{"id":923,"date":"2016-01-20T17:53:39","date_gmt":"2016-01-21T00:53:39","guid":{"rendered":"http:\/\/fiduciarydutiesblog.com\/?p=923"},"modified":"2016-01-20T17:53:39","modified_gmt":"2016-01-21T00:53:39","slug":"in-re-perl-9th-circuit-changes-rules-relating-to-bankruptcy-stay-and-california-eviction-law","status":"publish","type":"post","link":"https:\/\/fresnolawyerblog.com\/?p=923","title":{"rendered":"In re Perl – 9th Circuit Changes Rules Relating to Bankruptcy Stay and California Eviction Law"},"content":{"rendered":"

The law of evictions \u2013 titled as \u201cunlawful detainer\u201d in California \u2013 is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property.<\/p>\n

That remains an important concept in an action based on the unlawful detainer statutes.\u00a0 The principal objective in an action for unlawful detainer is a judicial determination whether the plaintiff or defendant is entitled, at that time, to possession of the property.\u00a0 Unlawful detainer does not focus on ownership, and case law holds that the issue of plaintiff\u2019s title to the property cannot be litigated in an unlawful detainer proceeding.<\/p>\n

So, the objective is up to obtain a judgment for unlawful detainer, coupled with issuance of a writ of possession.\u00a0 By law, the writ of possession is delivered to the sheriff, who has the responsibility to serve and enforce the writ of possession, ultimately using the sheriff\u2019s office to restore possession to the plaintiff.<\/p>\n

Remember<\/strong> \u2013 no self-help.\u00a0 The court issues a judgment for possession, together with a writ of possession.\u00a0 The sheriff enforces the writ of possession and restores possession to the plaintiff.<\/p>\n

\"Fresno<\/a><\/p>\n

Now mix in issues arising under bankruptcy law.\u00a0 In In re Perl<\/strong>, __ F.3d __ (Jan. 8, 2016), the plaintiff in an unlawful detainer action obtained judgment and the court issued a writ of possession.\u00a0 The writ was delivered to the sheriff.\u00a0 Then, before the sheriff effected service, the tenant filed for bankruptcy.\u00a0 Does the Sheriff\u2019s actions in enforcing the writ of possession violate the automatic stay created under bankruptcy law?<\/p>\n

\u201cThe question in this case is whether Perl had any remaining legal or equitable possessory interest in the property after \u2026 the state court fully adjudicated in the unlawful detainer proceedings.\u201d\u00a0 According to the 9th Circuit, the answer is No.<\/p>\n

More specifically, \u201cWe conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.\u201d<\/p>\n

In so doing, the court overruled the decisions in In re Di Giorgio<\/strong>, 200 B.R. 664 (Bankr. C.D. Cal. 1996) and In re Butler<\/strong>, 271 B.R. 867 (Bankr. C.D. Cal. 2002).<\/p>\n

It gets more interesting when the court reviewed the statutory scheme.\u00a0 The court found that \u201cPursuant to Code of Civil Procedure \u00a7 415.46, no occupant of the premises retains any possessory interest of any kind following service of the writ of possession.\u201d<\/p>\n

Comment<\/strong> \u2013 Look up CCP \u00a7 415.46 for yourself.\u00a0 It deals with the prejudgment claim to possession that can be asserted by third parties in possession of the property.\u00a0 The court\u2019s analysis is not supported by statute.<\/p>\n

Thus, the court concluded that \u201cThe unlawful detainer judgment and writ of possession entered pursuant to California Code Civil Procedure \u00a7 415.46 bestowed legal title and all rights of possession upon Eden Place.\u00a0 Thus, at the time of the filing of the bankruptcy petition, Perl had been completely divested of all legal and equitable possessory rights that would otherwise be protected by the automatic stay.\u00a0 Consequently, the Sheriff’s lockout did not violate the automatic stay because no legal or equitable interests in the property remained to become part of the bankruptcy estate.\u201d<\/p>\n

Comment<\/strong> \u2013 I can\u2019t agree.\u00a0 Possession could be restored only by the sheriff acting pursuant to the writ of possession issued by the court.\u00a0 As possession was restored by enforcement of a court order, I believe the act of restoring possession necessarily impacted the bankruptcy stay.<\/p>\n","protected":false},"excerpt":{"rendered":"

The law of evictions \u2013 titled as \u201cunlawful detainer\u201d in California \u2013 is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property. That remains an important concept in an action based on the unlawful […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3,5,8],"tags":[],"class_list":["post-923","post","type-post","status-publish","format-standard","hentry","category-case-law","category-developments","category-real-property"],"_links":{"self":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/923"}],"collection":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=923"}],"version-history":[{"count":0,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/923\/revisions"}],"wp:attachment":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=923"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=923"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}