3/27/08
In re Nathan Leston Skinner; Case No. 08-60574-aer13
PUBLISHED opinion, by Judge Randall L. Dunn
(a Eugene Division case assigned to Judge Radcliffe, but because of his unavailability for an expedited hearing, it was heard by and the opinion written by Judge Dunn of the Portland Division)
The facts of the case made for an easy decision not to enforce the stay: the debtor was not named as either lessee, guarantor of the lease, or a proposed occupant of the property in the lease agreement or lease application (only as a reference for the lessee); nor did he indicate any leasehold interest in either Schedule A or B, or any executory contracts or unexpired leases in Schedule G, or the unlawful detainer lawsuit in his Statement of Financial Affairs; nor did his Ch. 13 Plan include any provision to assume the lease or avoid any liens against the debtor’s personal possessions located at the property. Debtor’s only argument seemed to be his assertion that the landlord would be paid through the Plan, and landlord was listed in Schedule F with an unliquidated, disputed claim of unknown amount, but Judge Dunn gave that short shrift because the entire amount calculated to be paid through the Plan was well short of the unlawful detainer judgment amount recently entered against the non-debtor tenant named on the lease agreement. The situation was not helped by the fact that this non-debtor tenant had filed about 10 bankruptcies in the past dozen years, the most recent resulting in a dismissal with a 180-day bar to refiling, which had not yet expired.
This published opinion is nevertheless interesting because it reminds us of the grounds for a temporary restraining order or preliminary injunction in the 9th Circuit, for which the moving party has the burden of proving “either (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor.” First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1376, 1381 (9th Cir. 1987). Judge Dunn ruled that it was unlikely that debtor would succeed in showing he had a valid leasehold interest, in part because the judge could consider debtors schedules, signed under penalty of perjury, to be admissions of his lack of interest in the leasehold. The judge also found no evidence of any potential irreparable harm since his schedules indicated no personal possessions at the premises except for a modest amount of clothing which landlord’s counsel committed to mailing to debtor, no serious questions on the merits, and the balance of hardships in favor of the landlord because he had not received rent payments “over a considerable period of time.”
In re Nathan Leston Skinner; Case No. 08-60574-aer13
PUBLISHED opinion, by Judge Randall L. Dunn
(a Eugene Division case assigned to Judge Radcliffe, but because of his unavailability for an expedited hearing, it was heard by and the opinion written by Judge Dunn of the Portland Division)
The facts of the case made for an easy decision not to enforce the stay: the debtor was not named as either lessee, guarantor of the lease, or a proposed occupant of the property in the lease agreement or lease application (only as a reference for the lessee); nor did he indicate any leasehold interest in either Schedule A or B, or any executory contracts or unexpired leases in Schedule G, or the unlawful detainer lawsuit in his Statement of Financial Affairs; nor did his Ch. 13 Plan include any provision to assume the lease or avoid any liens against the debtor’s personal possessions located at the property. Debtor’s only argument seemed to be his assertion that the landlord would be paid through the Plan, and landlord was listed in Schedule F with an unliquidated, disputed claim of unknown amount, but Judge Dunn gave that short shrift because the entire amount calculated to be paid through the Plan was well short of the unlawful detainer judgment amount recently entered against the non-debtor tenant named on the lease agreement. The situation was not helped by the fact that this non-debtor tenant had filed about 10 bankruptcies in the past dozen years, the most recent resulting in a dismissal with a 180-day bar to refiling, which had not yet expired.
This published opinion is nevertheless interesting because it reminds us of the grounds for a temporary restraining order or preliminary injunction in the 9th Circuit, for which the moving party has the burden of proving “either (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor.” First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1376, 1381 (9th Cir. 1987). Judge Dunn ruled that it was unlikely that debtor would succeed in showing he had a valid leasehold interest, in part because the judge could consider debtors schedules, signed under penalty of perjury, to be admissions of his lack of interest in the leasehold. The judge also found no evidence of any potential irreparable harm since his schedules indicated no personal possessions at the premises except for a modest amount of clothing which landlord’s counsel committed to mailing to debtor, no serious questions on the merits, and the balance of hardships in favor of the landlord because he had not received rent payments “over a considerable period of time.”
by Andrew Toth-Fejel, Bankruptcy Litigation Support for Attorneys, Andy@BLSforAttorneys.com
© 2008 Bankruptcy Litigation Support for Attorneys
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