Ralph Eugene Williams and Denice Louise Shippen

UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
RALPH EUGENE WILLIAMS and 	: 	Bankruptcy No. 07-11685DWS
DENICE LOUISE SHIPPEN, 	:
:
Debtors. 	:
OPINION
BY: 	DIANE WEISS SIGMUND, Chief Bankruptcy Judge
Before the Court is the Motion for Relief from Stay (the “Motion”) of AGLF
Investments, LLC (“AGLF”), seeking to recover possession of real property leased to the
Debtors for their residence (the “Residence”). The Motion brings into play new provisions
of the Bankruptcy Code added by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, Pub.L. No. S 256, 109-8, 119 Stat. 23 (2005) (“BAPCPA”).
Specifically, the Court must address §§ 362(b)(22) and 362(l), which provide an exception
to the automatic stay of § 362(a)(3) under certain circumstances. As the contested matter
presents an issue of first impression under BAPCPA, the parties were asked and have briefed
their respective positions. 	Having reviewed same and conducted independent research,
the Motion is ripe for decision.
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 1 of 21

1 Exhibit C-6.
2 Celli is a partner in AGLF and its attorney in this contested matter.
3 They also filed the Judgment and Leases for the Residence. 	Id. 	I shall take judicial
notice of the docket entries in this case. Fed.R.Evid. 201, incorporated in these proceedings by
Fed.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n.3
(3d Cir. 1991); Levine v. Egidi, 1993 WL 69146, at *2 (N.D. Ill. 1993); In re Paolino, 1991
(continued...)
-2-
FACTUAL BACKGROUND
The relevant facts are not disputed. Debtors rent their Residence from AGLF pursuant
to a lease dated January 15, 2007 (the “Lease”). Exhibit C-2. On March 2, 2007, AGLF
filed a Landlord and Tenant Complaint1 against Debtors for past-due rent in the Magisterial
District Court (the “MDC”), District 38-1-07, for Montgomery County, and on March 14,
obtained a judgment (the “Judgment”) against Debtors in the amount of $3,464 and granting
possession of the Residence. Exhibit C-5.
Debtors filed this Chapter 7 case pro se on March 22, 2007. Using the new form of
petition adopted to implement BAPCPA, Debtors indicated that its landlord has a judgment
for possession and identified and provided the address of Rudolf Celli Jr. (“Celli”)2 as
landlord. 	They also checked the box preceding the statement “Debtor claims that under
applicable nonbankruptcy law, there are circumstances which the debtor 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 did not check the box preceding the statement
“Debtor has included with the petition the deposit with the court of any rent that
would become due during the 30-day period after the filing of the petition.” Doc. No. 1. 3
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 2 of 21

(...continued)
WL 284107, at *12 n. 19 (Bankr. E.D. Pa. 1991); see generally In re Indian Palms Associates, Ltd.,
61 F.3d 197 (3d Cir. 1995).
4 Though no testimony was presented on this issue, AGLF’s Motion for Expedited Hearing
on the Stay Motion indicates that it informed the MDC of Debtor’s failure to comply with the
Bankruptcy Code provisions at issue here. Expedited Motion ¶ 3.
5 Thus while the Motion is framed as a request for relief from stay, the issue presented and
briefed by the parties was whether the stay was applicable in the first instance. AGLF relies solely
on the new BAPCPA provisions to support its request for relief. 	Debtors contend that AGLF
violated the stay, its writ of eviction is void and that if stay relief is granted, AGLF must repeat that
(continued...)
-3-
Upon review of the foregoing, the Clerk of Court on March 22, 2007 forwarded a notice
and certified copy of the docket to Celli and Debtors as required by 11 U.S.C. § 362(l)(4)(B).
See p. 8 infra.
Debtors’ attorney entered his appearance in this case on March 30, 2007 and filed
the requisite Schedules and Statement of Affairs on April 6, 2007. No further filings were
made with respect to the Judgment nor was a deposit ever posted.
On April 27, 2007, AGLF filed with the MDC a request for Order of Possession,
which was granted that same day (the “Possession Order”) and provided for eviction to
take place on May 8, 2007. Exhibit C-1. AGLF did not seek relief from the automatic stay
prior to obtaining the Possession Order based on its view that the BAPCPA provisions of
§ 362(b)(22) were self executing when Debtors had failed to certify that they had deposited
with the clerk any rent due during the 30-day period following the filing.4 On May 2 AGLF
filed the Motion which was prompted by the position of Debtors’ counsel that certain
provisions of § 362(a) still protect them from eviction.5 While contending that stay relief
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 3 of 21

(...continued)
step to evict Debtors. Debtors have filed a motion to convert this bankruptcy case to one under
Chapter 13, intending to pay their rent arrears by December 31, 2007 under a Chapter 13 plan,
Exhibit D-2, rather than pursuant to § 362(l) which requires cure within 30 days of the petition date.
11 U.S.C. § 362(l)(2).
6 While AGLF has not specifically requested a declaratory judgment that the stay is not in
effect, the parties’ arguments have focused on this as a threshold question.
-4-
is not required under these circumstances, the Motion asks for relief to the extent it may
be necessary. 6
DISCUSSION
The automatic stay provided by 11 U.S.C. § 362(a) is one of the fundamental
debtor protections provided by the bankruptcy laws. Its breadth as reflected in its broadly
worded subsections (a)(1) through (a)(8) has provided opportunities for abuse not intended
by Congress to achieve its prophylactic statutory objective, i.e., providing debtors a breathing
spell from collection efforts, harassment and foreclosure actions while they seek financial
rehabilitation consistent with the requirements of the Bankruptcy Code. H.R.Rep.No. 595,
95 th Cong., 1st Sess 174-75 (1977); S.Rep.No. 989, 95 th Cong. 2d Sess. 49-50 (1978).
One such area of abuse was identified by the commission charged by Congress in 1994
with a review of the extant bankruptcy law. Through testimony and written submissions,
the 	National 	Bankruptcy 	Review 	Commission 	(the 	“Commission”) 	was 	advised 	of
“persistent, systematic abuse of the automatic stay by residential tenants who have
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 4 of 21

-5-
successfully 	forestalled 	eviction 	for 	months 	by 	filing 	a 	bankruptcy 	petition.”
Nat’l Bankruptcy Review Commission, Final Report, Bankruptcy: the Next Twenty
Years, 	Chapter 	3: 	Individual 	Commissioner 	Views 	65-66 	(1997), 	available 	at
http://govinfo.library.unt.edy/ubrc/. While it would be another ten years before legislation
was enacted, among the provisions of BAPCPA are additional exceptions to the sweep of
§ 362(a), including two that directly pertain to residential leases.
Prior to BAPCPA, § 362(a)(3) had absolutely protected the estate’s interest in a
residential lease as the petition operated as a stay against “[a]ny act to obtain possession of
property of the estate or of property from the estate. . . . ” 11 U.S.C. § 362(a)(3). Absent the
amendment discussed below, AGLF’s post-petition pursuit of Debtors’ eviction would run
afoul of this protection, notwithstanding the pre-petition entry of judgment for possession.
Cuffee v. Atlantic Business and Community Corp. (In re Atlantic Business and Community
Corp.), 901 F.2d 325, 328 (3d Cir. 1990) (a debtor's bare possessory interest in real property
is property of the estate under 11 U.S.C. § 541 and is thus protected from being taken under
362(a)(3)). BAPCPA, however, sought in part to address “ a problem faced by thousands of
large and small residential landlords across the nation whose tenants file for bankruptcy relief
solely for the purpose of staying pending evictions so they can live ‘rent free.’” H.R. Rep.
No. 1009-31(I), *17 as reprinted in, 2005 U.S.C.C.A.N. 88, *103 (2005). It did so through
two new exceptions to the automatic stay. 	Section 362(b) now states that the filing of a
petition will not operate as a stay:
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 5 of 21

7 A parallel set of qualifications are framed for the Endangerment Exception in § 362(m).
-6-
(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 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;
(23) subject to subsection (m), under subsection (a)(3), of an eviction action
that seeks possession of the residential property in which the debtor resides as
a tenant under a lease or rental agreement based on endangerment of such
property or the illegal use of controlled substances on such property, but only
if the lessor files with the court, and serves upon the debtor, a certification
under penalty of perjury that such an eviction action has been filed, or that the
debtor, during the 30-day period preceding the date of the filing of the
certification, has endangered property or illegally used or allowed to be used
a controlled substance on the property;
11 U.S.C. § 362(b)(22)-(23). I will refer to these provisions as the “Judgment Exception”
and “Endangerment Exception,” respectively, and collectively as the “Lessor Exceptions.”
Only the Judgment Exception is implicated by the Motion.
The Judgment Exception is subject to § 362(l)7 which establishes certain requirements
which if performed will allow a debtor to circumvent the loss of the stay imposed by
§ 362(b)(22). 	First, a debtor who has incurred a prepetition judgment for possession of
residential real estate can temporarily avoid the operation of the Judgment Exception for
thirty-days following the petition if the debtor: (1) files with the petition and serves upon the
lessor a certification under penalty of perjury that under applicable nonbankruptcy law the
debtor may cure the default; and (2) deposits with the bankruptcy court clerk all rent due
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 6 of 21

8 That provision states:
( l )(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.
11 U.S.C. § 362(l)(1). Section 362(l)(5) defines what information that must be in the certification,
as well as requires that (1) a debtor must indicate the judgment on the petition itself; (2) the clerk
of court arrange for prompt transmittal of rent deposited under 362(l)(1)(B); and (3) the standard
forms used in a bankruptcy proceeding are to be amended to comply with the requirements of this
subsection. 	To administer the deposit requirement, this Court entered a Standing Order on
November 16, 2005 establishing uniform procedures for the deposit of rent with the Clerk and the
Clerk’s transmittal of the funds to the lessor. No. M-05-3009.
-7-
to the landlord within the thirty-day period following the bankruptcy filing (the “Initial
Certification/Cure”). 11 U.S.C. § 362(l).8
Upon compliance with the Initial Certification/Cure as required with the filing of the
petition, a debtor has a thirty day window in which to cure the entire default leading to the
judgment and provide a second certification as to that fact to the court (“the Final
Certification/Cure”). 	Compliance will ensure that the Judgment Exception will not be
applicable unless the court orders otherwise under subsection (3) which provides a procedure
for 	the 	lessor 	to 	object 	and 	be 	heard 	with 	respect 	to 	a 	debtor’s 	Initial 	or 	Final
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 7 of 21

9 The provision states:
(l)(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 nonbankrupcty 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).
11 U.S.C. § 362(l)(2).
10 The Endangerment Exception’s referenced subsection (m) provides that the exception will
go into effect fifteen days after the lessor’s certification, absent objection by the debtor. 	If the
debtor objects, an evidentiary hearing is scheduled. 11 U.S.C. § 362(m).
-8-
Certification/Cure. 	11 U.S.C. § 362(l)(2), § 362(l)(3)(A).9 Finally, if the debtor fails to
perform either the Initial or Final Certification/Cure or the court upholds the lessor’s
objection to a certification/cure, “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.” 	11 U.S.C.
§§ 362(l)(3)(B)(i), (l)(4)(A). In such instance, the statute requires the clerk of the court to
“immediately serve upon the lessor” a certified copy of the docket indicating the debtor’s
failure to file the required certification or a copy of the order upholding the landlord’s
objection. 11 U.S.C. §§ 362(l)(3)(B)(ii), (l)(4)(B).10
In this case, the Debtors’ certification memorialized in their bankruptcy petition
asserted the ability to cure but failed to certify (or make) the requisite rent deposit.
Accordingly, the Debtors did not comply with the Initial Certification/Cure required by
§ 362(l). I take judicial notice of the fact that the clerk of the court served AGLF with a
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 8 of 21

-9-
certified copy of the docket, Doc. No. 7, pursuant to § 362(l)(3)(B)(ii) from which AGLF
could glean that the stay exception of § 362(b)(22) was effective upon Debtors’ filing of
the petition. 	Debtors concede the foregoing but claim that while they have lost the
automatic stay of § 362(a)(3), the stay remains with respect to § 362(a)(1), which prohibits
“the commencement or continuation, including the issuance or employment of process,
of a judicial, administrative, or other action or proceeding against a debtor that was or could
have been commenced before the commencement of the case,” and § 362(a)(2), which
provides that the automatic stay applies to “the enforcement, against the debtor or against
property of the estate, of a judgment obtained before the commencement of the [bankruptcy]
case,” neither of which are referenced in the Judgment Exception which makes specific
reference only to § 362(a)(3).
Notably no court has held that §§ 362(a)(1) and (2) allow a debtor to evade the
proscriptions of § 362(l) to enjoin eviction by a lessor with a prepetition judgment for
possession. Indeed the anecdotal experience of this Court is that the procedures of § 362(l)
are being employed to retain the stay. However, one commentator has expressed the view
that is urged by Debtors. 	See Hon. Alan M. Ahart, The Inefficacy of the New Eviction
Exceptions to the Automatic Stay, 80 Am. Bankr. L. J. 125 (Winter 2006). 	Judge Ahart
observes that the plain language of the statute limits the Lessor Exceptions to the stay of
subsection (a)(3) and notes a number of pre-BAPCPA cases that have held that evictions
fall within the ambit of subsections (a)(1) and (2), not merely (a)(3). Id. at 141 n.72, 74, 79.
Comparing the Lessor Exceptions to other stay exceptions in subsection (b), which provide
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 9 of 21

11 He also contends, and I agree, that § 362(a)(1) and (a)(2) remain to stay actions to dispose
of debtor’s personal property. His citation to pre-BAPCPA cases that indicate that the stay of (a)(1)
and (a)(2) are still applicable to enjoin the implementation of state law remedies against personalty,
e.g., In re Sumptner 171 B.R. 835, 842 (Bankr. N. Ill. 1994) is not inconsistent with the view that
actions against a lessor’s realty are governed by subsection (a)(3) which has been carved out of
the stay.
-10-
broad relief from all the provisions of § 362(a), see 11 U.S.C. § 362(b)(1)-(3), (b)(6)-(21),
Judge Ahart argues that Congress’ limiting reference to the stay of subsection (a)(3) was
purposeful. Surveying the pre-BAPCPA case law, he concludes that subsections (a)(1) and
(a)(2) are still effective to stay a lessor from taking any further acts to obtain possession of
property by both § 362(a)(1) and (a)(2). 11
The problem with such an interpretation is obvious: 	it renders both Lessor
Exceptions, including the elaborate procedural mechanisms to implement them, entirely
meaningless. An exception to subsection (a)(3) gives illusory relief to lessors if subsections
(a)(1) and (2) still stand as barriers to the exercise of the remedies contemplated to follow
the debtor’s failure to comply with § 362(l). If relief must be sought from protection under
§ 362(a)(1) and (a)(2), the debtor would have the ability to retain possession of the premises
without paying rent during the period it takes to be heard; the lessor would have the cost of
filing a motion and appearance at a hearing; and the abusive practice sought to be addressed
by the Lessor Exceptions would persist. Instead Congress has crafted a balanced approach
to tenant/landlord rights and obligations under BAPCPA. 	It allows a debtor to retain his
leasehold interest if he pays the rent to become due in the next 30 days and certifies that
under state law he may cure the judgment for possession. It requires cure of the default in
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 10 of 21

12 One court has opined that permitting a cure under a Chapter 13 plan would be completely
contrary to the new provisions of the Code and would exceed the Court’s power under § 105(a).
In re Tucker, 2005 LEXIS 2679 (Bankr. N.D. Ga. 2679 Nov. 18, 2005).
13 Similarly, why would a lessor file a certification under the Endangerment Exception
stating that a debtor is using drugs on or endangering property, assuming the possible cost and time
of an evidentiary hearing, to invoke a stay exception that would still leave two other stay provisions
as barriers to eviction?
-11-
30 days, not under a Chapter 13 plan as Debtors propose. 12 Moreover, it allows protection
while that certification is challenged by the lessor. 	Debtors’ reading of § 362(l) would
effectively write this scheme out of the statute since a debtor with no intention or ability to
cure the judgment of possession could freely ignore the deposit and cure requirements, as did
Debtors here, and retain stay protection.13 I have no doubt that the only purpose for the
procedures outlined in §§ 362(l) and (m) is if the Lessor Exceptions actually provide stay
relief to lessors.
Debtors’ interpretation not only makes no sense but it is burdensome and possibly
misleading. 	Not only would subsection (l) require the clerk of the court to add the
meaningless administrative notice procedures to its already full post-BAPCPA workload
but the court, following the statute’s notice requirements, could be unintentionally luring an
unwary landlord into violating the automatic stay. What is a landlord to think when he or
she receives a certified copy of the docket and a notice directing him or her to a statutory
provision that states “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”? 	11 U.S.C. §§ 362(l)(3)(B)(i), (l)(4)(A), m(3). 	Absent advice by counsel
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 11 of 21

14 That is certainly what appears to have happened here, and Celli is a lawyer who practices
in this court. In its pleading seeking expedited consideration of the Motion, AGLF indicates that
it certified to the MDC that Debtors failed to comply with the Certification/Cure requirement of
§ 362(l). 	It appears that it was only the letter from Debtors’ counsel that made AGLF present
the Motion to this Court.
-12-
knowledgeable in bankruptcy law about the nuances of subsection § 362(a), it is almost
certain that a landlord would proceed straight to eviction, thinking that such action has been
expressly sanctioned by the bankruptcy court.14
It seems incredulous that Congress intended such a result. In an attempt to discern
what was intended, I will turn to the legislative history relating to the statutory change.
See Train v. Colorado Public Interest Research Grp., 426 U.S. 1, 3, 96 S.Ct. 1938, 1942
(1976) (there can be no rule of law forbidding the use of legislative history “however clear
the words may appear on ‘superficial examination’”) (citation omitted). The language of the
current Lessor Exceptions first appeared in the 2002 BAPCPA and remained constant
through 2005. The legislative statement of intent has also remained consistent:
. . . It is the intent of this provision [section 311 of the Act] to create an
exception to the automatic stay of section 362(a)(3) to permit the recovery of
possession 	by 	rental 	housing 	providers 	of 	their 	property 	in 	certain
circumstances where a judgment for possession has been obtained against a
debtor/resident before the filing of the petition for bankruptcy. . . . It is also
the intent of this section to permit eviction actions based on illegal use of
controlled substances or endangering property in certain circumstances.
. . .
For both the judgment based on monetary default and the controlled substance
or endangerment exceptions, the section provides an opportunity for challenge
by either the lessor or the tenant to certifications filed by the other party and
a timely hearing for the court to resolve any disputed facts and rule on the
factual or legal sufficiency of the certifications. Where the court finds for the
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 12 of 21

-13-
lessor, the clerk shall immediately serve upon the parties a copy of the court's
order confirming that an exception to the automatic stay is applicable. Where
the court finds for the tenant, the stay shall remain in effect. It is the intent of
this section that the clerk's certified copy of the docket or order shall be
sufficient evidence that the exception under paragraph 22 or paragraph 23 is
applicable 	for 	a 	marshal, 	sheriff, 	or 	similar 	local 	officer 	to 	proceed
immediately to execute the judgment for possession if applicable law
otherwise permits such action, or for an eviction action for use of illegal
controlled substances or property endangerment to proceed. . . .
H.R. Rep. 109-31(I), at 74-75 (2005), as reprinted in 	2005 U.S.C.C.A.N. 88, 142-43
(emphasis added). Accord H.R. Rep. 108-40(I), 2003 WL 1383469, at * 182-83 (Mar. 18,
2003) (discussing § 311, BAPCPA 2003); H.R. Conf. Rep. 107-617, 2002 WL 1751306,
at * 62 (discussing § 311, BAPCPA 2002).
The 	highlighted 	language 	amply 	demonstrates 	that 	Congress 	intended 	that
noncompliance with the Certification/Cure requirement under the Judgment Exception or a
finding of property endangerment/drug use under the Endangerment Exception would result
in the immediate ability of the sheriff or a landlord to continue with execution of its judgment
for possession. Debtors’ position that subsections (a)(1) and (2) nevertheless operate as a
stay against eviction runs counter to this clear intent and results in stay exceptions with
elaborate procedural requirements that serve no point whatsoever.
“[I]nterpretations of a statute which would produce absurd results are to be avoided
if alternative interpretations consistent with the legislative purpose are available” or if
“the literal application of a statute will produce a result demonstrably at odds with the
intentions of its drafters.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 575, 102
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 13 of 21

15 In relying on the opinion of my colleague Judge Bruce Fox in In re Williams, 346 B.R.
361 (Bankr. E.D. Pa. 2006), Debtor overlooks this principle which undermines Williams’
applicability here. Williams held that the language of § 362(a)(3) which terminates the stay after
30 days as to the debtor, but makes no reference to the estate, should be applied as written.
Judge Fox recognized that courts are required to enforce statutes as written– “‘at least where the
disposition not required by the text is not absurd.’” 	Id. at 366 (quoting, inter alia, Hartford
Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2004). 	With respect
§ 362(c)(3)(A), he found that construction as written would not lead to an absurd result, outlining
significant consequences to allowing stay relief as to the debtor only while retaining the stay as to
the estate. Id. at 369. There is no saving grace to the application of § 362(l) as Debtor interprets
it which I find purposeless and therefore to be absurd, therefore permitting deviation from the plain
language of § 362(b)(22).
-14-
S.Ct. 3245, 3250-52 (1982). 15 “In such cases, the intention of the drafters, rather than the
strict language, controls.” 	U.S v. Ron Pair, 	489 U.S. 235, 109 S.Ct. 1026, 1031 (1989).
See also Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091 (1998) (interpreting
statutory provision allowing cause of action to be brought by adversely affected “individual”
to include suits by corporations in order to avoid “absurd and unjust result”).
Moreover, the Supreme Court has repeatedly espoused as a fundamental cannon of
statutory interpretation that statutory provisions are to be interpreted in context with the
statute as a whole, keeping in mind the purpose and policy behind the law. 	Stenberg v.
Carhart, 530 U.S. 914, 998, 120 S.Ct. 2597, 2644 (2000) (quoting United States v. Heirs of
Boisdore, 8 How. 113, 122, 12 L.Ed. 1009 (1849) (“In expounding a statute, we must not
be guided by a single sentence or member of a sentence, but look to the provisions of the
whole law, and to its object and policy”)); Regions Hosp. v. Shalala, 522 U.S. 448, 460, 118
S.Ct. 909, 917 (1998); Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 358 (1986);
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 221, 106 S.Ct. 2485, 2493 (1986);
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359 (1956). Indeed, the
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 14 of 21

-15-
High Court eschews a “blinkered” 	study of isolated subsections. 	Hamden v. Rumsfeld,
126 S.Ct. 2749, 2769 (U.S. 2006).
Finally, when Congress acts, particularly in the bankruptcy arena, it does not do so
on a clean slate. 	See Dewsnup v. Timm, 502 U.S. 410, 419, 112 S.Ct. 773, 779 (1992)
(“When Congress amends the bankruptcy laws, it does not write ‘on a clean slate.’” (quoting
Emil v. Hanley (In re John M. Russell, Inc), 318 U.S. 515, 521, 63 S.Ct. 687, 690-691, 87
L.Ed. 954 (1943)). Congress was fully aware of the other subsections of § 362(a) when it
limited the Lessor Exceptions to subsection (a)(3). However, Congress also clearly intended
the Lessor Exceptions, where applicable to the facts, to allow landlords to proceed with
eviction without having to seek relief from other stay provisions. From this I conclude that
Congress construed subsections (a)(1) and (a)(2) as inapplicable to the very specific actions
allowed by the Lessor Exceptions.
Section 362(a)(1) prohibits the continuation of any prepetition judicial, administrative,
or other action against the debtor, including (but not limited to) the issuance or employment
of process. 	I do not believe that AGLF’s enforcement of the Judgment constitutes either
the commencement or continuation of an action. Once judgment is entered, the action is
concluded. Even before BAPCPA, case law had developed recognizing that post-judgment
“ministerial” tasks, such as entry of judgment on the docket by the prothonotary do not
run afoul of § 362(a)(1). E.g. In re Soares, 107 F.3d 969, 973-74 (1st Cir. 1997); Rexnord
Holdings, Inc. v. Bidermann (In re Bidermann), 21 F.3d 522, 527-28 (2nd Cir. 1994).
As noted by the Soares court, by definition a judicial proceeding concludes when the judicial
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 15 of 21

16 See 68 P.S. § 250.511 (“Nothing contained in this article shall be construed as abolishing
the right of any landlord to recover possession of any real property from a tenant by action of
ejectment . . .”)
-16-
function is completed, i.e., when the decision is made. 107 F.3d at 974. Ministerial acts are
the “antithesis of judicial acts, inasmuch as the essence of a judicial act is the exercise of
discretion or judgment.” 	Id. 	An action is ministerial where the law not only allows it,
but demands it, and where the duty is clear and indisputable. 	United States ex rel.
McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 504 (1931).
AGLF brought its eviction action before the MDC under Pennsylvania’s Landlord
Tenant Act, 63 P.S. § 250.101 et seq. The rules for enforcing that judgment require that the
landlord first file a request for an Order for Possession. Pa. R.C.P.M.D.J. 515. Upon such
a request, “the magisterial district judge shall issue the order for possession and shall deliver
it for service and execution to the sheriff . . . The order shall direct the officer executing
to deliver actual possession of the real property to the plaintiff.” 	Pa. R.C.P.M.D.J. 516
(emphasis added). 	In using the word “shall” the Rule makes the issuance of the Order
for Possession mandatory, making the issuance and execution of the order a ministerial
act rather than judicial function requiring the exercise of discretion.
This is made further apparent by the fact that, had AGLF filed a complaint for
ejectment in the Court of Common Pleas, a right expressly preserved by the Landlord Tenant
Act, 16 the order for possession following such a judgment would have been issued by the
prothonotary of the court. See Pa. R. Civ. P. 3160-61, 3103. The fact that the Possession
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 16 of 21

-17-
Order was issued here by a magisterial district justice does not change the ministerial
nature of that act.
By hinging the applicability of the Judgment Exception upon the existence of a
prepetition judgment, Congress implicitly acknowledged that the enforcement of a judgment
for possession generally involves ministerial functions that do not implicate the automatic
stay of § 362(a)(1). 	Moreover, limiting the exception to the stay provision of subsection
(a)(3), leaves (a)(1) in place to operate as a stay against the initiation of new proceedings
against the debtor.
Subsection (a)(2) prohibits the enforcement of a prepetition judgment against both a
debtor and estate property. Viewed in isolation and strictly interpreted, that prohibition could
appear to encompass the Possession Order, which is the method of enforcing a judgment for
possession in Pennsylvania. However, in Cuffee, supra, the Third Circuit Court of appeals
clearly stated that the minimal possessory interest of the tenant debtor was “an interest in
property protected by section 362(a)(3).” 901 F.2d at 328. Notably absent is any discussion
of subsection (a)(2). 	Indeed, the leading bankruptcy treatise, when discussing executory
contracts and leases in the context of the automatic stay, does so under the stay provision of
subsection (a)(3). 3 Collier on Bankruptcy ¶ 362.03[5][a] at 362-22 (15th Ed. 2005).
In discussing the enactment of § 362(a)(2), both the House and Senate reports indicate
that this provision is designed to prevent “execution and levy against the debtors' prepetition
property . . . [and] attempts to collect a judgment from the debtor personally.” 	S. Rep.
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 17 of 21

-18-
95-989, at 50 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5836; H.R. Rep. 95-595,
at 341 (1978), as reprinted in1978 U.S.C.C.A.N. 5963, 6297. 	Subsection (a)(3) was
designed to address dismemberment of the estate by the taking of property of and from the
estate. 1978 U.S.C.C.A.N. at 5836; 1978 U.S.C.C.A.N at 6298. Also relevant is subsection
(a)(6), which prohibits any act to collect a claim against a debtor. 	The impetus for this
subsection was more informal collection practices such as telephone calls to unsophisticated
debtors. 1978 U.S.C.C.A.N. at 5836; 1978 U.S.C.C.A.N at 6298.
While these provisions may seem to overlap, the better view is that post-judgment
evictions more properly fall under subsection (a)(3), a position I infer from the legislative
history and Third Circuit Court of Appeals in Cuffee. 901 F.2d at 328. Subsection (a)(2)
appears more likely to have been implemented to address the “enforcement of judgments”
in their traditional use as a formal, legal method of debt collection, i.e., garnishment, levy,
distraint, etc., while (a)(6) addresses more informal debt collection practices. Viewing the
automatic stay and its exceptions as a whole, a rational explanation for limiting the Lessor
Exceptions to the automatic stay of subsection (a)(3) is that it narrowly tailors the stay
exception to a lessor’s taking back possession of its rental property, the precise activity that
is intended to be permitted if the debtor fails to perform her side of the bankruptcy bargain,
without sanctioning other creditor actions that are intended to remain to be protected by the
stay. The continued viability of the subsection (a)(1) and (a)(2) stay is necessary to maintain
the balance that Congress sought to strike in this amendment. 	For example, it is not
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 18 of 21

-19-
uncommon for a landlord-tenant suit to seek both rent arrears and costs as well as possession
of the property. Indeed, that is precisely what AGLF did here. Both the Complaint and the
Judgment subsequently issued by the MDC included a monetary judgment as well as granting
possession. Exhibits C-5 and C-6. In limiting the automatic stay exception to that under
subsection (a)(3), Congress has allowed repossession of the landlord’s property but still
protects the debtor from enforcement of the portion of the judgment seeking to collect the
debt, including execution against the debtor’s personal property.
Debtors’ isolated examination of §§ 362(a)(1) and (2) is the idiomatic failure to see
the forest for the trees. When viewing these provisions as part of the whole scheme of the
automatic stay and its exceptions, including the context added by Congress in the passage
of BAPCPA, subsections (a)(1) and (2) operate harmoniously with the Lessor Exceptions and
§§362(b)(22) and (l) serve a purpose. As Debtors have failed to fulfill the requirements of
§ 362(l), the stay was inoperative by reason of the Judgment Exception. 	Accordingly,
no stay relief is required, and AGLF is free to pursue its state law remedies with respect to
the Residence. The Motion is moot to that extent.
With respect to the personal property that remains in the Residence, the automatic
stay remains in place as discussed above. However, as the Debtors will be foreclosed from
occupation of the Residence by reason of state law, the continued presence of their property
in the Residence serves no purpose and interferes with AGLF’s occupation and control of
the realty. There is “cause” for limited relief under these circumstances. Debtors will be
given thirty (30) days to recover and remove their property after which the stay will be lifted
to allow AGLF to exercise its state law remedies to remove the personalty, if necessary,
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 19 of 21

In re Ralph E. Williams & Denise L. Shippen - Bankruptcy No. 07-11685DWS
17 Needless to say, such relief does not allow AGLF to take any action with respect to
Debtor’s personalty in furtherance of the collection of a prepetition debt.
-20-
so as to take full occupation of the Residence.17 In the interim, AGLF will cooperate with
Debtors to provide access at reasonable times and under reasonable circumstances for such
removal to take place.
An Order consistent with this Opinion shall be entered.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
Dated: 	July 5, 2007
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 20 of 21

UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
RALPH EUGENE WILLIAMS and 	: 	Bankruptcy No. 07-11685DWS
DENICE LOUISE SHIPPEN, 	:
:
Debtors. 	:
ORDER
AND NOW, this 5th day of July 2007, upon consideration of the Motion for Relief
from Stay (the “Motion”) of AGLF Investments, LLC (“AGLF”), after notice and hearing,
and for the reasons stated in the accompanying Opinion;
It is hereby ORDERED that the Motion as pertains to stay relief in order to complete
eviction from the Residence is DENIED as moot. 	AGLF is free to pursue its state law
remedies with respect to the Residence;
And it is further ORDERED that the Motion as it pertains to actions under state law
to remove Debtors’ personal property located in the Residence is GRANTED effective thirty
days from entry of this Order. In the interim, AGLF shall cooperate with Debtors in allowing
them access to the Residence to remove their personal property at reasonable hours and under
reasonable conditions.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
Case 07-11685-dws Doc 58 Filed 07/05/07 Entered 07/05/07 14:25:57 Desc Main
Document Page 21 of 21