, , , , ,

A landlord had obtained a judgment of possession and a writ of possession had issued.  The tenant then declared bankruptcy and filed a motion to stay the writ of possession based on the automatic stay of state court proceedings pending  resolution of the bankruptcy.   The tenant did not appear for the hearing on his motion.  The landlord produced the tenant’s bankruptcy filing at the hearing.

The judge in the eviction case found that the clerk of the bankruptcy court notified the parties that the petition omitted the required certification of a state law cure of the monetary default and rental deposit pursuant to 11 U.S.C. § 362l(1) and (2). The notice attached a certified copy of the bankruptcy docket “reflecting. . .the applicability of the exception to stay under 11 U.S.C. Section 362(b)(22).” That provision states “The filing of a [bankruptcy] petition under section 301, 302, or 303 of this title. . . does not operate as a stay — subject to subsection (l), under subsection (a)(3), of the continuation of any eviction . . . 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.”(Emphasis added).

This provision is relevant because tenant’s  petition was filed after entry of the final judgment for possession. Even with the proper certifications and rent deposit, though, Section 362(b)(22) applies to lift the automatic stay 30 days after the bankruptcy petition is filed unless the tenant certifies a complete cure of the monetary default within the 30 day period. 11 U.S.C § 362(l)(1) and (2).

In this case, where there is a documented lack of the tenant’s certification and rent deposit, §362(b)(22) applies “immediately” upon the filing of the petition to lift the automatic stay. 11 U.S.C. § 362(l)(4). As a result, the bankruptcy petition filed by the tenant on  did not operate as an automatic stay to the continuation of this eviction of residential tenants. The landlord  may now “complete the process to recover full possession of the property” without the necessity of an order granting relief from the stay. Id.

Consequently, tenant’s motion to stay the pending alias writ of possession and vacate the order granting the landord’s  motion for alias writ of possession  was denied and an alias writ of possession was issued.


The court’s treatment of this request for a stay of execution of a writ of possession and the plaintiff’s opposition to that request is guided by Florida Rule of Civil Procedure 1.550(b). That rule requires a motion and notice to all adverse parties. There is no mention in the rule of the necessity for a hearing. Further, the rule places a burden of “good cause” on the party seeking the stay. Here, the reviewing judge found implicitly that, based on the documents submitted, no good cause existed for a stay of the writ of possession. This proceeding does not change that judicial analysis.

WDOP SUB I, LP dba Brookwood Club Apts., vs. PEREZ. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-12262, Division P. December 4, 2012. Angela Cox, Judge. Online Reference: FLWSUPP 2004WDOP