Freeman Kelley, Jr.

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
In re: 	Case No. 25-15370-RAM
FREEMAN KELLEY, JR. 	Chapter 13
Debtor.
____________________________/
ORDER ON AUTOMATIC STAY MOTIONS
In most cases, the automatic stay does not apply to foreclosure actions or other in
rem proceedings against property in which the debtor does not hold legal title. 	However,
under the unusual facts of this case, the Court concludes that the automatic stay did apply
to a tax sale of a home long occupied by the debtor in which he has a colorable claim to
establish title but is not presently the owner of record.
Factual and Procedural Background
The Court conducted a hearing on December 11, 2025 on an Emergency Motion for
Entry of an Order Confirming No Stay is in Effect as of Debtor’s Petition Date, May 14, 2025
or Alternatively, Motion to Annul the Automatic Stay Nunc Pro Tunc to Petition Date and for
Robert A. Mark, Judge
United States Bankruptcy Court	_____________________________________________________________________________
ORDERED in the Southern District of Florida on February 4, 2026.
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Ratification of the Tax Deed Sale [DE# 39] (the “Stay Relief Motion”) filed by Rusol & Co.,
Inc. (“Rusol”) and on the Debtor’s Motion to Enforce the Automatic Stay and to Declare Tax
Deed Sale and Tax Deed Void [DE# 43] (the “Motion to Enforce Stay”) filed by Freeman
Kelley, Jr. (the “Debtor”). 	For the following reasons, the Court is denying the Stay Relief
Motion and granting the Motion to Enforce Stay.
The Debtor lives in a home located at 2401 NW 162nd Street, Opa Locka, Florida
(the “Home”). 	He has lived in the Home since 1997. 	The Debtor is the son of Freeman
Kelley, Sr. (“Kelley Senior”). Kelley Senior inherited, or believed he inherited, the Home in
early 1993 pursuant to a will executed by the prior co-owner of the Home, Marion Butts.1 A
copy of the will is attached as an exhibit to the Motion to Enforce Stay [DE# 43, pgs. 15-18].
The Debtor claims ownership pursuant to a quitclaim deed executed by his father, Kelley
Senior, on August 20, 2024, conveying the Home to him. 	A copy of the quitclaim deed is
attached as an exhibit to the Motion to Enforce Stay [DE# 43, pgs. 24-25].
Unfortunately, although the will of Marion Butts, who died in 1993, devised the Home
to Kelley Senior, Marion Butts’ probate proceeding was dismissed. 	No deed or other
document was entered conveying the Home to Kelley Senior and the Home is still titled in
the public records in the names of Marion Butts and Gladys Butts, both of whom died over
32 years ago.
Fast-forwarding to more recent times, the Debtor filed his petition commencing this
chapter 13 case on May 14, 2025 (the “Petition Date”). Prior to the Petition Date, on June
1, 2022, a tax certificate was issued to Assembly Tax 36 LLC (“Assembly”). Assembly’s tax
certificate was not paid or redeemed by the Debtor and, on March 17, 2025, the Clerk of the
1 The original co-owners of the Home were Marion Butts and his wife, Gladys Butts, who died in 1992, prior
to the death of Marion Butts in early 1993. Gladys Butts died intestate and her only heir was her husband,
Marion Butts.
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Court for Miami-Dade County issued a Notice of Application for Tax Deed that scheduled a
tax sale for May 15, 2025 (the “Tax Sale”). 	A copy of the Notice, which was recorded on
March 18, 2025, is attached as an exhibit to the Stay Relief Motion [DE# 39, pg. 15].
Although the Tax Sale was noticed, including by publication notice, for May 15th, the
sale did not take place until August 7, 2025 for reasons not disclosed on this record.
Perhaps it was continued, although not cancelled, because the Debtor’s counsel provided
notice of the bankruptcy filing to the Office of the Tax Collector by email on the Petition Date
(i.e., May 14, 2025), and notice was confirmed by an email from the Office of the Tax
Collector that same day. 	A copy of the emails is attached as an exhibit to the Motion to
Enforce Stay [DE# 43, pg. 10].
The Debtor received notice of the originally scheduled May 15th sale date, see
Certificate of Mailing attached to the Stay Relief Motion [DE# 39, pg. 20], but it is not clear
from the record whether the Debtor or his counsel received notice of the sale when it was
rescheduled for August 7th. The Debtor did not file an objection to the sale or a suggestion
of bankruptcy. Rusol was the successful bidder at the Tax Sale with a bid of $201,000. On
August 8, 2025, the clerk issued a Tax Deed to Rusol, which was recorded on August 12,
2025. The Tax Deed is attached as Exhibit F to the Stay Relief Motion [DE# 39, pg.18].
On August 21, 2025, following the issuance and recording of the Tax Deed, Rusol
commenced a lawsuit styled Rusol v. The Unknown Heirs of Marion Butts et al., Case No.
2025-016382-CA-01, pending in the Circuit Court for the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida (the “Quiet Title Action”). In the Quiet Title Action, Rusol seeks
to quiet title and to recover possession of the Home. The Debtor is named as a defendant
in the Quiet Title Action. Although the Debtor had already commenced this bankruptcy case
when Rusol commenced the Quiet Title Action, Rusol asserts that it was unaware of this
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bankruptcy case until the Debtor filed a Notice of Stay in the Quiet Title Action on September
22, 2025.
In the Stay Relief Motion, Rusol seeks an Order finding that the Tax Sale conducted
on August 7th and the Tax Deed issued on August 8th were not subject to the automatic
stay because the Debtor is not the owner of record of the Home. Alternatively, Rusol seeks
an Order annulling the stay and ratifying the post-petition Tax Sale and issuance of the Tax
Deed.
In the Motion to Enforce Stay, the Debtor argues that he has colorable title to the
Home. 	He argues that when Gladys Butts died intestate, title to the Home passed to her
husband, Marion Butts, that when Marion Butts died, title passed to Kelley Senior under
Marion Butts’ will, and that title passed to the Debtor when his father, Kelley Senior,
quitclaimed the Home to him in August 2024. At the December 11th hearing, the Debtor’s
counsel also argued that the Debtor could seek title through adverse possession.2 	The
Debtor seeks an Order enforcing the automatic stay and declaring the Tax Sale and the
entry and recording of the Tax Deed void.
Discussion
Although the Debtor is not the record title owner of the Home, Florida law provides
that rights to devised or intestate property vest at death. 	See Fla. Stat. § 732.514 (“The
death of the testator is the event that vests the right to devises unless the testator in the will
has provided that some other event must happen before a devise vests.”); see also Fla.
Stat. § 732.101(2) (“The decedent’s death is the event that vests the heirs’ right to the
2 On June 19, 2025, the Debtor filed the Adversary Proceeding Quieting Title by Adverse Possession Under
Color of Title [DE# 1 in Adv. Proc. No. 25-01196-RAM (the “Adversary Proceeding”). However, the Adversary
Proceeding was dismissed on August 8, 2025 for failure to serve the complaint and to appear at the scheduling
conference. See Order Dismissing Proceeding [DE# 4 in the Adversary Proceeding].
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decedent’s intestate property.”). The Court is not finding that this statutory provision means
that Kelley Senior obtained legal title to the Home without completion of the probate
proceeding but it does support the Debtor’s position. On this record, despite a messy chain
of title, the Debtor has at least equitable rights in the Home and viable claims to establish
legal title through the asserted chain of inheritance and the August 20, 2024 quitclaim deed
from Kelley Senior.
That colorable equitable interest, together with the Debtor’s claims to establish legal
title by way of a quiet title action or an action for adverse possession, constitute “legal or
equitable interests” that became property of the Debtor’s estate on the Petition Date. 	11
U.S.C. § 541(a)(1); U.S. v. Whiting Pools, Inc., 462 U.S. 198, 204-05 (1983) (citing House
and Senate Reports on section 541(a)(1) to conclude that its scope is broad, including
causes of action); Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004)
(“Section 541 of the Bankruptcy Code provides that virtually all of a debtor’s assets, both
tangible and intangible, vest in the bankruptcy estate upon the filing of a bankruptcy
petition.”). 	While state law determines the existence and scope of the Debtor’s interests,
the Bankruptcy Code brings those interests, however limited, into the estate. Accordingly,
as of the Petition Date, section 362(a)(1), (a)(3), (a)(4), and (a)(5) of the Bankruptcy Code
stayed acts and proceedings to obtain possession of, exercise control over, or enforce liens
against property of the estate. The fact that Florida’s tax deed process is in rem does not
remove it from the reach of section 362 where, as here, the estate holds a cognizable
interest that the post-petition tax deed process would extinguish or impair.
Because the automatic stay applied, the Tax Sale, the issuance and recording of the
Tax Deed, and the post-petition commencement and prosecution of the Quiet Title Action
were actions taken in violation of the stay. 	In the Eleventh Circuit, such actions are “void
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and without effect.” Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.
1982) (citing Kalb v. Feuerstein, 308 U.S. 433 (1940) and other circuit court decisions). This
result is consistent with Florida bankruptcy and state-court authority addressing tax deed
sales conducted post-petition. See Venn v. Bazzell (In re Lambert), 273 B.R. 663, 666-68
(Bankr. N.D. Fla. 2002) (treating tax certificates as liens and holding a post-petition tax deed
sale violates section 362); Carter v. R.R. & Indus. Fed. Credit Union, 675 So. 2d 685, 686
(Fla. 2d DCA 1996) (endorsing the principal that a tax deed issued in violation of the
automatic stay is void).
The Court need not adjudicate, at this time, title to the Home to find that the automatic
stay applies. 	It is sufficient that the Debtor has asserted a non-frivolous, colorable estate
interest in the Home that would be determined or extinguished by the issuance and
recording of the Tax Deed and the prosecution of the Quiet Title Action.
Rusol alternatively requests that the Court annul the automatic stay retroactive to the
Petition Date, thereby validating the Tax Sale and the issuance and recording of the Tax
Deed. On annulling the stay, the Eleventh Circuit has stated:
It is true that acts taken in violation of the automatic stay are generally deemed
void and without effect. 	Nonetheless, § 362(d) expressly grants bankruptcy
courts the option, in fashioning appropriate relief, of "annulling" the automatic
stay, in addition to merely ‘terminating’ it. The word ‘annulling’ in this provision
evidently contemplates the power of bankruptcy courts to grant relief from the
stay which has retroactive effect; otherwise its inclusion, next to ‘terminating,’
would be superfluous.
. . .
Accordingly, we hold that § 362(d) permits bankruptcy courts, in appropriately
limited circumstances, to grant retroactive relief from the automatic stay.
In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984) (internal citations omitted).
“It is well recognized that a determination of whether to grant relief from stay
retroactively is within the wide latitude of the Court with each decision being considered on
a case-by-case basis.” In re Stockwell, 262 B.R. 275, 280 (Bankr. D. Vt. 2001). “It is also
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well-established that a Motion to Annul the Stay should be granted only where the creditor
can show the existence of compelling circumstances.” In re Barr, 318 B.R. 592, 598 (Bankr.
M.D. Fla. 2004). “The automatic stay should only be annulled to give effect to actions taken
in violation of the stay in limited circumstances.” In re Stockwell, 262 B.R. at 280.
In 	determining 	whether 	circumstances 	are 	sufficiently 	compelling 	to 	warrant
retroactive annulment of the stay, courts consider:
(1) 	whether 	the 	creditor 	had 	actual 	or 	constructive 	knowledge 	of 	the
bankruptcy filing, (2) whether the debtor acted in bad faith, (3) whether
grounds would have existed for modification of the stay if a motion had been
filed before the violation, (4) whether the denial of retroactive relief would
result in unnecessary expense to the creditor, and (5) whether the creditor has
detrimentally changed its position on the basis of the action taken.
In re Barr, 318 B.R. 592, 598 (citing In re Stockwell, 262 B.R. at 281). “Of the factors listed,
the debtor’s actions and lack of good faith are important in evaluating whether retroactive
relief is warranted.” Id. (citations omitted).
Here, the facts do not present compelling circumstances establishing cause to annul
the stay. Rusol proceeded with the Tax Sale without notice of the bankruptcy filing, and the
Debtor failed to appear and object to the Tax Sale. Nevertheless, the Court finds that the
Debtor’s failure to object to the Tax Sale and failure to provide notice of his bankruptcy filing
to Rusol were not done in bad faith. 	The Debtor filed this case to stop the Tax Sale, as
attested in his Affidavit attached as an exhibit to the Motion to Enforce Stay [DE# 43, pgs.
26-27]. 	The Court recognizes that Rusol will have incurred expenses as a result of the
Court enforcing the stay and denying retroactive relief. 	However, as provided later in this
Order, the Court is requiring the Debtor to reimburse Rusol for costs and fees incurred
through the date it received notice of the bankruptcy case, and any fees or costs assessed
against Rusol by Miami-Dade County when the Tax Sale is vacated. 	As a result, Rusol
should suffer only a limited financial loss.
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By contrast, annulling the stay and validating the Tax Sale will greatly prejudice the
Debtor. 	He has lived in the Home for nearly 30 years and either he or his father, Kelley
Senior, paid the property taxes for nearly 25 years, when he failed to pay the 2021 taxes
and Assembly purchased the tax certificate subject of the Tax Sale. The Home is apparently
worth over $200,000 based on Rusol’s bid at the Tax Sale and there is no mortgage. The
Assembly tax certificate is a lien on the Home, but the certificate amount is only $13,182.58
and payment of the claim under the certificate is included in the Debtor’s First Amended
Chapter 13 Plan [DE# 33].3 If the Debtor is able to confirm his plan, he will be preserving
the substantial equity in the Home, equity for the Debtor if he is successful in establishing
his right to title. 	Losing his right to preserve the equity through the Tax Sale would be a
substantial financial loss. 	In sum, the Court does not find compelling circumstances
providing cause to annul the stay.
Conclusion
Based upon the Court’s findings and conclusions, the Stay Relief Motion is denied
and the Motion to Enforce Stay is granted. Accordingly, the Court ORDERS as follows:
1. 	The Stay Relief Motion is denied.
2. 	The Motion to Enforce Stay is granted. The automatic stay applied to the Tax
Sale, the issuance and recording of the Tax Deed, and the commencement and prosecution
of 	the Quiet 	Title Action. 	Those post-petition actions are void and without 	effect.
Specifically, the Tax Deed issued on August 8, 2025 to Rusol & Co., Inc. and recorded in
the Official Record Book 34893, Page 1576, of the Public Records of Miami-Dade County,
Florida is declared void ab initio and without effect.
3 The Debtor will need to amend his plan to include interest to the certificate holder and to include the payment
of any taxes that may be due for the years after 2021.
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3. 	The Court requests the Office of the Tax Collector for Miami-Dade County and
the Clerk of the Court for Miami-Dade County to take whatever actions are necessary to
implement this Order, including vacating the Tax Sale, voiding the Tax Deed, and refunding
Rusol the funds Rusol paid at the Tax Sale. 	The Court also requests that, to the extent
possible, the Clerk waive any fees and costs that Miami-Dade County would otherwise be
permitted to retain upon vacating the Tax Sale.
4. 	The Clerk of the Court for Miami-Dade County shall accept and record a
certified copy of this Order in the Public Records of Miami-Dade County, Florida, without
the requirement of documentary stamp tax or payment by the Debtor of any recording fee.
5. 	Upon the finality of this Order, Rusol is directed to dismiss the Quiet Title
Action.
6. 	Rusol may file a claim in this bankruptcy case for reimbursement of fees and
costs it incurred in connection with the Tax Sale and the Quiet Title Action up through the
date that it received notice of this case. Once that claim is determined, after resolving any
objection by the Debtor, the allowed amount of the claim must be paid directly by the Debtor
or provided for in an amended chapter 13 plan.
7. 	Because the issues raised in the Stay Relief Motion and the Motion to Enforce
Stay raised bona fide disputes of law, the Court will not consider a request by the Debtor or
Rusol for attorneys’ fees and costs incurred in connection with these motions.
8. 	The Debtor’s counsel, Rolf M. Baghdady, Esq., is directed to furnish a copy of
this Order to the Clerk of the Court of Miami-Dade County and to the Office of the Tax
Collector for Miami-Dade County, and to file a certificate of service in this case.
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Copies to:
Rolf M. Baghdady, Esq.
Sabrina Chassagne, Esq.
Nancy K. Neidich, Trustee
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