Nancy B. Pytlik et al. v. LLC (2012)

ORDER RE MOTION TO OPEN JUDGMENT

The Motion to Open Judgment dated March 9, 2012 filed by the defendant Cynthia A. Cote is granted for the following reasons:

1. This summary process action was commenced on January 14, 2012 by Nancy B. and George K. Pytlik against Cindy's Wine & Spirits, LLC, Cynthia A. Cote and Robert Godiksen seeking possession of commercial premises known as 755 Boston Post Road, Westbrook, Connecticut.

2. On January 17, 2012, the defendant Cote filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut.

3. On March 5, 2012, the court in this case entered a default for failure to appear and judgment of possession against the defendant Cote.

4. The automatic stay provision in bankruptcy proceedings is governed by 11 U.S.C. § 362.  “Section 362 of the Bankruptcy Code stays any and all postpetition filing.   Any filing constitutes a judicial act directed toward the disposition of the case in violation of the automatic stay ․ The stay of section 362 is extremely broad in scope and ․ should apply to almost any type of formal or informal action against the debtor or the [debtor's property ․ 2 W. Collier, Collier on Bankruptcy (15th Ed.1979) § 362.04.” (Citations omitted;  internal quotation marks omitted.)  Krondes v. O'Boy, 69 Conn.App. 802, 808, 796 A.2d 625 (2002).   Any actions taken in violation of the automatic stay are void and without effect.  Id. at 810.

5. An exception to the automatic stay for commercial leases is set forth in 11 U.S.C. § 362(b)(10) (“any act by a lessor to the debtor under a lease on nonresidential real property that has terminated by the expiration of the stated term of the lease before the commencement of or during a case under this title to obtain possession of such property”).   Because the lease at issue here does not expire by its own terms until 2016, the exception does not apply.

6. Service of a proper notice to quit terminates a tenant's rights under a lease and the tenant becomes a tenant at sufferance.   Tenants at sufferance have only naked possession of the property, but that possessory interest remains property of the tenant's bankruptcy estate.   In order for a landlord to proceed with a summary process action which was commenced before the tenant filed for bankruptcy protection, the landlord must seek and obtain relief from the automatic stay.   See In re M & R Apparel, Inc., 92 B.R. 565 (1988).

7. At the time the default and judgment were entered against the defendant Cote, her bankruptcy case was still pending and the plaintiff had not moved for nor been granted relief from stay in order to pursue this summary process action against her.

8. The automatic stay arising from the defendant Cote's bankruptcy filing prohibited this court from entering a default and judgment of possession against her.  In re Carter, 131 B.R. 4, 5 (1991).

9. The court's order dated March 5, 2012 entering a default for failure to appear and judgment of possession against the defendant Cote is void and without effect.

The Motion to Open Judgment is granted.   The court's order dated March 5, 2012 entering a default for failure to appear and judgment of possession against the defendant Cote is vacated and the motion is denied.   The defendant Cote is ordered to file a Notice of Bankruptcy in this action and any other action pending in this judicial district apprising the court and all parties of the continuing pendency of her bankruptcy action.

SO ORDERED.

Lisa Kelly Morgan, Judge

Morgan, Lisa K., J.