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In re McCray, 342 B.R. 668 (Bkrtcy.D.Dist.Colo. 2006) S. Martin Teel, JR., Bankruptcy Judge newly enacted provisions of § 362(b)(22) preventing stay of eviction from arising in serial filing cases requires a lease or rental agreement.
NEWLY ENACTED PROVISIONS OF § 362(d)(4) GIVING COURT POWER TO GRANT RELIEF FROM STAY FOR TWO YEARS IN ANY SUBSEQUENT CASE REQUIRES THE CREDITOR TO HOLD A SECURITY INTEREST IN THE PROPERTY
The debtors had filed several petitions to frustrate eviction by an owner who had newly acquired the property in a foreclosure. The court held that there was no lease or rental agreement, nor did the owner have a “security interest” per se because by acquiring ownership its security interest was extinguished, and accordingly new BAPCPA provisions of § 362 did not apply. Nevertheless the court ruled that it had the power under § 105(a) to terminate the stay and issue order preventing stay from arising in any case filed within the next 2 years.
An automobile sale/lease-back/option-to-buy agreement that meets Merryweather v. Pendleton test is a security device for a loan and subject to Consumer Lenders Act; latter act is not void for vagueness. SAL Leasing, Inc. v Arizona, 1 CA-CV 99-0631, 10/3/00.
A lender who takes title, then allowing old owner to reside in property under premise of a lease to purchase; Arizona Question regarding Equitable Mortgages There is a good discussion of “disguised real estate security transactions” in Nelson and Whitman’s hornbook on Real Estate Financing, Chapter 3, and an old law review article by Cunningham and Tischler in 26 Rutgers Law Review 1 (1972).
Pacific Shores v. At Homes Corp., No. 03-15769 (9th Cir. December 28, 2004) A bankruptcy court may approve retroactively the rejection of an unexpired nonresidential lease.