THORS v. ALLEN
OPINION FILED. Signed by Judge Renee Marie Bumb on 12/16/16. (js)
NOT FOR PUBLICATION
[Dkt. No. 6, 22]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MONICA A. THORS,
Civil Nos. 16-2224 (RMB),
Monica A. Thors
Pro Se Appellant
Travis J. Richards
141 High St.
Mount Holly, NJ 08060
Attorney for Appellee
BUMB, UNITED STATES DISTRICT JUDGE:
THIS MATTER comes before the Court upon the filing of two
appeals from determinations of the United States Bankruptcy
Court for the District of New Jersey.
Thors v. Allen, Civ. No.
16-2224; Thors v. Allen, Civ. No. 16-2225.
Thors’s underlying bankruptcy proceeding is In re Monica Thors,
Bk. Pet. No. 15-17602-JNP.1
Having considered the arguments of
the parties as set forth in their briefs and at oral argument,
as well as the record on appeal,2 and having labored to
understand those arguments, the Court hereby rules the
Bankruptcy Court’s grant of limited stay relief to the Appellee
Richard Allen is AFFIRMED.
The Bankruptcy Court’s determination
that the Allens did not willfully violate the automatic stay is
The Court further rules that the issue of whether
Appellant Monica Thors’s claim for damages arising from a
purported willful violation of the automatic stay due to the
Appellee’s refusal to accept rent is not properly before this
Court – and is therefore dismissed for lack of jurisdiction –
Documents cited from the Bankruptcy Court docket in this
Opinion will be referred to by their docket number: “[Bk. Dkt.
2 At the outset, the Court notes that much of the factual
background that is laid out by the parties in their briefs may
or may not be in the record before the Court. The task of
construing exactly what is and is not a part of the record has
been rendered near-impossible by the complete abandonment of
adherence to the rules of procedure by both parties. To wit,
the Court has been absolutely inundated with piecemeal and
redundant filings, near-daily telephone calls, and supplemental
motions by Ms. Thors. Many of the filings by Ms. Thors are
duplicative, incomprehensible, or both. All the while, counsel
for the Allens remained unfortunately mum. Indeed, counsel
admits in his (late-arriving) brief that he purposefully
disregarded the order of this Court to prepare a brief on his
legal contentions “due to the frivolous nature of the appeal,
the fact that the issue is moot and my attempt to save my client
the cost of responding.” (Sep. 6, 2016 Ltr. (“Allens App. Br.”)
at 1 [Civ. No. 16-2224, Dkt. No. 17]). This conduct renders an
already somewhat intractable matter needlessly complicated.
because a final order has not been issued.
Finally, the Court
holds that the Bankruptcy Court did not err by not including
Bankruptcy Rule of Procedure 4001(a)(3).
Any remaining issues
appealed are not properly before this Court and as such, are
dismissed for lack of jurisdiction.
Ms. Thors’s motions for
emergent relief and a fourth transcript are denied.
A. The Parties, the Contract, and the Lawsuits
In September 2011, the parties to this appeal entered into
a multi-faceted business arrangement.
Under their agreement
(the “Contract”), Ms. Thors built two modular buildings3 on the
Allens’ property4 in Swedesboro, New Jersey, known as Willow Run
(Contract § 1 [Bk. Dkt. No. 34-2]).
The Contract also
required Ms. Thors to pay rent to the Allens for the use of
certain property, including the new buildings, using a
complicated payment scheme that involved credits to rent based
on the construction of stalls and paddocks by the parties to the
(Id. §§ 3, 4).
Ultimately, after a considerable
amount of money was purportedly outlaid by Ms. Thors,5 the
As set forth in the Contract: “There will be built on the
property owned by Allen two modular buildings [(]5 stalls each
including washstall and space for washer and dryer[)] that will
be attached with a roof.” (Contract § 1).
4 For purposes of this Opinion, the Court will refer to Richard
Allen, the Appellee, and his wife collectively as “the Allens.”
5 For example, although determined in a decision after the
institution of this appeal, Judge McDonnell, who presided over
business relationship soured and the record on appeal makes
clear that extreme vitriol took its place.
(Second Notice App.
at 19 [Civ. No. 16-2225, Dkt. No. 1] (“The parties’ agreement
was not an ordinary lease.
Ms. Thors and Allens do not get
along and the continued presence of Ms. Thors at the property
has been increasingly difficult.”); First Notice of App. at 5
[Civ. No. 16-2224, Dkt. No. 1] (“I enclose the history of Docket
no C 13-14, so the Bankruptcy Appeal Court can understand the
evilness, lies and untruth that Allens[,] started to in attempt
to ‘get rid of me[.]’); Allens Br. at 17 (“My initial failure to
respond to debtor’s appeal was due to the frivolous nature of
the appeal . . . .”)).6
Despite an agreement in the Contract that neither party was
permitted to sue the other under its terms,7 Ms. Thors filed a
Chancery action against the Allens on January 31, 2013.
the proceedings in New Jersey state court, found that Ms. Thors
had written a check for $129,653 to cover construction of
structures on the property. (Allens App. Br. Ex. A (Aug. 10,
2016 Superior Court of New Jersey Gloucester County, Chancery
6 Judge McDonnell postulated that the bad blood began when, after
permitting Ms. Thors to make improvements to the property, Ms.
Thors presented the Allens with an owed credit of $167,133
dollars. (Allens App. Br. Ex. A at 5 (“The presentation of the
credit requested was likely the start of a tumultuous
relationship between Ms. Thors and the Allens.”)).
7 Section 11 of the Contract contains the no-suit provision:
“There will be no lawsuits for any reason[,] including doctor or
hospital visits[,] disability, permanent disability,
disfigurement[,] or death[.] Any act of nature[,] negl[i]gence,
accidental[,] there will be no lawsuits.” Contract § 11.
Br. at 5-6).
Not to be outdone, despite the Contract’s repeated
language indicating that Ms. Thors could not be evicted for any
reason, the Allens filed an action for eviction that was
ultimately transferred to Chancery Court.
(Id. at 6.)
eviction proceedings, Judge McDonnell of the Superior Court of
New Jersey, Gloucester County, Chancery Division (the “State
Court”) ordered on March 3, 2015 that Ms. Thors “shall vacate
the property of Richard and Grace Allen and Willow Run Stables
no later than April 30, 2015 at noon.”
(March 3, 2015 Order ¶
1, Thors v. Allen, et al., Dkt. No. GLO-C-4-13, Richard Allen,
et al. v. Thors, Dkt. No. GLO-LT-2593-13 [Bk. Dkt. No. 34-5]).
The State Court continued, “Monica Thors is barred from
returning to the property of Richard and Grace Allen and Willow
Run Stables after April 30, 2015 and pending further order of
B. The Bankruptcy Proceedings
Six days prior to the April 30, 2015 date set by the State
Court for Ms. Thors to vacate the property, she filed the
Chapter 13 Voluntary Bankruptcy Petition from which the instant
appeals are taken.
17602 [Dkt. No. 1]).
(Petition, In re Monica Thors, Bk. Pet. 15Ms. Thors’s bankruptcy petition raised a
legal issue regarding the confluence of several bankruptcy
statutes and the application of the automatic stay provision.
The stay provision, pursuant to 11 U.S.C. § 362(a), dictates:
. . . [A] petition filed under Section 301, 302, or
303 of this title, or an application filed under
Protection Act of 1970, operates as a stay,
applicable to all entities, of – . . .
any act to obtain possession of property of
the estate or of property from the estate or
to exercise control over property of the
However, property of the estate, by statute,
does not include any interest of the debtor as a lessee
under a lease of nonresidential real property that has
terminated at the expiration of the stated term of such
lease before the commencement of the case under this
title, and ceases to include any interest of the debtor
as a lessee under a lease of nonresidential real property
that has terminated at the expiration of the stated term
during a case under this title to obtain possession of
11 U.S.C. § 362 (b)(1).
Moreover, the Trustee of a bankruptcy
estate is not permitted to assume a nonresidential lease that
has been legally terminated prior to the institution of the
See 11 U.S.C. § 365(c)(3)
In the Bankruptcy Court’s mind, this framework raised the
question of whether Ms. Thors’s interest in the property was
terminated on March 3, 2015 (the date of the State Court’s
order) or whether a judgment of possession had not truly been
entered by the prospective language in that order.
parties’ mind, if the March 3, 2015 Order terminated Ms. Thors’s
possessory interest on that date as the Allens argued, then any
proceedings to secure a warrant for removal could go forward.
(Br. in Opp. to Mot. Reinstate Stay at 1 [Bk. Dkt. No. 34-1].)
On the other hand, if the March 3, 2015 Order did not terminate
her possessory interest by April 24, 2015 when the Chapter 13
petition was filed, then the entire proceeding, including any
removal action, would be stayed pending the bankruptcy outcome.
(May 12, 2015 Hrg. Tr. at 9:9-20 [Dkt. No. 23]).8
i. May 12, 2015 Hearing
To make sense of this legal issue, on May 12, 2015, the
Bankruptcy Court held a hearing to determine whether the State
Court’s March 3, 2015 Order, which barred Ms. Thors from
accessing property, amounted to a judgment of possession for
purposes of the automatic stay.
The Bankruptcy Court noted that
it was difficult to determine whether the March 3, 2015 Order
itself amounted to a judgment for possession.
(Id. at 10:20-
Ms. Thors’s argument may have been slightly more nuanced. It
appears as though she argued that the Allens had failed to
properly seek a warrant of removal after the attainment of a
judgment of possession. (Id. at 10:5-9 (“That’s what the law
says, that they have faced the issue of warrant of removal and
it’s more than 30 days since the date of judgment of possession.
Therefore, a warrant can only be obtained with the consent of
the tenant or by order of the Court [.]”)). Judge Burns,
presiding over the bankruptcy proceeding, however, did not
accept this characterization of the posture of the case. (Id.
at 10:10-16 (“Well [whether the Allens can obtain a warrant of
removal is] a State Court issue that if you want to bring up
with the State Court, you can bring up there. Because that’s
not an issue for bankruptcy.”)). Instead, Judge Burns focused
on whether the March 3, 2015 Order amounted to a judgment of
possession. (Id. at 10:13-15 (“If there’s been a judgment for
possession, then the State terminates, and that’s what I’m
trying to find today.”)).
At oral argument, counsel for the Allens seems to have
agreed that the March 3, 2015 Order was not technically a
judgment for possession, but that it was “the closest thing we
have to a judgment for possession in Chancery Division[.]”
Ultimately, the Bankruptcy Court was not able to assure
itself at the hearing of the fact that the March 3, 2015 Order
was a judgment of possession because the Order did not state
that Ms. Thors’s possessory interest had terminated on the date
of the order, only that she was to vacate by April 30, 2015.
The Court reserved on the issue pending further
review of the applicable law.
(Id. at 10:23-24).
After that review, the Bankruptcy Court appears to have
preliminarily determined that the March 3, 2015 Order was not
clear enough to be a judgment for possession, because in a May
13, 2015 minute entry on the bankruptcy docket, an entry reads
that the motion for stay relief was granted in favor of the
Allens “for State Court to Clarify if Lease Hold Interest has
Based on the Bankruptcy Court’s prior reasoning,
(id. at 31:6-14), stay relief would not have been required if
the March 3, 2015 Order was a judgment for possession.
Confirming the minute entry, on May 29, 2015, the Bankruptcy
Court entered a formal order ruling that “the automatic stay is
vacated for the limited purpose to permit the creditors Richard
Allen and Grace Allen to file a motion in New Jersey Superior
Court to clarify the debtor’s leasehold rights in real property
located at 1543 State Highway 45, Swedesboro, New Jersey.”
29, 2015 Order ¶ 1 [Bk. Dkt. No. 40]).
February 9, 2016 Hearing
Almost nine months later, on February 9, 2016, the parties
once again appeared before the Bankruptcy Court to resolve
At that hearing, the Bankruptcy Court first
sought to determine whether the State Court had resolved the
issue of the parties’ possessory interests under the Contract in
the time since.
(Feb. 9, 2016 Hrg. Tr. at 3:14-16 [Dkt. No.
Learning that it had not, the Bankruptcy Court ruled that
it would permit the scheduled February 17, 2016 State Court
proceeding to go forward, essentially extending the stay relief
This would, in effect, allow the State
Court to “make a determination as to what the parties’
respective rights are related to – related to the lease.”
The Honorable Jerrold N. Poslusny, Jr. presided over the
bankruptcy proceedings at this stage and thereafter.
10 The motion brought by the Allens before the Bankruptcy Court
at the February 9, 2016 hearing was that no stay relief was
required to proceed in the State Court because Ms. Thors had
failed to assume the lease under 11 U.S.C. § 365(d)(4) or that
she was not in complete possession of the property. (Feb. 9,
2016 Hrg. Tr. at 30:13-24). The Bankruptcy Court ruled that Ms.
Thors had assumed the lease, (id. at 30:13-17), and that
determination was not appealed. The Bankruptcy Court
The Court also addressed a motion by Ms. Thors at the
February 9, 2016 hearing concerning violations of the automatic
Ms. Thors argued for a finding of a violation of the
automatic stay on several grounds: (1) the Allens’ refusal to
accept rent from Ms. Thors under the Contract; (2) alleged
harassment of Ms. Thors by the Allens; (3) denial of access to
the property; and (4) the filing of a motion for stay relief.
First, regarding the Allens’ refusal to accept Ms. Thors’s
rent payments, the Court declined to rule on the issue of
whether such conduct amounted to a violation of the automatic
stay because the State Court had, to that point, been silent on
the issue of Ms. Thors’s possessory rights.
Bankruptcy Court ruled that:
[I]t is unclear whether the debtor has any tenancy rights
which would obligate her to pay rent in the first place.
Furthermore, [counsel for the Allens] has made clear
today that they believe the debtor’s tenancy rights are
terminated and that if the Allens were to accept the
debtor’s rent payments, they could be deemed to be
waiving certain rights or could be deemed to have entered
into some sort of new lease.
Until the State Court
determines the status of the debtor’s tenancy rights or
additionally continued a motion predicated on the argument that
Ms. Thors was not in complete possession of the property,
because it stemmed from the initial issue – still unresolved at
that time by the State Court – of who actually had a possessory
right to the property. (Id. at 31:17-21 (“But as [the Allens’
counsel] said towards the end of argument, the appropriate thing
here is to go to State Court and let the State Court sort out
what the parties’ respective rights are with relation to the
leased premises, and that’s what I’m going to allow.”)).
lack thereof, there would be little reason for the Allens
to accept the debtor’s rent payments.
(Id. at 32:10-17).
As such, prior to making its own ruling, the
Bankruptcy Court felt “the first issue that needs to be resolved
[was] whether there is a lease or not a lease.”
(Id. at 33:6-
This required further State Court proceedings.
With regard to the willful violation of the stay as a
result of “harassment” by the Allens, the Bankruptcy Court ruled
that there had been no violation.
Specifically, relying upon In
re Protos, Bk. No. 02-74770-MHM, 2005 WL 6491916 (Bankr. N.D. Ga
Jan. 28, 2005), the Bankruptcy Court ruled that while the Allens
may have harassed Ms. Thors by posting negative comments about
her on social media and calling the debtor’s employers to
complain about her, these were not violations of the automatic
stay because they were not efforts to collect the debt.
9, 2016 Hrg. Tr. at 33:10-34:22.)
With regard to the denial of access to the property, the
Bankruptcy Court ruled such conduct did not amount to a
violation of the automatic stay because Ms. Thors was “on the
property on a near daily basis – so that she is not being denied
access to the property.”
(Id. at 35:1-3).
The Bankruptcy Court
ruled that the
continued enforcement of the State Court order that’s in
place is not necessarily a violation of the stay because
that order only limits the debtor’s access to the
property to dates and times that are approved. Until I
get some clarification from the State Court as to what,
if any, rights the debtor has under the lease for
tenancy, the State Court order is simply . . . this Court
is simply maintaining the status quo as of the petition
(Id. at 35:4-12).
Finally, the Bankruptcy Court ruled that the filing of a
motion for relief from the stay is not a violation of the stay,
because that is a motion filed in the Bankruptcy Court.
In summarizing its ruling, the Bankruptcy Court explained:
I’m going to continue Judge Burns’ relief or not change
Judge Burns’ order granting relief from the automatic
stay so that the State Court can move forward with its
hearing on February 17th to make its determination. To
the extent that the Allens are seeking stay relief
related to Section 365(d)(4) of the bankruptcy code
[relating to assumption of the lease], I am going to
deny – I’m going to – I’m going to deny that without
prejudice . . . .
[A]nd with regard to Ms. Thors’
motions for violations of the automatic stay, I am going
to deny that motion.
If at some point in time it’s
determined that there’s a lease in place, Ms. Thors may
seek violations of the automatic stay related to the
non-acceptance of rent, but as I’ve noted, I think those
damages would not result in monetary damages but instead
would likely result in limiting the bases for further
relief related to payment or non-payment of rent.
(Id. at 36:2-37:4).
On February 11, 2016, a formal order was entered stating
that the Allens’ motion for stay relief was “granted to the
extent that limited stay relief remains in effect to allow the
parties to determine their respective rights in state court.
The state court may rule on any issues it deems appropriate at
its scheduled hearing date on February 17, 2016[.]”
2016 Order [Bk. Dkt. No. 94]).
The Bankruptcy Court further
ordered that the Allens “shall file a status letter with the
Court within 10 days of the state court entering an order” and
that they “shall not take any efforts to enforce any state court
order, including but not limited to, collection against or
eviction of” Ms. Thors.
(Id. ¶¶ 2, 3.)
The same day it entered that order, the Bankruptcy Court
also received a motion to reconsider its rulings concerning the
Allens’ purported violation of the automatic stay.
Reconsideration [Bk. Dkt. No. 97]).
iii. April 12, 2016 Hearing
On April 12, 2016, the parties once again appeared before
the Bankruptcy Court, on several motions, including Ms. Thors’s
motion for reconsideration and a motion to continue stay relief
by the Allens.
(Apr. 12, 2016 Hrg. Tr. at 3:9-17 [Dkt. No.
Prior to ruling on any motions, however, the Bankruptcy
Court first examined whether the State Court had in the interim
resolved the issue of whether Ms. Thors had a possessory
interest in the property.
(Id. at 5:8-15).
Prior to the
hearing, on February 29, 2016, the State Court denied the
Allens’ proposed order amounting to a judgment of possession, as
The parties’ agreement was not an ordinary
lease. Ms. Thors and Allens do not get along and the
continued presence of Ms. Thors at the property has been
Ms. Thors has the right to
access the property by court order to finish her film.
Allens do not have right to lease or use barn. Ms. Thors
does not have right to go on horse farm.
(First Notice App. 1 at 19).
This still did not conclusively
resolve the possessory issue between the parties in the
Bankruptcy Court’s eyes.
(Id. at 5:8-15 (“So to the extent
there is a leasehold, and I’m not quite sure that’s exactly what
the State Court ruled.
I think the State Court basically came
up with a process or a sort of interim order giving you rights
to occupy the premises upon obtaining Court order for specific
dates and times[.]”)).
With regard to Ms. Thors’s request for reconsideration of
the Bankruptcy Court’s determination that there had been no
violation of the automatic stay, the Court denied the motion.
Specifically, the exchange focused on whether the refusal to
accept rent gave rise to monetary damages.
As discussed, infra,
at the previous hearing the Bankruptcy Court had forecasted that
a proper remedy if that conduct did amount to a violation of the
automatic stay would be to prevent the Allens from using the
non-payment of rent as a ground to seek relief from the
automatic stay going forward.
At the April 12, 2016 hearing,
the Bankruptcy Court further noted:
To the extent that you disagree with that, I’m not going
to reconsider it.
I don’t see that there is any new
law, and I don’t see that there has been a material
injustice. If you feel that – that I missed something
or that I was wrong in reaching that conclusion and
determining that that was the appropriate resolution of
what I consider to be a technical stay violation, if a
stay violation at all, then your avenue would be to
appeal my decision . . . .
(Id. at 14:11-19).
As such, like the hearing on February 9,
2016 hearing, the Bankruptcy Court did not resolve the legal
issue of whether the Allens had violated the stay by refusing to
(“if a stay violation at all”)).
it simply reiterated that if the refusal to accept rent amounted
to a violation of the stay, the proper remedy would be limiting
their options for stay relief henceforth.
The Court also addressed a motion by the Allens for further
stay relief on a different ground.
The Bankruptcy Court looked
to the State Court’s February 29, 2016 Order, supra.
Notice App. at 19).
Reviewing this decision by the State Court,
the Bankruptcy Court determined that:
The State Court order . . . does not define the parties’
leasehold rights nor does it address the logistics
regarding the right or obligation of the debtor to pay
or the Allens to collect rent or the damages asserted
between the parties.
I think these issues should be
brought before the State Court. The State Court is much
more familiar with these issues and has been handling
these issues between the parties from some time prior to
the petition date until now, and I believe it is the
proper forum for these issued to be litigated.
(Id. at 24:20-25:4). The Bankruptcy Court was clear that any
order that was obtained from the State Court would not be
effectuated until the parties could again appear before the
(Id. at 29:7-11).
As the Bankruptcy Court
indicated (relying upon the State Court), to the extent Ms.
Thors wanted to access the property, she would need a State
Court order permitting her to do so.
(Id. at 30:22-31:1).
Shortly thereafter, on April 20, 2016, Ms. Thors filed the
instant appeals, arguing that the Bankruptcy Court erred in two
regards: (1) in determining that the Allens had not willfully
violated the automatic stay or in ruling that Ms. Thors was not
entitled to emotional distress for that violation; (2) granting
the Allens’ request for relief from the automatic stay.
In her briefing, Ms. Thors has also raised a third appeal
On May 3, 2016, Ms. Thors e-mailed the Bankruptcy Court
explaining her belief that she had 14 days to access her
property under Bankruptcy Law.
(Thors’s App. Br. 1 at 36 [Dkt.
Ms. Thors appears to have been referencing Federal
Rule of Bankruptcy Procedure 4001(a)(3), which states that
unless otherwise ordered by the Court, “[a]n order granting a
motion for relief from an automatic stay made in accordance with
Rule 4001(a)(1) is stayed until the expiration of 14 days after
the entry of the order[.]”
Based on subsequent e-mails, Ms.
Thors also appears to have been under the belief that unless a
reference to Rule 4001(a)(3) was placed into the Order, making
clear that the lifting order would not take effect for 14 days,
she would not be able to access her property.
(Thors App. Br. 1
at 38 (“I have had two visits at local police unless I can show
a court order that I am allowed on property I will be
Also on May 3, 2016, Ms. Thors’s e-mail was answered by the
staff of the Bankruptcy Court:
I forwarded your message to Judge Poslusny. His Response
No email or fax pleadings are accepted but note that
Rule 4001(a)(3) applies unless waived in an order.
(Id. at 30).
No order was issued in accordance with Ms. Thors’s
On appeal from a final order of the Bankruptcy Court, this
Court reviews the Bankruptcy Court’s legal determinations de
novo, its factual findings for clear errors, and its exercise of
discretion for abuse thereof.
In re O’Brien Environmental
Energy, Inc., 188 F.3d 116, 122 (3d Cir. 1999).
To the best of this Court’s ability to discern, Ms. Thors
presents at least three issues on appeal to this Court.11
Ms. Thors seeks reversal of the Bankruptcy Court’s determination
“lifting” her automatic stay pursuant to 11 U.S.C. § 362(d)(1).
Second, Ms. Thors appeals the Bankruptcy Court’s “Denial of
Willful Violation of Automatic Stay causing emotional distress
and money damages.”
Third and finally, although not raised in
either notice of appeal, Ms. Thors seeks review of the
Bankruptcy Court’s unwillingness to provide an Order outlining
the applicability of Federal Rule of Bankruptcy Procedure
4001(a)(3) so that she could present it to the police.
A. Lifting of Automatic Stay
The first order that Ms. Thors appeals is a determination
by the Bankruptcy Court on April 12, 2016 granting limited
relief from the automatic stay provision so the parties could
proceed in the State Court.12
(Thors App. Br. 3 [Dkt. No. 12-
“The purpose of the automatic stay provision is to afford
In the time since the filing of both bankruptcy appeals, this
Court has been inundated with calls and filings from Ms. Thors.
It has been no easy task to discern exactly the issues Ms. Thors
12 The Court notes that the issue of whether the stay even
applied to these proceedings remains open. The Court does not
address this issue both because the parties do not address it
and because the Court finds that there was no abuse of
discretion even if the stay had been in effect.
the debtor a ‘breathing spell’ by halting the collection
process, and the stay enables the debtor to attempt a repayment
or reorganization plan with an aim toward satisfying existing
In re Hartman, Civ. A. Nos. 15-4437 (ES), 15-5060 (ES),
2016 WL 1183175, at *7 (D.N.J. Mar. 28, 2016) (internal
quotation marks omitted).
Pursuant to 11 U.S.C. § 362(d)(1),
“On request of a party in interest and after notice and a
hearing, the court shall grant relief from the stay provided
under subsection (a) of this section, such as by terminating,
annulling, modifying, or condition such stay – (1) for cause,
including the lack of adequate protection of an interest in
property of such party in interest.”
does not define ‘cause,’ leaving courts to consider what
constitutes cause based on the totality of the circumstances in
each particular case.”
In re Wilson, 116 F.3d 87, 90 (3d Cir.
Whether to grant such relief from the automatic stay “is
a decision committed to the bankruptcy court’s discretion, and
may be reversed only for abuse of discretion.”
2016 WL 1183175, at *7.
In re Hartman,
A Bankruptcy Court abuses its
discretion “where the court’s decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law, or an
improper application of law to fact.”
200 F.3d 154, 159 (3d Cir. 1999)).
In re SGL Carbon Corp.,
Ms. Thors’s argument in this regard is very difficult to
decipher,13 but appears based on the fact that the Allens and
their counsel made use of “fraud, lies, untruthful
information[,] malice[, and] evilness” to secure stay relief.
(Thors App. Br. 3 at ¶ 14.)
Ms. Thors cites, as well, the
Allens’ unwillingness to accept rent from her and their
purported use of her non-payment as grounds for stay relief.
(Id. at ¶ 42, 88).
The Court finds no abuse of discretion with regard to the
Bankruptcy Court’s decision to grant limited stay relief to
determine the possessory interests of the parties.
Bankruptcy Court, on separate occasions, awarded limited stay
relief to permit the State Court proceedings to go forward to
determine the parties’ relative possessory interest in the
Contrary to Ms. Thors’s argument, this had nothing
to do with the non-payment of rent or any factual
representations made to the Bankruptcy Court by the Allens
concerning the parties’ relationship outside of State Court.
Instead, the Bankruptcy Court – for purposes of determining both
what was a part of the bankruptcy estate and clarifying a legal
Further complicating the unraveling of Ms. Thors’s arguments
is that many of those raised concerning the Bankruptcy Court’s
grant of stay relief to the Allens explicitly argue that the
Allens violated the automatic stay, a separate issue that was
separately briefed. See, e.g., Thors App. Br. 3 at ¶¶ 77, 79.
issue that was throwing a wrench in the ability of the
bankruptcy to proceed – sought clarity on whether Ms. Thors had
(April 12, 2016 Hrg. Tr. at 24:20-25:4 (“I think
these issues should be brought before the State Court.
State Court is much more familiar with these issues and has been
handling these issues between the parties from some time prior
to the petition date until now . . .”)).
In making these
decisions, the Bankruptcy Court relied on the orders issued by
the State Court, not representations by the Allens about their
(Id. 23:23-24:8 (quoting State Court
Put simply, the lingering issue of the parties’
contractual relationship to each other was the root of much of
the vitriol between them and the legal cloud which had overtaken
the bankruptcy proceedings.
The State Court was both the more
capable and the more proper venue to resolve these issues, and
the Bankruptcy Court wisely permitted it the leeway to do so.
Moreover, the Bankruptcy Court properly and explicitly
tailored its ruling to the resolution of the property issues and
considered the hardship that would befall Ms. Thors if the
proceedings were allowed to go forward.
See generally In re
Blan, 237 B.R. 737, 739 (8th Cir. 1999) (“In making the
determination of whether to grant relief from the stay, the
court must balance the potential prejudice to the Debtor[,] to
the bankruptcy estate, and to the other creditors against the
hardship to the moving party if it is not allowed to proceed in
The Bankruptcy Court noted the State Court
order prevented the Allens from using, entering, working on, or
damaging the barn about which Ms. Thors was concerned.
The Bankruptcy Court also noted “if and when a
judgment is entered, you’ll have to return to the Bankruptcy
Court to determine how that affects the bankruptcy case.
think that the protections that the State Court came to are akin
to an automatic stay prov[id]ing Ms. Thors with some protections
while at the same time providing the Allens with certain
protections as well.”
(Id. at 25:13-18).
The vaguely-articulated “lies” that Ms. Thors argues the
Allens made to secure the lifting of the stay concerning her
non-payment of rent, or the reporting of her for animal cruelty,
did not factor into the Bankruptcy Court’s decision to lift the
Ms. Thors can point to no such evidence.
Contrary to the
assertions of Ms. Thors and as ably set forth by the Bankruptcy
Court, the reason for the lifting of the stay was not to enable
the Allens to evict or dispossess Ms. Thors – indeed the stay
relief ordered by the Bankruptcy Court was limited and tailored
to avoid such a caustic affect.
(Id. at 29:7-11 (“Once that
issue is resolved – I’m not lifting the stay to allow the Allens
to take any action absent moving to a judgment.
In other words,
you will come back here once a judgment is rendered one way or
the other to determine how that affects the bankruptcy case.”)).
Instead, the parties were simply to obtain legal clarity on the
ownership issues so the bankruptcy proceedings could go forward
with an understanding of the legal posture of the case; i.e.,
whether the automatic stay applied or not depended upon whether
Ms. Thors had a possessory interest, see supra.
Ms. Thors’s argument that the Court must enforce the no
eviction policy of the Contract is also both incorrect and not
(Thors App. Br. 3 at ¶ 24.)
The issue of whether the
Allens can or cannot evict Ms. Thors under the Contract is an
issue of state law that was unrelated to the bankruptcy
Neither this Court nor the Bankruptcy Court is
permitted to sit as an appellate court to the State Court
In re Madera, 388 B.R. 586, 596 (E.D. Pa.
2008) (“[T]he Rooker-Feldman doctrine is a statutory-based
doctrine which stands for the proposition that lower federal
courts possess no power what[so]ever to sit in in direct review
of state court decisions.”).
To the extent eviction proceedings
should be stayed by the automatic stay, that issue could not be
decided by the Bankruptcy Court absent a resolution of the
parties’ actual rights to the property, again, as discussed
This was the very reason for granting the stay relief in
the first place.
In sum, the “cause” standard under 11 U.S.C. § 362(d)(1)
requires the Bankruptcy Court to analyze the issue under the
totality of the circumstances to determine if relief from the
automatic stay is proper.
Any reasonable reading of the
complicated and contentious proceedings that have gone on in
this case makes clear that the resolution of the threshold issue
of the parties’ lingering property dispute was vital to allowing
the bankruptcy proceeding to go forth.
Given the Court has
reviewed the Bankruptcy Court’s decision under that lens and Ms.
Thors has pointed to no other abuse of discretion by the
Bankruptcy Court, the order granting limited stay relief at the
April 12, 2016 hearing is AFFIRMED.
B. Willful Violation of Automatic Stay
Ms. Thors’s second contention on appeal is that the
Bankruptcy Court erred in denying her motion seeking emotional
distress damages from a willful violation of the automatic stay.
(Thors App. Br. 2 [Civ. No. 16-2224, Dkt. No. 12-2]).
to 11 U.S.C. § 362(k)(1), “[A]n individual injured by any
willful violation of a stay provided by this section shall
recover actual damages, including costs and attorneys’ fees,
and, in appropriate circumstances, may recover punitive
As such, “the provisions of
the statute come into effect upon a showing that (1) a violation
of the automatic stay has occurred; (2) the violation was
willful; and (3) the willful violation has caused injury to the
Innovasystems, Inc. v. Proveris Scientific Corp.,
Civ. A. No. 13-05077, 2014 WL 3887746, at *7 (D.N.J. Aug. 6,
2014) (citation omitted).
While several grounds were advanced
before the Bankruptcy Court for finding a willful violation of
the automatic stay in the February 9, 2016 hearing (and again on
reconsideration), only two grounds appear to be advanced on
appeal for finding a willful violation of the stay: (1) the
Allens’ refusal to accept rent payments from Ms. Thors, (Thors
App. Br. 2 at ¶ 127); and (2) their harassment of Ms. Thors,
(id. at ¶ 116, 124).
With regard to the Bankruptcy Court’s determination at the
February 9, 2016 hearing that the Allens’ harassment of Ms.
Thors does not amount to a violation of the automatic stay, this
Court agrees with the Bankruptcy Court’s factual determination
The Bankruptcy Court relied upon In re Protos,
Bk. no. 02-74770-MHM, 2005 WL 6491916, at *2 (N.D. Ga. Bankr.
Jan. 28, 2005), which held that where the harassment was not
“directly aimed at collecting a debt,” the automatic stay was
not violated because the harassment was not with the purpose to
collect the debt.
Ms. Thors points to little record material
demonstrating the alleged harassment, but does argue that the
Allens “stop[ed] my clients and customers before able to come to
my stable/film studio, to do business with me.”
(Thors App. Br.
2 at 123).
While these allegations, if credited, as well as the
discussion of social media threats and calls to the police
concerning Ms. Thors are certainly evidence of the rancor that
has developed between the parties over their deteriorated
relationship, the Bankruptcy Court did not err in finding that
these actions were unrelated to the collecting of a debt.
In re Protos, 2005 WL 6491916, at *2 (“The inference is too
The Bankruptcy Court’s determination is AFFIRMED in
With regard to Ms. Thors’s argument that the non-acceptance
of rent by the Allens amounts to a willful violation of the
automatic stay, the Court finds that issue does not appear to be
properly before this Court because the Bankruptcy Court has not
finally determined that the Allens’ refusal to accept rent was a
willful violation of the stay.
The Bankruptcy Court appears to
have reserved ruling on this issue because the issue of
possession had not yet been clarified by the State Court as of
the time of the hearing.
It seems to this Court that the
Bankruptcy Court has only noted that if such refusal does amount
to a violation of the stay, the proper remedy in its eyes would
be to preclude the Allens from using the non-payment of rent as
grounds to seek relief from the automatic stay going forward.
(Apr. 12, 2016 Hrg. Tr. at 14:18 (noting that the Court may not
even consider the refusal to pay rent to be a stay violation at
Such prospective language does not amount to a final
order able to be reviewed by this Court.
28 U.S.C. § 158.
Indeed, it is not an order to be appealed at all.
Ms. Thors’s appeal is dismissed for lack of jurisdiction by this
Court over a final order.
C. Failure to Supply Notice of Rule 4001(a)(3)
Ms. Thors’s final appeal brief concerns the supposed
refusal by the Bankruptcy Court to include language in an order
stating that pursuant to Bankruptcy Rule 4001(a)(3), any stay
relief order does not go into effect for 14 days.
argues that this purported failure by the Bankruptcy Court
prevented her from accessing property she claims as hers.
(Thors App. Br. 1 at ¶¶ 17-20).
Ms. Thors’s belief, whether
right or wrong, that she could not enter the property except
during the 14-day delay does not give rise to grounds to appeal
the Bankruptcy Court.
First, this issue is not properly before the Court.
briefed in connection with the other appeals, the relevant emails all took place well after the filing of these appeals.
Furthermore, an ex parte e-mail exchange with chambers staff
Thus, the Court does not reach the issue of whether the remedy
forecasted by the Bankruptcy Court would be sufficient under the
statutory language that provides that “an individual injured by
any willful violation of a stay provided by this section shall
recover actual damages, including costs and attorneys’ fees . .
. .” 11 U.S.C. § 362(h) (emphasis added).
does not strike this Court as a final order capable of being
As relevant to this case, this Court only has
jurisdiction to hear appeals from final orders.
See 28 U.S.C. §
More fundamentally, Federal Rule of Bankruptcy Procedure
4001(a)(3) simply states that all orders granting relief from
the automatic stay are themselves “stayed until the expiration
of 14 days after the entry of the order, unless the court orders
The fact that the Bankruptcy Court did not
include this default rule in a written order that Ms. Thors
could use to present to the police for purposes of gaining
access to her purported property is not a form of error, let
alone one this Court could review.15
D. October 17, 2016 and October 18, 2016 Filings
Ms. Thors has also filed two additional documents with this
Court concerning ongoing issues at the property and requesting
an additional free transcript.
[Dkt. No. 26, 27].
Ms. Thors’s motion for an additional transcript for a time
period beyond the time when this appeal was filed is DENIED
[Dkt. No. 22].
To the extent that the May
3, 2016 hearing before the Bankruptcy Court becomes relevant to
For the same reasons, and the additional reason that such a
motion would not properly be before this Court, Ms. Thors’s
“Emergent motion” on this issue is DENIED as well. [Dkt. No.
a future appeal Ms. Thors takes, she may renew the motion at
Ms. Thors has additionally “appealed” the Allens’ alleged
violation of a May 3, 2016 Bankruptcy Court Order by filing a
supplemental appellate brief on the topic.
[Dkt. No. 26, 27].
This “appeal,” which is too late to be included in the briefing
or oral argument in this matter and improperly taken under the
Federal Rules of Bankruptcy Procedure, Fed. R. Bk. P. 8002,
appears to ask the Court to make factual findings of its own
concerning the inability of Ms. Thors to access her property.
This Court lacks the jurisdiction to hear such appeals.
request for a finding that the Allens violated the automatic
stay in this regard must first be brought before the Bankruptcy
As such, even if this issue had been a part of Ms.
Thors’s appeals before this Court, it would be dismissed for
lack of jurisdiction.
As set forth above, the order of the Bankruptcy Court
granting limited stay relief is AFFIRMED.
Court’s determination that the Allens did not violate the
automatic stay by harassing Ms. Thors is AFFIRMED.
appeal of the Bankruptcy Court’s advisory determination
regarding the Allens’ willful violation of the automatic stay
for refusing to accept rent is dismissed for lack of
All remaining appeals are dismissed for lack of
Ms. Thors’s motion for a fourth free transcript
is DENIED without prejudice to being re-raised in a future
Ms. Thors’s motion for emergent relief, [Dkt. No. 6],
DATED: December 16, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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