1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

MAY 31 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NV-14-1589-DFB

)

MICHELLE DARLENE WILSON, )

) Bk. No. 14-14674-BTB

Debtor. )

______________________________)

)

MICHELLE DARLENE WILSON, ) Adv. Proc. No. 14-01120-BTB

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

DESERT REALTY, INC.; EDWARD )

KANIA; SOUTHERN NEVADA )

EVICTION SERVICES, )

)

Appellees. )

_____________________________ )

Submitted Without Oral Argument on May 19, 2016

Filed - May 31, 2016

Appeal from the United States Bankruptcy Court

for the District of Nevada

Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding

 

Appearances: Appellant Michelle Darlene Wilson, pro se on

brief; John Wendland of Weil & Drage, APC on brief

for Appellee Desert Realty, Inc.; Edward D. Kania

on brief for Appellees Edward D. Kania and

Southern Nevada Eviction Services.

 

1 This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Before: DUNN, FARIS, and BARASH,2 Bankruptcy Judges.

Michelle Darlene Wilson appeals orders of the bankruptcy

court that dismissed the adversary proceeding Ms. Wilson filed in

her bankruptcy case alleging that Desert Realty, Inc. (“DRI”),

Edward D. Kania, Esq. (“Mr. Kania”), and Southern Nevada Eviction

Services (“SNES”) had violated the stay which arose pursuant to

§ 362(l)3 of the Bankruptcy Code. 

We AFFIRM.

I. FACTUAL BACKGROUND

Ms. Wilson and her sister, Patricia Roberta Lindsey, entered

into a lease agreement with DRI on November 15, 2013, for an

apartment in Las Vegas, Nevada. After the sisters defaulted in

paying rent under the terms of the lease agreement, DRI commenced

eviction proceedings.

To delay those proceedings, Ms. Lindsey filed a chapter 13

bankruptcy petition on March 5, 2014. DRI promptly moved for

relief from the § 362 automatic stay against Ms. Lindsey

(“Lindsey MRS”) to continue the eviction proceedings. After

Ms. Lindsay did not bring the payments due under the lease

current by April 30, 2014, as ordered by the bankruptcy court as

a condition to continuing the automatic stay, an order granting

2 Hon. Martin R. Barash, United States Bankruptcy Judge for

the Central District of California, sitting by designation.

3 Unless otherwise indicated, all chapter and section

references are to the federal Bankruptcy Code, 11 U.S.C.

§§ 101-1532, and all “Rule” references are to the Federal Rules

of Bankruptcy Procedure, Rules 1001-9037. All “Civil Rule”

references are to the Federal Rules of Civil Procedure.

-2-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the Lindsey MRS was entered on June 2, 2014 (“RFS Order”). DRI

thereafter obtained an order for eviction (“Eviction Order”) in

the state court on June 19, 2014. The sisters’ appeal of the

Eviction Order was denied on July 8, 2014. Ms. Wilson filed her

own bankruptcy petition at 3:43 p.m. on July 8, 2014. 

The Eviction Order and §§ 362(b)(22) and (l)

To put the facts in proper context, it is necessary to set

forth the statutory provisions that govern the issues before us.

As relevant to this appeal, § 362(a) provides:

Except as provided in subsection (b) of this section, a

petition filed under section 301 . . . of this

title . . . operates as a stay, applicable to all

entities, of 

. . . .

 (3) any act to obtain possession of property of the

estate or of property from the estate or to exercise

control over property of the estate . . . .

(Emphasis added.)

As relevant to this appeal, § 362(b)(22) provides:

The filing of a petition under section 301 . . . of

this title . . . does not operate as a stay –

 (22) subject to subsection (l), under subsection

(a)(3), of the continuation of any eviction, unlawful

detainer action, or similar proceeding by a lessor

against a debtor involving residential real 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 of possession of such

property against the debtor . . . .

As demonstrated below, Ms. Wilson clearly understood that

the Eviction Order, entered well before she filed her bankruptcy

petition, meant that the eviction proceedings were not covered by

the automatic stay unless somehow the terms of § 362(l) became

-3-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

applicable in her case. 

Section 362(l) provides:

(1) Except as otherwise provided in this subsection,

subsection (b)(22) shall apply on the date that is 30 days

after the date on which the bankruptcy petition is filed, 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.

(2) If, within the 30-day period after the filing of the

bankruptcy petition, the debtor (or an adult dependent of

the debtor) complies with paragraph (1) and files with the

court and serves upon the lessor a further certification

under penalty of perjury that the debtor (or an adult

dependent of the debtor) has cured, under nonbankruptcy law

applicable in the jurisdiction, the entire monetary default

that gave rise to the judgment under which possession is

sought by the lessor, subsection (b)(22) shall not apply,

unless ordered to apply by the court under paragraph (3).

(3)(A) If the lessor files an objection to any certification

filed by the debtor under paragraph (1) or (2), and serves

such objection upon the debtor, the court shall hold a

hearing within 10 days after the filing and service of such

objection to determine if the certification filed by the

debtor under paragraph (1) or (2) is true.

 (B) If the court upholds the objection of the lessor

filed under subparagraph (A) -

 (I) 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; and

 (ii) the clerk of the court shall immediately serve

upon the lessor and the debtor a certified copy of the

court’s order upholding the lessor’s objection.

(4) If a debtor, in accordance with paragraph (5), indicates

on the petition that there was a judgment for possession of

residential real property in which the debtor resides and

does not file a certification under paragraph (1) or (2) --

-4-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 (A) subsection (b)(22) shall apply immediately upon

failure to file such certification, 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; and

 (B) the clerk of the court shall immediately serve upon

the lessor and the debtor a certified copy of the docket

indicating the absence of a filed certification and the

applicability of the exception to the stay under subsection

(b)(22).

(5)(A) Where a judgment for possession of residential

property in which the debtor resides as a tenant under a

lease or rental agreement has been obtained by the lessor,

the debtor shall so indicate on the bankruptcy petition and

shall provide the name and address of the lessor that

obtained that pre-petition judgment on the petition and on

any certification filed under this subsection.

 (B) The form of certification filed with the petition, as

specified in this subsection, shall provide for the debtor

to certify, and the debtor shall certify –

 (I) whether a judgment for possession of residential

rental housing in which the debtor resides has been obtained

against the debtor before the date of the filing of the

petition; and

 (ii) whether the debtor is claiming under paragraph (1)

that 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 of

possession was entered, and has made the appropriate deposit

with the court.

 (C) The standard forms (electronic and otherwise) used in

a bankruptcy proceeding shall be amended to reflect the

requirements of this subsection.

 (D) The clerk of the court shall arrange for the prompt

transmittal of the rent deposited in accordance with

paragraph (1)(B) to the lessor.

Section 362(l) proceedings.

Again, Ms. Wilson filed her bankruptcy petition on July 8,

2014. The following day, July 9, 2014, Ms. Wilson filed an

amended petition (“Amended Petition”). The Amended Petition was

necessary, as stated by Ms. Wilson under penalty of perjury,

-5-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

because Ms. Wilson had failed to mark the “Certification by a

Debtor Who Resides As a Tenant of Residential Property”

(“Certification”) that appears at the bottom of page 2 of

Official Form 1 in effect on the petition date. Ms. Wilson

checked each box of the Certification, thus representing under

penalty of perjury:

– that DRI had a judgment against her for possession of her

residence;

– that under applicable nonbankruptcy law there were

circumstances under which she would be permitted to cure the

entire monetary default that gave rise to the judgment for

possession, after the judgment for possession was entered; and

– that she was including with the Amended Petition the deposit

with the bankruptcy court of any rent that would become due

during the 30-day period after the filing of the petition.

Also on July 9, 2014, Ms. Wilson tendered to the clerk

(“Clerk”) of the bankruptcy court a money order payable to DRI in

the amount of $700.00. The Clerk promptly served on DRI its

“Clerk’s Acceptance and Transmittal of Rent Deposit”

(“Transmittal”) together with the money order. The Transmittal

states:

The debtor in the above captioned case filed a petition

in this court on July 8, 2014. The debtor asserts an

exception to the limitation of the automatic stay under

[§ 362(l)(1)], and a right to cure the pre-petition

judgment under non-bankruptcy law.

Pursuant to [[§ 362(l)(1)(B)], the clerk has accepted

from the debtor a deposit of rent in the amount of

$700.00 which represents the rent that becomes due

during the 30-day period after the filing of the

bankruptcy petition. The clerk hereby transmits, by

certified mail, the rent deposit to [DRI].

-6-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DRI filed its response (“Response”) to the Transmittal on

July 28, 2014, asserting that because Ms. Wilson did not tender

the full 30 days’ rent, which was $2,5344 pursuant to the terms

of the lease, a copy of which was attached to the Response,

Ms. Wilson had not complied with the requirements of § 362(l)(1).

The bankruptcy court scheduled a hearing (“§ 362(l)

Hearing”) on the Response. The § 362(l) Hearing was held on

August 6, 2014.5 At the § 362(l) Hearing, Ms. Wilson argued

that (1) the Eviction Order was void because DRI had not obtained

relief from the § 1301 co-debtor stay as to Ms. Wilson in

Ms. Lindsey’s bankruptcy case, and (2) Ms. Wilson had tendered

the full amount of “her portion” of the lease payment for the

next 30 days. The bankruptcy court clarified for Ms. Wilson that

the full amount of the lease payment, or $2,534, was required to

be paid to receive the protections of § 362(l). On September 8,

2014, the bankruptcy court entered its order (“§ 362(l) Order”)

with respect to the Certification and the Response. The § 362(l)

Order required Ms. Wilson (and/or Ms. Lindsey) to pay to DRI in

4 The monthly rent was $2,500; there was also an obligation

to pay $34 each month for utilities.

5 On August 5, 2014, the day before the § 362(l) Hearing,

Ms. Wilson filed a second certification stating “Debtor under

penalty of perjury has cured, under non-bankruptcy law applicable

in the jurisdiction, the entire monetary default that gave rise

to the judgment under which possession is sought by the lessor,

[sic] subsection (b)(22) shall not apply, unless ordered to apply

by the Court under paragraph (3).” (Emphasis added.) This

second certification was not discussed at the § 362(l) Hearing. 

In any event, there is no dispute that Ms. Wilson had not cured

the underlying default at the time she filed it or at any time

thereafter.

-7-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

certified funds (1) $2,534.00 for the August 2014 lease payment

on or before August 11, 2014, and (2) the monthly lease payment

of $2,534.00 on or before the 5th day of each month thereafter. 

If DRI did not receive the lease payments as specified, the

§ 362(l) Order provided that the bankruptcy court would

immediately lift any and all stays relating to Ms. Wilson and

Ms. Lindsey in both bankruptcy cases and permit DRI to go forward

with all available remedies to take possession of the leased

property. When Ms. Wilson or her sister failed to pay the

December 2014 rent by December 5, 2014, as required by the

§ 362(l) Order, the bankruptcy court entered its “Amended

Supplemental Ex Parte Order” (“Stay Relief Order”), which granted

relief from all stays as described in the § 362(l) Order.6

Adversary Proceeding

In the meantime, despite Ms. Wilson’s Certification under

§ 362(l) in her bankruptcy case, on July 18, 2014, DRI,

Mr. Kania, and SNES filed a motion (“Enforcement Motion”) in

state court for an expedited hearing to enforce the Eviction

Order. Ms. Wilson was then served with a Notice to Appear in

state court on July 29, 2014 with respect to the Enforcement

Motion. 

On July 29, 2014, Ms. Wilson initiated in her bankruptcy

case an adversary proceeding (“Adversary Proceeding”) against

DRI, Mr. Kania, and SNES, by filing a complaint (“Complaint”) in

6 Ms. Wilson appealed the Stay Relief Order. On May 1,

2015, our Motions Panel dismissed that appeal, BAP No. 14-1592,

on Ms. Wilson’s motion, on the basis that she had been evicted,

and the appeal therefore was moot.

-8-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

which she asserted that the actions taken with respect to the

Enforcement Motion constituted “willful, intentional, gross and

flagrant violations of the provisions of [§§ 362 and 1301].” 

Ms. Wilson alleged that she suffered significant emotional harm

as a result of the willful violation of the automatic stay, for

which she sought compensatory and punitive damages in an

unspecified amount. (The cover sheet to the Adversary Proceeding

reflects that the demand amount was “$75,000 actual and punitive

damages and costs.”)

DRI’s Motion to Dismiss

On August 28, 2014, DRI filed its motion to dismiss the

Complaint (“DRI Dismissal Motion”) pursuant to Civil

Rule 12(b)(6) for failure to state a claim upon which relief

could be granted. DRI asserted that Ms. Wilson never had a right

to seek a temporary stay under § 362(l), because under Nevada

law, she was not permitted to cure the monetary default

underlying the Eviction Order and because she did not tender

30 days’ rent. DRI further asserted that even if its actions

with respect to the Enforcement Motion violated the temporary

stay available through § 362(l), Ms. Wilson had not suffered any

prejudice or damages where she continued to enjoy the use of the

property without fully compensating DRI for that use.7 The DRI

Dismissal Motion was set for hearing to be held October 14, 2014. 

The deadline for Ms. Wilson to respond to the DRI Dismissal

Motion was September 30, 2014.

7 The hearing on the Eviction Motion took place on July 29,

2014 as scheduled. The state court entered a further Eviction

Order, but stayed the order until 5:00 p.m. August 11, 2014.

-9-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Ms. Wilson filed her “answer” to the DRI Dismissal Motion on

October 2, 2014, and appears to have attempted to postpone

resolution of the DRI Dismissal Motion by scheduling her answer

for hearing on November 25, 2014. The “answer” complains only

that DRI did not comply with Local Rule 5004(a), (b) and (c),

which deprived her of her due process rights.

DRI filed its reply to Ms. Wilson’s “answer” on October 7,

2014, pointing out that it was untimely and failed to oppose the

DRI Dismissal Motion substantively.

At the October 14, 2014 hearing on the DRI Dismissal Motion,

at which Ms. Wilson appeared, the bankruptcy court granted the

DRI Dismissal Motion. Fundamental to the issues Ms. Wilson

asserts in this appeal, the bankruptcy court ruled that the

§ 1301 codebtor stay Ms. Wilson had in her sister’s bankruptcy

case terminated on June 2, 2014, when the order was entered in

Ms. Lindsey’s case granting relief from the automatic stay to DRI

to continue eviction proceedings. Because there was no active

codebtor stay when the Eviction Order was entered, it was a valid

order entered prepetition [with respect to Ms. Wilson’s

bankruptcy case] as to which applicable nonbankruptcy law did not

afford a right to cure. The order (“DRI Dismissal Order”) was

entered December 23, 2014. The DRI Dismissal Order recited that

Ms. Wilson’s “answer” was untimely, that the bankruptcy court

previously had determined in an adversary proceeding Ms. Wilson

had filed in Ms. Lindsey’s bankruptcy case that § 1301 did not

provide Ms. Wilson with a stay beyond June 2, 2014, that would

render the Eviction Order void, and that Ms. Wilson had filed

multiple bankruptcy cases since 1993 and, in Case No. 12-18817,

-10-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

had been found by the bankruptcy court to be a serial filer. The

DRI Dismissal Order granted the DRI Dismissal Motion and

dismissed the Adversary Proceeding but used an incorrect case

number to do so. Ms. Wilson timely appealed the DRI Dismissal

Order.

Kania/SNES Motion to Dismiss

On August 28, 2014, Mr. Kania (on behalf of himself and

SNES) also filed a motion to dismiss the Complaint (“Kania

Dismissal Motion”) pursuant to Civil Rule 12(b)(6) for failure to

state a claim upon which relief could be granted. Mr. Kania

asserted that Ms. Wilson was abusing the bankruptcy system where

she had filed bankruptcy twelve times since 1993, and that

Ms. Wilson never had a right to seek a temporary stay under

§ 362(l) because under Nevada law she was not permitted to cure

the monetary default underlying the Eviction Order and because

she did not tender 30 days’ rent. In defense of his own

behavior, Mr. Kania asserted that the actions undertaken in the

state court did not violate any stay because they were

ministerial. Finally, Mr. Kania asserted that even if the

actions did violate a stay in Ms. Wilson’s bankruptcy case, she

had not incurred damages as a matter of law.

Ms. Wilson filed her “answer” to the Kania Dismissal Motion

on October 2, 2014. The “answer” complains that Mr. Kania and

SNES did not comply with Local Rules 5004(a), (b) and (c), 

7005(a), 7010(a) and (b), 7056 and 9014(b)(1), all of which

deprived her of her due process rights.

Mr. Kania filed his reply to Ms. Wilson’s “answer” on

October 6, 2014, pointing out that it was untimely and failed to

-11-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

oppose the motion substantively.

Although it does not appear that the Kania Dismissal Motion

ever was set for hearing, Mr. Kania appeared and argued at the

October 14, 2014 Hearing. After ruling on the DRI Dismissal

Motion, the bankruptcy court stated that “the individual case and

the case against the company are the same. I’m dismissing those

also. I’m granting the [Kania Dismissal Motion] for the same

reasons I’m granting the [DRI Dismissal Motion].” 

The bankruptcy court entered its order (“Kania Dismissal

Order”) granting the Kania Dismissal Motion and dismissed the

Adversary Proceeding, but again used an incorrect case number to

do so. Ms. Wilson timely appealed the Kania Dismissal Order.

Proceedings on Remand

DRI filed an emergency motion in the appeal on January 27,

2015, seeking remand to return to the bankruptcy court to correct

the DRI Dismissal Order, both as to the incorrect case number,

and to include its holding, inadvertently omitted, that the

temporary stay under § 362(l) was not applicable and therefore

not violated. Our motions panel granted a limited remand on

February 4, 2015 to allow the bankruptcy court “to rule on a

motion to amend or correct the [DRI Dismissal Order] to whatever

extent the bankruptcy court sees fit.” 

An amended order (“Amended DRI Dismissal Order”) granting

the DRI Dismissal Motion was entered on January 5, 2016 and is

now the order on appeal as to DRI.8 The Amended Dismissal Order

8 It does not appear that Mr. Kania took any action to

correct the Kania Dismissal Order which contained the same flaws

(continued...)

-12-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

now includes the following finding: “DRI did not violate the

thirty (30) day temporary stay under [§ 362(l)] as the [Eviction

Order] had been entered in favor of DRI prior to Wilson’s filing

bankruptcy and Wilson, under Nevada law, had no circumstances or

mechanism to cure said judgment. See In re Jackson,

No. 13-21676, 2013 WL 3956994 (Bankr. D. Colo. July 30, 2013);

see also Nev. R. Stat. § 40.253.” 

As did the DRI Dismissal Order, the Amended DRI Dismissal

Order denied Ms. Wilson’s oral motion for stay pending appeal. 

This panel was advised through pleadings filed by Ms. Wilson

in another appeal that she was evicted on January 12, 2015. In

addition, on January 27, 2016, the bankruptcy court dismissed

Ms. Wilson’s bankruptcy case because she had failed to obtain

confirmation of any of the nine plans she had proposed. At that

time, her bankruptcy case had been pending more than nineteen

months.

II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(2)(G). We have jurisdiction under 28 U.S.C.

§ 158.

III. ISSUES

1) Whether the Bankruptcy Court erred when it determined

that Ms. Wilson was not entitled to the benefit of the § 362(l)

temporary stay. 

2) Whether Ms. Wilson’s due process rights were violated by

8(...continued)

as the DRI Dismissal Order.

-13-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the bankruptcy court’s dispositions of the DRI Dismissal Motion

and the Kania Dismissal Motion.9

IV. STANDARDS OF REVIEW

Application of basic rules of procedure and construction of

the Bankruptcy Code present questions of law that we review de

novo. All Points Capital Corp. v. Meyer (In re Meyer), 373 B.R.

84, 87 (9th Cir. BAP 2007). De novo review requires that “we

consider a matter anew, as if no decision had been rendered

previously.” Mele v. Mele (In re Mele), 501 B.R. 357, 362 (9th

Cir. BAP 2013).

Assertions of violation of due process are reviewed de novo. 

In re Victoria Station, 875 F.2d 1380, 1382 (9th Cir. 1989).

We may affirm a decision of the bankruptcy court on any

basis supported by the record. Hooks v. Kitsap Tenant Support

Services, Inc., 816 F.3d 550, 554 (9th Cir. 2016); ASARCO, LLC v.

9 Ms. Wilson asserts that the bankruptcy court further

erred as follows:

1. In granting the Kania Dismissal Motion and the DRI Dismissal

Motion.

2. In ruling that her “answers” were untimely.

3. In determining that the § 1301 codebtor stay is designed only

for the protection of the debtor and is merely incidental to the

codebtor.

4. In determining that the § 1301 codebtor stay available to

Ms. Wilson in Ms. Lindsey’s bankruptcy case terminated on June 2,

2014, with the result that the Eviction Order was not entered in

violation of the § 1301 codebtor stay.

5. In determining that Ms. Wilson previously had been found to

be a serial filer.

6. In entering the Kania Dismissal Order despite the Kania

parties’ failure to follow the local rules.

We have distilled the issues before us to the two listed

above necessary to the disposition of this appeal.

-14-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014); Shanks

v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).

V. DISCUSSION

Ms. Wilson Was Not Entitled to a Temporary Stay Under § 362(l)

Section 362(l)(1)(B) required that Ms. Wilson certify on her

petition that she had deposited with the Clerk any rent that

would become due during the 30-day period after the filing of the

petition. DRI established that Ms. Wilson’s Certification under

§ 362(l)(1)(B) was patently false, where she deposited only $700

of the $2,534 rent due under the lease. Because the requirements

of both § 362(l)(1)(A) and (B) must be met, as evidenced by use

of the conjunction “and” between them, Ms. Wilson’s failure to

tender the required deposit to the bankruptcy court with her

Amended Petition is fatal to any claim that the eviction

proceedings were stayed under § 362(l). In re Jackson,

No. 13-21676, 2013 WL 3956994 (Bankr. D. Colo. July 30, 2013). 

Further, Ms. Wilson asserted, unsuccessfully, in both the

state court and in her adversary proceeding in her sister

Ms. Lindsey’s bankruptcy case that the § 1301 codebtor stay

applied to void the Eviction Order.10 However, in her Amended

10 At the October 2, 2014 hearing in Ms. Wilson’s adversary

proceeding filed in Ms. Lindsey’s bankruptcy case, the bankruptcy

court stated that the RFS Order entered June 2, 2014, dealt with

the co-debtor stay where the issue had been raised at the hearing

and where the RFS Order provided that DRI could go to state court

and exercise all remedies it had. In light of the apparent

uncertainty regarding the state of the co-debtor stay, however,

the bankruptcy court ruled that “to the extent I did not lift the

stay as to the co-debtor stay, I am retroactively, to the day of

the hearing, doing that in the interest of equity, which I’m

(continued...)

-15-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Petition, Ms. Wilson certified under penalty of perjury both that

under applicable nonbankruptcy law, she would be permitted to

cure the monetary defaults under her lease and that she had

deposited with the bankruptcy court “any rent that would become

due during the 30-day period after the filing of [her] petition.” 

Because she never fulfilled the rental deposit requirement of her

certification, we do not consider her co-debtor stay argument

with respect to her further certification that she had a right to

cure the lease rent defaults.

Dismissal Under Civil Rule 12(b)(6) Was Appropriate

Ms. Wilson was evicted from her residence after this appeal

was commenced. Her Complaint sought damages for violation of the

stay she believed arose under § 362(l). However, as discussed

above, Ms. Wilson never satisfied the requirements for § 362(l)

to apply and counter the effects of § 362(b)(22). 

Section 362(b)(22) operated to allow appellees to continue with

their eviction efforts postpetition without obtaining relief from

stay. With the Complaint premised on the application of § 362(l)

to cause a stay to arise, it consequently failed to state a claim

upon which relief could be granted, and the bankruptcy court did

not err in dismissing the Complaint under Civil Rule 12(b)(6),

applicable in adversary proceedings before the bankruptcy court

under Rule 7012(b).11

10(...continued)

allowed to do under appropriate case law.” We express no opinion

as to the propriety of these rulings.

11 While we do not reach the merits of Ms. Wilson’s

(continued...)

-16-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Alleged Lack of Due Process

Ms. Wilson argues that the bankruptcy court’s dismissal of

her Complaint violated her due process rights in light of

appellees’ violations of various local rules of the bankruptcy

court in noticing the DRI Dismissal Motion and the Kania

Dismissal Motion. “The due process requirements for notice are

relatively minimal; they merely require notice ‘reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections.’” Keys v. 701 Mariposa

Project, LLC (In re 701 Mariposa Project, LLC), 514 B.R. 10, 15

(9th Cir. BAP 2014), quoting Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950).

Ms. Wilson raises a number of alleged violations of the

bankruptcy court’s local rules by the appellees in providing her

with notice and scheduling the hearing at which the bankruptcy

court considered the DRI Dismissal Motion and the Kania Dismissal

Motion. However, the record is clear that Ms. Wilson had notice

of the motions weeks in advance of the hearing and that she

attended the hearing, and she does not argue otherwise. Her

responses to the motions were filed late, and Ms. Wilson did not

raise any substantive arguments in opposition to the motions in

11(...continued)

Complaint, we note that Ms. Wilson failed to quantify any

component of her damages claim either in the allegations of her

Complaint or in its prayer. The record establishes that through

her actions and the actions of her sister, Ms. Wilson received

the benefit of continued possession of the leased premises

postpetition for at least six months.

-17-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

either response. The bankruptcy court refused to consider her

late responses, but ultimately, we do not perceive any violation

of Ms. Wilson’s due process rights with respect to the

proceedings that resulted in the dismissal of her Complaint. See

generally United Student Aid Funds, Inc. v. Espinosa, 559 U.S.

260, 272 (2010). Accordingly, Ms. Wilson’s due process arguments

lack merit.

VI. CONCLUSION

The bankruptcy court did not err when it determined that

Ms. Wilson was not entitled to the benefit of the § 362(l)

temporary stay by the terms of the statute. Accordingly, the

bankruptcy court did not err in dismissing her Complaint for

failure to state a claim upon which relief could be granted.

We AFFIRM.

-18-