, as alleged in the First Amended Complaint,
they damaged, destroyed, and disposed of Ms. Steele’s personal property, including but not limited
to any role they may have had with respect to the cat going missing.
E. 	Count I – Eviction Exception to the Automatic Stay Under § 362(b)(22)
1. 	§ 362(b)(22) and its Legislative History
The automatic stay is obviously one of the pillars of bankruptcy and a critical benefit to
debtors in need of a breathing spell.31 Under § 362(a)(3) of the Bankruptcy Code, the filing of a
bankruptcy petition “operates as a stay, applicable to all entities” of “any act to obtain possession
of property of the estate or of property from the estate or exercise control over property of the
estate[.]” But the automatic stay provided for in § 362(a) of the Bankruptcy Code has numerous
exceptions. One such exception, subsection (b)(22), which has been at issue between the parties
since at least April 2, 2024, provides that a bankruptcy petition “does not operate as a stay—”:
(22) 	subject to subsection (l), under subsection (a)(3),
[which otherwise stays actions with respect to property of the
estate,] 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[.]
11 U.S.C. § 362(b)(22) (emphasis added).32 In short, the eviction exception provides that if a
landlord has a judgment for possession prior to the bankruptcy, then they may proceed with the
31 In re Williams, 371 B.R. 102, 105 (Bankr. E.D. Pa. 2007) (“The automatic stay provided by 11 U.S.C. § 362(a) is
one of the fundamental debtor protections provided by the bankruptcy laws.”).
32 Notably, although some of the allegations regarding illegal drug activity on the Real Property suggest that subsection
(b)(23) of § 362(b) was applicable to except the Eviction Action from the automatic stay, NREA did not comply with
subsection (b)(23) by filing “a certification under penalty of perjury that such an eviction action [that seeks possession
of the residential property . . . based on endangerment of such property or the illegal use of controlled substances on
such property] has been filed . . . .” 11 U.S.C. § 362(b)(23). See 3 Collier on Bankruptcy ¶ 362.05[21]. Accordingly,
only subsection (b)(22) could have applied to except some or all of NREA’s actions from subsection 362(a)(3) of the
automatic stay.
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eviction after the bankruptcy is filed without having to seek relief from the automatic stay. Instead,
the burden is shifted to the debtor to invoke the automatic stay through the procedure set forth in
subsection (l) by filing a certification (Official Form 101A) and depositing one month of rent with
the Clerk of Court (Official Form 101B). Ms. Steele did neither of those things and, in fact, has
consistently disputed that there ever was a prepetition judgment for possession, such that she
asserts § 362(b)(22) never applied.
The eviction exception was added as part of the overhaul of the Bankruptcy Code in 2005
through the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”).33 See 3
Collier on Bankruptcy ¶ 362.LH (16th ed. 2026). In particular, this subsection was a pro-landlord
addition that appears to have been intended to combat a perceived misuse of bankruptcy to forestall
eviction actions. The backdrop to the enactment of § 362(b)(22), which is helpful given that the
term “judgment for possession” has engendered various interpretations, is summarized as follows:
[The 	automatic 	stay’s] 	breadth 	as 	reflected 	in 	its 	broadly 	worded
subsections (a)(1) through (a)(8) has provided opportunities for abuse not
intended by Congress to achieve its prophylactic statutory objective, i.e.,
providing debtors a breathing spell from collection efforts, harassment and
foreclosure actions while they seek financial rehabilitation consistent with
the requirements of the Bankruptcy Code. H.R. Rep. No. 595, 95th Cong.,
1st Sess 174-75 (1977); S. Rep. No. 989, 95th Cong. 2d Sess. 49-50 (1978).
One such area of abuse was identified by the commission charged by
Congress in 1994 with a review of the extant bankruptcy law. Through
testimony and written submissions, the National Bankruptcy Review
Commission (the “Commission”) was advised of “persistent, systematic
abuse of the automatic stay by residential tenants who have successfully
forestalled eviction for months by filing a bankruptcy petition.” Nat’l
Bankruptcy Review Commission, Final Report, Bankruptcy: the Next
Twenty Years, Chapter 3: Individual Commissioner Views 65-66 (1997),
available at http://govinfo.library.unt.edy/ubrc/. While it would be another
ten years before legislation was enacted, among the provisions of BAPCPA
are additional exceptions to the sweep of § 362(a), including two that
directly pertain to residential leases.
Prior to BAPCPA, § 362(a)(3) had absolutely protected the estate’s interest
in a residential lease as the petition operated as a stay against “[a]ny act to
obtain possession of property of the estate or of property from the
estate. . . .” 11 U.S.C. § 362(a)(3). Absent the amendment discussed below,
33 PL 109-8, Apr. 20, 2055, 119 Stat. 23, Sec. 311. Section 311 of BAPCPA, which concerned the automatic stay, also
added subsections (b)(23), (l), and (m) to § 362(b), and subsection (l) corresponds to subsection (b)(22), while
subsection (m) corresponds to subsection (b)(23).
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AGLF’s post-petition pursuit of Debtors’ eviction would run afoul of this
protection, 	notwithstanding 	the 	pre-petition 	entry 	of 	judgment 	for
possession. Cuffee v. Atl. Bus. and Cmty. Corp. (In re Atl. Bus. and Cmty.
Corp.), 901 F.2d 325, 328 (3d Cir. 1990) (a debtor’s bare possessory interest
in real property is property of the estate under 11 U.S.C. § 541 and is thus
protected from being taken under 362(a)(3)). BAPCPA, however, sought in
part to address “a problem faced by thousands of large and small residential
landlords across the nation whose tenants file for bankruptcy relief solely
for the purpose of staying pending evictions so they can live ‘rent free.’ ”
H.R. Rep. No. 1009–31(1), *17 as reprinted in, 2005 U.S.C.C.A.N. 88,
*103 (2005). It did so through two new exceptions to the automatic stay.
See In re Williams, 371 B.R. at 105 (quoting and discussing subsections (b)(22) and (b)(23) to
§ 362 added in 2005).
Within the above-referenced legislative history to BAPCPA is the following highlight of
the bankruptcy reforms enacted to protect lessors from tenant abuse of the automatic stay:
The bill also addresses a problem faced by thousands of large and small
residential landlords across the nation whose tenants file for bankruptcy
relief solely for the purpose of staying pending eviction proceedings so that
they can live “rent free.”
* 	* 	*
Sec. 311. Automatic Stay. Section 311 of the Act amends section 362(b)
of the Bankruptcy Code to except from the automatic stay a judgment of
eviction with respect to a residential leasehold under certain circumstances.
It is the intent of this provision to create an exception to the automatic stay
of section 362(a)(3) to permit the recovery of possession by rental housing
providers of their property in certain circumstances where a judgment for
possession has been obtained against a debtor/resident before the filing of
the petition for bankruptcy. . . . It is also the intent of this section to permit
eviction actions based on illegal use of controlled substances or endangering
property in certain circumstances.
Section 311 gives tenants a reasonable amount of time after filing the
petition to cure the default giving rise to the judgment for possession as long
as there are circumstances in which applicable nonbankruptcy law allows a
default 	to 	be 	cured 	after 	a 	judgment 	has 	been 	obtained. 	Where
nonbankruptcy law applicable in the jurisdiction does not permit a tenant to
cure a monetary default after the judgment for possession has been obtained,
the automatic stay of section 362(a)(3) does not operate to limit action by a
rental housing provider to proceed with, or a marshal, sheriff, or similar
local officer to execute, the judgment for possession.
H.R. Rep. No. 109-31(l), at 17, 74-75 (2005), as reprinted in 2005 U.S.C.C.A.N. 88, 103, 142.
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2. 	Agreed Order for Stay Relief
Before digging into the language and application of § 362(b)(22), there is a threshold
question, which is whether the Agreed Order for Stay Relief, entered on April 17, 2024, had any
impact on Ms. Steele’s ability to continue to contest the legality of NREA’s continued prosecution
of the Eviction Action. Section 362(d) of the Bankruptcy Code permits a court to grant retroactive
relief from the automatic stay in certain situations in order to validate actions that have already
occurred. Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909-10 (6th Cir. 1993). In fact, § 362(d),
under which parties in interest can move for relief from the automatic stay, is flexible in the
remedies that a court can fashion. Accordingly, the terms of the order entered by the Court are
important and can reach a variety of outcomes. In this case, Ms. Steele agreed to grant NREA relief
from the automatic stay, given the eviction had already happened and she would not be returning
to the Property,34 and the Agreed Order states that “the relief sought in Vinebrook’s Motion for
Relief from Stay is GRANTED.” Agreed Order at 2, ¶ 1. But there is no mention of whether this
relief was retroactive or prospective only. Similar to the analysis of statutes and the body of law
on ex post facto relief,35 and in light of the reservation of rights by Ms. Steele, the best
interpretation is that this relief was prospective. As to the reservation of rights, the terms of the
resolution provide that Ms. Steele did “not waive any rights she may have against Vinebrook
concerning her eviction from the Property or the disposition of her personal property.” Id. at 2, ¶ 2.
Essentially, it appears the parties did not intend the Agreed Order to act as a determination of
whether continuation of the Eviction Action violated the automatic stay, given that stay relief was
not obtained until April 17, 2024, almost two weeks after the eviction occurred, and there being
no suggestion of retroactive applicability.36 In other words, the parties appear to have preserved
34 It is worth noting that the one (1) year term of the Lease ended on December 20, 2023, at which point the Lease
would become month-to-month until either party presented written notice thirty days prior to termination. Lease at
1,¶ 3. Thus, it appears that Ms. Steele was a holdover tenant at the time of eviction.
35 The Court is cognizant of the Supreme Court of the United States’ pronouncement on the use of nunc pro tunc
orders in Roman Catholic Archdiocese of San Juan v. Feliciano, 589 U.S. 57, 65 (2020) (“[p]ut colorfully, ‘[n]unc
pro tunc orders are not some Orwellian vehicle for revisionist history—creating ‘facts’ that never occurred in fact.’ ”
(quoting United States v. Gillespie, 666 F. Supp. 1137, 1139 (N.D. Ill. 1987) and citing Missouri v. Jenkins, 495 U.S.
33, 49 (1990))). However, there remain unique circumstances in which it remains appropriate to use a nunc pro tunc
order. Feliciano, 589 U.S. at 65 (stating that “[f]ederal courts may issue nunc pro tunc orders, or ‘now for then’ orders,
Black’s Law Dictionary, at 1287, to ‘reflect[] the reality’ of what has already occurred” (quoting Missouri v. Jenkins,
495 U.S. at 49)).
36 Agreed Order Granting Motion for Relief From Stay Filed by Vinebrook Homes, LLC for NREA VB III, LLC (ECF
9) (Est. Doc. 16).
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the issues for determination as evidenced by the fact that Ms. Steele filed her original Complaint
initiating this adversary proceeding the very next day, on April 18, 2024.
3. 	Analysis of § 362(l)
Sorting through the language of § 362(b)(22), the first issue is what subsection (l) has to
say and how it might alter the application of this exception to the automatic stay, or at least
subsection (a)(3) of § 362(a). Subsection (l) is a lengthy provision also added through BAPCPA
in 2005.37 In essence, it is an opportunity for a debtor who is subject to a judgment for possession
to obtain a thirty (30)-day stay of the eviction action, but only:
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 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.
11 U.S.C. § 362(l)(1)(A) and (B). It is undisputed, as confirmed by this Court’s docket, that Ms.
Steele filed no such certification to invoke § 362(l).38 See 3 Collier on Bankruptcy ¶ 362.05[20] at
362-88 & n.214 (“Before the petition, former Official Form 1, was amended in 2015, it provided
a space for the debtor to make the required certification. The certification is now made on a
separate form, Official Form 101A, which should be filed with the petition, if applicable.”). None
of the parties have argued that subsection (l) applied to this situation. In fact, in the Debtor’s
Motion to Determine § 362(b)(22) Inapplicable, which she filed twenty-one (21) days after her
Petition, Debtor, by and through counsel, represented to the Court as follows:
It has never been the Debtor’s intention to invoke the safe harbor
provisions of §[]362([l]). She did not need to given the fact that
§[]362(b)(22) does not apply. Nevertheless, the Debtor’s financial
37 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. 109 Stat. 23, 109 P.L. 8, § 311.
38 “The letter ‘L’ is italicized, to distinguish it from the number ‘1’.” In re Kelly, 2014 Bankr. LEXIS 4663, at *4 n.4.
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and familial support resources are meager and she needed additional
time to make appropriate plans to move her family – without being
forced to go homeless or use shelters for the homeless. Her Chapter
7 bankruptcy case was a difficult measure to get that needed time,
and Vinebrook and Mr. Lasky are depriving her of that time.
Mot. to Determine § 362(b)(22) Inapplicable at 6, n.2. Moreover, even if it had been Ms. Steele’s
intent to invoke § 362(l), it may well be that § 362(l) was unavailable to her because the Amended
Eviction Complaint was based on illegal activity occurring at the Property and “[s]ection 362(l)
only applies where the basis for the judgment for possession is a monetary default.” In re Kelly,
2014 Bankr. LEXIS 4663, at *8 (“ ‘The safe harbor exception of § 362(l) is a limited exception to
§ 362(b)(22) and is unavailable to a debtor where the reason for the pre-petition judgment is
non-monetary.’ ” (quoting In re Paul, 473 B.R. 474, 476 (Bankr. S.D. Ga. 2012) (citations
omitted)).
Given that subsection (l) was not utilized and likely did not apply, we are left with the
remainder of § 362(b)(22), which can apply, and if it does, meant that subsection (a)(3) of the
automatic stay did not apply in this case from the moment it was filed. See, e.g., 3 Collier on
Bankruptcy ¶ 362.05[20] n.222 (“amendment to petition seeking to add certification under section
362(l) filed several weeks after petition date was not effective because stay exception under section
362(b)(22) took effect immediately upon filing of petition”) (citing In re Harris, 424 B.R. 44
(Bankr. E.D.N.Y. 2010))).
4. 	Arguments of the Parties and Analysis of § 362(b)(22)
NREA argues that its actions in evicting Ms. Steele during her bankruptcy were appropriate
under the judgment for possession exception in § 362(b)(22). NREA interprets the March 12 Entry
as a judgment for possession. Ms. Steele argues that the exception does not apply in this case
because a judgment for possession must be both final and non-appealable. But even if the exception
in § 362(b)(22) applies, that would not necessarily be the end of the story. From here we will first
examine, overall, the scope of what the eviction action exception permits, in the absence of a
landlord obtaining stay relief, and will then examine what constitutes a “judgment for possession”
under Ohio law.
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a) 	Scope of the Eviction Exception in § 362(b)(22)
Courts have held that exceptions to the stay should be narrowly applied. Stieg v. Hanson
(In re Stieg), 509 B.R. 148, 152 (Bankr. S.D. Ohio 2014) (collecting cases). Thus, subsection
(b)(22) of § 362 must be applied within the narrow confines of its language and NREA, charging
forward with the Eviction Action was only able, without violating the automatic stay, to continue
its Eviction Action against Ms. Steele with respect to the Real Property which, of course, only
concerned possession of the residential property she was inhabiting. Although it may have been
lawful under state law for NREA to simply leave her personal property on the curb or dispose of
it after a certain period of time, the exception in § 362(b)(22) did not permit NREA to exercise
control over her personal property, such as the couch and her cat, to damage, destroy, or dispose
of it.39 In other words, the automatic stay still applied to protect her personal property, which was
property of the estate. Therefore, NREA could not simply damage and dispose of her personal
property without consequence.
Again, § 362(b)(22) only excepts “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 . . . with respect to which the lessor has obtained . . . , a judgment for possession
of such property against the debtor[.]” 11 U.S.C. § 362(b)(22) (emphasis added). Therefore,
because a count for possession in an Ohio eviction action only concerns the issue of the entitlement
to possession of the real estate (not to possession of any personal property), and because the
exception in § 362(b)(22) must be read narrowly, Ms. Steele has stated a claim that NREA violated
the automatic stay, particularly subsection (a)(3) of § 362, by exercising control over and
damaging, destroying, or disposing of, her personal property. See In re Seaton, 462 B.R. 582,
593-94 (Bankr. E.D. Va. 2011) (“the exercise of full dominion over this [personal] property by
detaining it, destroying it, and liquidating it, constituted a gross violation of the automatic stay by
the Landlord.” (quoting B. Cohen & Sons Caterers, Inc. v. New Plan Realty Trust (In re B. Cohen
& Sons Caterers, Inc.), 97 B.R. 808, 813-14 (Bankr. E.D. Pa. 1989)).
The Seaton case involved a motion for contempt against a landlord by chapter 7 debtors.
Id. at 585-86. Therein, the debtors did “not contend that any of the events specifically relating to
39 Although not alleged in the First Amended Complaint, such that the Court cannot at this time take the allegation as
true, regarding the mystery of the missing cat Ms. Steele alleges in her Response that “DJ Gucci DJ was given away
to some unknown third party by one of NREA’s contractors[.]” Resp. at 5, § II.
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the institution or continuation of the Unlawful Detainer constitute a stay violation.” Seaton, 462
B.R. at 590. Instead, it was “only the removal and disposal of certain items of their personal
property from the Apartment at Collinswood that they believe are sanctionable by this Court.” Id.
This is analogous to Ms. Steele’s case in two respects. First, the Court finds that the exception
under § 362(b)(22) applies, such that NREA was able to continue the Eviction Action as to the
Real Property. Second, Ms. Steele at no point disclaimed any interest in or abandoned the personal
property which remained property of the estate. The Seaton case cited another opinion for the
proposition that “the removal and disposal of a tenant’s personal property at the leased premise
was found to constitute a stay violation notwithstanding the fact the landlord had earlier obtained
relief from the automatic stay to take possession of the premises[.]” Id. at 593-94 (citing In re B.
Cohen & Sons Caterers, Inc., 97 B.R. 808). The key takeaway is that even if a landlord had relief
from the automatic stay or the benefit of the exception in subsection (b)(22) of § 362 to “ ‘to regain
possession of the premises[,]’ ” that “clearly [does] not give the Landlord relief from the stay or
authority to detain or take any other action in reference to the personal property of the Debtor’s
estate on its Premises, even pursuant to lawful state-court processes.” Seaton, 462 B.R. at 594
(quoting In re B. Cohen & Sons Caterers, Inc., 97 B.R. at 813-14). Although the Court is not, at
this time, reaching a conclusion or determination that NREA violated the automatic stay, as to its
alleged actions with respect to Ms. Steele’s personal property, there is a valid claim stated, such
that, if proven, NREA would be liable for damages under § 362(k)(1), to the extent proven by Ms.
Steele. See, e.g., In re Seaton, 462 B.R. at 606 (awarding amounts for “emotional distress
damages,” for attorney’s fees, and costs, pursuant to § 362(k)(1)).40
b) 	What Constitutes a “Judgment for Possession”
The Bankruptcy Code, particularly within §§ 101 and 362, does not define the term
“judgment for possession” as used in § 362(b)(22). The Bankruptcy Rules define a judgment as
“any appealable order,” though that definition technically only applies to the use of the word in
the Bankruptcy and Civil Rules and therefore is only instructive, not binding, for determining the
meaning of the term as used in the Bankruptcy Code. Fed. R. Bankr. P. 9001(b)(7) and 9002(e);
see also 28 U.S.C. § 2075 (providing that the Bankruptcy Rules “shall not abridge, enlarge, or
modify any substantive right.”). In fact, Bankruptcy Rule 9001(a) provides that “definitions of
40 This by no means suggests the amounts are appropriate to this case.
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words and phrases in §[] 101 . . . and the rules of construction in § 102 apply in these rules[,]” but
there is no provision of the Bankruptcy Code that makes the definitions of words in the Bankruptcy
Rules applicable in the Bankruptcy Code, as only Congress could do so. Moreover, how to interpret
the term “judgment for possession” in the Bankruptcy Code ultimately bears in large part on the
state law and rules of procedure applicable to the eviction action.
The Supreme Court has previously held that “where Congress uses terms that have
accumulated settled meaning under . . . the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the established meaning of those terms.”
Hous. Auth. of Beaver Cnty. v. Alberts (In re Alberts), 381 B.R. 171, 177 (Bankr. W.D. Penn.
2008) (quoting Field v. Mans, 516 U.S. 59, 69 (1995) (citations omitted)). Black’s Law Dictionary
defines the word “judgment” to mean “[a] court’s final determination of the rights and obligations
of the parties in a case.” Judgment, Black’s Law Dictionary (9th ed. 2009). Thus, bankruptcy courts
have generally held that finality is a key aspect of a judgment for possession, and the judgment
must contain a “requisite degree of firmness.” Alberts, 381 B.R. at 178. Further, certain orders or
judgments for possession may lack the requisite degree of finality (or firmness) “due to statutory
provisions affecting the standard of review on appeal,” such as when an order is subject to de novo
review. Id. In other words, whether there is a judgment possession may well be a case-by-case
analysis, not only due to the applicable state law, but also due to the exact procedural posture of
the eviction action when the bankruptcy case is filed.
Going back to April 4, 2024, Ms. Steele, by and through counsel, has argued that
“[p]ractically every bankruptcy court decision that has considered the issue has held that for the
purposes of . . . §[]362(b)(22), a judgment for possession must be final and non-appealable for the
exception to the automatic stay to apply.” Mot. to Determine § 362(b)(22) Inapplicable at 7-8,
§ II.B. (citing In re Tatum, No. 14-03676-NPO, 2015 Bankr. LEXIS 712 (Bankr. S.D. Miss. Mar.
6, 2015); In re Nitzsky, 516 B.R. 846, 847-50 (Bankr. W.D.N.C. 2014); Alberts, 381 B.R. at
177-78; In re Lewis, No. 8:16-bk-07166-RCT, 2017 Bankr. LEXIS 4696, 2017 WL 11569062
(Bankr. M.D. Fla. Sept. 13, 2016); Nicholson v. IFG Timber, L.L.C. (In re Nicholson), No. ID-18-
1161-BKuF, 2019 Bankr. LEXIS 1921 (B.A.P. 9th Cir. June 18, 2019)). She further argued that
although the March 12 Entry was effective on that date, it was not final on the basis that a party
may file written objections to a magistrate’s decision within fourteen (14) days pursuant to Ohio
Rule of Civil Procedure 53(D)(3)(a)(iii). Mot. to Determine § 362(b)(22) Inapplicable at 8, § II.B;
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First Am. Compl. at 14-15, ¶ 86.a. Thus, Ms. Steele’s counsel argued that even though Judge
Gehres had signed off on the March 12 Entry, she still had a 14-day period to file written
objections, such that the March 12 Entry could not have become final until March 26, 2024, which
was postpetition. First Am. Compl. at 14-15 (citing Bibb v. Garrett, 2021-Ohio-1316, at ¶¶ 14-15
(10th Dist.)).
Courts have differed in their analysis of whether a judgment for possession must be final
and non-appealable, or simply final and not subject to an ongoing appeal (or not subject to de novo
review), but in each case the outcome is dependent upon applicable state law and the exact
procedural posture of the eviction immediately prior to bankruptcy. In Alberts, the debtor had taken
appropriate steps to timely appeal the judgment for eviction, giving rise to de novo review under
Pennsylvania state law. Alberts, 371 B.R. at 178. Thus, the Alberts court held that the state court
judgment was not final because it was being appealed de novo and thus lost its binding finality.
Id. The Alberts court therefore did not hold that a judgment must be final and non-appealable, but
rather that the judgment must be final and not under de novo review on appeal.
The Nitzsky court held that “a judicial order must be final and non-appealable” to be a
judgment for possession. In re Nitzsky, 516 B.R. at 849. In Nitzsky, the debtor had received a
summary ejectment order nine days prior to filing bankruptcy and had not taken any steps to
appeal. Id. However, the debtor’s failure to attempt an appeal did not control because under North
Carolina state law a summary ejectment was not final until after a ten-day appeal period expired,
and it was during that ten-day period that the debtor filed for bankruptcy. Id. The Court held that
because any action under a summary ejectment was stayed during the ten-day appeal period, the
summary ejectment order lacked the finality required to be a judgment for possession at the time
of filing. Id.
In Tatum, the issue before the bankruptcy court was whether to grant relief from the
automatic stay with respect to a rental purchase agreement concerning a piece of property and a
manufactured home. 2015 Bankr. LEXIS 712, at *2. Prepetition, the Neshoba County Justice Court
“entered a judgment . . . ordering the Debtors to pay $3,574.00 to [the creditor] and vacate the
Subject Property within thirty (30) days.” Id. Prior to expiration of the thirty-day period the
Debtors filed a chapter 13 bankruptcy and, over a month later, the creditor filed a motion for relief
to hold that the automatic stay did not apply due to the exception in § 362(b)(22). Id., at *3. The
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Tatum court found that § 362(b)(22) did not apply, agreeing “with the Nitzsky and Alberts courts’
analysis of the term ‘judgment,’ ” to hold “that an order must be final and non-appealable to
constitute a ‘judgment for possession’ for the purposes of § 362(b)(22).” Id. at *7 (citing Nitzsky,
516 B.R. at 847-50). Since the debtors in Tatum filed for bankruptcy on the twenty-eighth day of
their thirty-day appeal period under Mississippi law following the eviction judgment, the Tatum
court held that the eviction order was not a final judgment. Tatum, 2015 Bankr. LEXIS 712, at *8.
However, the Tatum court focused on the subject to review provisions in Alberts and Nitzsky
without discussing whether Mississippi had similar state laws or appellate review provisions. Id.
at *7 (citing Alberts, 381 B.R. at 177-78.). Further, the debtors in Alberts had taken steps to actually
pursue an appeal of the eviction action. Alberts, 381 B.R. at 175. But in Tatum it did not appear
that the Debtors had ever appealed.
Finally, Ms. Steele cites Lewis for further support, although she references the 2017
opinion that involved a subsequent bankruptcy, not the preceding 2016 opinion dealing with
interpretation of the eviction exception. See Lewis, 2017 Bankr. LEXIS 4696, at *8 (observing that
because the 2017 bankruptcy was Debtor’s second within one year, “the automatic stay expired 30
days after the petition was filed” and then the creditor completed the eviction). The prior 2016
opinion in that case, however, contained a short analysis of § 362(b)(22). In re Lewis, No. 8:16-
bk-07166-RCT, 2016 Bankr. LEXIS 4757, at *1-3, 2016 WL 11708144 (Bankr. M.D. Fla. Sept.
13, 2016. Therein, the bankruptcy court observed that prior to the petition date “the Hillsborough
County Court awarded the Creditor a judgment for possession and writ of possession.” Id. at *1.
Thus, notwithstanding the plain language of § 362(b)(22), which only requires a “judgment for
possession,” the Lewis court found that § 362(b)(22) did not apply because, as of the petition date,
the Debtor had both a “motion for rehearing” and a motion to vacate the judgment for lack of
jurisdiction” pending that had not been ruled on by the state court. Id.
There are a couple of troubling aspects to this line of cases, to the extent not factually
distinguishable. First, a judgment by the state trial court with jurisdiction over an eviction action
is “final” before the appeal period runs, unless there is a special provision of state law to the
contrary. If that is the last word of the state trial court, then the judgment is not subject to revision
by the trial court. And, typically, unless a stay is obtained, the judgment is enforceable. There
would be no right of appeal if the judgment were not final. This line of cases purports to rely upon
the “Black’s Law Dictionary’s definition of ‘judgment’ as ‘[a] court’s final determination of the
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rights and obligations of the parties in a case.’ ” Tatum, 2015 Bankr. LEXIS 712, at *6-7 (citing
Nitzsky, 516 B.R. at 847-50; Alberts, 381 B.R. at 177-78 (both quoting Black’s Law Dictionary
(8th ed. 2004))). However, this line of cases actually layers on top an additional requirement that
the final judgment also be “non-appealable,” a requirement which is simply not found in
§ 362(b)(22). If the state trial court has issued a final, as opposed to interlocutory, judgment, that
judgment is the trial court’s final word. And any future word to the contrary would be by a different
court, an appellate court. Further, unless the Debtor obtains a stay of execution of the final
judgment for possession, it typically remains enforceable. However, if the Debtor does obtain a
stay, then they would be protected from eviction until the appeal process runs its course, separate
and apart from the automatic stay.
This raises a second troubling aspect of this line of cases, which is that if the state trial
court has issued a final judgment prior to the bankruptcy, then the Rooker-Feldman doctrine likely
would prevent the bankruptcy court from sitting in appellate review of the judgment for possession,
yet there would be no requirement for the debtor to pursue an appeal, leading to the very situation
that § 362(b)(22) was enacted to combat. Accordingly, absent an appeal going forward in a state
appellate court, there is no possibility of a different outcome and the bankruptcy case is only
delaying the inevitable and stymying the continuation of the eviction action which the plain
language of § 362(b)(22) appears to permit. And that appears to contradict the very reason for
enactment of the eviction exception in § 362(b)(22), in order to counteract the use of bankruptcy,
after a state court has entered judgment for possession, simply to forestall the eviction.
The United States Bankruptcy Appellate Panel for the Ninth Circuit (“9th Circuit B.A.P.”),
in an unpublished decision, held that the bankruptcy court below had not erred in determining the
eviction exception in § 362(b)(22) did apply to a judgment for possession because it “had already
been appealed and affirmed by the Idaho Supreme Court prior to the petition date.” Nicholson,
2019 Bankr. LEXIS 1921, at *8-10. In addition, the bankruptcy court below had held that “the
appeal of the 60(b) Order, while maybe a potential collateral attack on the Second Amended
Judgment, did not affect the judgment’s finality.” Id. at *9. Thus, the 9th Cir. B.A.P. considered
whether a “judgment for possession” as that term is used in § 362(b)(22) had to be a “final,
non-appealable judgment for possession prior to the petition date.” Id. at *8. And in essence, the
9th Cir. B.A.P. found that the bankruptcy court’s ruling was correct because “the Second Amended
Judgment was not subject to de novo review when Nicholsons filed their bankruptcy case.” Id. at
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*9. The Nicholson decision dealt with a year’s-long legal battle in which the eviction order had
already been subject to multiple motions for relief from judgment under Idaho Rule of Civil
Procedure 60(b), the denial of which was under appeal at the time of filing. Id. at *3-4. While an
appeal for de novo review may call into question the finality of a judgment, a review under an
abuse of discretion standard under the applicable Idaho civil rule did “not affect the judgment’s
finality or suspend its operation.” Id. at *10 (quoting Idaho R. Civ. P. 60(c)(2)). Notably, the
Nicholson case, while acknowledging that the case law found all required a “final, non-appealable
judgment for possession prior to the petition date,” ultimately did not require all appeals to be
exhausted and focused on whether the particular appeals under the applicable state law would
impact the finality of the judgment for possession.
Recently, the 9th Circuit B.A.P. issued a published opinion which, in dicta, both
distinguished and called into question the Nicholson court’s definition of a judgment for
possession, and by extension puts into question the line of case law that grafts a requirement for a
non-appealable final judgment onto the language of § 362(b)(22). LoCali Mgmt. Grp., LLC v.
Rodriguez (In re Rodriguez), No. CC-25-1130-CNL, __ B.R. __, 2026 Bankr. LEXIS 1706, at *17
n.6, 2026 WL 2014307, at *14 (B.A.P. 9th Cir. July 10, 2026). First, the 9th Circuit B.A.P.
observed that “[i]n addition to the fact that Nicholson is unpublished, and therefore not binding,
Nicholson involved Idaho law[,]” as opposed to California law as analyzed in the LoCali decision.
Id. at *17, n.6. Second, the 9th Circuit B.A.P. questioned “whether it is appropriate to add the
words ‘final’ and ‘non-appealable’ to the plain language of § 362(b)(22), which requires only a
‘judgment for possession.’ ”). Id; see also In re Resnicow, No. 24-10354, 2024 Bankr. LEXIS 983,
at *13-15, 2024 WL 1773433, at *4-5 (Bankr. S.D.N.Y. Apr. 24, 2024) (discussing the party’s
differing positions on whether a judgment for possession must be final or final and non-appealable,
but ultimately not deciding “whether a judgment must be ‘final’ and unappealable to support
application of [] § 362(b)(22)” because the judgment at issue was rendered on March 5, 2024, the
same day the bankruptcy case was filed). Of course, the 9th Circuit B.A.P. then proceeded to
conclude that “for other reasons” § 362(b)(22) was inapplicable—that the automatic stay remained
in effect—because even though the lessor had “obtained a judgment for possession and obtained
and served a writ of possession prior to Ms. Rodriguez filing her bankruptcy petition[,]” the
“lockout” had been stayed by the state court at the time of filing. LoCali, 2026 Bankr. LEXIS
1706, at *17. Thus, “LoCali could not enforce its judgment for possession because of the state
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court stay.” Id. Moreover, under California law, “an unlawful detainer judgment remains subject
to modification by the trial court any time before restoration of the premises to the landlord.” Id.
(citing Cal. Civ. Proc. Code § 918(a) (“the trial court may stay the enforcement of any judgment
or order”); Cal. Civ. Proc. Code § 1179 (“The court has the discretion to relieve any person against
forfeiture on its own motion”); SRO Hous. v. Dyce, 223 Cal. App. 4th Supp. 1, *4, 167 Cal. Rptr.
3d 394 (2014)). Thus, on the petition date “the unlawful detainer judgment and writ of possession
were not enforceable . . . because they were stayed pending the trial court’s review of Ms.
Rodriguez’s motion to vacate the default judgment.” LoCali, 2026 Bankr. LEXIS 1706, at *18.
Thus, the lessor did not have an “enforceable judgment for possession as of the petition date.” Id.
But, “[u]nlike Nicholson,” the 9th Circuit B.A.P. reached its conclusion in LoCali “not by
analyzing the finality or appealability of the judgment . . . , but simply by giving effect to the state
court’s orders effective on the petition date.” Id. at *17. This was a change in analysis.
In addition to the shift in analysis by the 9th Circuit B.A.P. in LoCali, there was a
concurring opinion that walked through the minutiae of California unlawful detainer actions. Id.
at *27-29. As well as reciting much of the legislative history to BAPCPA that is set forth in this
Opinion and Order. Id. at *34-36. And the concurrence likened the balancing of “[t]he respective
interests and rights of both tenants and landlords . . . in this provision, with the entry of a judgment
for possession serving as the brightline test.” Id. at *35. The concurrence then went to analyze that
“Nicholson also does not stand for the proposition that a judgment for possession must be final
and non-appealable for § 362(b)(22) to apply.” Id. at *36. And further observed that “[j]ust as
§ 362(b)(22) does not say ‘final, non-appealable’ it also does not say ‘non-stayed.’ ” Id. at *37.
Accordingly, the concurrence stated that “[§] 362(b)(22) simply requires ‘a judgment for
possession,’ which existed in this case, albeit unenforceable.” Id.
While obviously not binding on this Court, the LoCali decision makes two salient points.
First, the terms “final” and “non-appealable” are not contained in the plain language of
§ 362(b)(22), such that a “judgment for possession,” may only need to be a final appealable order.
This would be consistent with the definition of “judgment” in Bankruptcy Rules 9001(b)(7) and
9002(e), which both define “judgment” to mean and include “any appealable order.” Second,
however, rather than, or perhaps as a backstop analysis to, “analyzing the finality or appealability
of the judgment” held by a lessor, applying § 362(b)(22) could be a pragmatic exercise of “giving
effect to the state court’s orders effective on the petition date.” LoCali, 2026 Bankr. LEXIS, at
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*18. In other words, whether § 362(b)(22) applies depends on the facts, the applicable state law
and rules of procedure for eviction actions, and, in particular, when a judgment is treated as “final”
under that state’s laws and procedures. Accordingly, this Court, sitting in Dayton, Ohio, within the
Southern District of Ohio, will need to examine the laws of the State of Ohio, and potentially the
Ohio Rules of Civil Procedure, as well as any applicable Local Rules of Court, in this case the
Dayton Municipal Court.
c) 	Eviction and Judgment of Restitution in Ohio
Closer to home, United States Bankruptcy Judge Russ Kendig analyzed Ohio law and
§ 362(b)(22) in the context of ruling on a “Debtor’s Motion for Clarification,” which appears to
have been similar in nature to the request for declaratory judgment before this Court in this
adversary proceeding. See In re Maggiore, No. 16-60234, 2016 Bankr. LEXIS 972, 2016 WL
1238852 (Bankr. N.D. Ohio Mar. 29, 2016). Therein he observed as follows:
A judgment for possession concerns who is entitled to possession. It is not
about money, per se. While the underlying determination may depend on
amounts owed, a judgment for possession does not always go hand in hand
with a monetary judgment. For example, under O.R.C. § 1923.081, if a
forcible entry and detainer action goes to trial, the trial may include issues
regarding past due rent and damages. (emphasis added) Similarly, when a
judge finds a forcible entry and detainer complaint is true, he “shall render
a general judgment against the defendant, in favor of the plaintiff, for
restitution of the premises and costs of the suit.” O.R.C. § 1923.09(A).
Here, the judgment for possession was clearly issued as a result of
nonpayment of rent, as evidenced by the magistrate’s findings issued on
January 14, 2016, which were adopted and confirmed by the Massillon
Municipal Court on January 19, 2016. Consequently, there was a monetary
default underlying the judgment for possession and Debtor's position is not
well-taken.
In re Maggiore, 2016 Bankr. LEXIS 972, at *5-6, 2016 WL 1238852, at *2 (emphasis added).
While the precise issue in Maggiore was actually whether § 362(l) could apply, which Ms. Steele
readily acknowledges is not at issue here, that case indicates that under Ohio law a “judgment for
possession” is an entry entered by a magistrate of a municipal court, once adopted and confirmed
by a judge of such municipal court. Id. Moreover, Judge Kendig concluded that “Debtor’s failure
to comply with the statutory requirements made the exception in § 362(b)(22) applicable[,]” such
that “Landlord’s set out on February 16, 2016 did not violate a bankruptcy stay.” Id. at *7.
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To drill down on this point, the docket for the eviction action before the Massillon
Municipal Court at issue in the Maggiore case shows that the January 14, 2016 entry was a “Report
of Magistrate” that was followed by a “Judgment Entry for Magistrate Report Approved by
Judge . . . on 01-19-2016 for First Cause of Action Writ to Issue” on January 19, 2016. See
https://www.starkcjis.org/#/case/detail/MMC/2015CVG01274. The same day, January 19, 2016,
the docket reflects that a “Writ of Restitution Issued.” Id. Thus, as in this case, the Maggiore case
identified the Massillon Municipal Court’s entry for restitution, on count one of a typical forcible
entry and detainer complaint, to be the “judgment for possession” under § 362(b)(22), not the
subsequent writ of restitution. Thus, the question is whether there is some reason the March 12
Entry for restitution in this case, entered on March 12, 2024, was not yet final when Ms. Steele
filed bankruptcy on March 14, 2024.
Under Ohio law, “ ‘[a] forcible entry and detainer action decides the right to immediate
possession of property and ‘nothing else.’ ” Miami Valley Hous. v. Jackson, 2012-Ohio-5103, ¶ 5
(2d Dist.) (quoting Goldstein v. Patel, 2003–Ohio–4386, ¶ 4 (9th dist.) (quoting Seventh Urban
Inc. v. Univ. Circle Prop. Dev. Inc., 67 Ohio St.2d 19, 25, n. 11, 423 N.E.2d 1070 (1981))). Thus,
an “Entry of Restitution” is the final judgment that awards restitution of the premises to the
landlord. Miami Valley at ¶ 3. “A judgment issuing a writ of restitution in an eviction proceeding
is a final, appealable order despite the existence of other claims and without regard to Civ.R.
54(B).” Day v. Derry, 2024-Ohio-791, ¶ 11 (11th Dist.) (citing Dixon v. Anderson, 2018-Ohio-
2312, ¶ 4 (1st Dist.); Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d
177 (1981) (“a judgment entry giving or denying a present right to possession of property, under
R.C. Chapter 1923, is appealable even though all the causes of action have not been adjudicated”)).
The March 12 Entry entered in the Eviction Action was a final and enforceable judgment
under Ohio law. Ms. Steele’s contention to the contrary has no support in Ohio law. This is
evidenced by the fact that the Dayton Municipal Court issued the Writ of Restitution on March 21,
2024, just nine (9) days after it was docketed. And it is also confirmed by Ohio law holding that
“[t]he automatic stay provision in Civ.R. 53(D)(4)(e)(i) does not apply to forcible entry and
detainer actions.” Gold Key Realty v. Collins, 2014-Ohio-4705, ¶ 5 n.2 (2d Dist.) (citing Colonial
Am. Dev. Co. v. Griffin, 48 Ohio St.3d 72, 549 N.E.2d 513 (1990) (interpreting former Civ.R.
53(E)(7)); Miele v. Ribovich, 90 Ohio St.3d 439, 739 N.E.2d 333 (2000) (stating that its decision
“is not intended to affect our previous holdings in Colonial Am. Dev. Co. ***”); Cherry v. Morgan,
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2012-Ohio-3594, ¶ 5 (2d Dist.). Thus, Ms. Steele would have been required to seek a stay, which
it is doubtful she could have done given the March 12 Entry was based on her own agreement to
vacate a property in which illegal felony drug activity had allegedly been conducted.
A more recent opinion by the Court of Appeals of Ohio, Second Appellate District,
Montgomery County (the “Second District”) confirms that the March 12 Entry was final and
appealable. See Richart v. Greenlee, 2024-Ohio-4509 (2d Dist.). Therein, regarding an entry
granting restitution, the Second District observed that “[a] judgment on a forcible entry and
detainer action is immediately appealable as arising from a special proceeding.” Id. at ¶ 18 (citing
Cerise Capital LLC v. Dewberry, 2022-Ohio-1874, ¶ 8 (2d Dist.); Sholiton Indus., Inc. v. Royal
Arms, Ltd., 1999 Ohio App. LEXIS 2531, 1999 WL 355898, *8 (2d Dist. June 4, 1999)). Although
in Ms. Steele’s case it appears that count two for money damages for unpaid rent was withdrawn
by amendment of the Eviction Complaint, even if it had not been, “a pending claim for damages
does not affect the finality of the judgment in a forcible entry and detainer action.” Greenlee, at
¶ 18 (citing Mehta v. Johnson, 2022-Ohio-3934, ¶ 12 (1st Dist.); Cuyahoga Metro. Hous. Auth. v.
Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981) (superseded on other grounds)). Thus,
the March 12 Entry, based on Ms. Steele’s in-court agreement made on January 11, 2024, which
was closely examined and confirmed on February 29, 2024, was enforceable on the date the Entry
was journalized by the Dayton Municipal Court on March 12, 2024.
While true that parties can ordinarily “file written objections to a magistrate’s decision
within 14 days of the filing of the decision[]” in question, “[t]he trial court may enter judgment
either during the 14-day period for filing objections or after the 14 days have expired.” Greenlee,
2024-Ohio-4509, ¶ 21 (citing Civ. R. 53(D)(4)(e)(i)). However, in the context of forcible entry and
detainer actions, this does not apply, as noted above:
“Civ.R. 1(C) expressly states that the Rules of Civil Procedure, to the extent
that they would, by their nature, be clearly inapplicable, do not apply to
forcible entry and detainer actions." Gold Key Realty v. Collins, 2d Dist.
Greene No. 2013 CA 57, 2014-Ohio-4705, ¶ 15. Applying Civ.R. 1(C), the
Ohio 	Supreme 	Court 	in 	Griffith 	concluded 	that 	the 	automatic 	stay
provisions in former Civ.R. 53(E)(7), now in Civ.R. 53(D)(4)(e)(i), do not
apply to forcible entry and detainer actions. Griffith at the syllabus.
Kettering Square Apts. v. Crawford, 2017-Ohio-9054, ¶ 8 (2d Dist.); Civ. R. 1(C)(3) (stating [the
Ohio Rules of Civil Procedure], “to the extent that they would by their nature be clearly
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inapplicable, shall not apply to procedure . . . in forcible entry and detainer . . . .”). The Gold Key
opinion further explains that “if the trial court has entered judgment before the time for filing
objections has run, the tenant need not file objections and, instead, should file a notice of appeal
from the trial court’s judgment.” Gold Key, 2014-Ohio-4705, ¶ 19.
As in Greenlee, in this case the Eviction Action was before a Magistrate for the hearing on
count one, for restitution of the Property, but the March 12 Entry was signed by a Judge of the
Dayton Municipal Court; thus, nothing identified it “as a magistrate’s decision, nor did it contain
any of the language that Civ. R. 53(D)(3)(a)(iii)[41] requires magistrate’s decisions to include.”
Greenlee, at ¶ 26. Rather, it reflected Ms. Steele’s agreement. And, as in Greenlee, the March 12
Entry “was the judgment” on NREA’s “forcible entry and detainer action, and it was immediately
appealable.” Id. Moreover, Ms. Steele never objected to the March 12 Entry. In fact, according to
the docket for the Eviction Action, Ms. Steele’s counsel only ever objected to the Magistrate’s
Order issued on April 3, 2024, which is not binding on this Court anyhow.
Ohio Revised Code (“R.C.”) Chapter 1923 governs a landlord’s eviction of a tenant by
forcible entry and detainer. Pursuant to R.C. § 1923.13, “[w]hen a judgment of restitution is
entered by a court in an action under this chapter . . . at the request of the plaintiff or the plaintiff's
agent or attorney, that court shall issue a writ of execution on the judgment[.]” R.C. § 1923.13(A).
Under Ohio law, the “judgment of restitution” could be the end of the forcible entry and detainer
action as it grants judgment to the owner of the real property. It is only if the holdover tenant fails
to comply with that judgment that the next step, a writ of restitution, becomes necessary. See, e.g.,
Dayton Municipal Court Rule 3.7(J) (providing “[i]f the defendant (tenant) fails to vacate or
remove personal property from the premises after restitution is granted by the Court, the
plaintiff/owner may initiate a Writ of Restitution within 30 days from the date of the Entry of
Restitution.”). The March 12 Entry was, in fact, an “Entry of Restitution” as that phrase is used in
Dayton Municipal Court Rule 3.7(J) as the Dayton Municipal Court, upon Mr. Lasky’s request,
proceeded to the next step of issuing the Writ of Restitution on March 20, 2024. And Dayton
Municipal Court Rule 3.7(I) provides that “[i]f the Court grants restitution of the premises to the
41 This provision states, in relevant parts, as follows: “A magistrate’s decision shall be in writing, identified as a
magistrate’s decision in the caption, signed by the magistrate” and “shall indicate conspicuously that a party shall not
assign error on appeal the court’s adoption of any factual finding or legal conclusion, . . . unless the party timely and
specifically objects to that factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b).” Civ. R.
53(D)(3)(a)(iii).
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plaintiff, the defendant (tenant) shall vacate the premises and remove all personal property.” There
is no indication in R.C. Chapter 1923 or Dayton Municipal Court Rule 3.7 – Forcible Entry and
Detainer Procedure – that the next step, the entry of a writ of possession, is stayed for any period
of time following the entry of the judgment of restitution (the March 12 Entry), such that a landlord
has a valid judgment for possession at the moment of entry.
As recited in the Background section, the March 12 Entry reflected the agreement of Ms.
Steele and NREA that she “agree[d] to vacate the premises by March 15, 2024 by midnight” and
that if she failed to do so, “a writ of restitution [would] issue forthwith.” Entry at 1 (Ex. D to First
Am. Compl.). Nothing in the text of the March 12 Entry indicates that it is not a final order that
grants NREA possession of the Property as of March 16, 2024. See Rulli v. Rulli Bros., 2003-
Ohio-4005, ¶ 2 (7th Dist.) (“A judgment entry giving or denying a present right to possession of
property under R.C. Chapter 1923 is a final, appealable order[.]”) (citing Cuyahoga Metro. Hous.
Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981); Witkowski v. Arditi, 123 Ohio
App.3d 26, 30, 702 N.E.2d 1231 (7th Dist. 1997)). Thus, because Civ. R. 53 does not apply to a
forcible entry and detainer action, and given that Ms. Steele agreed to all the terms of the March
12 Entry, as represented to the Dayton Municipal Court, Ms. Steele could not stay the effect of the
March 12 Entry by filing an objection.
In addition to lacking the ability to stop the Eviction Action under Ohio law through an
objection to the March 12 Entry, Ms. Steele did not have a right of appeal because she effectively
waived it by agreeing to the Entry. It is well established under Ohio law that a party to a consent
judgment is not permitted to appeal from that judgment unless they expressly reserve the right to
do so. In the context of an appeal from an agreed judgment and decree in foreclosure, the rationale
underlying this statement of law has been stated as follows:
A judgment entry to which the parties voluntarily agree and/or
consent is essentially a contract between the parties. See Ohio State Medical
Bd. v. Zwick (1978), 59 Ohio App. 2d 133, 139, 392 N.E.2d 1276; Spercel
v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 39, 285 N.E.2d 324.
As such, the parties are bound by its terms.
Furthermore, “[a] party to a consent decree or other judgment
entered by consent may not appeal unless it explicitly reserves the right to
appeal. The purpose of a consent judgment is to resolve a dispute without
further litigation, and so would be defeated or at least impaired by an appeal.
The presumption, therefore, is that the consent operates as a waiver of the
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right to appeal. It is because the parties should not be left guessing about
the finality and hence efficacy of the settlement that any reservation of a
right to appeal should be explicit.” Tradesmen Internatl., Inc. v. Kahoe
(Mar. 16, 2000), Cuyahoga App. No. 74420, 2000 Ohio App. LEXIS 1062,
2000 WL 283081, at *7, quoting Assn. of Community Orgs. for Reform Now
v. Edgar (C.A.7, 1996), 99 F.3d 261, 262. See also, Bromley v. Hinton and
Keith Development, Summit App. No. 20730, 2002 Ohio 1249, ¶ 10; Chase
v. Chase (May 31, 2001), Franklin App. No. 00AP-951, 2001 Ohio App.
LEXIS 2439, 2001 WL 579804, at *2-4; Sharp v. Sharp, Franklin App. No.
01AP-665, 2002 Ohio 1040, ¶ 13; Miklovic v. Shira, Knox App. No. 04-
CA-27, 2005 Ohio 3252, ¶ 31; Wasson v. Brumbaugh (June 26, 1981),
Wood App. No. WD-80-70, 1981 Ohio App. LEXIS 11872, 1981 WL 5686,
at *2.
Deutsche Bank Nat’l Trust Co. Ams. v. Weber, 2010-Ohio-1630, ¶¶ 13-14 (12th Dist.) (finding
“Deutsch Bank voluntarily consented to the language and terms within the agreed judgment[]”
such that it was “precluded from asserting error with regard to priority when it is clear that the
terms of the agreed entry include the trial court’s finding that CSEA has a first and best lien”); see
also RTO Funding, LLC v. Bryant, 2023-Ohio-1775, ¶ 9 (6th Dist.) (quoting Capital Income &
Growth Fund, LLC v. Hanson, 2016-Ohio-2973, ¶ 7 (6th Dist.) (quoting Deutsche Bank Nat’l Trust
Co. 	Americas, 	2010-Ohio-1630, 	¶ 13)). 	A 	contract 	is 	binding 	and 	enforceable 	when 	it
“encompasses the essential terms of the agreement[.]” Hinds v. Muskingum Cnty., 2017-Ohio-
8212, ¶ 17 (5th Dist.) (citing Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d
586 (8th Dist. 1983)).
In this situation, the Dayton Municipal Court held not one, but two hearings to ensure that
the March 12 Entry correctly reflected the parties’ agreement to resolve the restitution portion of
the Eviction Action by Ms. Steele voluntarily vacating by March 15, 2024, and if not, being
forcibly evicted through a writ of restitution. Again, a party to a consensual decree typically cannot
appeal the order unless the right is explicitly reserved. RTO Funding, 2023-Ohio-1775, ¶ 9
(citations omitted). However, for a consensual entry to be filed, the parties must be in agreement
on the meaning of the terms. Hinds, 2017-Ohio-8212, ¶ 26; see also Kohler v. Kohler, 2009-Ohio-
3434 (2d Dist.) (adopting an agreed entry where the essential terms were clear and read into the
record while both parties and their counsel were present in court.). When an agreed order is
unsigned, but the parties are in agreement on the essential terms and both parties were represented
when the agreement was read into the record, a consent entry may still constitute a binding
contract. Reynolds v. Reynolds, 2022-Ohio-334, ¶ 8 (11th Dist.) (citations omitted).
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While the March 12 Entry was not signed by either party, “the parties and their attorneys
appeared” at the January 11, 2024 hearing. First Am. Compl. at 3, ¶ 16. According to Ms. Steele,
at the January 11, 2024 hearing the parties agreed to terms to resolve the Eviction Action: “The
terms were read into the DMC’s record for the Eviction Action as follows. a. Plaintiff would vacate
the premises on or before midnight on March 15, 2024, and b. If Plaintiff failed to vacate the
premises before the expiration of such time, a writ of restitution would be issued forthwith.” Id. at
3, ¶ 17. Further, counsel for both parties were present at the February 29, 2024 hearing, where the
only disagreement to be determined was whether the parties had agreed to a rental payment term
at the prior hearing, and the magistrate listened to a recording of the prior hearing. Id. at 4, ¶¶ 18,
22. The presiding Magistrate determined that “the only terms agreed to: were that Plaintiff would
‘vacate the Property by the 15th of March and that any failures for her to do so a writ could be
issued.’ ” Id. at 4, ¶ 22. Throughout the First Amended Complaint, Ms. Steele does not dispute
that it was the parties’ agreement for possession of the Property to return to NREA by March 15,
2024. Ms. Steele confirms that these were the terms that were agreed upon at the January 11, 2024
hearing and that the terms were read into the record in the presence of both parties without
objection. Id. at 3, ¶ 7. Both NREA and Ms. Steele were present and represented at that hearing,
and both parties were represented at the subsequent hearing on February 29, 2024. Id. at 3-4, ¶¶ 16,
22. Finally, the March 12 Entry indicates that “[t]he parties agreed to the following terms” and did
not reserve any issues for appeal. Id., Ex. D. Therefore, the March 12 Entry was a consent
agreement, from which Ms. Steele had no right of appeal.42
Just because the automatic stay did not apply to continuation of the Eviction Action does
not mean, however, that NREA could take any actions that went beyond what is permitted by the
eviction exception in § 362(b)(22), which must be narrowly construed. Thus, if NREA or its
representatives damaged Ms. Steele’s personal property, including but not limited to her couch
42 However, even if Ms. Steele had a right of appeal, at the time she filed bankruptcy the March 12 Entry still remained
a valid and enforceable final judgment that had not been stayed. See, e.g., Gara v. Gara, 2015-Ohio-4401, ¶ 16 (2d
Dist.) (“The only method by which a defendant appealing a judgment of forcible entry and detainer may prevent the
cause from becoming moot is stated in R.C. 1923.14[]” which “provides a means by which the defendant may
maintain, or even recover, possession of the disputed premises during the course of his appeal by filing a timely notice
of appeal, seeking a stay of execution, and posting a supersedeas bond.” (quoting Cherry v. Morgan, 2012-Ohio-3594,
¶ 4-5 (2d Dist.) (citations omitted))). And, as the 9th Circuit B.A.P. observed in the recent LoCali opinion,
§ 362(b)(22) simply requires a “judgment for possession,” not specifying the type or precise status of said judgment,
leaving flexibility to apply this subsection to the particular circumstances of each case under the applicable state law
and rules of civil procedure.
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and her cat, she still has a valid claim against NREA for violation of subsection (a)(3) of the
automatic stay as the exercise of control over property of the estate, beyond just regaining
possession of the Real Property can violate the automatic stay under subsection (a)(3) of § 362, as
is further discussed below. It also could have given rise to state law tort claims. See, e.g., In re
Bowers, 666 B.R. 374, 388 n.11 (Bankr. C.D. Cal. 2025) (“If Debtor suffered damages in
connection with any loss of his personal property in September 2024, in connection with the
handling of Debtor's personal property after Debtor was evicted from the Apartment, Debtor may
pursue his rights to recover such damages from OZH in state court.”).
Ms. Steele, personally and through her counsel, confirmed to the Magistrate of the Dayton
Municipal Court at three (3) separate hearings held on January 11, February 29, and postpetition
on April 2, 2024, that she would vacate the Property. To allow her to then file bankruptcy and use
the automatic stay, notwithstanding the existence of an agreed judgment for possession, the
eviction exception in § 362(b)(22) and her failure to follow § 362(l), as a further delay to her
eviction would undercut the very purpose for the exception in § 362(b)(22), which is to prevent
the use of bankruptcy to excuse her failure to vacate the Property. Taking as true the facts as pled
by Ms. Steele in her First Amended Complaint, along with a review of the public records of the
Dayton Municipal Court attached to and referenced in the First Amended Complaint, the Court
finds and concludes that Ms. Steele has not stated a valid claim that § 362(b)(22) was inapplicable.
With respect to continuing the Eviction Action, NREA did not violate § 362(a)(3) of the
Bankruptcy Code because the exception under § 362(b)(22) applied to allow NREA to continue
the Eviction Action without having to obtain relief from the automatic stay.
As the 9th Circuit B.A.P. recently held, “Congress added § 362(b)(22) to the [Bankruptcy]
Code in 2005 ‘to prevent abuse of the automatic stay as a last-minute eviction shield.’ ” LoCali,
2026 Bankr. LEXIS 1706, at *16 (quoting Allegheny Cnty. Hous. Auth. v. Marciniak (In re
Marciniak), 676 B.R. 148, 151 (Bankr. W.D. Pa. 2026)). The facts alleged in the First Amended
Complaint lead to the conclusion that Ms. Steele attempted to use her chapter 7 bankruptcy as a
last-minute effort to avoid completion of the Eviction Action after agreeing, months earlier, to
resolve that Eviction Action by voluntarily vacating the Property. Even though she was given two
months to vacate, she failed to follow through, went to a third hearing to acknowledge her
agreement yet again and assured the Magistrate of the Dayton Municipal Court that she would
leave, yet she once more failed to do so. Thus, she bought herself almost two and a half more
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weeks of occupancy by filing her bankruptcy. To hold that the exception did not apply in this
instance would be to condone what appears to have been an effort by Ms. Steele to continue to
delay the inevitable. This is surely not what Congress intended to encourage in enacting
§ 362(b)(22); rather, it is precisely the type of delay and burden that it sought to eliminate for
landlords obtaining a judgment for possession prior to bankruptcy, as NREA did, by Ms. Steele’s
agreement.43 Moreover, it is notable that in this circumstance NREA likely could have filed a
certification under § 362(b)(23) at the outset of Ms. Steele’s bankruptcy case, due to the alleged
illegal drug activity at the Real Property, which potentially could have headed off this adversary
proceeding over the applicability of § 362(b)(22).
To look at this from another angle, subsection (b)(22) of § 362 effectively changes whether
the landlord or tenant has the burden to file something with the bankruptcy court if a judgment for
possession has been entered prepetition. Thus, instead of the landlord having to seek relief from
the automatic stay, the burden is shifted to the debtor tenant to file the certification required under
§ 362(l) and pay thirty days of rent (like one month’s rent), lest “subsection (b)(22) shall apply
immediately . . . 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[.]” 11 U.S.C.
§ 362(l)(4)(A). Here, the March 12 Entry was not only obtained by NREA, but it had been agreed
to before the Dayton Municipal Court by Ms. Steele and her counsel. And even if § 362(b)(22) did
not exist, the Court most likely would have granted NREA relief from the automatic stay to
continue the Eviction Action, given the allegations that Ms. Steele had not paid rent since at least
November 2023, because there was a Notification of Public Use Nuisance, and her one-year lease
term expired at the end of 2023. In this situation, it would not be equitable to allow her to remain
in possession of the Real Property. This is not, as alleged by Ms. Steele, a situation in which she
was hastily or unjustifiably evicted before the Lease was up and without due process of law or a
final judgment for possession.44 Based on her own allegations, she failed to abide by her own
43 Based on the matters before this Court, Ms. Steele never contended that she had any legitimate basis upon which to
contest the Eviction Action, and, in fact, she never attempted to contest the Eviction Action before the Dayton
Municipal Court.
44 The Court does not opine today on whether this case would have been decided differently had Ms. Steele not agreed
to the March 12 Entry for restitution. The Eviction Action may have unfolded differently if she had not. In that event,
NREA no doubt would have prosecuted the Eviction Action and Ms. Steele likely would have had less time to vacate,
given there never appeared to be any doubt that she was in default of the terms of the Lease. Requiring a landlord to
wait for the expiration of an appeal period applicable to a prepetition judgment for possession to enforce the judgment
for possession postpetition, when the landlord is not required to do so under Ohio law outside of bankruptcy, would
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agreement to vacate the Real Property and, fundamentally, filed bankruptcy, in whole or in part,
to simply get a little more time.
Years before BAPCPA was enacted, Judge Clark of this Court had occasion to consider
whether a chapter 13 debtor, “despite the entry of a judgment in a forcible entry and detainer suit,”
could still assume and cure a lease. See In re Collier, 163 B.R. 118 (Bankr. S.D. Ohio 1993).
Therein, Judge Clark determined that an order entered by the Dayton Municipal Court in a forcible
entry and detainer action that granted the plaintiff restitution of the premises was the final
judgment, not the subsequent writ of restitution. Id. at 119-21. Judge Clark explained that:
In this court’s view, the next step in the eviction process (a writ of
restitution) does nothing to further delineate the substantive rights and
liabilities of the parties under the lease. A writ of restitution is ministerial
in nature and merely enforces the state court’s previous declaration
regarding the parties’ rights.
Id. at 121 (citing, in footnote 3, State ex rel. Marsol Apt. Co. v. Vannuci, 68 Ohio App.2d 181, 428
N.E.2d 468, 470 (8th Dist. 1980)). In the Marsol Apartment decision, the Eighth District Court of
Appeals, Cuyahoga County wrote:
We hold that, under Ohio law, where a party prevails in an action for
forcible entry and detainer, it is the clear legal duty of the bailiff to remove
defendant’s (tenant’s) possessions as well as his person from the premises
after the writ of restitution has been issued by the court in order to effect the
restitution of the premises to the lawful owner.
68 Ohio App.2d at 183. Accordingly, this additional case law confirms that the entry of restitution
entered in an Ohio forcible entry and detainer action is the “judgment for possession” for purposes
of § 362(b)(22).
Ms. Steele fails to explain what, if anything, would be a final appealable judgment for
possession of the Real Property within the Eviction Action if it was not the March 12 Entry.
seem to undercut the eviction exception in § 362(b)(22). As with the inapplicability of Civ. R. 53(D), while there is a
process to stay a final entry of restitution, pursuant to R.C. § 1923.14, which requires the tenant to obtain a stay and
post a bond, unless and until any such stay is obtained an entry of restitution is enforceable. This is because under
Ohio law a judgment of restitution is immediately enforceable and even an appeal would not stay execution of the
writ of restitution. This process is discussed in Richart v. Greenlee, 2024-Ohio-4509 (2d Dist.). Moreover, if a tenant
fails to obtain a stay of execution of the writ of restitution and is evicted, any appeal of the restitution order becomes
moot. See, e.g., Miami Valley Hous. v. Jackson, 2012-Ohio-5103, ¶ 5-6 (2d Dist.) (“The only method by which a
defendant appealing a judgment of forcible entry and detainer may prevent the cause from becoming moot is stated in
R.C. 1923.14.” (quoting Cherry v. Morgan, 2012–Ohio–3594, ¶ 4)).
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Pursuant to R.C. § 1923.13(A), “[w]hen a judgment of restitution is entered by a court in an action
under this chapter, . . . that court shall issue a writ of execution on the judgment . . . .” R.C.
§ 1923.13(A). Therefore, the final step, which is ministerial, is that “within ten days after receiving
a writ of execution described in division (A) . . . of section 1923.13 of the Revised Code,
the . . . bailiff shall execute it by restoring the plaintiff to the possession of the premises . . . .” R.C.
§ 1923.14(A). A writ of restitution is obviously not a judgment as it is a ministerial action; thus,
the final substantive entry by an Ohio court in an eviction action, and the only thing that could
possibly be the judgment for possession under Ohio law in the Eviction Action, is the March 12
Entry. That is the only entry—the judgment of restitution—appealable on the count for possession
in a forcible entry and detainer action, as recognized in R.C. § 1923.14(A). It is not an interlocutory
order. Rather, because a judgment (an entry) of restitution is enforceable upon entry45 and a writ
of restitution is required to be executed within ten days, the eviction could happen before the appeal
period runs. Thus, it would render the exception in § 362(b)(22) of little utility, as applied to Ohio
evictions, if a judgment for restitution had to become non-appealable before it could be considered
a “judgment for possession” within a bankruptcy, even though it is a final and enforceable
judgment for restitution outside of bankruptcy. That approach does not make sense and does not
track the plain language of § 362(b)(22), which requires a “judgment for possession,” not a
non-appealable judgment for possession. Thus, without currently opinion on any other permutation
of how an eviction action can play out under Ohio law,46 the simplest approach, as suggested by
45 The fact that the March 12 Entry gave Ms. Steele until the end of March 15, 2024 to vacate does not mean it was
non-final (interlocutory) or that the automatic stay prevented it from taking effect. Because it clearly disposed of the
entirety of the claim for restitution in NREA’s FE&D Complaint, in accordance with Ms. Steele’s own agreement, it
clearly was the final judgment for restitution in the Eviction Action. That said, as a “judgment for possession,”
§ 362(b)(22) was invoked upon Ms. Steele filing her chapter 7 bankruptcy case because she did not file Official Forms
101A or 101B to invoke § 362(l), such that it (§ 362(b)(22)) took effect immediately, the same as if she had identified
the judgment for possession in her filings as required by § 362(l)(5)(A), but did not file a certification under § 362(l)(1)
or (l)(2), as set forth in § 362(l)(4)(A), which expressly provides that “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[.]”
11 U.S.C. § 362(l)(4)(A).
46 Take, for example, a hypothetical situation in which the judgment, entry, or order of restitution signed by a municipal
court judge, which decides the issue of possession in an Ohio eviction action, is entered on October 1, 2026. Pursuant
to R.C. § 1923.13 the landlord submits and obtains the issuance of a writ of restitution on October 8, 2026, which
must be executed by the bailiff or other designated official within ten days, pursuant to R.C. § 1923.14. This means
the eviction would happen by October 19, 2026, at the outside, which is still before a thirty-day appeal period would
run under Ohio Rule of Appellate Procedure 4(A)(1). To adopt Ms. Steele’s approach would mean that under
§ 362(b)(22) there never was a “judgment for possession,” even though the eviction is over and done, which thereby
will ordinarily moot any appeal. See Day v. Derry, 2024-Ohio-791, ¶¶ 6 (11th Dist.) (“Where a tenant fails to perfect
a stay of the writ of restitution, and possession of the premises is restored to the landlord, there is no relief a reviewing
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the recent LoCali opinion, is to recognize under Ohio law that an entry (judgment) of restitution
that finally determines the issue of possession, once entered by an Ohio court, is a “judgment for
possession” for the purposes of § 362(b)(22), subject to any actions that a tenant may take to stay
that judgment of restitution under Ohio Rule of Appellate Procedure 7 and R.C. § 1923.14(A).
Here, however, Ms. Steele took no such action and under Ohio law she could not have successfully
appealed the agreed judgment for possession, such that the “finality” of the March 12 Entry was
not in question.47 Accordingly, the March 12 Entry shifted the burden to Ms. Steele to invoke the
automatic stay through § 362(l), which she did not do.
The approach advocated by Ms. Steele would not account for the practical reality that
forcible entry and detainer actions are “an expedited method to recover possession of real
property.” Olentangy Commons Owner LLC v. Fawley, 2023-Ohio-4039, ¶ 11 (10th Dist.)
(citations omitted). And, again, § 362(l) provides the remedy in bankruptcy for those debtors who
wish to invoke the automatic stay for thirty days or more to challenge an Ohio judgment for
restitution, in addition to any continued ability to seek a stay of execution under Ohio law pursuant
to Ohio Rule of Appellate Procedure 7 and R.C. § 1923.14(A). But here, it appears that Ms. Steele
may not have been able to meet the requirements of § 362(l) such that she took the approach of
challenging the applicability of § 362(b)(22).
Based on the foregoing and considering that the record of the Eviction Action in Dayton
Municipal Court, which has been put before this Court by Ms. Steele in detail, will not change, it
is appropriate for this Court to rule on the legal issue focused on by the parties – the applicability
of the eviction exception in § 362(b)(22). Because Count I of the First Amended Complaint is
presented as seeking a declaratory judgment that the eviction exception in § 362(b)(22) is
“inapplicable,” the Court cannot grant and will dismiss Count I pursuant to Civil Rule 12(b)(6)
because “it appears beyond doubt that [Ms. Steele] can prove no set of facts in support of [her]
claim which would entitle [her] to relief.” Maxus Cap. Grp., LLC v. Uhrich (In re Level Propane
Gases, Inc.), No. 09-8047, 2010 Bankr. LEXIS 882, at *7 (B.A.P. 6th Cir. Apr. 2, 2010) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007) (citing Conley v. Gibson, 355 U.S. 41,
court may grant on appeal of the judgment granting the writ.” (citing Concrete, Inc. v. City of Willowick, 2020-Ohio-
71, ¶ 5 (11th Dist.))).
47 This fact may well distinguish this case from other Ohio eviction actions that may ultimately come before this Court.
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45-46 (1957))). Under these specific circumstances, the Court cannot conclude that the eviction
exception in § 362(b)(22) was inapplicable. That said, even though this Court concludes that the
eviction exception in § 362(b)(22) did apply because the March 12 Entry for restitution was a
“judgment for possession,” that does not mean that all of NREA’s and Mr. Lasky’s actions are
excepted from the automatic stay. In other words, the issue of the scope of the eviction exception
in § 362(b)(22) is still alive and will be addressed within the context of Count II of the First
Amended Complaint below, which is not being dismissed.
F. 	Count II – § 362(a)(1), (a)(3), and (a)(6) of the Automatic Stay, and § 362(k)
Ms. Steele alleges in Count II that NREA and Mr. Lasky violated not only subparagraph
(a)(3) of the automatic stay (§ 362), but also violated subsections (a)(1) and (a)(6), to which the
exception in § 362(b)(22) does not apply. See First Am. Compl. at 16-17, ¶¶ 93-94. Subparagraph
(a)(1) of the automatic stay is expansive in the way it prevents the continuation of a judicial action
against a debtor that was commenced prepetition, or to recover a claim against the debtor that arose
prepetition, whereas subparagraph (a)(3) concerns property of the estate and acts to obtain
possession or to exercise control over such property. But conversely, if the continuation of an
eviction action does not violate subparagraph (a)(3) because of the exception in § 362(b)(22), it
would not make sense that continuation of that eviction action would still violate subparagraph
(a)(1)48 because that could render the exception in § 362(b)(22) of little use. In other words,
application of (a)(1) would seem to conflict with the exception in § 362(b)(22). At this stage,
however, because Ms. Steele has adequately pled a claim that NREA has plausibly violated at least
subsection (a)(3) of the automatic stay by exercising control – damaging, destroying, or disposing
– of her personal property (property of the estate), the Court need not attempt to determine which
subsections of the automatic stay were violated, as it only takes one to trigger liability under
§ 362(k)(1). Szoke v. Chase Home Fin., Inc. (In re Szoke), Nos. 06-42182, 12-4048, 2012 Bankr.
LEXIS 6299 (Bankr. N.D. Ohio Aug. 28, 2012) (ruling on a motion to dismiss, “[b]ecause the
Court finds that the Debtors have stated a plausible claim for alleged violation of the automatic
48 Regarding subsection (a)(1) of § 362, the question appears to be whether, after Ms. Steele filed her Petition, NREA
continued any judicial action against Ms. Steele beyond seeking the eviction of Ms. Steele from the Real Property,
which is beyond the bounds of the eviction exception under § 362(b)(22), as narrowly construed. However, the parties
have not addressed this issue, focusing instead on the preceding question of whether the eviction exception applied.
See, e.g., Resp. at 3 (“In the main, NREA’s MTD rises or falls on one pivotal issue – the application of 11 U.S.C.
§ 362(b)(22) (citing Motion to Dismiss (Doc. 106), passim).
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stay in § 362(a)(3), the Court does not need to determine if the Complaint also states a plausible
claim for violation of § 362(a)(6)”). Accordingly, the Court will not, at this time, set about to
determine whether Ms. Steele has stated plausible claims under subparagraphs (a)(1) or (a)(6).
As recited below, “[a]n individual seeking damages for a violation of the stay has the
burden of establishing three elements . . . : (1) the actions were taken in violation of the automatic
stay; (2) the violation was willful; and (3) the violation caused actual damages.” Haywood v. Villa
at City Ctr. (In re Haywood), No. 25-04074-LSG, 2025 Bankr. LEXIS 1739, at *5-7, 2025 WL
2056106, at *2 (Bankr. E.D. Mich. July 22, 2025) (quoting Collet v. Lee Oil Co. (In re Collet),
No. 13-8033, 2014 Bankr. LEXIS 2250, at *10, 2014 WL 2111309, at *4 (B.A.P. 6th Cir. May 21,
2014)). Ms. Steele has adequately alleged all three elements in respect to the damage, destruction,
or disposition of her personal property. And even though § 362(b)(22) was applicable to
continuation of the Eviction Action, a narrow construction of the eviction exception does not
except these actions. See Seaton, 462 B.R. at 593-94; see also Williams, 371 B.R. at 112-13
(concluding that even though no automatic stay went into place due to debtor’s failure to “fulfill
the requirements of § 362(l),” such that no stay relief was required to pursue an eviction action,
“[w]ith respect to the personal property that remains in the Residence, the automatic stay remains
in place”).
To the extent that NREA had continued to seek a monetary judgment against Ms. Steele,
that could have potentially violated either § 362(a)(1) or (a)(6); however, both the allegations of
the First Amended Complaint, as well as the docket of the Dayton Municipal Court for the Eviction
Action, indicate that as of December 18, 2023, well before Ms. Steele filed her bankruptcy, NREA,
by and through Mr. Lasky, had amended the FE&D Complaint to only assert a claim for restitution
of the Real Property due to illegal drug activity. See Def.’s Ex. B to Answer (Doc. 4-1); First Am.
Compl. at 3, ¶ 14. Further, although NREA, also by and through Mr. Lasky, allegedly filed a
Motion for Default Judgment on March 4, 2024 seeking a monetary judgment (apparently on a
then non-existent count two) and “submitted and received the [Dayton Municipal Court] Judge’s
signature on a form Entry Granting Default Judgment and Scheduling Matter for a Hearing to
determine monetary damages” on March 14, 2024,49 Ms. Steele did not file her Petition for chapter
49 The docket for the Eviction Action in Dayton Municipal Court shows two entries on March 14, 2024, the first at
2:51 p.m. which states “[a] Motion finding of Granted entered for the Motion for Default Judgment that was filed by
Lasky & Scharrer – Plaintiff Attorney on 03/01/2024[,]” and the second at 3:49 p.m. which states “Entry document
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7 relief until 9:38 p.m. that evening. First Am. Compl. at 4-5, ¶¶ 23, 27, 28; Petition (Doc. 1).
There is no allegation in the First Amended Complaint that NREA took any action after Ms. Steele
filed her Petition to continue to seek a monetary judgment; rather, all the allegations, as well as
the items on the Dayton Municipal Court’s docket, appear to concern continuation of the Eviction
Action through the: (a) Writ of Restitution; (b) the April 2, 2024 hearing; (c) the resultant April 4
Magistrate’s Order; (d) a Motion to Stay Writ of Restitution filed by Ms. Steele’s Counsel, Mr.
Willison, on April 4, 2024; and (e) Objections to Magistrate’s Decision, also filed by Mr. Willison.
See First Am. Compl. at 8, ¶¶ 47-49. In fact, the only item on the docket regarding a default
judgment is Defendant’s Motion to Set Aside Default Judgment that was filed on April 12, 2024,
but which is also not mentioned in the First Amended Complaint.
Accordingly, based on the allegations of the First Amended Complaint, as matched up
against the docket for the Eviction Action, Ms. Steele has alleged a claim for violation of the
automatic stay at least under § 362(a)(3) due to NREA or its agents’ actions to damage, destroy,
and dispose of Ms. Steele’s personal property, which was property of the estate, because those
actions are not excepted from the automatic stay pursuant to the eviction exception in § 362(b)(22),
as narrowly construed. The Court does not, however, determine whether there are any actions that
NREA is alleged to have taken postpetition that could have violated subsections (a)(1) or (a)(6) of
the automatic stay (§ 362). But Ms. Steele’s viable allegations under Count II of the First Amended
Complaint, upon which Ms. Steele has alleged a claim to hold NREA responsible for damages
under § 362(k)(1), are that NREA damaged, destroyed, or disposed of her personal property,
including but not limited to the couch and missing cat, and caused her emotional distress by doing
so (and by leaving a vulgar makeshift sign on her allegedly damaged couch). NREA claims that
Ms. Steele claims are “insufficient to support relief under § 362(k)[,]” but for purposes of simply
alleging her claims, she has adequately pled facts supporting her claim, the proof will be assessed
later. NREA’s citation to Dawson v. Ram Motors, LLC (In re Dawson), 665 B.R. 796, 805-06
(Bankr. S.D. Ohio 2025), which was an opinion issued on a motion for summary judgment (finding
the creditor violated the automatic stay and was liable for actual and punitive damages, as well as
attorney fees), not on a motion to dismiss, is unavailing; in short, proving is different than alleging.
imaged[.]” Vinebrook Homes, LLC for NREA VB III, LLC v. Steele, Dayton M.C. No. 2023-CVG-006454, available
at: https://clerkofcourt.daytonohio.gov/PA/CvCaseSummary.cfm?cid=aldFSzhlNFIybkU9.
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Last, on the issue of Ms. Steele stating a claim, it is obvious that NREA knew about Ms.
Steele’s bankruptcy case, having filed a Motion for Stay Relief in her chapter 7 bankruptcy early
on, only five days after she filed bankruptcy, and having debated the implications of the bankruptcy
case before the Dayton Municipal Court. Thus, NREA and its agents50 subsequent actions are
sufficiently pled to be “willful” given that Ms. Steele has alleged that NREA (and Mr. Lasky)
“knew of the stay and violated the stay by an intentional act[;]” namely, by damaging, destroying,
or disposing of her personal property. TranSouth Fin. Corp. v. Sharon (In re Sharon), 234 B.R.
676, 687 (B.A.P. 6th Cir. 1999) (cited in Resp. at 12, ¶ 28). NREA takes issue in its Motion to
Dismiss with whether its actions were “willful,” but the case law cited therein pre-dates the
amendments to § 362(k), also enacted as part of BAPCPA. See In re Seymoure, No. 07-4960, 07-
4967, 2008 U.S. Dist. LEXIS 18968, at *6-7, 2008 WL 699584, at *2 (D.N.J. Mar. 12, 2008)
(stating that through BAPCPA in April 2005, “subsection (h), which dealt with ‘willful’ violations
of automatic stays, was redesignated as subsection (k)” and “Paragraph 1 of subsection (k) was
amended to include an exception to the subsection, which was provided by the addition of
Paragraph 2 to the subsection.”) And regardless of whether In re University Medical Center is still
viable (in the Third Circuit), it was a unique situation involving the Department of Health and
Human Services withholding payments for Medicare services rendered postpetition, a far more
complex legal issue than is presented in this case.51 And the In re University Medical Center
opinion was in conflict with even the Third Circuit Court of Appeals’ prior precedent that
“[w]hether the party believes in good faith that it had a right to the property is not relevant to
whether the act was ‘willful’ or whether compensation must be awarded.” 973 F.2d at 1088
(quoting In re Atl. Bus. & Cmty. Corp., 901 F.2d at 329 (quoting In re Bloom, 875 F.2d 224, 227
50 “Under ‘general principles of agency law . . . a creditor-principal is liable under § 362(k) for the acts of an
agent . . . who willfully violates the automatic stay taken when those acts are within the scope of their principal-agent
relationship.’ ” Bankers Healthcare Grp., Inc. v. Bilfield (In re Bilfield), 494 B.R. 292, 301 (Bankr. N.D. Ohio 2013)
(quoting In re Webb, 472 B.R. 665 at n. 4 (quoting Theokary v. Abbatiello (In re Theokary), 444 B.R. 306, 323-24
(Bankr. E.D. Pa. 2011))); see also In re Stringer, 586 B.R. 435, 446 (Bankr. S.D. Ohio 2018). Note that the Webb
opinion at 470 B.R. 439 (B.A.P. 6th Cir. 2012) was withdrawn by the publisher and replaced with 472 B.R. 665, which
appears to contain no analysis; however, there is a subsequent opinion at No. 07-13703, 2012 Bankr. LEXIS 3858, at
*5, 2012 WL 3638005, at *2 (Bankr. N.D. Ohio Aug. 22, 2012), which also cites the Theokary opinion on this point.
51 The other case cited by NREA, California Coast University, also a Third Circuit Court of Appeals’ opinion, held
that “[t]hough we conclude University Medical remains good law, the District Court correctly found that CCU failed
to establish a defense under that case.” 13 F.4th at 347. Moreover, it will be NREA’s burden to establish any such
defense and is simply not an issue on this Motion to Dismiss which tests the viability of Ms. Steele’s First Amended
Complaint.
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(9th Cir. 1989) [quoting INSLAW, Inc. v. United States, 83 B.R. 89, 165 (Bankr. D.D.C. 1988)])).
Moreover, a defendant’s good faith is simply not something that can be assessed in the context of
a motion to dismiss under Civil Rule 12(b)(6), and it does not appear that the Sixth Circuit Court
of Appeals has adopted an analysis like that in In re University Medical Center. See, e.g., Springer
v. RNBJ RTO LLC (In re Springer), No. 16-3007, 2017 Bankr. LEXIS 2304, at *7 (Bankr. W.D.
Ky. Aug. 16, 2017) (“A creditor’s good faith belief that its intentional actions did not violate the
automatic stay is not a defense to a § 362(k) action.” (citing Sharon, 234 B.R. at 688)). “[E]ven if
the creditor’s belief is based on ‘a mistake of law or legal dispute regarding its rights[,]” good faith
is not a defense to a § 362(k) action. Springer, 2017 Bankr. LEXIS 2304, at *7 (quoting In re
Johnson, 253 B.R. 857, 861 (Bankr. S.D. Ohio 2000); Fleet Mortg. Group, Inc. v. Kaneb (In re
Kaneb), 196 F.3d 265, 268-69 (1st Cir. 1999) (“A good faith belief in a right to the property is not
relevant to a determination of whether the violation was willful.”). At this stage it is simply a
question of whether Ms. Steele has stated a plausible claim for relief that NREA violated the
automatic stay, and she has. NREA will have a chance to attempt to prove any defenses.
G. 	Civil Rule 9(g) on Special Damages Does Not Apply
Section 362(k)(1) provides that “in appropriate circumstances” an “individual injured by
any willful violation of a stay provided by this section . . . may recover punitive damages.” NREA
contends, in its Motion to Dismiss, that Civil Rule 9(g), concerning “special damage” applies to
Ms. Steele’s attempt to recover for her “emotional distress and punitive damages” such that the
First Amended Complaint is “independently deficient” and “Plaintiff should be barred from
pursuing special damages or be required to amend the Amended Complaint in order to set forth
sufficient allegations with the requisite detail and causal specificity.” Mot. to Dismiss at 18-19,
¶¶ 52, 55. In the context of § 362(k), the matter is pretty straightforward. Ms. Steele is alleging
that she was damaged by NREA’s violation of the automatic stay by damaging, destroying, and
disposing of her personal property—property of the estate.
Ms. Steele does not have to “ ‘state a claim’ for punitive damages” and case law provides
that “[p]unitive damages are not an item of special damage.” Smith v. Smith (In re Smith), 489 B.R.
875, 889 (Bankr. M.D. Ga. 2013) (citing Scutieri v. Paige, 808 F.2d 785, 790-90 (11th Cir. 1987)
(“district court clearly erred in not submitting punitive damage issue to jury even when complaint
did not specifically request punitive damages because ‘complaint specifically alleged that
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Defendants acted maliciously, wantonly, willfully and in bad faith and with a reckless disregard
for Plaintiffs’ rights.’ ”); Guillen v. Kuykendall, 470 F.2d 745, 748 (5th Cir. 1972) (“It is not
necessary to claim exemplary damages by specific denomination if the facts show that the wrong
complained of was inflicted with malice, oppression, or the like circumstances of oppression.”)
(citations and internal quotation marks omitted)); see also Blewster v. Garvey, No. 19-11914, 2020
U.S. Dist. LEXIS 260785, at *10-11, 2020 WL 12740544, at *4 (E.D. La. Sept. 23, 2020) (“While
the phrase ‘special damages’ is not defined by the Rule, courts in this circuit have consistently held
that punitive damages are not special damages.” (citing Schexnayder v. Bonfiglio, 167 F. App’x
364, 367 (5th Cir. 2006))). Thus, Ms. Steele’s “factual allegations would be enough to put [NREA]
on notice that punitive damages [a]re at issue[.]” Smith, 489 B.R. at 889. Whether Ms. Steele can
prove her entitlement to punitive damages is an evidentiary issue, which is not presently before
the Court. See, e.g., Mitchell v. Anderson (In re Mitchell), 545 B.R. 209, 223 (Bankr. N.D. Ohio
2016) (“Punitive damages are appropriate only when a creditor acts egregiously, vindictively, or
with intentional malice.” (citing Bankers Healthcare Grp., Inc. v. Bilfield (In re Bilfield), 494 B.R.
292, 304 (Bankr. N.D. Ohio 2013) (quoting In re Baer, No. 11-8062, 2012 Bankr. LEXIS 2849,
2012 WL 2368698, at *10 (B.A.P. 6th Cir. June 22, 2012))). Moreover, some courts hold that
“emotional distress damages are actual damages that can be recovered for a stay violation.”
Mitchell, 545 B.R. at 222 (quoting Bilfield, 494 B.R. at 302-03). “An award of punitive damages
is within the bankruptcy court’s discretion where actual damages are an insufficient deterrent to
further violations.” Mitchell, 545 B.R. at 223 (citing Archer v. Macomb Cnty. Bank, 853 F.2d 497,
500 (6th Cir. 1988)).
In short, all that Ms. Steele needs to do at this phase is provide a “short and plain statement”
of the willful violation of the automatic stay and, as to damages, allege some basis that she has
been harmed. See Cousins v. CitiFinancial Mortg. Co. (In re Cousins), 404 B.R. 281, 285, 289-90
(Bankr. S.D. Ohio) (Walter, J.) (stating that § 362(k)(1) “allows a debtor to recover ‘actual
damages including costs and attorney fees.’ ”). Here, Ms. Steele has validly stated a claim for
violation of the automatic stay, outside the narrow scope of what is permitted by § 362(b)(22), and
has alleged injuries for “dispossession and destruction of the vast majority of her personal
property;” “[c]ontinuing and permanent [] dispossession of Plaintiff’s pet cat;” and “[e]xtreme
emotional distress[.]” First Am. Compl. at 17, ¶ 95. Based on this she requests “actual damages,
costs and reasonable attorney fees and expenses[,]” and asserts that she is “entitled to recover
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appropriate punitive damages.” Id. at 18, ¶ 98-99. This is rooted in the detailed factual background
she recounted in her First Amended Complaint and is sufficient to withstand the Motion to
Dismiss. See Haywood, 2025 Bankr. LEXIS 1739, at *5-7. “Whether such damages should be
awarded in this particular case is a matter to be determined on another day following an evidentiary
hearing.” Cousins, 404 B.R. at 291; see also In re Paige, 678 B.R. 588, 600 (Bankr. S.D. Ohio
2026) (noting that “courts that have awarded [emotional] damages have required medical or other
corroborating evidence showing severe emotional distress and not ‘fleeting and inconsequential
distress, embarrassment, humiliation, and annoyance.’ ” (quoting Cousins, 404 B.R. at 290-91)).
For now, the First Amended Complaint states a “plausible claim to recover damages under []
§ 362(k) for a violation of the automatic stay.” Haywood, 2025 Bankr. LEXIS 1739, at *6-7.52
H. 	Motion for a More Definite Statement Under Civil Rule 12(e)
Although Ms. Steele’s filings are, at times, a bit hyperbolic, she does have a fair point that
the Complaint, as well as the First Amended Complaint, are replete with detailed allegations
concerning the circumstances of NREA’s alleged violation of the automatic stay. Precisely who
did what and when, with respect to the damage, destruction, and disposition of Ms. Steele’s
personal property does not have to be fully detailed at the moment given that we have to take as
true the allegations that it was at NREA’s behest as a continuation of its Eviction Action. This is
not a fraud claim to which Civil Rule 9(b) would apply, is not required and is a topic for discovery.
There is more than enough information with respect to what happened to Ms. Steele’s personal
property as a result of the Eviction Action that NREA and Mr. Lasky pursued postpetition. And
the case cited by NREA in this regard has no application to the type of claim asserted in this
adversary proceeding, for violation of the automatic stay, where there is no doubt whatsoever as
to the “soul of the claim.” Mot. to Dismiss at 19, ¶ 57 (citing Kensu v. Corizon, Inc., 5 F.4th 646,
647, 650, 653 (6th Cir. 2021) (addressing an inmate’s meandering lengthy and unclear complaint
“[a]lleging several deprivations of constitutional rights” and concluding that “neither court nor
defendant can easily identify the soul of the claim.”)). NREA already answered the Complaint
once, and they can do so again.
52 It is also worth remembering that stay violations are often pursued through a motion filed in the main bankruptcy
case, not through a separate adversary proceeding that entails more procedure. Paige, 678 B.R. at 600 (citing Buckeye
Check Cashing, Inc. v. Meadows (In re Meadows), 396 B.R. 485, 498 (B.A.P. 6th Cir. 2008)).
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V. 	Conclusion
The premise upon which Ms. Steele filed her Motion to Determine § 362(b)(22)
Inapplicable, followed by her Complaint, and later her First Amended Complaint, was that the
March 12 Entry was not a “judgment for possession, by ‘equivalency’ or otherwise, for the purpose
of [] § 362(b)(22)” because “it was neither final nor non-appealable.” Compl. at 12, ¶ 72; First
Am. Compl. at 14-15, ¶¶ 85, 87. Ms. Steele asserted in conclusion to Count I of the First Amended
Complaint that she is “entitled to a declaratory ruling that the exception provided by [] § 362(b)(22)
is inapplicable to any order coming from the DMC prior to March 14, 2024, at 9:[3]8 p.m., and
specifically, the March 12, 2024, ‘Entry’.” First Am. Compl. at 15, ¶ 88 (emphasis in original).
But that view is not supported by the language of § 362(b)(22), the legislative history to the
purpose of enactment of corresponding subsections (b)(22) and (l) to § 362 under BAPCPA, and
application of the exception to the Eviction Action under Ohio law, Ohio civil rules of procedure,
the local rules of the Dayton Municipal Court, and the facts of this case as alleged by Ms. Steele,
taking all of her allegations as true and based upon the docket of the Eviction Action.
To recap: (a) Dayton Municipal Court Rule 3.7(I) and (J) indicate the Entry was an “Entry
of Restitution,” entitling NREA to obtain a Writ of Restitution if Ms. Steele failed to leave the
Real Property by midnight on March 15, 2024; (b) the March 12 Entry was based on Ms. Steele’s
in-court agreements on January 11 and February 29, 2024, to vacate by March 15, 2024; (c) under
Ohio law, Civ. R. 53(D) did not apply to permit Ms. Steele to automatically stay the March 12
Entry;53 (d) because Ms. Steele agreed to the March 12 Entry, not once, but twice before the
Magistrate of the Dayton Municipal Court, with counsel, she did not have a right of appeal under
Ohio law; and (e) she did not, or perhaps could not, utilize the option provided for by § 362(l) to
remain in the Real Property for thirty more days. Thus, under Ohio law a “judgment for
possession” for purposes of § 362(b)(22) is the entry or judgment of restitution, in this case the
March 12 Entry, which was the final judgment of the Dayton Municipal Court on the issue of
possession of the Real Property. Therefore, Ms. Steele has failed to state a plausible claim for
declaratory judgment in Count I of her First Amended Complaint that § 362(b)(22) was
53 Notably, nowhere in Ms. Steele’s Response to the Motion to Dismiss does she suggest that Ohio Civ.R. 53(D)
applied to the March 12 Entry, as she previously did in her First Amended Complaint. See First Am. Compl. at 14-15,
¶ 86.a.
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inapplicable. Taking all the facts she alleged as true, though not her legal conclusions therefrom,54
the Court determines that § 362(b)(22) did apply, and because she did not (or could not) invoke
§ 362(l), no automatic stay ever went into place with respect to NREA’s continuation of the
Eviction Action as to possession of the Real Property. Accordingly, the Motion to Dismiss is
hereby granted, in part, such that Count I of the First Amended Complaint is hereby DISMISSED.
Count II, however, remains viable, and in this regard the Motion to Dismiss is hereby
denied, in part. Because the eviction action exception in § 362(b)(22) is to be narrowly construed
and only permitted the continuation of the Eviction Action to recover the Real Property – the
residential property in which Ms. Steele resided – said exception did not authorize NREA to
“obtain possession of” or “to exercise control over” property of the estate that was not the
residential property in which Ms. Steele resided (i.e., her personal property), such that Ms. Steele
has, at a minimum, stated a valid claim for relief in Count II, to the extent Ms. Steele is alleging
that NREA violated § 362(a)(3) by, without limitation, damaging, destroying, and disposing of her
personal property, such as (but not limited to) the couch and missing cat. And because she has
stated a valid claim for violation of the automatic stay under § 362(a)(3), because she is an
“individual,” and because she has sufficiently alleged that NREA’s purported violation of the
automatic stay was done with full knowledge of Ms. Steele’s bankruptcy such that it was “willful”
under § 362(k)(1), she is entitled to proceed with Count II.
However, apart from proceeding with the Eviction Action and potentially violating the
automatic stay by exercising control over her personal property, the Court is not determining
whether any other actions, judicial or otherwise, as alleged by Ms. Steele, violated subsections
(a)(1) or (a)(6) of § 362, which are not excepted by § 362(b)(22). That is a question for another
day – whether the facts alleged in the First Amended Complaint establish a violation of the
automatic stay under subsections (a)(1) or (a)(6) of § 362. Therefore, for all the reasons stated in
this Opinion and Order, Ms. Steele’s First Amended Complaint states a plausible claim for relief,
albeit not on the basis that NREA violated § 362(a)(3) by continuing the Eviction Action, such
that the Court will not, at this time, dismiss Count II and Ms. Steele will have the opportunity to
prove that NREA or Mr. Lasky violated the automatic stay. Although there was a “judgment for
54 “[A] court is not required to accept as true unwarranted legal conclusions and/or factual allegations.” In re Level
Propane Gases, Inc., 2010 Bankr. LEXIS 882, at *7 (quoting Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 327
(6th Cir. 2007) (citation omitted)).
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possession,” in the form of the March 12 Entry prior to Ms. Steele filing bankruptcy, and she did
not invoke § 362(l) such that no automatic stay ever went into place to stop NREA from obtaining
a writ of possession to displace Ms. Steele, that did not give NREA the right to mishandle and
mistreat her personal property, even if they may have arguably acted in accordance with Ohio
eviction law. The § 362(b)(22) exception must be narrowly construed and does not except from
the automatic stay acts to exercise possession or control over property of the estate, particularly
personal property.
NREA’s claim in its Motion to Dismiss that Civil Rule 9(g) applies to Ms. Steele’s
assertion of entitlement to punitive damages is legally incorrect. Therefore, NREA’s motion for a
more definite statement under Civil Rule 12(e), which was included in its Motion to Dismiss, is
also denied. Ms. Steele has more than adequately alleged the facts giving rise to her claim that
NREA or its agents violated § 362(a)(3) therefore potentially entitling her to damages under
§ 362(k)(1). Obviously, whether she can prove those claims is another matter, but for now it is
certainly plausible, and the burden will be on her to establish damages. Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss is granted, in part, and denied, in
part, as set forth above, such that Count I is hereby DISMISSED, but Count II remains as it states,
at a minimum, a plausible claim that NREA violated (a)(3) of the automatic stay (§ 362) and is
therefore liable for damages under § 362(k)(1); and
IT IS FURTHER HEREBY ORDERED that NREA shall file a responsive pleading to
Count II of the First Amended Complaint within fourteen (14) days after the entry of this Opinion
and Order;
IT IS FURTHER HEREBY ORDERED that the Court anticipates scheduling a status
conference with the parties to discuss the remaining matters pending before this Court in this
adversary proceeding in order to determine if this Opinion and Order enables the parties to proceed
with mediation as they had previously requested, if it may lead to a resolution without mediation,
or if setting a new case schedule would be appropriate to move this adversary proceeding toward
conclusion. And, if the latter, whether other pending motions remain for adjudication; and
IT IS FURTHER HEREBY ORDERED that prior to holding a status conference, the
parties to this adversary proceeding (Plaintiff, Defendants, Third-Party Plaintiffs and Third-Party
Defendants) shall file a status report regarding the foregoing matters, as set forth in the ordinal
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paragraph immediately above regarding the impact of this Opinion and Order on the remaining
matters pending in this adversary proceeding, by or before October 13, 2026.
IT IS SO ORDERED.
Copies to:
James E. Nobile, JENESQ, 285 S. Liberty St., Suite 1D, Powell, OH 43065,
jenobile@ntlegal.com
(Counsel for Plaintiff)
Dov Y. Frankel
David K. Stein
Bruce J. L. Lowe
Connor D. Hicks
(Counsel for Defendant NREA VB III, LLC)
Robert D. Ross
(Counsel for the Montgomery County Prosecutor)
David C. Greer
Catherine H. Jackson
(Counsel for Defendant Larry Lasky and Third-Party Defendants)
Case 3:24-ap-03011 Doc 149 Filed 09/24/26 Entered 09/24/26 14:21:52 Desc Main
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