In In Re Higgs, Ch. 13 Case No. 12-76496-pwb, 2012 Bankr. LEXIS 6008 (Bankr. N.D. Ga. November 2, 2012), the Movant purchased a foreclosed property from the lender after a foreclosure sale.  Movant proceeded to obtain a writ of possession in the Magistrate Court to evict the Debtor, who was not the original borrower but who claimed he had a lease with another person who was also not the original borrower (but with the same last name).

Debtor subsequently filed a Chapter 13 bankruptcy petition. Movant then sought an order from the Bankruptcy Court declaring that the automatic stay was not applicable pursuant to 11 USC § 362(b)(22)

Judge Bonapfel disagreed with the Movant and held the exception was not applicable.  Section 362(b)(22) provides that § 362 does not operate as a stay …

… of an eviction action that seeks possession of the residential property in which the debtor resides as a tenant under a lease or rental agreement based on endangerment of such property or the illegal use of controlled substances on such property, but only if the lessor files with the court, and serves upon the debtor, a certification under penalty of perjury that such an eviction action has been filed, or that the debtor, during the 30-day period preceding the date of the filing of the certification, has endangered property or illegally used or allowed to be used a controlled substance on the property.

(emphasis added).

Judge Bonapfel ruled that under the plain language of the Code, a landlord-tenant relationship is required between a movant and the debtor for the exception to apply and there was no evidence of such a relationship.

The Court concludes that the facts as asserted by the Movant do not give rise to a right to relief under § 362(b)(22). Although SPT obtained a prepetition writ of possession, it is not founded on a landlord-tenant relationship with the Debtor as the plain language of § 362(b)(22) requires. There is no allegation or evidence that SPT is a lessor of the Property to the Debtor or any other party…

It is entirely possible that this Debtor’s bankruptcy filing is a calculated attempt to further delay the lawful eviction of persons from the Property. The possibility of an abusive filing is further indicated based upon the lack of an original signature on the petition. Notwithstanding these circumstances, the Court cannot ignore the plain and explicit terms of § 362(b)(22)’s requirement of a landlord-tenant relationship. As a result, § 362(b)(22) is inapplicable to the facts of this case. SPT may seek relief from the automatic stay pursuant to 11 U.S.C. § 362(d) and any other remedies to prevent an abusive filing it deems appropriate, subject to notice and a hearing.


Scott Riddle’s practice focuses on bankruptcy and litigation. Scott has represented Chapter 7 and 11 debtors, creditors, creditor committees, trustees, court-appointed receivers and other interested parties in bankruptcy cases and bankruptcy litigation.  For more information, click here