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In re Young
NOT FOR PUBLICATION
ORDER ON MOTION FOR RELIEF FROM STAY
Peter W. Bowie, Chief Judge United States Bankruptcy Court
Movants seek an order annulling the automatic sale so as to validate the foreclosure sale of the property to A & R Professional Services, Inc. They also want the order to be effective for 180 days against any future filing, and A & R wants to be able to prosecute an unlawful detainer action against debtor to gain possession of the property it purchased at the foreclosure sale. Although debtor chose to file his bankruptcy-petition under Chapter 13, debtor has not filed any opposition to the instant motion.
The basic facts have not been controverted, and appear to be that the Joiner Trust granted debtor a loan of $175,000, secured by a second position trust deed on the property. The loan was made in October, 2006. The pre-default loan payments were $1,786 per month. After failing to timely make the July, 2007 payment, the monthly payment shot up to $3,098 per month. The Trust offered to accept the non-default payment while the default interest accrued, but debtor made no more payments to the Trust, or to the holder of the first trust deed, Washington Mutual.
Nonjudicial foreclosure proceedings were commenced, and sale to A & R occurred at the noticed sale on January 9, 2008. Early on the morning of January 11, 2008 debtor called the trustee of the Joiner Trust and told him he had filed bankruptcy. Although the debtor did not say so in the message, upon checking the Trust learned debtor had filed January 8, 2008, the day before the foreclosure sale.
The Court has reviewed the case file and the pleadings submitted in support of the motion. The Court is persuaded that the instant case is appropriate for annulment of the stay, especially in the absence of any opposition from debtor. In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). Debtor has offered no reason why the stay should remain in effect or how the Joiner Trust is adequately protected if the stay were to continue in effect. Accordingly, the Trust's motion to annul the stay shall be, and hereby is granted.
The foreclosure sale which occurred on January 9, 2008, the day after debtor's bankruptcy petition was filed therefore is considered to have occurred without any interruption by the automatic stay of 11 U.S.C. ยง 362(a). The same is true for the recordation of the deed following the sale. The Court expresses no opinion on whether the foreclosure sale was properly conducted as a matter of state law.
The purchaser, A & R, has asked for relief to pursue a state court unlawful detainer action. Again, debtor has offered no opposition to the motion. The motion for leave to pursue such an action is granted to the extent it seeks only clear title and possession, but no damages or costs.
Finally, movants ask that the order be effective for 180 days as to any future bankruptcy filings, whether voluntary or involuntary. So far as the Court can determine from the file and the pleadings, there is no factual basis to support such a request. Therefore, the request for 180 day bar to any filing which includes the subject property, or any variation thereon, is denied.
Because debtor has proffered no opposition, and because the Trust and A & R have had to wait almost two months since the foreclosure sale before being able to commence proceedings to obtain possession of the property, the 10 day stay of Rule 4001(a)(3) shall be, and hereby is waived.
CERTIFICATE OF MAILING
The undersigned, a regularly appointed and qualified clerk in the office of the United States Bankruptcy Court for the Southern District of California, at San Diego, hereby certifies that a true copy of the attached document, to wit:
ORDER ON MOTION FOR RELIEF FROM STAY
was enclosed in a sealed envelope bearing the lawful frank of the Bankruptcy Judges and mailed to each of the parties at their respective address listed below:
Respondents: Michael Eugene Young, Thomas H. Billingslea, Trustee
Attorney for Movant: Kathryn Anderson, Esq. Rutan & Tucker, LLP
Said envelope(s) containing such document were deposited by me in a regular United States mail box in the City of San Diego, in said district on March 3, 2008.
Barbara J. Kelly, Judicial Assistant
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