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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-13-1328-KiTaD

)

SHOLEM PERL, ) Bk. No. 13-26126-NB

)

Debtor. )

 )

)

EDEN PLACE, LLC )

)

Appellant, )

)

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

)

SHOLEM PERL, )

)

Appellee. )

______________________________)

Argued and Submitted on March 20, 2014, 

at Pasadena, California

Filed - May 30, 2014

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Neil W. Bason, Bankruptcy Judge, Presiding

 

Appearances: Ronald N. Richards, Esq. of the Law Offices of

Ronald Richard & Associates, APC argued for

appellant Eden Place, LLC; Appellee failed to file

a brief and waived right to oral argument.

 

Before: KIRSCHER, TAYLOR and DUNN, Bankruptcy Judges.

FILED

MAY 30 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

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 8013-1.
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Appellant Eden Place, LLC ("Eden Place") appeals an order 

from the bankruptcy court that determined, in part, that the

postpetition lockout/eviction by the Los Angeles County Sheriff's

Department ("Sheriff") of the debtor from his residence on

June 27, 2013, made at the request of Eden Place violated the

automatic stay. Based on the Panel's decision in Williams v. Levi

(In re Williams), 323 B.R. 691, 699 (9th Cir. BAP 2005), aff'd,

204 F. App’x. 582 (9th Cir. 2006),2 we AFFIRM.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

A. Prepetition events

Appellee-debtor Sholem Perl ("Perl") and a joint tenant

(collectively, “Perls”) owned a single-family duplex in Los

Angeles, California ("Residence"). In 2005, Perls refinanced

their mortgages in connection with the Residence; in 2009, Perls

fell behind in their mortgage payments.

After recording a notice of default and a notice of trustee's

sale, Bank of America sold the Residence on March 20, 2013 to Eden

Place. Eden Place timely recorded the trustee's deed on March 29,

2013.

Perls failed to vacate the Residence after being served with

a 3-day notice to quit; Eden Place filed two identical complaints

(one for each side of the duplex) for unlawful detainer on

March 26, 2013 ("UD Actions"). 

On April 12, 2013, the Perls filed a complaint in state court

2 We acknowledge Eden Place submitted a letter under Fed. R.

App. P. 28(j). We discussed some of Eden Place’s cited

authorities, specifically In re Williams, with its counsel at the

time of oral argument and were familiar with its other cited BAP

authorities.

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against Eden Place (and others) to set aside the sale. Perls

alleged claims for (1) wrongful foreclosure, (2) violation of the

Homeowner Bill of Rights, (3) unfair business practices and

(4) breach of contract ("Complaint to Set Aside Sale"). Eden

Place filed a cross-complaint on May 7, 2013, for (1) holdover

damages, (2) trespass and (3) interference with prospective

economic advantage ("Cross-Complaint"), as well as a motion to

expunge the lis pendens filed by the Perls. 

On June 11, 2013, the state court entered an unlawful

detainer judgment in favor of Eden Place (including a judgment for

possession and restitution of $11,700) in the UD Actions ("UD

Judgment"). The state court entered a Writ of Possession in favor

of Eden Place on June 14, 2013. Sometime between June 14 and

June 24, 2013, the Sheriff posted the lockout notice.

On June 19, 2013, the state court heard Perls' motion to stay

the UD Judgment and set various requirements for a stay, which

Perls failed to satisfy. Consequently, a second scheduled hearing

for June 26 was taken off calendar; the state court did not stay

the UD Judgment. Eden Place contends that when Perls failed to

obtain a stay of the UD Judgment, the Sheriff was on "auto pilot"

to complete the eviction.

B. Postpetition events

On June 20, 2013, Perl, acting pro se, filed a "skeletal"

chapter 133 bankruptcy petition. Perl needed to file his

schedules, statement of financial affairs, chapter 13 plan and

3 Unless specified otherwise, all chapter, code and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

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other required documents by July 5, 2013. Although not listed as

a creditor, Eden Place received notice of Perl's bankruptcy

filing. On June 24, 2013, Perl’s counsel faxed a letter to Eden

Place’s counsel and to the Sheriff's department informing them of

the bankruptcy filing. In the letter, Perl's counsel asserted

that no landlord-tenant relationship existed between Perl and Eden

Place, so any exceptions to the automatic stay provided in

§ 362(b)(22) did not apply. He also asserted, citing to

In re Butler, 271 B.R. 867, 876 (Bankr. C.D. Cal. 2002), that CAL.

CODE CIV. P. § 715.0504 operated in contravention to the Code and

was therefore unconstitutional. 

On June 24, 2013, Perl filed a notice to remove the three

state court actions — the Complaint to Set Aside Sale, the

Cross-Complaint and the UD Actions ("Removed Actions"). Prior to

Perl filing this notice of removal, the state court scheduled a

hearing on June 25, 2013, to consider Eden Place's motion to

expunge the lis pendens Perls had recorded against the Residence. 

Later on June 24, 2013, Eden Place moved to remand the

Removed Actions ("Motion for Remand") and filed its application

for an order shortening time. The bankruptcy court scheduled the

Motion for Remand for hearing on June 28, 2013. Also on June 24,

Eden Place filed a motion in bankruptcy court for relief from stay

("Stay Relief Motion"), pursuant to the provisions of § 362(d)(1)

4 CAL. CODE CIV. P. § 715.050 provides, in relevant part:

Except with respect to enforcement of a judgment for money, a

writ of possession issued pursuant to a judgment for

possession in an unlawful detainer action shall be enforced

pursuant to this chapter without delay, notwithstanding

receipt of notice of the filing by the defendant of a

bankruptcy proceeding.

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and (2). Alternatively it asserted that the automatic stay did

not apply. Eden Place asserted that it purchased the Residence at

the March 20, 2013 prepetition foreclosure sale, that the

trustee's deed had been properly recorded, that the UD Judgment

had been obtained as well as a Writ of Possession and that the

Residence was not property of Perl's bankruptcy estate. The

bankruptcy court set a hearing on the Stay Relief Motion for

July 9, 2013.

Notwithstanding the bankruptcy filing and Eden Place's

pending Stay Relief Motion, the Sheriff proceeded with Perls’

lockout on June 27, 2013, thereby evicting the Perls. Some of

Perls’ personal belongings remained inside the Residence at the

time of the eviction. 

Perl, with the assistance of counsel, filed his Amended

Emergency Motion to Enforce the Automatic Stay, Set Aside the

Eviction and for Order in Contempt ("Emergency Motion to Enforce

Stay") and his application for order shortening time. Perl

asserted that by continuing the eviction process against him and

eventually evicting him, Eden Place had violated the automatic

stay pursuant to § 362(a)(1)-(3). Specifically, Perl asserted

that his possessory interest in the Residence constituted an

equitable interest under § 541(a) protected by § 362(a)(3), citing

In re Butler and Di Giorgio v. Lee (In re Di Giorgio), 200 B.R.

664, 670 (C.D. Cal. 1996), vacated on mootness grounds, 134 F.3d

971 (9th Cir. 1998). Perl also asserted that his pending

litigation to set aside the sale and his dispute over the validity

of the UD Judgment created a protected equitable interest in the

Residence. Perl requested that his Emergency Motion to Enforce

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Stay be heard on June 28 along with Eden Place's Motion for

Remand. A few hours later, Eden Place filed an objection to

Perl's Emergency Motion to Enforce Stay, contending that it was

moot and procedurally defective. 

On June 27, 2013, the bankruptcy court entered its order

setting the hearing on Perl's Emergency Motion to Enforce Stay and

on Eden Place's Stay Relief Motion for June 28, 2013. 

Just hours before the scheduled hearing, Eden Place filed

another objection to Perl's Emergency Motion to Enforce Stay. 

Eden Place argued that, under California law, once the foreclosure

occurred and Eden Place recorded its trustee's deed on March 29,

2013, Perl had no legal or equitable interest in the Residence

protected by the automatic stay at the time of the eviction on

June 27, 2013; he was merely a squatter or trespasser with no

cognizable interest. Eden Place further argued that Perl's motion

failed to recognize ample authority which supports the position

that continued enforcement of a prepetition unlawful detainer

judgment is not a violation of the automatic stay. Citing Lee v.

Baca, 73 Cal.App.4th 1116, 1117-18 (1999), a case involving a

residential tenant and landlord, Eden Place argued that an

unlawful detainer judgment extinguishes the residential tenant's

interest in the property and that a postjudgment bankruptcy filing

does not affect the landlord's right to regain possession of the

property because it is not, at that point, property of the

tenant-debtor's estate. Eden Place also cited In re Smith,

105 B.R. 50, 53-54 (Bankr. C.D. Cal. 1989), which held that a

debtor-tenant has no legal or equitable interest in rented

property once a judgment for possession has been entered in favor

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of the landlord. Based on these authorities, Eden Place argued

that Perl lost whatever possessory interest he might have had in

the Residence upon entry of the UD Judgment, so the Sheriff's

execution of the Writ of Possession did not affect property of the

estate. Eden Place also took the position that once the UD

Judgment and Writ of Possession were issued, the Sheriff had no

choice but to proceed with the eviction.

Eden Place acknowledged the holdings of In re Butler and

In re Di Giorgio, but argued that both cases were inapplicable

because they were "tenant" cases, not "squatter" cases. Eden

Place further argued that these cases were weakened with the

addition of § 362(b)(22) under the amendments of the Bankruptcy

Abuse Prevention and Consumer Protection Act of 2005, which

clarifies that residential tenants, subject to certain

limitations, are not protected by the automatic stay. Eden Place

contended that no federal courts of appeals have ever ruled that a

squatter who loses an unlawful detainer action still has a

cognizable property interest that would warrant invoking the

automatic stay. Alternatively, Eden Place argued that cause

existed to annul the stay retroactively to June 20, 2013.

The hearing on the Emergency Motion to Enforce Stay, the Stay

Relief Motion and the Motion for Remand proceeded on June 28,

2013. Counsel for both parties appeared. Before the parties

presented oral argument, the bankruptcy court opined that the

postpetition enforcement of the Writ of Possession on June 27

"seem[ed] to be something that would violate the automatic stay." 

Hr’g Tr. (June 28, 2013) 2:19-20. After hearing brief argument

from counsel for Eden Place, the bankruptcy court made its initial

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findings with respect to whether Eden Place violated the automatic

stay:

THE COURT: Okay. Well, let's back up a moment here. As

of the petition date, before the sheriff went in and

evicted, there was a possessory interest, correct, or am

I misunderstanding the facts?

MR. RICHARDS: Well, there was a possessory interest of

naked possession, yes. 

THE COURT: Okay.

. . .

MR. RICHARDS: So other than a naked possessory interest,

that's all there was. 

THE COURT: I understand. I do not follow In re Smith.

MR. RICHARDS: Okay.

THE COURT: And in my view, the bare possessory interest,

coupled with the possibility of some sort of relief, may

be sufficient to give the bankruptcy estate a protected

interest that is subject to the automatic stay. 

Id. at 5:3-10, 15-23. The court also noted that despite Eden

Place's argument respecting a residential tenant under

§ 362(b)(22), this was not a rental situation. Id. at 5:24-6:15. 

Counsel then noted that In re Butler was also a landlord-tenant

case and not a case that dealt with squatters who lose their house

to foreclosure. Id. at 7:6-9. 

After hearing further argument from the parties, the

bankruptcy court took a brief recess to review the cases cited by

the parties. However, before the recess, the court opined:

I will note that the automatic stay is a little broader

than just a property interest.

It's not just any act to obtain possession of the

property of the estate or to exercise control over

property of the estate, an enforcement against the debtor

or against property of the estate of a judgment obtained

before commencement of the case. 

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Now, when we're talking about a cause of action or claims

or defenses such as an assertion of a right to

possession, even if that's after a writ of possession,

there are still claims there.

Any by – if – it may be that the automatic stay applies

even to the more limited bundle of rights that still

exists. It may not even be a bundle. It might just be

the opportunity to seek some relief. 

Id. at 34:17-35:7. 

Upon further review of the cases cited by the parties, the

bankruptcy court determined that the eviction was a violation of

the automatic stay and was therefore void. The bankruptcy court

granted Eden Place's Motion for Remand and Eden Place's Stay

Relief Motion prospectively, modifying the automatic stay to

permit Perl until July 12, 2013, to seek relief from the state

court and denied Eden Place's request to annul the stay

retroactively. The bankruptcy court entered an order after the

hearing containing the following relevant part: "The eviction of

the debtor by the Sheriff, at the request of the movant, after the

bankruptcy petition was filed violated the automatic stay and is

void[.]" June 28, 2013 Order (“Order”). 

The bankruptcy court declined to impose any contempt

sanctions against Eden Place for the stay violation because Perl

had not yet offered any evidence of damages due to the eviction. 

Sanctions would be decided at a later hearing, after the state

court had an opportunity to rule on Perl's claims. The bankruptcy

court directed the parties to file a status report informing it of

the state court proceedings.

///

///

///

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Eden Place filed a status report on July 15, 2013.5 Despite

extensions to file his schedules and other required documents,

Perl never filed anything further in his bankruptcy case. The

case was ultimately dismissed on August 8, 2013, for Perl's

failure to appear at the scheduled § 341(a) meeting of creditors. 

Eden Place timely appealed the Order.

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. § 158.6

III. ISSUE

Did the bankruptcy court err when it determined that Eden

Place violated the automatic stay with the postpetition eviction

of Perl? 

IV. STANDARD OF REVIEW

Whether the automatic stay provisions of § 362 have been

violated is a question of law we review de novo. McCarthy,

Johnson & Miller v. N. Bay Plumbing, Inc. (In re Pettit), 217 F.3d

1072, 1077 (9th Cir. 2000)(citing Cal. v. Taxel (In re Del Mission

Ltd.), 98 F.3d 1147, 1150 (9th Cir. 1996)). 

5 According to Eden Place, the Perls’ lis pendens was

expunged. The UD Actions were closed. Perl's counsel filed a

state court appeal. Eden Place transferred the Residence to a new

owner. Perl was allowed access to the Residence to remove some of

his remaining personal belongings, but he also allegedly removed

certain fixtures from the property, including two dishwashers, two

cooktops and their hoods.

6 On January 9, 2014, a motions panel determined that this

appeal was not moot, despite the dismissal of Perl's bankruptcy

case, because Eden Place could still be subject to a claim for

damages at some point in the future based on the Order. We agree. 

Therefore, we have jurisdiction over this appeal.

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V. DISCUSSION

The sole issue in this appeal is whether, at the time Perl

filed his bankruptcy petition, he had any remaining interest in

the Residence protected by the automatic stay. Eden Place

contends that he did not and that the bankruptcy court erred in

determining that Perl's possessory interest was a sufficient

estate interest to trigger the protections of the automatic stay

under § 362(a).

A. The bankruptcy court did not err when it determined that Eden

Place had violated the automatic stay.

"The automatic stay under § 362 is designed to give the

bankruptcy court an opportunity to harmonize the interests of both

debtor and creditors while preserving the debtor's assets for

repayment and reorganization of his or her obligations." 

In re Pettit, 217 F.3d at 1077 (citation omitted). The stay is

self-executing, effective upon the filing of the bankruptcy

petition, and sweeps broadly. Id. (citations omitted). It stays

the "commencement or continuation . . . or other action or

proceeding against the debtor that was or could have been

commenced before the [filing of the bankruptcy]," as well as the

enforcement of a prepetition judgment against the debtor or

property of the estate. § 362(a)(1) & (2). 

It also stays actions to "obtain possession of property of

the estate or of property from the estate or to exercise control

over property of the estate." § 362(a)(3). "Property of the

estate" is also broadly defined to include all of the debtor's

legal and equitable interests in property as of the commencement

of the case, wherever located and by whomever held. § 541(a). 

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See also Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 587

(9th Cir. BAP 1995)(automatic stay protects property of the estate

in which the debtor has a legal, equitable or possessory interest)

(citing Interstate Commerce Comm'n v. Holmes Transp., Inc.,

931 F.2d 984, 987 (1st Cir. 1991)). Bankruptcy courts must look

to state law to determine whether and to what extent the debtor

has any legal or equitable interests in property as of the

commencement of the case. Butner v. United States, 440 U.S. 48,

54-55 (1978). 

Actions taken in violation of the automatic stay are void. 

Griffin v. Wardrobe (In re Wardrobe), 559 F.3d 932, 934 (9th Cir.

2009)(citing Gruntz v. Cnty. of L.A. (In re Gruntz), 202 F.3d

1074, 1081-82 (9th Cir. 2000)(en banc)).

In determining whether Eden Place violated the automatic stay

by proceeding with the eviction of Perl, we must determine whether

Perl had any remaining interest in the Residence on the date he

filed bankruptcy. Because the Residence is located in California,

California law controls this determination. Here, it is

undisputed that Eden Place purchased the Residence and timely

recorded its trustee's deed prepetition. Under CAL. CIV. CODE

§ 2924h(c), "the trustee's sale shall be deemed final upon the

acceptance of the last and highest bid, and shall be deemed

perfected as of 8 a.m. on the actual date of sale if the trustee's

deed is recorded within 15 calendar days after the sale[.]" "The

purchaser at a nonjudicial foreclosure sale receives title under a

trustee's deed free and clear of any right, title or interest of

the trustor. A properly conducted nonjudicial foreclosure sale

constitutes a final adjudication of the rights of the borrower and

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lender." Wells Fargo Bank v. Neilsen, 178 Cal.App.4th 602, 614

(2009)(citations and quotation marks omitted). See also 4 Miller

& Starr, Cal. Real Estate § 10:208 (3d ed. 2009)(Under California

law, "[t]he purchaser at the foreclosure sale receives title free

and clear of any right, title, or interest of the trustor or any

grantee or successor of trustor."). Accordingly, title to the

Residence passed to Eden Place free and clear of any right, title

or interest of Perl's about three months before he filed his

chapter 13 bankruptcy petition. Thus, Perl's ownership interest

in the Residence was eliminated prepetition. Therefore, to find

that Eden Place violated the automatic stay, we must determine

whether Perl held some other sort of interest in the Residence

recognized by California law at the time he filed bankruptcy. 

Prepetition, Eden Place had successfully obtained the

UD Judgment, and Perl's efforts to stay that judgment failed. A

Writ of Possession in favor of Eden Place was also issued

prepetition. It is undisputed that Perl was in possession of the

Residence at all relevant times. We often cite the following

passage from a well-known treatise in cases where the order on

appeal concerns the bankruptcy court's decision to grant relief

from stay so that the purchaser may proceed with its eviction

action against the holdover debtor-borrower: 

Where a real property nonjudicial foreclosure was

completed and the deed recorded prepetition, the debtor

has neither legal nor equitable title to the property at

the time the bankruptcy petition is filed. Although the

debtor may still be in possession of the premises, his or

her status is essentially that of a "squatter." The

mortgagee (or purchaser at the foreclosure sale) is

entitled to the property and thus relief from the stay

should be granted.

Kathleen R. March and Alan M. Ahart, CALIFORNIA PRACTICE GUIDE:

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BANKRUPTCY ¶ 8:1196 (2009)(emphasis in original). See Wells Fargo

Bank v. Edwards (In re Edwards), 454 B.R. 100, 106 (9th Cir. BAP

2011), as just one of many examples. 

We have determined in cases with facts such as these that

"cause" was established to grant relief from stay because the

debtor, hence the estate, no longer had any interest in the real

property at issue when he or she filed for bankruptcy. Id. at

107. See also Nyamekye v. Wells Fargo Bank (In re Nyamekye), 2011

WL 3300335, at *5-6 (9th Cir. BAP Feb. 15, 2011)(determining that

because an unlawful detainer judgment and writ of possession had

been obtained by the creditor prepetition, neither the holdover

debtor-borrower nor her estate had any ownership interest or right

in the property; therefore cause was shown to grant relief from

stay). 

A distinction exists between the analyses required for stay

relief matters and violation of stay matters. In the former, the

creditor is summarily attempting to establish a colorable claim in

terms of an interest in a debtor’s secured note or an interest in

debtor’s property. In considering the interest in debtor’s

property, an analysis is made as to the strength of debtor’s

interest vis-a-vis creditor’s interest in the same property. 

Consequently, terms like “owner” and “squatter” appear. See

In re Edwards, 454 B.R. at 105-06. In the latter, the debtor is

attempting to establish that the creditor is violating the

automatic stay by taking some action against the debtor or against

property of the estate. In this instance, the strength of one’s

interest is not determinative; but more importantly, if debtor or

the estate has “any” interest the question becomes: is the

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creditor’s action violative of the stay. Creditor’s action may be

violative even if a minimal interest, such as a squatter’s or

possessory interest, is held by the debtor or the estate. See

In re Di Giorgio, 200 B.R. at 672-74.

In a case factually similar to Nyamekye concerning whether a

party had violated the automatic stay, we held that a debtorborrower had a possessory interest in the real property at issue

by virtue of his or her physical occupancy. In re Williams,

323 B.R. at 699. In that case, we cited In re Butler, 217 B.R. at

867, with approval and for the proposition that under California

law "a debtor-tenant's mere physical possession of apartment

premises after writ of possession had issued in favor of landlord

in unlawful detainer action is an equitable interest in the

property, protected by the automatic stay." In other words, we

extended the holding of In re Butler to include a debtor-former

homeowner as opposed to only a debtor-tenant under a residential

lease. We also cited In re Di Giorgio, which similarly held that

under California law mere possession of real property, even after

a writ of possession has issued, creates a protected equitable

interest subject to the automatic stay. 200 B.R. at 671-73. 

Granted, In re Di Giorgio, a case from 1996, involved a

residential tenant as opposed to a former homeowner, and, as we

discuss below, residential tenants are no longer given the

protection of the automatic stay if certain limitations are

satisfied. However, the holding in In re Di Giorgio appears

broad, and the district court did not limit its analysis as to

what constitutes a "possessory interest" under California law

strictly to residential tenants under a lease. "Under California

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law, mere possession of real property creates a protected

interest." Id. at 671 (citing to CAL. CIV. CODE § 1006, which

states: “Occupancy for any period confers a title sufficient

against all except the state and those who have title . . . .”). 

“[T]he mere possession of real estate is constantly treated as

property which may be purchased and sold, and for the recovery of

which an action may be maintained against one having no better

title.” King v. Goetz, 70 Cal. 235, 240, 11 Pac. 656, 658 (1886). 

See 12 WITKIN ON REAL PROP., SUMMARY 10TH (2005) § 208 (possession

gives possessor substantial right).

In In re Williams, the debtor had transferred record title to

his condominium to his girlfriend prepetition, but was still

occupying the condo when he filed bankruptcy and at the time the

homeowners association foreclosed its lien on the property. 

Recognizing that the debtor had no recorded interest in the condo

on the petition date, we determined that he nonetheless held a

possessory interest in it that was property of the estate under

§ 541(a) and protected by the automatic stay. 323 B.R. at 699. 

We remanded that portion of the order to have the bankruptcy court

determine whether any stay violation damages were appropriate. 

Id. at 702. 

Eden Place had not cited to In re Williams in its brief and

appeared to be unaware of it at the time of oral argument. 

Instead, Eden Place argues that the bankruptcy court erred by not

following In re Smith and contends that we should adopt it, and

further contends that we should reject In re Butler. In

In re Smith, the bankruptcy court held that where a residential

landlord obtained an unlawful detainer judgment prepetition, the

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debtor-tenant has no legal or equitable interest in the property

protected by the automatic stay. 105 B.R. at 54. The court

further held that the debtor-tenant's physical possession of the

property was not a property interest recognized by law. Id. 

Notably, it did not cite to any California authority for this

proposition. The court went on to conclude that it was not

necessary for the movant to obtain relief from stay in order to

regain possession of the apartment. Id. 

We decline to adopt In re Smith for two reasons. First, it

is contrary to our holding in In re Williams, and we are bound by

our precedent. Gaughan v. The Edward Dittlog Revocable Trust

(In re Costas), 346 B.R. 198, 201 (9th Cir. BAP 2006)(absent a

change in the law, we are bound by our precedent). For that same

reason, we are not inclined to reject In re Butler. Second, the

concerns expressed by the bankruptcy court in In re Smith

regarding what it viewed as a lack of power of residential

landlords have been addressed with the addition of § 362(b)(22).7

Under that provision, absent certain limitations not relevant

here, the automatic stay does not apply to cases under which the

7 Section 362(b)(22) provides that the filing of a

bankruptcy petition does not create a stay "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 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[.]"

Section 362(l) provides, however, that a 30-day stay shall

apply if there is a rent default by a debtor-tenant, where the

debtor certifies with the bankruptcy petition that he or she can

cure the default and deposits with the clerk the amount of rent

due for the next 30 days.

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debtor resides as a tenant under a lease or rental agreement and

where the lessor has obtained before the bankruptcy filing a

judgment for possession. As the bankruptcy court observed in the

instant case, we do not have a rental property situation, and

clearly, we have no lease or rental agreement between the parties. 

Eden Place argues that In re Smith is consistent with

California law, where a judgment for possession has issued. CAL.

CODE. CIV. P. § 715.050 provides, in relevant part, that "a writ of

possession issued pursuant to a judgment for possession in an

unlawful detainer action shall be enforced pursuant to this

chapter without delay, notwithstanding receipt of notice of the

filing by the defendant of a bankruptcy proceeding." In other

words, CAL. CODE. CIV. P. § 715.050 provides that a writ of

possession obtained in an unlawful detainer action must be

executed despite a defendant's filing of a postjudgment bankruptcy

petition. Two courts have held that this statute is preempted by

federal bankruptcy law and is therefore unconstitutional on its

face. In re Di Giorgio, 200 B.R. at 675; In re Butler, 217 B.R.

at 876. One California Court of Appeal has held to the contrary. 

See Lee, 73 Cal.App.4th at 1119-20 (relying on In re Smith to hold

that CAL. CODE. CIV. P. § 715.050 survives a preemption attack). We

are not persuaded by Lee and agree with the reasoning of

In re Butler and In re Di Giorgio. Clearly, with the statute's

express reference to the filing of a bankruptcy petition, its

purpose is to carve out an exception to the automatic stay

provided by federal law. This exception is preempted by § 362(a). 

While state law determines the existence and scope of a debtor's

interest in property, federal law determines whether that property

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interest is protected by the automatic stay. In re Di Giorgio,

200 B.R. at 673 n.4; In re Gruntz, 202 F.3d at 1082 (“The

automatic stay is an injunction issuing from the authority of the

bankruptcy court, and bankruptcy court orders are not subject to

collateral attack in other courts.”).

Finally, Eden Place argues that the eviction did not violate

the automatic stay because it was a "ministerial act," and that

the Sheriff was on "auto pilot" and had no choice but to execute

the Writ of Possession. We fail to see where Eden Place raised

this argument before the bankruptcy court. We generally do not

consider arguments raised for the first time on appeal, and we do

not exercise our discretion to do so in this case. O'Rourke v.

Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957

(9th Cir. 1989). See also Moldo v. Matsco, Inc. (In re Cybernetic

Servs., Inc.), 252 F.3d 1039, 1045 n.3 (9th Cir. 2001)(Appellate

court will not explore ramifications of argument because it was

not raised below and, accordingly, was waived). 

We conclude that, based on our holding in In re Williams,

Perl's physical occupation of the Residence conferred a possessory

interest under California law that was protected by the automatic

stay. Even Eden Place must have thought that Perl possibly had

some sort of interest or it would not have filed the Stay Relief

Motion.

To "willfully" violate the automatic stay, the alleged

violator must have knowledge of the automatic stay and have

intentionally violated the stay. Ozenne v. Bendon (In re Ozenne),

337 B.R. 214, 220 (9th Cir. BAP 2006)(citations omitted). The

record reflects that Eden Place was on notice of Perl's bankruptcy

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filing prior to the eviction on June 27, 2013, even if notice was

only based on counsel's faxed letter. "Knowledge of the

bankruptcy filing is legal equivalent of knowledge of the

automatic stay." Id. (citing In re Ramirez, 183 B.R. at 589). 

Informal notice suffices. In re Ozenne, 337 B.R. at 220 (citing

Morris v. Peralta (In re Peralta), 317 B.R. 381, 389 (9th Cir. BAP

2004)). Further, the acts here were intentional. Whether Eden

Place believed in good faith that it had a right to the Residence

is irrelevant to the analysis of whether its act was intentional. 

Id. at 221 (citations omitted). Accordingly, we conclude that

Eden Place violated the automatic stay when it did not advise the

Sheriff to desist in its efforts to lock out and evict Perl from

the Residence. We further note that changing the locks on the

Residence, locking inside Perl's personal property, which was also

property of the estate, was an act to exercise control over

property of the estate in violation of § 362(a)(3). See

In re Gagliardi, 290 B.R. 808, 815 (Bankr. D. Colo. 2003).

VI. CONCLUSION

Based on the foregoing reasons, we AFFIRM the portion of the

Order ruling that the postpetition lockout/eviction by the Sheriff

of the debtor from his residence on June 27, 2013, violated the

automatic stay and is void.

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