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post judgment ud
Take a look at Judge Russel's decision, In re Butler. There is a
California Statute CCP 715.050, says the automatic stay does not
apply, but it cannot overrule the automatic stay, which is federal
and preempts. In re Butler, 271 B.R. 867 (Bkrtcy.C.D. 2002).
Unfortunately the Butler decision is really all dicta, as there was
no controvery left when Russell wrote the opinion, but as we all
know federal law trumps state law.
The last time I was faced with this, I filed, called the lawyer for
the dispossessing landlord, insisted the sheriff be called off, and
threatend a contempt of stay motion. It worked.
A state court lawyer, unfamiliar with the auto stay might call your
bluff, and if you get Judge Zurzolo when you file the bk, you will
have to deal with his case, in re Smith, where he ruled there was
not auto stay because he had no in rem jurisdiction over the
tenancy. His decision is wrong, as the stay protects the debtor,
whom the sheriff will forcefully evict, but he would never help you.
Russell and any other judge who realizes the auto stay protects the
debtor, not just the tenancy, would likely rule the auto stay
protects the debtor and find contempt.
dennis
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