UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Theresa McAdam

v. Civil No. 04-CV-472-PB

Raymond Lorden, Individually

and as trustee of the REL 

Revocable Trust

MEMORANDUM AND ORDER

Theresa McAdam, the debtor in a bankruptcy proceeding before

the United States Bankruptcy Court in the District of New

Hampshire, filed a complaint seeking damages from Raymond Lorden

for violations of the Bankruptcy Code’s automatic stay. See 11

U.S.C. § 362 (2000). The bankruptcy court dismissed McAdam’s

complaint for failure to state a claim. McAdam appeals. For the

reasons set forth below, I affirm the bankruptcy court’s

decision.

I. BACKGROUND

In October 2003, McAdam filed a Chapter 13 bankruptcy

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 The bankruptcy petition was converted to a Chapter 7 1

proceeding on November 26, 2003.

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petition in this district. McAdam and her husband each owned an 1

undivided one-half interest in their residence in Hollis, which

they both occupied. Compl. ¶ 5. General Electric Capital

Corporation (GECC), a creditor with a claim secured by a second

mortgage on McAdam’s residence, filed an emergency motion

requesting relief from the automatic stay to proceed with a

scheduled foreclosure sale of the property. Id. ¶ 6-7. The

bankruptcy court granted the motion and Lorden was the successful

bidder at the foreclosure auction. Id. ¶ 8. 

The foreclosure deed was recorded in the Hillsborough County

Registry of Deeds on November 7, 2003. Id. ¶ 9. Although the

foreclosure sale was properly completed, McAdam and her husband

refused to vacate the subject property. Id. Lorden then took

certain actions, including filing a landlord/tenant eviction

action in the state district court, in an attempt to obtain

possession of the subject property. Id. ¶ 10.

On June 17, 2004, McAdam filed a complaint for damages for

violation of the automatic stay, alleging that Lorden failed to 

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obtain relief from the automatic stay before taking these

actions. Id. McAdam sought an award of actual damages,

including attorneys’ fees and expenses, in the amount of $10,000

plus punitive damages in the amount of $25,000 for Lorden’s

willful violation of the automatic stay. See id. 

Lorden moved to dismiss McAdam’s complaint for failure to

state a claim and McAdam objected. The bankruptcy court ruled

that the automatic stay did not apply to Lorden’s actions and

thus dismissed the complaint. McAdam appeals.

II. STANDARD OF REVIEW

I review the bankruptcy court’s dismissal of a complaint for

failure to state a claim de novo, “taking as true the wellpleaded facts contained in the complaint and drawing all

reasonable inferences therefrom in the plaintiff’s favor.” 

Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir. 2002); see also

Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002). 

I may affirm, modify, or reverse a bankruptcy court’s decision or

remand for further proceedings. Fed. R. Bankr. P. 8013.

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III. DISCUSSION

McAdam argues that she retained a protected interest in her

residence following the foreclosure sale by reason of her

continued occupation and possession of the subject property. 

Lorden counters that the foreclosure sale and subsequent

recording of the foreclosure deed extinguished all of McAdam’s

legal and equitable interests in the property. Alternatively,

Lorden argues that the bankruptcy court should modify its order

retroactively to provide that the automatic stay would not

prohibit his actions to obtain possession of the property. 

The automatic stay has been described as “one of the

fundamental debtor protections provided by the bankruptcy laws.” 

Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Prot., 474

U.S. 494, 503 (1986) (quotation omitted). It bars “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.” 

11 U.S.C. § 362(a)(3). Property of the estate includes “all

legal or equitable interests of the debtor in property as of the

Case 1:04-cv-00472-PB Document 9 Filed 09/26/05 Page 4 of 12
 It also includes property that a Chapter 13 debtor 2

acquires after commencement of the case but before the case is

closed, dismissed or converted to a Chapter 7, 11 or 12 case. 11

U.S.C. § 1306 (a)(1)(2000). 

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commencement of the case.” Id. § 541(a)(1). The stay continues 2

“until such property is no longer property of the estate.” Id. §

362(c)(1).

The parties agree that McAdam’s residence became part of the

bankruptcy estate when she filed the bankruptcy petition. The

bankruptcy court nevertheless concluded that McAdam lost all

legal and equitable interests in the property when the

foreclosure sale was completed and thus the subject property

ceased to be property of the estate at that time. 

McAdam concedes that she lost any ownership interest in her

residence upon completion of the foreclosure sale. McAdam Br. at

5-6 (Doc. No. 7). She also acknowledges that she could no longer

exercise any right of redemption. McAdam Br. at 5-6 (Doc. No.

7); see N.H. Rev. Stat. Ann. (“RSA”) § 479:18 (2001) (“All lands

conveyed in mortgage may be redeemed by the mortgagor . . .

before foreclosure.” (emphasis added)). She argues, however,

that she retained a possessory interest in the property as a

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holdover tenant or tenant at will, and that this interest is

protected by the automatic stay. I disagree.

First, the bankruptcy court’s order allowing GECC to proceed

with the foreclosure sale appears to encompass all of McAdam’s

legal and equitable interests in the subject property, including

any possessory interest that she may have had in the property. 

The bankruptcy court ordered that “GECC may exercise any and all

of its rights against [McAdam] and her property pursuant to the

terms, conditions and covenants of the Mortgage and applicable

non-bankruptcy law, including its foreclosure upon its mortgage

against [McAdam’s] residence.” Ex. 1 (Order dated October 16,

2003). Based upon this order, it does not appear that the court

intended that McAdam would retain an interest in the property

after the foreclosure sale that would remain subject to the

automatic stay. Accordingly, Lorden, as GECC’s successor in

interest, had no reason to go back to bankruptcy court to again

seek relief from the automatic stay, which his predecessor had

already obtained.

From a practical standpoint, requiring the purchaser at a

foreclosure auction to obtain separate relief from the automatic

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stay would deter potential bidders and would not serve the

purposes of the stay. 

[T]he purpose of the stay is to give the bankruptcy

estate and its fiduciary, either the trustee or the

debtor-in-possession, an opportunity to (1) familiarize

himself with the various rights and interests involved

and with the property available for distribution, and

(2) gather together the assets of the estate, determine

their value, and liquidate or reorganize them. This

goal is not achieved by applying the stay to a

purchaser's attempt to obtain possession of residential

real property wrongfully being held by the

debtor/former owner, when the debtor has no good-faith,

colorable claim to possession and the purchaser's right

to possession is not in dispute.

In re St. Clair, 251 B.R. 660, 667 (D. N.J. 2000), aff’d, 281

F.3d 224 (3d Cir. 2001). 

Second, I agree with the bankruptcy court that McAdam lost

any protected interest that she had in the subject property when

the foreclosure process was completed. Generally, state law

determines whether the debtor has any legal or equitable interest

in property that is included in the bankruptcy estate, unless

federal law requires a different result. Butner v. United

States, 440 U.S. 48, 55 (1979); In re NTA, LLC, 380 F.3d 523, 528

(1st Cir. 2004).

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Under New Hampshire law, a mortgagee may exercise the power

of sale to foreclose on a property when the mortgagor fails to

perform a condition of the mortgage. RSA § 479:22 (2001). The

foreclosure process is completed when the foreclosure deed, a

copy of the notice of the sale and the seller’s accompanying

affidavit are recorded in the registry of deeds. RSA § 479:26

(2001). The title to the premises then passes to the purchaser

“free and clear of all interests and encumbrances which do not

have priority over [the] mortgage.” Id. ¶ III. 

In Barrows v. Boles, 141 N.H. 382, 393 (1996), the New

Hampshire Supreme Court held that the plaintiff did not retain

any right to receive rent from tenants of his mobile home park

subsequent to foreclosure. The foreclosure auction occurred

after the plaintiff filed a voluntary petition for bankruptcy and

the bankruptcy court granted the mortgagee’s request for relief

from the automatic stay to proceed with the sale. Id. at 386. 

The plaintiff claimed that the purchaser of the property

tortiously interfered with his contractual relationship with the

tenants by sending a letter to the tenants instructing them to

pay rent directly to the purchaser. Id. at 392. The letter was

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sent after the foreclosure auction but before the sale was

completed. Id. Even though legal title did not pass to the

purchaser until the foreclosure deed was recorded, see RSA §

479:26, III, the supreme court held that the debtor “possessed

neither a legal nor an equitable interest in the property once

the auctioneer’s hammer fell and the memorandum of sale was

signed.” Barrows, 141 N.H. at 393 (quotation omitted). I cannot

see why McAdam’s situation is different merely because she

wrongfully remained in possession of the property after

foreclosure. 

McAdam nevertheless argues that because New Hampshire law

provides some protection for holdover tenants, her possessory

interest in the property should be protected by the automatic

stay. State law provides that the purchaser at a mortgage

foreclosure sale may recover possession from an occupant through

a possessory action after providing notice in writing to quit the

premises. RSA § 540:12 (1997); see also RSA § 540:3, II (1997)

(requiring thirty days’ notice). Although state law may

recognize McAdam’s right to receive notice of the eviction

proceedings, these statutes do not confer any rights upon the

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bankruptcy estate that would be protected by the automatic stay.

See In re Crime Free, Inc., 196 B.R. 116, 119 (Bankr. E.D. Ark.

1996) (noting that under Arkansas law, debtor wrongfully in

possession of real property following foreclosure sale only has a

possessory interest in the property which “amounts to no more

than the right to litigate eviction proceedings”); see also In Re

Comis, 181 B.R. 145, 150 (Bankr. N.D.N.Y. 1994) (automatic stay

does not apply to purchaser’s claim to property acquired by

foreclosure notwithstanding fact that debtor remains in

possession of foreclosed property). 

McAdam also relies upon cases from other jurisdictions that

hold that a debtor in possession of leased property has an

equitable interest that may be included in the bankruptcy estate

and protected by the automatic stay. See, e.g., Schewe v.

Fairview Estates (In re Schewe), 94 B.R. 938, 946 (Bankr. W.D.

Mich. 1989) (holding that the automatic stay is applicable to

debtor’s possessory interest in mobile home lot pursuant to a

month-to-month lease); In re Onio’s Italian Rest. Corp., 42 B.R.

319, 321 (Bankr. S.D.N.Y. 1984) (holding that a debtor’s bare

possessory interest in the premises without legal right is a

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residual interest and the court may stay an eviction warrant for

a reasonable time for good cause). Likewise, courts have

recognized that a tenant’s possessory interest in property is

included in the bankruptcy estate when the bankruptcy petition is

filed and thus the landlord must seek relief from the automatic

stay prior to terminating the lease or instituting eviction

proceedings. See, e.g., In re Atlantic Bus. and Cmty. Corp., 901

F.2d 325, 328 (3d Cir. 1990); In re 48th St. Steakhouse, Inc.,

835 F.2d 427, 430 (2d Cir. 1987). But see In re Turner, 326 B.R.

563, 573 (Bankr. W.D. Pa. 2005) (“[A] mere possessory interest

(for instance, a ‘squatter’ or tenant at sufferance) in an

expired lease at the time of filing is not enough to sustain the

protections of the automatic stay.”) 

None of these cases, however, squarely address the issue of

whether a debtor retains a possessory interest in foreclosed

property after the completion of a foreclosure authorized by the

bankruptcy court. Although a tenant’s possessory interest in

real property may be recognized in some contexts, it is a very

different matter to hold that a debtor who refuses to surrender

possession of property that is subject to a valid foreclosure

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sale has an interest in the property that is entitled to

protection under the automatic stay. The cases that McAdam cites

thus do not support her claim against Lorden. 

As discussed above, under state and federal law, McAdam’s

legal and equitable interests in the property terminated when the

foreclosure process was completed. See In re Beeman, 235 B.R.

519, 527 (Bankr. D. N.H. 1999); Barrows, 141 N.H. at 393. Thus,

I conclude that McAdam’s continued occupation of the subject

property after the foreclosure sale, without right to do so, does

not create a property interest that is entitled to protection by

the automatic stay.

For the reasons stated above, the bankruptcy court’s order

dismissing McAdam’s complaint is affirmed. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

September 26, 2005

cc: Grenville Clark, III, Esq.

Michael S. Askenaizer, Esq.

US Bankruptcy Court - NH, Clerk

US Trustee

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