POST BAPCPA:
In re
McCray, 342 B.R. 668 (Bkrtcy.D.Dist.Colo. 2006) S. MARTIN
TEEL, JR., Bankruptcy Judge NEWLY ENACTED PROVISIONS OF §
362(b)(22) PREVENTING STAY OF EVICTION FROM ARISING IN
SERIAL FILING CASE REQUIRES A LEASE OR RENTAL AGREEMENT
NEWLY ENACTED PROVISIONS OF § 362(d)(4) GIVING COURT POWER
TO GRANT RELIEF FROM STAY FOR TWO YEARS IN ANY SUBSEQUENT
CASE REQUIRES THE CREDITOR TO HOLD A SECURITY INTEREST IN
THE PROPERTY
The debtors had filed several petitions to frustrate
eviction by an owner who had newly acquired the property in
a foreclosure. The court held that there was no lease or
rental agreement, nor did the owner have a "security
interest" per se because by acquiring ownership its security
interest was extinguished, and accordingly new BAPCPA
provisions of § 362 did not apply. Nevertheless the court
ruled that it had the power under § 105(a) to terminate the
stay and issue order preventing stay from arising in any
case filed within the next 2 years.
WARNING: PRE-BAPCPA
An automobile
sale/lease-back/option-to-buy agreement that meets
Merryweather v. Pendleton test is a security device for a
loan and subject to Consumer Lenders Act; latter act is not
void for vagueness. SAL Leasing, Inc. v Arizona, 1
CA-CV 99-0631, 10/3/00.
A lender
who takes title, then allowing old owner to reside in
property under premise of a lease to purchase; Arizona
Question regarding Equitable Mortgages There is a good discussion of "disguised real
estate security transactions" in Nelson and Whitman's hornbook
on Real Estate Financing, Chapter 3, and an old law review
article by Cunningham and Tischler in 26 Rutgers Law Review 1
(1972).
PACIFIC SHORES v. AT HOME CORP.,
No. 03-15769 (9th Cir. December 28, 2004) A
bankruptcy court may approve retroactively the rejection of
an unexpired nonresidential lease.
http://caselaw.lp.findlaw.com/data2/circs/9th/0315769p.pdf
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