IN RE: Dana M. Steele (2026)

Chapter 7

OPINION AND ORDER ON DEFENDANT NREA VB III, LLC'S MOTION TO DISMISS FIRST AMENDED COMPLAINT AND MOTION FOR A MORE DEFINITE STATEMENT (DOC. 106)

I. Introduction

This adversary proceeding, distilled to its essence, concerns whether an entry of restitution entered by the Dayton Municipal Court, agreed to by the Debtor Dana M. Steele (“Ms. Steele,” “Plaintiff,” or “Debtor”) prior to filing her underlying chapter 7 bankruptcy case, was a “judgment for possession” as that term is used in the eviction exception to the automatic stay set forth in 11 U.S.C. § 362(b)(22).¹ Thus, Landlord and Defendant NREA VB, III's (“NREA”) motion to dismiss this adversary proceeding puts interpretation of the eviction exception front and center. This is an issue on which there is not much clarity in the case law, perhaps because what constitutes a “judgment for possession” is peculiar to the state law governing the eviction process. Moreover, this is a unique circumstance in which the Debtor had agreed to the eviction action before a Magistrate of the Dayton Municipal Court, twice, which was based on alleged illegal felony drug activity, and in which Debtor had ample time to vacate the residential property before she was ultimately evicted, after she failed to leave by an agreed date. But this adversary proceeding has also been complicated by what is alleged to have been aggressive, if not vindictive tactics by the landlord or its counsel, that has led to numerous filings in this Court, not to mention a missing cat.

The allegations in the First Amended Complaint, as corroborated by the public records and documents submitted, reveal that Ms. Steele, by and through counsel, had agreed at a summary hearing before the Dayton Municipal Court on January 11, 2024, that she would vacate the rental property by March 15, 2024. Although that agreement was not reduced to a court entry until March 12, 2024, allegedly due to overreaching by the landlord's counsel when preparing a proposed agreed entry which prompted a second hearing on February 29, 2024, to confirm what Ms. Steele and the landlord had actually agreed to on January 11, 2024, once the entry was prepared and signed by the Dayton Municipal Court that was a “judgment for possession” as the only steps left were either for Ms. Steele to voluntarily vacate the property by March 15, 2024 or for the landlord to obtain a writ of restitution, if she did not. Landlord NREA VB, III (“NREA”) did obtain a writ of restitution postpetition on March 21, 2024, following the agreed-upon date for Ms. Steele to vacate. Just because the agreement and entry did not require her to vacate until March 15, 2024, did not make it any less of a “judgment for possession” given that there were no other options or alternatives allowed under the agreement and entry—once 11:59 p.m. passed on March 15, 2024, if Ms. Steele was not out the landlord would be entitled to a writ of restitution “forthwith.”

In short, based on the largely undisputed facts alleged in Ms. Steele's First Amended Complaint (Doc. 93), which are taken as true, and the state court records referenced therein, and after examining the forcible entry and detainer process under Ohio law, it became clear to this Court that an entry of restitution that finally determined the sole issue of possession, particularly the agreed entry entered into by Ms. Steele, qualified as a “judgment for possession” under § 362(b)(22) such that there was no violation of subsection (a)(3) of the automatic stay simply by virtue of NREA continuing the eviction action postpetition. To hold otherwise would essentially nullify § 362(b)(22), at least for eviction actions governed by Ohio law, and would not be in keeping with the reason that Congress enacted this exception to the automatic stay as part of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) in 2005. See Pub. L. No. 109-8, § 1501 (2005). Thus, the eviction exception in § 362(b)(22) was applicable, Ms. Steele did not (or could not) invoke § 362(l), and Count I of the First Amended Complaint asking for a declaratory judgment that the eviction exception was inapplicable does not state a plausible claim and will be dismissed. However, the eviction exception, construed narrowly as it must be, does not absolve any actions taken by NREA, its agents or contractors, or its Attorney Laurence Lasky (“Mr. Lasky”) from any potential liability given that it only permits action to regain possession of residential real property. Thus, there remains a plausible claim under Count II for damages under § 362(k)(1) for violation of subparagraph (a)(3) of the automatic stay (§ 362) with respect to, at a minimum, actions involving Ms. Steele's personal property.

Because the intersection of landlord-tenant law and the Bankruptcy Code is something that comes up frequently, hopefully this Opinion and Order will not only lead to the resolution of this adversary proceeding but will also provide some guidance for future cases involving forcible entry and detainer actions under Ohio law so that parties can assess where the line is drawn and how to avoid stepping over it.

II. Jurisdiction

This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b) and Amended General Order No. 05-02 (Amended Standing Order of Reference) entered by the United States District Court for the Southern District of Ohio, pursuant to 28 U.S.C. § 157(a), on September 16, 2016. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (G),² and this Court has constitutional authority to enter a final judgment. In re Nicole Gas Prod., 519 B.R. 719, 723, 725 (Bankr. S.D. Ohio 2014).

NREA raises Federal Rule of Civil Procedure (“Civil Rule”) 12(b)(1) in its Motion to Dismiss, which is a defense for “lack of subject-matter jurisdiction.” However, NREA does not elaborate on why it believes this Court would lack subject matter jurisdiction, and case law supports the Court's exclusive jurisdiction over this adversary proceeding to determine whether a violation of the stay has occurred. In re Legacy Beavercreek of Dayton Operating Co., 678 B.R. 558, 569 (Bankr. S.D. Ohio 2026) (“[I]interpreting the application of the automatic stay arising from a case under the Bankruptcy Code is often fundamental to the protection of debtors in bankruptcy and this Court's jurisdiction over those debtors and their property.”); Grine v. Chambers (In re Grine), 439 B.R. 461, 464-65 (Bankr. N.D. Ohio 2010) (“Proceedings to determine whether the automatic stay has been violated are core proceedings that the court may hear and determine.” (citing 28 U.S.C. § 157(b)(1) and (b)(2)); In re Bunting Bearings, 302 B.R. 210, 213 (Bankr. N.D. Ohio 2003)). Moreover, NREA has elsewhere argued within this adversary proceeding that this Court has subject matter jurisdiction over its third-party indemnity and contribution claims in this adversary proceeding, such that they appear to concede that jurisdiction exists over the First Amended Complaint.³ See NREA's Brief in Supp. of this Court's Jurisdiction Over its Third-Party Indemnity and Contrib. Claims (Doc. 123) (Feb. 26, 2026). Perhaps NREA cited Civil Rule 12(b)(1) as part of its argument that Ms. Steele did not meet the jurisdictional requirement to invoke the Declaratory Judgment Act – that there is no case or controversy upon which the Court can enter a declaratory judgment. That argument is unavailing and will be addressed below. It is beyond reasonable debate that this Court has subject matter jurisdiction over the claims raised in the First Amended Complaint that ultimately involve examination of the application of the automatic stay to property of the estate.

III. Background

A. Overview

The Debtor in the underlying chapter 7 bankruptcy case, Dana Steele, filed her Voluntary Petition (the “Petition”) under chapter 7 on March 14, 2024 (the “Petition Date”) and just over a month later, on April 18, 2024, represented by a new co-counsel,⁴ filed her Complaint – 11 U.S.C. §[ ]362(k) (Doc. 1) (the “Complaint”) initiating this adversary proceeding. See Case No. 24-30467 (Doc. 1); Adv. No. 24-3011 (Doc. 1).⁵ In the Complaint, Ms. Steele only listed NREA as a Defendant.

The events that occurred in the months leading up to her bankruptcy and within the short period of time from the Petition Date (March 14, 2024) up until her eviction on April 4, 2024, are at issue in this litigation. More specifically, this adversary proceeding concerns the applicability of the automatic stay to the eviction of Ms. Steele from her rented home on April 4, 2024, as well as the damage and disposal of her personal property, by Ms. Steele's Landlord NREA, which was represented by Mr. Lasky prior to and during the eviction process in Dayton Municipal Court and initially in Ms. Steele's bankruptcy case and in this adversary proceeding, up until the time he withdrew as NREA's counsel and later became a Third-Party Defendant along with his law firm. After an initial flurry of filings, on January 2, 2026, Ms. Steele filed her First Amended Complaint – 11 U.S.C. §[ ]362(k) (Doc. 93) (the “First Amended Complaint”), which added Mr. Lasky as a Defendant. Though there have been numerous filings in this adversary proceeding since it was inherited by the above-signed Bankruptcy Judge, now primarily before the Court are NREA VB III, LLC's Motion to Dismiss and Motion for a More Definite Statement (Doc. 106) (the “Motion to Dismiss”) filed on January 16, 2026, and Plaintiff's Response in Opposition to NREA VB III, LLC's Motion to Dismiss First Amended Complaint and Motion for a More Definite Statement (Doc. 117) (the “Response”) filed on February 2, 2026.

The following background is derived from the factual allegations in the First Amended Complaint ⁶ as well as the dockets of both Ms. Steele's underlying chapter 7 bankruptcy case and this adversary proceeding, and as referenced by Ms. Steele in her First Amended Complaint, the docket of the Dayton Municipal Court, of which this Court takes judicial notice pursuant to Federal Rule of Evidence 201(c)(1), made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure (“Bankruptcy Rule”) 9017. The Court may take such judicial notice in the context of ruling on the Motion to Dismiss without converting it to a motion for summary judgment. See KBC Asset Mgmt. N.V. v. Omnicare, Inc. (In re Omnicare, Inc. Sec. Litig.), 769 F.3d 455, 466 (6th Cir. 2014) (“if a plaintiff references or quotes certain documents, or if public records refute a plaintiff's claim, a defendant may attach those documents to its motion to dismiss, and a court can then consider them in resolving the Rule 12(b)(6) motion without converting the motion to dismiss into a Rule 56 motion for summary judgment.” (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)). “Fairness and efficiency require this practice.” In re Omnicare, 769 F.3d at 466.⁷

B. The Events Preceding and Surrounding the Eviction

1. The Lease

On November 25, 2022, Ms. Steele signed a residential lease agreement (the “Lease”) with NREA ⁸ “for the use and occupancy of real property located at 1351 Oakdale Avenue, Dayton, Ohio 45420 (the ‘[Real] Property’).”⁹ First Am. Compl. at 2, ¶ 4. Ms. Steele was a co-signer on the Lease with her stepfather, David Luttrell (“Mr. Luttrell”), and her brother, Damon Steele. Ms. Steele's minor child also lived at the Real Property. Id. at 2, ¶¶ 5-6. The lease term for 1351 Oakdale was from December 21, 2022, through December 20, 2023, and would automatically renew as a month-to-month lease following the end of the term. Id. at 2, ¶ 7.

2. Public Use Nuisance and the Eviction Action

On October 2, 2023, Dayton police served a search warrant at 1351 Oakdale after receiving an anonymous tip that Mr. Steele was involved with drugs, and police allegedly discovered traces of methamphetamine during the search. Id. at 12-13, ¶ 75. On or about October 17, 2023, the City of Dayton served NREA, as the owner of the Real Property, with a “nuisance- abatement notification[ ] alleging that illegal activity (felony drugs) was occurring on the Property.” Id. at 3, ¶ 14. The notification, titled a Notification by the City of Dayton – Public Use Nuisance ¹⁰ (the “Nuisance-Abatement Notification”) – gave NREA fifteen (15) days “to file an eviction action naming Damon Steele, Megan Koch[¹¹ ] and Dana Steele (the persons allegedly responsible for the nuisance) to vacate the Property.” Id. at 3, ¶ 14 n.3.

Outside the 15-day window given in Nuisance-Abatement Notification, on November 22, 2023, NREA, by and through its counsel Mr. Lasky, filed a Complaint in Forcible Entry and Detainer – Two Counts (the “FE&D Complaint”)¹² against Ms. Steele, Mr. Luttrell, and “All Others” at 1351 Oakdale Avenue, Dayton, Ohio 45420 in the Dayton Municipal Court, captioned Vinebrook Homes LLC for NREA VB III LLC v. Dana Steele, et al., Dayton M.C. No. 2023 CVG 6454 (the “Eviction Action”). Therein, NREA sought to evict Ms. Steele, Mr. Luttrell, and the others, and sought “a money judgment against [Ms. Steele and Mr. Luttrell] for alleged failure to pay rent[.]” Id. at 2, ¶ 11; Exs. D, E, F.¹³ The FE&D Complaint filed in the Eviction Action was later amended by Mr. Lasky on December 18, 2023, to seek to evict the occupants of the Real Property based on alleged illegal activity. Id. at 3, ¶ 14. After Ms. Steele was served “with a summons in the Eviction Action on NREA's Amended Complaint,” a summary hearing was held before a magistrate of the Dayton Municipal Court on January 11, 2024. Id. at 3, ¶¶ 16-17. As Ms. Steele alleges, “[i]nstead of proceeding that day, the parties agreed to terms to resolve the Eviction Action.” Id. at 3, ¶ 17.

Although it appears there was later an issue with reducing the terms to writing, perhaps because Attorney Mark Donatelli appeared at the January 11, 2024 hearing instead of Mr. Lasky, “[t]he terms were read in the [Dayton Municipal Court's] record for the Eviction Action as follows[:]”

a. Plaintiff would vacate the premises on or before midnight on March 15, 2024, and

b. If Plaintiff failed to vacate the premises before the expiration of such time, a writ of restitution would be issued forthwith.

Id. at 3-4, ¶ 17.a and b. On or about January 16, 2024, Mr. Lasky prepared an entry for review by Attorney Eric E. Willison, who represented Ms. Steele in the Eviction Action; “[h]owever, the terms contained in the document [Mr. Lasky] prepared” allegedly differed from the agreement read into the record. Id. at 3, 4 ¶¶ 13, 18. Ms. Steele attached a copy of Mr. Lasky's proposed Agreed Entry (the “Proposed Entry”) as Exhibit C to her First Amended Complaint, and the main difference is that in addition to the requirement that Ms. Steele vacate the Real Property by midnight on March 15, 2024, it contained additional terms requiring Ms. Steele to repay missed rent to the tune of “$3,705 on or before February 1, 2024” and to “pay February 2024 rent on time.” Ex. C to First Am. Compl. at ¶¶ 1-5. Mr. Lasky then, allegedly, on February 15 and 21, 2024, attempted to get his Proposed Entry entered by the Dayton Municipal Court through a “Motion to Journalize” and a “Motion for Emergency Hearing,” which prompted the Dayton Municipal Court to hold a hearing on Mr. Lasky's motions on February 29, 2024. Id. at 4, ¶ 22. “[U]pon the suggestion of Mr. Willison, the Magistrate listened to the audio recording of the January 11, 2024, summary proceeding” and “determined that, contrary to [Mr. Lasky's] assertions, there was no agreement to pay rent and the only terms agreed to[ ] were that [Ms. Steele] would ‘vacate the Property by the 15th of March and that any failures for her to do so a writ could be issued.’ ” Id. (emphasis in original).

As further alleged by Ms. Steele, “[o]n March 12, 2024, the Magistrate and Judge [of the Dayton Municipal Court] filed an Entry stating the terms of the parties’ January 11, 2024[ ] agreement.” Id. at 5, ¶ 24. Ms. Steele represents that “[a] true and accurate copy of the March 12, 2024[ ] Entry is attached hereto as Exhibit D.” Ex. D to First Am. Compl. (Doc. 93-4) (the “March 12 Entry”). The March 12 Entry is a one (1) page document, signed by both a Magistrate and Judge of the Dayton Municipal Court, filed in the Eviction Action on said date, which states as follows:

This matter came before the Magistrate for hearing on February 29, 2024 on Plaintiff's motion to journalize an agreement made between the parties in Court on January 11, 2024.

The parties agreed to the following terms:

1. Defendant agrees to vacate the premises on March 15, 2024 by midnight.

2. If Defendant fails to vacate the premises by March 15, 2024, a writ of restitution shall issue forthwith.

March 12 Entry (Ex. D to First Am. Compl.).

Mr. Lasky allegedly filed a Praecipe for Writ of Restitution on behalf of NREA on March 12, 2024. First Am. Compl. at 5, ¶ 26-27. And on March 14, 2024, allegedly “submitted and received the [Dayton Municipal Court] Judge's signature on a form Entry Granting Default Judgment and Scheduling Matter for Hearing to determine monetary damages,” but neither the referenced Praecipe nor Entry Granting Default Judgment were attached to the First Amended Complaint. Id. at 5, ¶ 27. The online docket of the Dayton Municipal Court for the Eviction Action indicates that a Praecipe for Writ of Restitution was filed on March 12, 2024, and that a “Motion finding of Granted entered for the Motion for Default Judgment that was filed by Lasky & Scharrer – Plaintiff Attorney on 03/01/2024” was entered on March 14, 2024. See Docket for Eviction Action, https://clerkofcourt.daytonohio.gov/PA/CvCaseSummary.cfm?cid=aldFSzhlNFIybkU9.

3.Chapter 7 Bankruptcy

Ms. Steele filed her Petition for chapter 7 bankruptcy relief on March 14, 2024, at 9:38 p.m.¹⁴ (Eastern Prevailing Time). First Am. Compl. at 5, ¶ 28. The next day, at allegedly 7:12 a.m. (PDT) and 7:20 a.m. (PDT), or 10:12 a.m. (EDT) and 10:20 a.m. (EDT), Ms. Steele's bankruptcy counsel faxed notification of her chapter 7 filing to the Clerk's office of the Dayton Municipal Court ¹⁵ and then to Mr. Lasky's office, respectively. First Am. Compl. at 5, ¶¶ 29-30. The online docket for the Eviction Action indicates that a “Notice of Bankruptcy filing” was docketed at 1:59PM on March 16, 2024, followed by a “Bankruptcy Stay document imaged.”¹⁶

Along with her Petition, Ms. Steele filed a Statement of Intention (Case No. 24-30467, Doc. 2) (the “Statement of Intention”) in which she listed a residential lease with Vinebrook Homes LLC to be assumed, although Official Form 108 makes clear that Part 2 is only for unexpired leases of personal property and the debtor filling out the form should “not list real estate leases.” Statement of Intention at 2, Part 2.

4. Motion for Stay Relief

The very first filing in Ms. Steele's chapter 7 case by another party came only five days later, on March 19, 2026, namely the Motion of Vinebrook Homes LLC for NREA VB III, LLC for Relief from Stay as to 1351 Oakdale, Dayton, OH 45420 (Case No. 24-30467, Doc. 9) (the “Motion for Stay Relief”).¹⁷ Therein, “Vinebrook Homes, LLC for NREA VB III, LLC, by and through their Attorney, Laurence A. Lasky,” moved for relief from the automatic stay to “proceed under state law for restitution of the premises” on the basis that Ms. Steele was “in default under the terms of the Lease for non-payment of rent” owing, “[a]s of the filing of this Motion, ․ no less than $6,125.00 for November 2023, December 2023, January 2024, February 2024 and March 2024 rent, and late fees and other charges allowable under the Lease.” Mot. for Stay Relief at 1-2, ¶¶ 5, 6. A copy of the Vinebrook Homes Lease Agreement was attached to the Motion for Stay Relief. See Case No. 24-30467 (Doc. 9-1).

5. Continuation of the Eviction Action and the April 3, 2024 Magistrate's Order

On March 20, 2024, a Judge of the Dayton Municipal Court signed the writ of restitution (the “Writ of Restitution”). First Am. Compl. at 5, ¶ 32. “A true and authentic copy of the writ of restitution is attached” to the First Amended Complaint as Exhibit E. Id. at 5, ¶ 33. A second copy of the Writ of Restitution, also part of Exhibit E, bears two file-stamps: one of the Dayton Municipal Court Bailiff's Office, March 21, 2024 at 8:54 AM, the second of the Dayton Municipal Court Clerk of Court, March 22, 2024 at 8:38 AM. Ex. E to First Am. Compl. at 2. Ms. Steele asserts that “[n]othing in the [Dayton Municipal Court] file reflects that after issuance of the writ of restitution either the [Dayton Municipal Court] or [NREA or Mr. Lasky] properly served [Ms. Steele] with a Notice of Eviction as required by Dayton Municipal Court Rules 3.7(K).” First Am. Compl. at 5, ¶ 34.

The first eviction attempt occurred on March 28, 2024. Id. at 6, ¶ 37.¹⁸ Ms. Steele alleges that when “the Dayton Municipal Court bailiff [(the “Bailiff”)] and NREA's representatives appeared at the Property to eject [her] and the other occupants” she informed them of her bankruptcy case and put them “in touch with Mr. Cooper, Plaintiff's [former] bankruptcy attorney, and the Dayton Municipal Court bailiff and NREA's representatives left for the day.” Id. The Bailiff returned to 1351 Oakdale, at Defendants’ urging, on April 1, 2024, and “caused the locks to be changed.” Id. at 6, ¶ 38. After discussions between the Bailiff and Ms. Steele's attorneys, “Mr. Cooper and/or Mr. Willison,” Ms. Steele was given a key to the changed locks but was advised the Dayton Municipal Court “would hold an emergency hearing to consider the matter.” Id. at 6, ¶ 39. On April 2, the Dayton Municipal Court held an emergency hearing to determine the applicability of the automatic stay to the eviction. Id. at 6, ¶ 41. Ms. Steele and her attorney, Mr. Willison, and NREA and its attorney, Mr. Lasky, appeared before the Magistrate and made their arguments.¹⁹ Id.

On April 3, 2024, the Magistrate for the Dayton Municipal Court entered the Magistrate's Order (the “April 3 Magistrate's Order”) concluding that the exception to the automatic stay in § 362(b)(22) applied to Ms. Steele's eviction and that Ms. Steele should vacate the property by the end of the day. Id. at 7, ¶ 43; Ex. F to First Am. Compl. In particular, the April 3 Magistrate's Order recounted the history of the Eviction Action, acknowledged that Ms. Steele had filed a chapter 7 bankruptcy, quoted § 362(b)(22), and concluded as follows:

In this case, the Magistrate finds that the Court's March 12, 2024 entry journalizing and adopting the agreed entry is equivalent to a judgment for possession and that the judgment predates Defendant's March 14, 2024 filing for bankruptcy protections. Therefore, pursuant to 11 USCS 362(b)(22) [sic], the bankruptcy automatic stay does not apply and the move-out may proceed.

DEFENDANTS MUST VACATE THE PROPERTY BY 11:59 PM ON APRIL 3, 2024. THE BAILIFF WILL EXECUTE THE WRIT ON APRIL 4, 2024.

April 3 Magistrate's Order at 2 (emphasis in original) (Ex. F to First Am. Compl.). Mr. Willison, Ms. Steele's eviction counsel, faxed to the Dayton Municipal Court and emailed to Mr. Lasky objections to the Magistrate's Order, which were filed at 9:09 a.m. on April 4, 2024. Id. at 8, ¶ 47. Mr. Willison also filed a Motion to Stay Set Out in the Dayton Municipal Court. Id. at 8, ¶ 48.

At about 10:15 a.m. on April 4, 2024, the Bailiff and representatives of NREA “appeared at the Property and gave [Ms. Steele] fifteen (15) minutes to gather minimal belongings and leave with orders to never return.” Id. at 8, ¶ 51. At about 10:30 a.m., the Bailiff locked the doors. Id. at 8, ¶ 52. “The vast majority of [Ms. Steele's] personal property remained inside the Property, including [her] pet cat.” Id. Ms. Steele “drove by the Property at 3:35 p.m.” concerned “largely about the welfare of her cat.” Id. at 8, ¶ 53. “Unfortunately, [Ms. Steele] did not see the cat.” Id. Ms. Steele did notice that some of her personal property had been “dismantled, ruined, and/or cut up and piled outside near the door[,]” including her couch, on which a makeshift sign had been placed that read, “F*** yo couch.” Id.; Photograph (Ex. G to First Am. Compl.). James E. Nobile (“Mr. Nobile”), Ms. Steele's new counsel in this adversary proceeding (and co-counsel in her chapter 7 case), emailed Mr. Lasky to request “information about the disposition or whereabouts of Plaintiff's personal possessions, and about Plaintiff's cat.” Id. at 9, ¶ 56; Email dated Apr. 8, 2024 at 2:46 p.m. (Ex. H). On April 10, 2024, Mr. Lasky responded by email to say “[o]ur client has located the cat.” Id. at 9, ¶ 58; Email dated Apr. 10, 2024 (Ex. I). Mr. Lasky then asked, “[h]ow do you suggest we get the cat to your client?” Id. Mr. Nobile responded by email to Mr. Lasky instructing NREA's representative to call Ms. Steele's daughter to arrange to pick up the cat. Id. at 9, ¶ 60. However, as recounted in the First Amended Complaint, despite numerous alleged follow-up emails by Mr. Nobile to Mr. Lasky, the cat was never returned to Ms. Steele, and Mr. Lasky made conflicting statements about the cat's status at the hearing held in this Court on Thursday, April 11, 2024, stating the cat “was being well cared for and that arrangements would be made for [Ms. Steele's] representative to pick it up.” Id. at 10, ¶ 61.e. But in an email the following day, Mr. Lasky informed Mr. Nobile that “his ‘understanding is that the cat was picked up Wednesday night.’ ” Id. at 10-11, ¶¶ 61.e, 63.a. (emphasis in original).

C. Ms. Steele's Filings in this Court During and After Her Eviction

1. Motion to Determine 11 U.S.C. § 362(b)(22) Inapplicable

On the morning of the day that Ms. Steele was evicted, April 4, 2024, and prior to the deadline to respond to the Motion for Stay Relief, Ms. Steele filed a Motion to Determine 11 U.S.C. § 362(b)(22) Inapplicable (Case No. 24-30467, Doc. 11) (Apr. 4, 2024) (the “Motion to Determine § 362(b)(22) Inapplicable”).²⁰ Id. at 8, ¶ 50. Therein, Ms. Steele asked for “an Order determining that the limited exception provided under subsection 362(b)(22) is inapplicable to the forcible entry and detainer case filed in the Dayton Municipal Court and titled Vinebrook Homes LLC for NREA VB III LLC v. Dana Steele, et al., Case No. 2023 CVG 6454 (Dayton, Ohio MC 2023)[,]” which was filed on November 22, 2023 (Case No. 24-30467, Doc. 11). She further asserted that the Entry prepared and signed by a Magistrate Ebony Wreh of the Dayton Municipal Court (the “Magistrate”) on March 12, 2024, also signed by Judge Franklin Gehres, was not “final” even if it was “the ‘equivalent’ of a judgment for possession[.]” Mot. to Determine § 362(b)(22) Inapplicable at 7, § II.A.

2. Response to Motion for Stay Relief

The next day, April 5, 2024, Ms. Steele filed a Response in Partial Opposition to Motion for Relief from Stay Filed by Vinebrook Homes LLC for NREA VB III, LLC as to 1351 Oakdale Ave., Dayton, OH 45420 (ECF 9) (Doc. 12) (the “Response in Partial Opposition”). First Am. Compl. at 9, ¶ 55. Therein, Ms. Steele complained that movant had continued with its eviction case before obtaining an order on its Motion Relief from Stay. Resp. in Partial Opp. at 1, ¶ 3. And she recounted the events occurring since she filed her Petition, which are similar to allegations she now makes in her First Amended Complaint. Id. at 2-4, ¶ 4.a.-p. However, Ms. Steele stated that she “does not oppose Vinebrook's [Motion for Stay Relief] as it relates to possession of the Property.” Id. at 5. But she did oppose Vinebrook's “right to possess, control or otherwise destroy or dispose of her personal property.” Id. at 6.

3. Agreed Order for Stay Relief and Withdrawal of Motion to Determine § 362(b)(22) Inapplicable

The Court held a telephonic status conference in Ms. Steele's chapter 7 case on April 11, 2024. (Case No. 24-30467, Doc. 13). Messrs. Cooper and Nobile appeared for Ms. Steele, and Mr. Lasky appeared for NREA (Case No. 24-30467, Apr. 11, 2024 Docket Entry). Following the status conference, on April 17, 2024, the Court entered an Agreed Order Granting Motion for Relief from Stay Filed by Vinebrook Homes, LLC for NREA VB III, LLC (ECF 9) (Case No. 24-30467, Doc. 16) (the “Agreed Order for Stay Relief”). The recited agreement of Vinebrook Homes, LLC for NREA VB, LLC was stated as follows:

1. Upon entry of this Agreed Order, the relief sought in Vinebrook's Motion for Relief from Stay is GRANTED.

2. By agreeing hereto without further notice of hearing, the Debtor does not waive any rights she may have against Vinebrook concerning her eviction from the Property or the disposition of her personal property.

Agreed Order for Stay Relief at 2, ¶¶ 1-2. The next day, April 18, 2024, Ms. Steele's bankruptcy attorneys filed a Notice of Withdrawal of: Motion to Determine 11 U.S.C. § 362(b)(22) Inapplicable (ECF 11) (Doc. 17), stating she would “deal with the issues raised therein in separately filed motions or pleadings.”

4. Ms. Steele's Complaint

On April 18, 2024, the same day that Ms. Steele withdrew her Motion to Determine § 362(b)(22) Inapplicable, she filed her Complaint – 11 U.S.C. §[ ]362(k) (Case No. 24-30467, Doc. 18) (the “Complaint”) against NREA initiating this adversary proceeding. (Doc. 1.) The Complaint contained two Counts: “Count I – Declaratory Relief – §[ ]362(b)(22) Inapplicable” and “Count II – 11 U.S.C. §[ ]362(k).” She claimed that by continuing the Eviction Action against her after she filed bankruptcy, NREA had violated the automatic stay under § 362(a)(1), (3), and (6), and was therefore liable for damages under § 362(k).

5. Answer to Complaint

On May 16, 2024, NREA, by and through Mr. Lasky as counsel, filed a two-page Answer of Defendant NREA VB III, LLC (Doc. 4) to the Complaint (the “Answer”). Therein, NREA admitted certain matters, denied others, and asserted various affirmative defenses, including failure to state a claim upon which relief can be granted.²¹ NREA also attached the original Eviction Complaint filed in the Eviction Action on November 22, 2023, as well as the Amended Complaint in Forcible Entry and Detainer – Two Counts, filed on December 18, 2023, which actually just contained one count for eviction based on Ms. Steele's alleged illegal activity—felony drug use— on the Real Property, to which the Nuisance-Abatement Notification was attached.²²

6. Pretrial Orders, Extensions of Trial Schedule, and Other Filings

On the same day the Answer was filed, this Court entered an Order Governing Pretrial and Trial Procedures in Adversary Proceedings ․, Ordering Preliminary Pretrial Statement, and Ordering Other Matters (Doc. 1) (Doc. 5), which required the parties to file Preliminary Pretrial Statements by June 18, 2024. The parties timely filed those Preliminary Pretrial Statements (Docs. 9 and 10). Each party's statements of the case therein essentially focused on whether the exception in § 362(b)(22) to the automatic stay did or did not apply to NREA's continued prosecution of the Eviction Action in Dayton Municipal Court, and therefore whether Ms. Steele is entitled to recover damages under § 362(k). The parties seemingly agreed upon discovery and dispositive motion deadlines that would have culminated in a trial in late December 2024. An Order Setting Pretrial Conference by Phone in Adversary Proceeding (Doc. 1) (Doc. 13) was entered on June 26, 2024, setting the conference for July 18. On July 17, 2024, new counsel for NREA with Taft, Stettinius & Hollister, LLP (“Taft”) filed Notices of Appearance (Docs. 17 and 18).

The pretrial conference was held on July 18, 2024, and this Court entered a Final Pretrial Order (Doc. 20) (the “Final Pretrial Order”) on July 19, 2024, which set various filing dates, set discovery cut-off dates, scheduled a trial, and ordered other matters.²³

On November 13, 2024, the parties submitted a Joint Stipulation Permitting Defendant to File Amended Answer to Plaintiff's Complaint (Doc. 22), to which an Amended Answer and Affirmative Defenses of NREA VB III, LLC USA, Inc. (the “Amended Answer”) was attached. The Amended Answer (Doc. 23) was separately filed the same day. Both the Joint Stipulation and Amended Answer were signed only by NREA's new counsel at Taft, not by Mr. Lasky. NREA continued to assert in its Amended Answer that Plaintiff's “Complaint fail[ed] to state a claim against NREA upon which relief can be granted.” Am. Answer at 20, ¶ 1.

On January 10, 2025, the Court entered a Joint Stipulation and Consent Order (Doc. 24) (the “Joint Stipulation and Consent Order”) that extended the discovery cut-off dates, cancelled the existing trial date, and ordered other matters, as well as set a new schedule culminating in a deadline to respond to motions for summary judgment by August 15, 2025, with no rescheduled trial date. The parties represented that they believed these extensions would allow them to continue discussions “aimed at resolving this matter in the most efficient manner possible ․” Joint Stip. and Consent Order at 2. On March 21, 2025, NREA filed a Second Amended Answer and Affirmative Defenses of NREA VB III, LLC USA, Inc. (Doc. 27) (the “Second Amended Answer”), and a corresponding Joint Stipulation (Doc. 28) to permit NREA to file that Second Amended Answer was filed on March 26, 2025.

Almost two months later, on May 20, 2025, the Court entered another Joint Stipulation and Consent Order (Doc. 30) (the “Second Joint Stipulation and Consent Order”) submitted by the parties, on the same basis (allowing the parties to continue discussions to resolve this matter), which set a new schedule culminating with final trial briefs being due on October 12, 2025, but left a trial date to be determined. Second Joint Stip. and Consent Order at 2. Discovery then heated up, as indicated by a Motion to Compel (Doc. 31) filed by Ms. Steele on May 23, 2025, a status conference held on May 28, 2025, and another Joint Stipulation and Consent Order (Doc. 35) (the “Third Joint Stipulation and Consent Order”) entered on May 29, 2025, immediately followed by a Motion to Quash and for Protective Order (Doc. 36) filed by NREA, seeking to quash a deposition subpoena that Ms. Steele issued to NREA's prior Counsel, Mr. Lasky. The Third Joint Stipulation and Consent Order further extended the case schedule (on the same basis), such that final trial briefs would be filed by December 16, 2025. Third Joint Stip. and Consent Order at 2.

This adversary proceeding was transferred to the current Bankruptcy Judge on June 3, 2025. On June 6, 2025, Mr. Lasky moved to withdraw as counsel for NREA, as Defendant (Doc. 38), because NREA had hired replacement counsel. In addition, also on June 6, 2025, attorneys with Taft filed a Notice of Substitution of Counsel for Defendant NREA VB III, LLC (Doc. 39). The Order (Doc. 41) permitting Mr. Lasky to withdraw as counsel for Defendant NREA was entered on June 13, 2025. Also on June 13, 2025, the Court entered another Joint Stipulation and Consent Order (Doc. 42) (the “Fourth Joint Stipulation and Consent Order”), which appeared to duplicate the Third Joint Stipulation and Consent Order, except that it contained a Certificate of Service.

Without reciting all the prior filings concerning discovery, the Court entered a Stipulated Protective Order (Doc. 46) on June 16, 2025, and then entered an Order Scheduling a Hearing on the Contested Matters (Docs. 31, 36 & 47), Requiring Filings, and Ordering Other Matters (Doc. 51) (the “Scheduling Order”) on July 11, 2025, scheduling an evidentiary hearing on August 15, 2025, on three discovery-related motions. On August 8, 2025, the Court entered a Stipulation and Consent Order (Doc. 57), by which the parties agreed that Ms. Steele's Motion to Compel (Doc. 31) was moot and that her Motion to Compel (Doc. 36) and NREA's Opposition (Doc. 49) were withdrawn.

On August 12, 2025, the parties submitted the Stipulations of the Parties (Doc. 60) in accordance with the Court's Scheduling Order although they were very limited in scope. On August 14, 2025, the Court held a hearing on the remaining contested discovery matters, rendered an oral decision on August 22, 2025, and on August 27, 2025 issued its Order in Accordance with Court's Oral Decision Denying: (I) Defendant NREA VB III, LLC's Motion to Quash and for Protective Order, (II) Montgomery County Prosecutor's Office's Motion to Quash Subpoena Duces Tecum (Doc. 47), and (III) Requiring a Status Report (Doc. 63).

On October 7, 2025, Ms. Steele filed a Motion for Contempt (Doc. 65) against the Montgomery County, Ohio Prosecutor. NREA then filed, on October 14, 2025, an unopposed Motion for Leave (Doc. 66) to file a Third Amended Answer and to assert a Third-Party Complaint. On October 22, 2025, the Court entered an Order (Doc. 68) (the “Order Granting Leave”) granting NREA's Motion for Leave, although this Court noted that it might not have the ability to enter a final judgment on the Third-Party Complaint in accordance with Article III of the United States Constitution. Order Granting Leave at 2-3. The next day, October 23, 2025, NREA filed its Third Amended Answer, Affirmative Defenses, and Third-Party Complaint of NREA VB III, LLC (Doc. 69) (in part, the “Third-Party Complaint”) which added a third-party claim for indemnification and contribution against Mr. Lasky and his firm, Lasky & Scharrer. The former Counsel turned Third-Party Defendant, Mr. Lasky, along with his law firm Lasky & Scharrer, filed a Motion of Third-Party Defendants to Stay Proceedings on Third-Party Complaint (Doc. 77) (the “Motion to Stay”) on November 13, 2025.

On December 2, 2025, Ms. Steele filed her Plaintiff's Motion for Leave to File First Amended Complaint (Doc. 82) (“Plaintiff's Motion for Leave”) in which she sought to name Mr. Lasky as an additional Defendant “and to include specific allegations surrounding LASKY's [Montgomery County Prosecutor's Office] activity that could be connected to Plaintiff's stay violation claims.” Pl.’s Mot. for Leave at 5, ¶ 14.

In the meantime, on December 16, 2025, Mr. Lasky and the Lasky & Scharrer law firm filed Third-Party Defendants’ Supplemental Motion to Stay Proceedings (Doc. 84) (the “Supplemental Motion to Stay”)²⁴ asking this Court to defer consideration of the proposed First Amended Complaint “until pending state court proceedings are resolved” in order to avoid “duplicative litigation[.]” Suppl. Mot. to Stay at 1. A copy of a Motion for Summary Judgment filed by Mr. Lasky and Lasky & Scharrer in a case captioned Vinebrook Homes, LLC v. Lasky, Case No. 2025 CV 05798, in the Common Pleas Court of Montgomery County, Ohio, Civil Division, filed on December 11, 2025, was attached, which likewise concerned claims asserted by NREA, or an affiliate, against the new Third-Party Defendants regarding the Eviction Action.

On January 1, 2026, the Court entered an Order (Doc. 91) scheduling a hearing for February 3, 2026 at 10:00 a.m. on the Third-Party Defendants’ Motion to Stay Proceedings on Third-Party Complaint (Doc. 77) and NREA's Response in Opposition (Doc. 81). The next day, Ms. Steele filed her First Amended Complaint (Doc. 93), which is further described below.

7. First Amended Complaint

As noted above, on January 2, 2026, Ms. Steele filed her First Amended Complaint. Similar to the prior Complaint, it contained two counts: “Count I – Declaratory Relief – §[ ]362(b)(22) Inapplicable” and “Count II – 11 U.S.C. §[ ]362(k).” First Am. Compl. at 13-18. Once again, Ms. Steele set out two claims. Count I, which is virtually unchanged, seeks declaratory relief deeming the stay exception in 11 U.S.C. § 362(b)(22) inapplicable. Count II, which is also virtually unchanged, seeks attorney fees and actual and punitive damages for a violation of the stay under 11 U.S.C. § 362(k).

The factual allegations were largely the same; however, Ms. Steele added certain allegations concerning actions by Mr. Lasky, who had already been brought in by NREA as a Third-Party Defendant, along with his law firm, but was now also a Defendant to the First Amended Complaint based upon his involvement in representing NREA in the Eviction Action. See, e.g., First Am. Compl. at 6-7, ¶ 42 (newly added paragraph with subparagraphs a, b, and c, concerning Mr. Lasky's representations or statements to the Magistrate of the Dayton Municipal Court at the hearing held on April 2, 2024, regarding the applicability of § 362(b)(22) and whether the Eviction Action could proceed). Ms. Steele also added new paragraphs 69 through 80, which concern a letter regarding Mr. Lasky's brief assignment to Ms. Steele's criminal case as an Assistant County Prosecutor for Montgomery County, Ohio, and other aspects of Ms. Steele's on-going criminal case. In particular, an affidavit in support of the October 2, 2023 search warrant indicated that the Dayton Police Department found methamphetamine residue in the trash outside the Property; witnessed Ms. Steele's brother, Damon Steele, cleaning out one or more of the garbage receptacles; and found a shotgun and crystalline and liquid methamphetamine in or on the Property during the search. See First Am. Compl. at 12-13, ¶ 75.a.-e.; Search Warrant (Ex. M to First Am. Compl.) (Doc. 93-13). Ms. Steele also alleges, “upon information and belief,” that Mr. Lasky “was not randomly assigned to Plaintiff's criminal case prosecution.” Id. at 13, ¶ 77.²⁵

Overall, the First Amended Complaint is 18 pages with 99 numbered paragraphs, whereas the original Complaint was 15 pages with 86 numbered paragraphs; however, the First Amended Complaint is substantially the same, including fairly detailed factual allegations concerning the events leading up to Ms. Steele's bankruptcy filing, continuation of the Eviction Action, and filings in Ms. Steele's chapter 7 bankruptcy case. The main difference is that this time, Ms. Steele seeks to hold NREA and Mr. Lasky jointly and severally liable or, as appropriate, separately liable. First Am. Compl. at 18.

Distilling Count I of the First Amended Complaint to its essence, Ms. Steele asserts as follows:

88. Plaintiff is entitled to a declaratory ruling that the exception provided by 11 U.S.C. §[ ]362(b)(22) is inapplicable to any order coming from the [Dayton Municipal Court] prior to March 14, 2024, at 9:[3]8 p.m., and specifically, the March 12, 2024, “Entry”.

89. Because the automatic stay under 11 U.S.C. §[ ]362(a) was in full force and effect after 9:[3]8 p.m. on March 14, 2024, any actions taken thereafter by Defendant, or indeed the [Dayton Municipal Court], inclusive of the Magistrate's Order dated April 3, 2024 (Exhibit F) are invalid and without legal force or effect. Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th Cir. 1993).

First Am. Compl. at 15, ¶¶ 88-89. Piggybacking on Count I, in Count II of the First Amended Complaint Ms. Steele seeks damages under § 362(k), both actual and punitive:

95. Plaintiff has suffered injuries caused by Defendants’ willful violations of the automatic stay, which include but are not limited to the following: a. Premature dispossession of the Property;

a. Premature dispossession of the Property;

b. Permanent dispossession and destruction of the vast majority of her personal property;

c. Continuing and permanent[ ] dispossession of Plaintiff's pet cat;

d. Extreme emotional distress;

e. Trauma and emotional distress for her child.

96. Defendants have acted egregiously and vindictively towards Plaintiff.

97. Defendants have acted in bad faith and with reckless disregard for the law.

98. Plaintiff is entitled to recover her actual damages, costs and reasonable attorney fees and expenses.

99. Plaintiff, under these circumstances, is entitled to recover appropriate punitive damages.

Id. at 17-18, ¶¶ 95-99.

8. More Filings

On January 7, 2026, after filing her First Amended Complaint, Ms. Steele jumped into the fray of the third-party matters by filing a Response in Opposition to Third Party Defendant's Supplemental Motion to Stay Proceedings (ECF AP 84) (Doc. 99) (the “Response in Opposition to Motion to Stay”). As with Mr. Lasky and Lasky & Scharrer's original Motion to Stay, Ms. Steele's Response in Opposition to Motion to Stay focused on § 362(b)(22) and related issues, arguing that the Entry of Restitution “was neither final nor non-appealable.” Resp. in Opp. to Mot. to Stay at 6, ¶ 20. In response, Mr. Lasky and Lasky & Sharrer filed their Response to Memorandum in Opposition to Pending Motion for Stay (Doc. 101).

On January 15, 2026, the Court entered the Agreed Order Modifying Order Scheduling Hearing (Doc. 91) on Third Party Defendants’ Motion to Stay (Doc. 77) (Doc. 104), moving the hearing from February 3 to 12, 2026. Meanwhile, the Court held a telephonic hearing on January 20, 2026, on Ms. Steele's Motion to Hold Montgomery County, Ohio Prosecutor in Contempt Pursuant to Fed. R. Civ. P. 45(g) (Doc. 65).

9. Defendant NREA's Motion to Dismiss and Motion to Strike, and Ms. Steele's Response

As noted above, NREA filed its Motion to Dismiss on January 16, 2026, supposedly pursuant to Civil Rule 12(b)(1) and (b)(6), made applicable by Bankruptcy Rule 7012(b). In the alternative, NREA included a Motion for a More Definite Statement, pursuant to Civil Rule 9(g), made applicable by Bankruptcy Rule 7009, and Civil Rule 12(e). As NREA summarized therein:

The primary question before the Court is whether NREA's actions in evicting [Ms.] Steele, based upon a prepetition judgment, qualify for the exemption to the automatic stay set forth in 11 U.S.C. § 362(b)(22). Through her First Amended Complaint, Plaintiff alleges NREA's actions were not exempt and seeks damages from NREA and its former counsel because the act of evicting [Ms.] Steele occurred after she had filed her bankruptcy petition. Irrespective of the bankruptcy filing, 11 U.S.C. § 362(b)(22) makes it clear that an eviction based on a final prepetition judgment for possession entered before her bankruptcy filing is exempted from the automatic stay set forth in 11 U.S.C. § 362(a).

Mot. to Dismiss at 4, § I. Moreover, NREA asserts that its postpetition actions were simply the continuation of the eviction and the “post-petition issuance of the writ of restitution was merely a ministerial act,” such that the First Amended Complaint does not state a valid claim and “[e]ven accepting the pleaded facts as true, the Complaint fails to state a claim, and it should be dismissed as to NREA.” Id. NREA further argued that its actions could not be a willful violation of the stay because it relied on a colorable court order from the Dayton Municipal Court, the Plaintiff failed to invoke the procedure under § 362(l) when a prepetition judgment for possession existed, and the Declaratory Judgment count was plead incorrectly and legally defective, and also that the Plaintiff failed to properly plead special damages under Civil Rule 9(g). Id. at 12-17, § V.²⁶

NREA's Motion to Dismiss avers that “[e]ven accepting the allegations in the Amended Complaint as true, Plaintiff fails to state any viable claim directly against NREA.” Mot. to Dismiss at 9, ¶ 18. At the same time, NREA asserts that “[w]hen a creditor proceeds under a facially valid, ‘colorable’ court order or legal authority, any stay violation should not be considered ‘willful’ for purposes of damages.” Mot. to Dismiss at 12, ¶ 30 (citing In re Univ. Med. Ctr., 973 F.2d 1065 (3d Cir. 1992); Cal. Coast Univ. v. Aleckna (In re Aleckna), 13 F.4th 337 (3d Cir. 2021)). And because Ms. Steele did not invoke the procedure under § 362(l), the automatic stay exception of § 362(b)(22) applied, such that no automatic stay was ever in effect as to the Eviction Action and NREA was entitled to proceed to evict Ms. Steele. Mot. to Dismiss at 13-15, ¶¶ 33-41. NREA further asserts that there is no “case of actual controversy” that would satisfy the Declaratory Judgment Act's requirement, wherein Ms. Steele asks the Court “to declare that 11 U.S.C. § 362(b)(22) ‘is inapplicable to any order coming from the [Dayton Municipal Court] prior to March 14, 2024, at 9:48 p.m., and specifically, the March 12, 2024 ‘Entry’.’ ” Mot. to Dismiss at 17, ¶ 49 (citing First Am. Compl., ¶ 88 (emphasis in original)). However, NREA also asserts that Ms. Steele's “claim for declaratory judgment is entirely subsumed within her second cause of action” such that it is “procedurally unnecessary and redundant.” Mot. to Dismiss at 16, ¶ 44. As to Ms. Steele's “demand for emotional distress and punitive damages[,]” NREA asserts that “[h]er bare, speculative assertions of emotional and property-related harm, ․ do not satisfy Rule 9(g)’s requirement that special damages be specifically stated ․” Mot. to Dismiss at 19, ¶ 55.

On January 21, 2026, NREA filed a Notice of its Motion to Dismiss (Doc. 109), giving parties twenty-one days to respond.

On February 9, 2026, in and amongst the parties gearing up for a hearing on the Motion to Stay filed by Mr. Lasky and Lasky & Sharrer (see Docs. 110-115), Ms. Steele filed her Motion to Strike and/or to Summarily Deny Defendant, NREA VB III, LLC's Motion to Dismiss First Amended Complaint and Motion for a More Definite Statement (AP ECF 106 & 108) (Doc. 116). Then, on February 11, 2026, Ms. Steele filed her Response in Opposition to NREA VB III, LLC's Motion to Dismiss First Amended Complaint and Motion for a More Definite Statement (ECF AP 106) (Doc. 117) (the “Response”). Pursuant to LBR 9013-1(c) a reply memorandum was due within seven days after the date of service of the Response, so by February 11, 2026, but NREA did not file a reply.

Within her Response, Ms. Steele first asserts that NREA and Mr. Lasky violated subsection (a)(1) of the automatic stay, essentially by continuing the Eviction Action. Resp. at 6, § III.A.1. Ms. Steele also argues that NREA and Mr. Lasky violated the automatic stay by “engaging in the specifically described various and multiple acts to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate – (11 U.S.C. §[ ]362(a)(3) emphasis added); (to wit: Plaintiff's possessory rights in the Property, Plaintiff's personal property, and Plaintiff's pet cat, ‘DJ Gucci DJ’).” Resp. at 6, § III.A.1 (citing First Am. Compl. at ¶¶ 1-54, 93b, 94a-i). Of note, nowhere in the Response does Ms. Steele assert that NREA or Mr. Lasky violated subsection (a)(6) of the automatic stay (§ 362), instead focusing on subsections (a)(1) and (a)(3). Resp. at 5, § III.A.

Also within her Response, Ms. Steele takes issue with the two cases mentioned above cited by NREA, as involving a specific limitation on potential damages, but not having to do with establishing a claim under § 362(k)(1) for damages for violation of the automatic stay. See Resp. at 8-11, § III.A.2 (discussing Univ. Med. Ctr., 973 F.2d 1065 and Cal. Coast Univ., 13 F.4th 337). Ultimately, Ms. Steele's response is that she is not required to prove all of her claims at this time; rather, because they have been adequately pled, she will have “to prove these damages with adequate evidence at trial.” Resp. at 12 (citing Dawson, 665 B.R. at 804-05). And that she “has no quarrel with the Court weighing in on [the] issue of whether 11 U.S.C. § 362(b)(22) applied.” Resp. at 13, § III.B. And Ms. Steele appears to agree with Mr. Lasky that a defendant in an FE&D action needs to seek a stay of execution and post a bond, lest “all issues relating to forcible entry and detainer are rendered moot.” Resp. at 15, n.2 (citing Tripp v. French, 2002-Ohio-6996, at ¶ 8 (9th Dist.) (other citations omitted). Ms. Steele, however, skips over the necessary step of seeking a stay of judgment of restitution under R.C. § 1923.14 in order to preserve a right of appeal. This issue is discussed in-depth in the analysis below. Moreover, the acknowledgment of a right of appeal implicitly concedes that the March 12 Entry for restitution of the Real Property was final and appealable. See Resp. at 15-17, § III.B.1.

Interestingly, Ms. Steele further avers in her Response that “some question should be raised about what really constitutes a ‘judgment for possession’ under Ohio law.” Resp. at 17, § III.B.1. She posits that “it would be connected only to the writ of restitution – which under these circumstances could not issue until after March 15, 2024 – and in fact did not issue until March 20, 2024.” Id. In conjunction, she argues that only non-appealable final judgments for possession fall within the narrow application of the exception in § 362(b)(22). Resp. at 17-18, § III.B.2. This will also be addressed in-depth in the analysis below. Last, Ms. Steele asserts that § 362(l) was inapplicable, but in doing so confirms that she “never attempted to invoke the exception to the exception found in 11 U.S.C. §[ ]362(l) because “[s]he knew and understood that (sooner than later) she would be obligated to leave.” Resp. at 18, § III.B.3. And she argues that § 362(l) did not apply because she was being evicted for a “non-monetary default[.]” Resp. at 19, § III.B.3. Last, Ms. Steele contends that In re Maggiore, No. 16-60234, 2016 Bankr. LEXIS 972, 2016 WL 1238852 (Bankr. N.D. Ohio Mar. 29, 2016) is “inapposite” because “had the Judge been confronted with the precise issue he would have addressed whether the underlying judgment remained appealable (which it was) and ruled consistently with decisions finding that determinative.” Resp. at 19, § III.B.4.

10. Subsequent Proceedings and Filings

The hearing on Mr. Lasky and Lasky & Sharrer's Motion to Stay was held on February 12, 2026, with all parties and counsel in attendance. On February 16, 2026, the Court entered an Order (Doc. 119) concerning Ms. Steele's motion to hold the Montgomery County, Ohio Prosecutor in contempt pursuant to Civil Rule 45(g) (Doc. 65), which Ms. Steele's counsel decided not to further pursue as a result of the discussion on the record at the hearing held on January 20, 2026. And on February 20, 2026, this Court entered its wide-ranging Order (Doc. 121) (the “Order Denying Motions and Setting Deadlines”) ruling on a number of matters filed with the Court and argued at the hearing held on February 12, 2026, as detailed therein. As noted in the Order Denying Motions and Setting Deadlines, in the Third-Party Defendants’ last filing, the Third-Party Defendants’ Response to Plaintiff's Supplemental Memorandum (and Motion in Limine Re) (Doc. 115), filed on February 5, 2026, they “pivoted to arguing that all the claims against Mr. Lasky and his firm should be dismissed ․” Order Denying Motions and Setting Deadlines at 5. But consideration of dismissal of this adversary proceeding at that point was premature. As explained therein:

The Court advised the parties it would not be considering dismissal of this adversary proceeding at the Hearing, particularly given that the Third-Party Defendants: (1) had not filed a motion to dismiss either the Third-Party Complaint or the First Amended Complaint; and (2) had already filed an Answer of Third-Party Defendants, Laurence Lasky and Lasky & Scharrer to Plaintiff's First Amended Complaint (Doc. 105). Further, with respect to the implication that this Court would be bound by the Dayton Municipal Court's prior determination that the automatic stay did not apply due to the exception in 11 U.S.C. § 362(b)(22), and although the parties did not brief the issue, the Court advised that based on decisions by the United States Court of Appeals for the Sixth Circuit, while non-bankruptcy courts may independently determine whether the automatic stay applies and proceed when they determine it does not, that comes with a major practical caveat: Succinctly put, they “proceed[ ] at their own risk.” See NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 939-40 (6th Cir. 1986). Moreover, the Rooker-Feldman doctrine does not preclude this Court from determining the applicability of the automatic stay in this adversary proceeding. See, e.g., McClafferty v. DeWine (In re McClafferty), 571 B.R. 267, 273 (Bankr. N.D. Ohio 2017) (concluding that “the Rooker-Feldman doctrine does not prohibit all federal cases that are somehow related to a prior state-court decision.” (citing Hamilton v. Herr (In re Hamilton), 540 F.3d 367, 372 (6th Cir. 2008)).

As a result, counsel for the Third-Party Defendants asked for leave to file a motion to dismiss and given that there is already a pending motion to dismiss the First Amended Complaint, filed by Defendant, the Court stated that it would permit the Third-Party Defendants to do the same.

Order Denying Motions and Setting Deadlines at 5-6 (footnote 2 omitted).

As a result of the hearing held on February 12, 2026, the Third-Party Defendants’ Motion to Stay (Doc. 77) and Amended Supplemental Motion to Stay (Doc. 88) were denied without prejudice, and the Third-Party Defendants were granted leave to file: “(a) a motion to dismiss the First Amended Complaint (Doc. 93), pursuant to [Civil Rule 12] ․, and (b) an answer or motion to dismiss the Third-Party Complaint (Doc. 69) ․ and/or motion for abstention of the [T]hird-[P]arty Complaint, pursuant to Bankruptcy Rules 5011(b) and 9014, and 28 U.S.C. § 1334(c).” Additionally, the Motion in Limine (Doc. 114) was denied as moot, and Ms. Steele's Motion to Strike (Doc. 116) was denied based on the following analysis:

Finally, because Plaintiff obtained leave to, and did, file her First Amended Complaint (Doc. 93) on January 2, 2026, which replaced Plaintiff's original Complaint – 11 U.S.C. § 362(k) (Doc. 1) (the “Complaint”) for all purposes, [ ] Defendant was entitled to another opportunity to move or answer in response pursuant to Civil Rule 15(a)(3), made applicable to this adversary proceeding by Bankruptcy Rule 7015. See, e.g., Wesley v. Rigney, 913 F.Supp.2d 313 (E.D. Ky. 2012). Accordingly, Plaintiff's Motion to Strike (Doc. 116) is DENIED.

Order Denying Motions and Setting Deadlines at 8 (footnote 3 omitted) (emphasis in original).

Mr. Lasky and Lasky & Sharrer did not file a motion to dismiss the First Amended Complaint, for which they had been granted leave under the Order Denying Motions and Setting Deadlines. Instead, on March 3, 2026, they filed Third-Party Defendant's Motion for Leave to File Motion for Summary Judgment (Doc. 124) (the “Motion for Leave”), arguing that “the First Amended Complaint should ․ be dismissed as to him with prejudice.” Mot. for Leave at 2. At its core, the proposed Motion for Summary Judgment Dismissing First Amended Complaint (Doc. 124-1), which was attached to the Motion for Leave, asserts that § 362(b)(22) applied to except the prosecution of the Eviction Action from the automatic stay. See Mot. for Summ. J. at 12 (Doc. 124-1) (“The only two questions of relevance before this Court are whether the March 12, 2024 [Judgment] constituted a judgment for possession? And if so, what is the resulting effect on Steele's underlying amended complaint against Lasky?”).

On March 5, 2026, the Third-Party Defendants also filed an Answer (Doc. 126) to NREA's Third-Party Complaint (Doc. 69), along with a Motion to Dismiss Third-Party Complaint or, in the alternative, Motion to Abstain from Exercising Jurisdiction to Hear Third-Party Complaint (Doc. 127). On March 11, 2026, Ms. Steele filed a Response in Opposition to Laurence A. Lasky's Motion for Leave to File Motion for Summary Judgment or in the Alternative for Relief Under Fed. R. Civ. P. 56(d) (ECF 124) (Doc. 130) (the “Response to Motion for Leave”), in which she asked the Court to either deny or defer ruling on the Motion for Leave, pursuant to Civil Rule 56(d), “until after Plaintiff has reported to the Court that she has completed her discovery as to [Mr. Lasky].” Resp. to Mot. for Leave at 4, ¶ 10. Mr. Lasky filed a Reply (Doc. 132) to the Response to Motion for Leave on March 17, 2026, in which he asserted that “[r]espectfully, no testimony of Lasky can or would change what the pre-existing court records of the Dayton Municipal Court are, or this Court's interpretation of them.” Reply at 3. Therein, Mr. Lasky asked the Court to “rule only upon the purely legal issues related to Plaintiff's §[ ]362(k) causes of action, which does not require this Court to take into consideration Lasky's affidavit.” Reply at 3.

D. Joint Request for Mediation

Following some further discovery activity, NREA, as Defendant and Third-Party Plaintiff, and Ms. Steele, as Plaintiff, filed a Joint Request for Mediation (Doc. 142) (the “Request for Mediation”) on June 5, 2026, to request mediation of all issues raised in this adversary proceeding. However, on the local form provided on this Court's website they checked the box to indicate that not all parties were requesting mediation. Specifically, Mr. Lasky and his law firm Lasky & Scharrer did not join in the Request for Mediation. Therefore, in accordance with this Court's Mediation Procedures,²⁷ which provide that “[i]f the Request for Mediation does not certify that all parties consent, the Request for Mediation may be set for hearing[,]” the Court scheduled a telephonic status conference through a virtual docket entry (Doc. 143) on June 18, 2026. The following day Third-Party Defendants Mr. Lasky and Lasky & Scharrer, simply referred to therein as “Lasky,” filed a Motion for Leave to Supplement Motion for Summary Judgment Dismissing the First Amended Complaint as to Lasky (Doc. 145), which was one of a string of filings through which Lasky has sought to stay or dismiss the claims against them in this Court.²⁸

E. Status Conference on Request for Mediation

Counsel for Ms. Steele, NREA, and Lasky, participated in the telephonic status conference on June 23, 2026, to discuss the Request for Mediation and the scope of mediation. After some discussion, it became clear that the one issue the parties all agreed upon was that they wanted this Court to rule on the applicability of the eviction exception to the automatic stay in § 362(b)(22) to the facts alleged in this adversary proceeding as the lynchpin to facilitating the resolution of this adversary proceeding, by mediation or otherwise. And in response to a follow-up question by the Court, the parties agreed that the Court had all the necessary filings before it to rule on this legal issue.

IV. Analysis

A. Civil Rule 12(b)(6)

NREA seeks to dismiss the First Amended Complaint for failure to state a claim under Civil Rule 12(b)(6). A claim may be dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Civil Rule 12(b)(6) motion, a reviewing court “must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint ‘contains enough facts to state a claim to relief that is plausible on its face.’ ” Sutton v. Berkley (In re Berkley), No. 24-1072, 2025 Bankr. LEXIS 227, at *6 (Bankr. N.D. Ohio Feb. 5, 2025) (quoting U.S. v. Ford Motor Co., 532 F.3d 496, 502 (6th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 569 (2007))). The plausibility standard requires that there be “more than a sheer possibility that a defendant has acted unlawfully” and that “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcraft v. Iqbal, 556 U.S. 662, 678 (2007). Analyzing plausibility is a context-specific task. See Berkley, 2025 Bankr. LEXIS 227, at *7 (citing Iqbal, 556 U.S. at 663). And courts may “draw upon [their] ‘judicial experience and common sense’ to decide whether the claims are ‘plausible.’ ” Crawford v. Tilley, 15 F.4th 752, 762 (6th Cir. 2021) (quoting Iqbal, 556 U.S. at 679).

The general threshold for a complaint to survive a Civil Rule 12(b)(6) defense is “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” which allows the defendant fair notice of the claim and its grounds. Fed. R. Civ. P. 8(a)(2);²⁹ Twombly, 550 U.S. at 555. This standard requires more than reliance on mere conclusory allegations or unsupported legal conclusions. Go-Mart v. Bazell (In re Bazell), 677 B.R. 836, 843(Bankr. S.D. Ohio 2026) (citing Twombly, 550 U.S. at 570)). Under Civil Rule 8, a “complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory.” Berkley, 2025 Bankr. LEXIS 227, at *8, 2025 WL 426476, at *3 (citing Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008)). Although factual allegations by the non-moving party must be taken as true and all inferences drawn in favor of the non-moving party, “a legal conclusion couched as a factual allegation” need not be taken as true. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

Civil Rule 12(b)(6) exists for the purpose of permitting NREA “to test whether, as a matter of law,” Ms. Steele “is entitled to relief even if everything alleged in” her First Amended Complaint “is true.” McKee Foods Corp. v. Pitney Bowes, Inc., No. 1:06-cv-80, 2007 U.S. Dist. LEXIS 20630, at *4-5 (E.D. Tenn. Mar. 22, 2007) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). “A complaint should not be dismissed for failure to state a claim unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” McKee Foods, 2007 U.S. Dist. LEXIS 20630 at *5 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Arrow v. Fed. Reserve Bank, 358 F.3d 392, 393 (6th Cir. 2004)).

B. Consideration of Attachments to a Complaint Under Civil Rule 10(c)

Plaintiff included thirteen (13) attachments to the First Amended Complaint, labeled Exhibits A-M (collectively, the “Exhibits”). The Exhibits, which Ms. Steele represents are “true and authentic copies,” are as follows:

(A) the Lease;

(B) the deed to the Real Property;

(C) Mr. Lasky's “Agreed Entry” proposed on or about January 16, 2024;

(D) the March 12 Entry for restitution of the Real Property;

(E) the Writ of Restitution;

(F) the April 3 Magistrate's Order;

(G) the photograph of Ms. Steele's personal belongings, post-eviction (and the makeshift sign);

(H) an email from Ms. Steele's bankruptcy counsel dated April 8, 2024, asking about “the disposition or whereabouts of Plaintiff's personal possessions, and about Plaintiff's cat”;

(I) an email from Mr. Lasky dated April 10, 2024 to Ms. Steele's bankruptcy counsel stating that NREA “ ‘located the cat’ and asked for suggestions as to how to get the cat to Plaintiff”;

(J) an email from Ms. Steele's counsel to Mr. Lasky, dated April 16, 2026, asking about the whereabouts of the cat and other matters;

(K) a letter from Mr. Lasky to Ms. Steele's bankruptcy counsel, sent on or about November 7, 2024, disclosing his role as an Assistant County Prosecutor for Montgomery County, Ohio in the criminal division and his random assignment to Ms. Steele's criminal case;

(L) a state court subpoena ad testificandum signed by Mr. Lasky on October 8, 2024, for Detective Jason M. Barnes with the Dayton, Ohio P.D. to appear and testify before a grand jury on October 23, 2024; and

(M) a Search Warrant dated September 29, 2023, which was executed on October 2, 2023 at the Real Property.

Civil Rule 10(c), which is made applicable to this proceeding through Bankruptcy Rule 7010, states that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Courts have typically defined an “ ‘instrument’ ․ as ‘a written legal document that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will, promissory note, or share certificate.’ ” LaGuardia v. Designer Brands, Inc., No. 2:20-cv-2311, 2020 U.S. Dist. LEXIS 199262, at *11, 2020 WL 6280910, at *4 (S.D. Ohio Oct. 27, 2020) (citing Gooden v. Batz, No. 3:18-cv-302, 2019 U.S. Dist. LEXIS 122610, at *13, 2013 WL 3318164, at *4 (S.D. Ohio July 22, 2019) (citing Instrument, Black's Law Dictionary (11th ed. 2019) and collecting cases)).

Additionally, under Sixth Circuit precedent, documents attached to the pleadings that are “referred to in the pleadings and ․ integral to the claims ․ may be considered without converting a motion to dismiss into one for summary judgment.” Commer. Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007) (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). Ms. Steele mentions and relies on each of the Exhibits attached to the First Amended Complaint. Therefore, the Court will consider the attached Exhibits as incorporated within the First Amended Complaint. See also In re Bazell, 677 B.R. at 843-44 (collecting cases and summarizing Sixth Circuit case law allowing for consideration of documents attached to a complaint in the motion to dismiss context.). Moreover, as discussed below, it is appropriate for the Court to consider the docket of the Dayton Municipal Court for the Eviction Action in order to put the allegations in and orders attached to the First Amended Complaint in context.

C. Declaratory Judgment Act

Ms. Steele's first count (Count I) seeks a “declaratory ruling” from this Court that “§ 362(b)(22) is inapplicable to any order coming from [Dayton Municipal Court] prior to March 14, 2024, at 9:[3]8 p.m., and specifically, the March 12, 2024, ‘Entry’.” First Am. Compl. at 15, ¶ 88. NREA's invocation of the stay exception in § 362(b)(22) is a possible defense to Ms. Steele's second count for a violation of § 362(k). Ms. Steele does not explain how the Declaratory Judgment Act applies in this adversary proceeding; however, it is clear that the parties fervently dispute whether the eviction exception applied to NREA's acts to continue the Eviction Action. And regardless of whether the Declaratory Judgment Act applies, the Court will still have to analyze the applicability of § 362(b)(22) to reach a conclusion regarding Ms. Steele's second count (Count II) alleging a violation of the automatic stay and seeking damages under § 362(k).

Nevertheless, the Declaratory Judgment Act, as set forth in 28 U.S.C. § 2201(a), allows a court to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought” regarding “a case of actual controversy within its jurisdiction.” A controversy is a “real, substantial” conflict between “parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Sankyo Corp. v. Nakamura Trading Corp., 139 Fed. App'x. 648, 650 (6th Cir. 2005) (quoting Babbit v. United Farm Workers Nat'l Union, 442 U.S. 289, 297-97 (1979)). Additionally, “[b]ankruptcy courts are authorized to issue declaratory judgments in adversary proceedings which are within their jurisdiction.” Peters v. Fernandez (In re SCS Logistics, Inc.), 673 B.R. 397, 408 (Bankr. S.D. Ohio 2025) (citing Korhumel Inc. v. Korhumel Indus. Inc., 103 B.R. 917, 921 (N.D. Ill. 1989)). Though NREA questions in its Motion to Dismiss whether there is a live case or controversy, it is clear that an actual controversy exists as to whether NREA (and Mr. Lasky) violated the automatic stay by carrying out Ms. Steele's eviction during her bankruptcy case, and Ms. Steele has alleged actual harm and damages flowing from this action in her First Amended Complaint. Even though Ms. Steele has already been evicted, the dispute as to whether NREA or Mr. Lasky owe her any damages for the events of the eviction pursuant to § 362(k)(1) are ripe for consideration. This Court has jurisdiction to decide this controversy as described above in Section II. Therefore, there is a live case or controversy over which this Court has subject matter jurisdiction, although NREA makes a fair point that because Ms. Steele has a right of action under § 362(k)(1), it may not have been necessary or it may have been duplicative for Ms. Steele to seek a declaratory judgment with respect to the applicability of the eviction exception in § 362(b)(22), but it is not prohibited.

The Declaratory Judgment Act gives a federal court “unique and substantial discretion in deciding whether to declare the rights of litigants.” Western World Ins. Co. v. Hoey, 773 F.3d 755, 758 (6th Cir. 2014) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). “[A] bankruptcy court is a ‘Court of the United States’ and accordingly has the power to hear and decide matters under the Declaratory Judgment Act.” Golden v. Nat'l Collegiate Student Loan Tr. 2006-4 (In re Golden), 671 B.R. 544, 586 (Bankr. E.D.N.Y. 2025). Further, bankruptcy courts have “the power to issue declaratory judgments when the matter in controversy regards the administration of a pending bankruptcy estate.” Id. (quoting Sears, Roebuck and Co. v. O'Brien, 178 F.3d 962, 964 (8th Cir. 1999)). Accordingly, there is no issue with this Court entertaining Count I of the First Amended Complaint.

Further, this Court's determination of applicability of the eviction exception in § 362(b)(22) would not violate res judicata or otherwise be an abuse of procedure. Though the state court considered the applicability of § 362(b)(22) during the eviction action with its April 3, 2024 Magistrate's Order, it is well-settled law that state and bankruptcy courts have concurrent jurisdiction to determine the applicability of the automatic stay, and “[t]he bankruptcy court from which the automatic stay originated nonetheless has the final say.” JJW Metal Corp. v. Municipio Autonomo de Carolina (In re JJW Metal Corp.), No. 22-00030, 2024 Bankr. LEXIS 1450, at *24, 2024 WL 3083388, at *9 (Bankr. D.P.R. June 20, 2024) (quoting In re Mid-City Parking, Inc., 332 B.R. 798, 804 (Bankr. N.D. Ill. 2005)). And “while nonbankruptcy courts may independently determine whether the automatic stay applies and proceed when they determine it does not ․ they ‘proceed at their own risk.’ ” McClafferty v. DeWine (In re McClafferty), 571 B.R. 267, 274 (Bankr. N.D. Ohio 2017) (quoting NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 940 (6th Cir. 1986)); In re Shrum, 597 B.R. 845, 854 (Bankr. E.D. Mich. 2019) (similar). This Court has jurisdiction to decide issues related to an alleged violation of the automatic stay, and this issue is integral to that decision. See Sec. II.

D. Jurisdiction to Decide Whether the Automatic Stay Applies

Although Mr. Lasky did not move to dismiss the First Amended Complaint, despite the Court granting him leave to do so, argues that the March 12 Entry was a final, appealable order under Ohio law and fell within the exception under § 362(b)(22). Lasky also argues that this Court lacks jurisdiction to consider the finality of a state court ruling and should be bound by the Dayton Municipal Court's decisions regarding the eviction and its relation to § 362(b)(22) within the April 3 Magistrate's Order. See Docs. 105, 115, and 124. Given that this is a threshold issue to the Court's legal analysis of the Motion to Dismiss, the Court will address it here, even if it was not otherwise put before the Court on the filings concerning the Motion to Dismiss, because the Court may consider subject matter jurisdiction sua sponte at any time. Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 (6th Cir. 2014). Moreover, Mr. Lasky is a Defendant to the First Amended Complaint and has raised the issue of subject matter jurisdiction.

It is well-established that when an action is pending before another court, in this case the Eviction Action before the Dayton Municipal Court, that Court “has jurisdiction to decide whether the proceeding is subject to the stay.” In re Kelly, No. 14-32333, 2014 Bankr. LEXIS 4663, at *4 n.3 (Bankr. N.D. Ohio Nov. 7, 2014) (Gustafson, J.) (quoting Dominic's Rest. of Dayton, Inc. v. Mantia, 683 F.3d 757, 760 (6th Cir. 2012) (citing in part Edward Cooper Painting, Inc., 804 F.2d at 939) (other citations omitted)). However, this jurisdiction is not exclusive of the Bankruptcy Court's concurrent jurisdiction to rule on the issue in the context of this adversary proceeding. See 28 U.S.C. § 1334(b) (“the district courts[³⁰ ] shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.”) And “[i]f the non-bankruptcy court's initial jurisdictional determination is erroneous, the parties run the risk that the entire action later will be declared void ab initio.” Kelly, 2014 Bankr. LEXIS 4663, at *4 n.3 (quoting Chao v. Hospital Staffing Servs., Inc., 270 F.3d 374, 384-85 (6th Cir. 2001) (citations omitted).

This Court has previously analyzed its jurisdiction in this adversary proceeding to determine whether the eviction exception to the automatic stay (§ 362(b)(22)) applied to the matters that occurred in the Dayton Municipal Court during the pendency of this bankruptcy, in its Order Denying Motions and Setting Deadlines (see pages 5-6), the language of which is cited above in Section III.B.10. This Court has also previously analyzed a similar situation in In re Legacy Beavercreek of Dayton Operating Co., wherein it wrote that “while state courts have concurrent jurisdiction to determine whether the automatic stay applies in an action pending before the state court, bankruptcy courts have concurrent jurisdiction over the same issue, with the ability to have the final word.” 678 B.R. at 570. It is well-settled law that state and bankruptcy courts have concurrent jurisdiction over issues arising from the stay, with the bankruptcy court having the last word over interpreting and enforcing its own automatic stay. Chao, 270 F.3d at 384-85.

The Rooker-Feldman doctrine is no bar to this Court exercising subject matter jurisdiction, as also discussed in In re Legacy Beavercreek of Dayton Operating Co. (678 B.R. at 573-77), and as the Bankruptcy Appellate Panel for the Sixth Circuit analyzed in Wohleber v. Skurko (In re Wohleber), 596 B.R. 554, 565-66 (holding that “[b]ecause the state court and bankruptcy proceedings are proceeding in parallel, Rooker-Feldman does not apply, and the bankruptcy court has jurisdiction to adjudicate the stay violation claim.” (footnote omitted)). This conclusion is also bolstered by the Supreme Court of the United States’ recent decision in T.M. v. University of Maryland Medical System Corporation, which provides as follows:

The Court today neither expands nor constrains Rooker-Feldman. Instead, the Court leaves the doctrine as it found it: narrowly confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon, 544 U. S., at 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454.

T.M. v. Univ. of Md. Med. Sys. Corp., 146 S. Ct. 1739, 1753-54 (2026)

In this situation, this bankruptcy case was pending when the Dayton Municipal Court entered its April 3 Magistrate's Order, such that both courts had jurisdiction to opine on the impact of the automatic stay on the Eviction Action, but this Court has the final word regarding the scope of the automatic stay arising from the underlying bankruptcy case, to the extent it determines the automatic stay applied. See Hamilton, 540 F.3d at 373-74; Edward Cooper Painting, Inc., 804 F.2d at 939-40. In fact, when the automatic stay does apply “to an action directed at the debtor or [their] property,” the Sixth Circuit Court of Appeals has held that “jurisdiction is exclusive in the bankruptcy court.” Chao, 270 F.3d at 383.

Accordingly, this Court has jurisdiction to decide the claims before it and is not bound by the Dayton Municipal Court's assessment of § 362(b)(22), although this Court reaches a similar conclusion, at least with respect to NREA's ability to have proceeded with the Eviction Action to regain possession of the Real Property. However, the issue not addressed in the April 3 Magistrate's Order (which also does not appear to have been adopted by a Judge of the Dayton Municipal Court), is the scope of the eviction exception in § 362(b)(22) and whether that also permitted NREA and Mr. Lasky to exercise control over Ms. Steele's personal property. Because this Court concludes that the eviction exception does not apply to permit a landlord to damage, destroy, or dispose of a tenant debtor's personal property, that means the April 3 Magistrate's Order, if in conflict, must give way, because in this regard the automatic stay still applied.

As discussed further below, because exceptions to the automatic stay are construed narrowly and because the language of § 362(b)(22) only excepts from subsection (a)(3) of the automatic stay (§ 362) the continuation of the eviction, there is a plausible claim that NREA and Mr. Lasky may have violated the automatic stay when, as alleged in the First Amended Complaint, they damaged, destroyed, and disposed of Ms. Steele's personal property, including but not limited to any role they may have had with respect to the cat going missing.

E. Count I – Eviction Exception to the Automatic Stay Under § 362(b)(22)

1. § 362(b)(22) and its Legislative History

The automatic stay is obviously one of the pillars of bankruptcy and a critical benefit to debtors in need of a breathing spell.³¹ Under § 362(a)(3) of the Bankruptcy Code, the filing of a bankruptcy petition “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 exercise control over property of the estate[.]” But the automatic stay provided for in § 362(a) of the Bankruptcy Code has numerous exceptions. One such exception, subsection (b)(22), which has been at issue between the parties since at least April 2, 2024, provides that a bankruptcy petition “does not operate as a stay—”:

(22) subject to subsection (l), under subsection (a)(3), [which otherwise stays actions with respect to property of the estate,] of the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor 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[.]

11 U.S.C. § 362(b)(22) (emphasis added).³² In short, the eviction exception provides that if a landlord has a judgment for possession prior to the bankruptcy, then they may proceed with the eviction after the bankruptcy is filed without having to seek relief from the automatic stay. Instead, the burden is shifted to the debtor to invoke the automatic stay through the procedure set forth in subsection (l) by filing a certification (Official Form 101A) and depositing one month of rent with the Clerk of Court (Official Form 101B). Ms. Steele did neither of those things and, in fact, has consistently disputed that there ever was a prepetition judgment for possession, such that she asserts § 362(b)(22) never applied.

The eviction exception was added as part of the overhaul of the Bankruptcy Code in 2005 through the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”).³³ See 3 Collier on Bankruptcy ¶ 362.LH (16th ed. 2026). In particular, this subsection was a pro-landlord addition that appears to have been intended to combat a perceived misuse of bankruptcy to forestall eviction actions. The backdrop to the enactment of § 362(b)(22), which is helpful given that the term “judgment for possession” has engendered various interpretations, is summarized as follows:

[The automatic stay's] breadth as reflected in its broadly worded subsections (a)(1) through (a)(8) has provided opportunities for abuse not intended by Congress to achieve its prophylactic statutory objective, i.e., providing debtors a breathing spell from collection efforts, harassment and foreclosure actions while they seek financial rehabilitation consistent with the requirements of the Bankruptcy Code. H.R. Rep. No. 595, 95th Cong., 1st Sess 174-75 (1977); S. Rep. No. 989, 95th Cong. 2d Sess. 49-50 (1978). One such area of abuse was identified by the commission charged by Congress in 1994 with a review of the extant bankruptcy law. Through testimony and written submissions, the National Bankruptcy Review Commission (the “Commission”) was advised of “persistent, systematic abuse of the automatic stay by residential tenants who have successfully forestalled eviction for months by filing a bankruptcy petition.” Nat'l Bankruptcy Review Commission, Final Report, Bankruptcy: the Next Twenty Years, Chapter 3: Individual Commissioner Views 65-66 (1997), available at http://govinfo.library.unt.edy/ubrc/. While it would be another ten years before legislation was enacted, among the provisions of BAPCPA are additional exceptions to the sweep of § 362(a), including two that directly pertain to residential leases.

Prior to BAPCPA, § 362(a)(3) had absolutely protected the estate's interest in a residential lease as the petition operated as a stay against “[a]ny act to obtain possession of property of the estate or of property from the estate․” 11 U.S.C. § 362(a)(3). Absent the amendment discussed below, AGLF's post-petition pursuit of Debtors’ eviction would run afoul of this protection, notwithstanding the pre-petition entry of judgment for possession. Cuffee v. Atl. Bus. and Cmty. Corp. (In re Atl. Bus. and Cmty. Corp.), 901 F.2d 325, 328 (3d Cir. 1990) (a debtor's bare possessory interest in real property is property of the estate under 11 U.S.C. § 541 and is thus protected from being taken under 362(a)(3)). BAPCPA, however, sought in part to address “a problem faced by thousands of large and small residential landlords across the nation whose tenants file for bankruptcy relief solely for the purpose of staying pending evictions so they can live ‘rent free.’ ” H.R. Rep. No. 1009–31(1), *17 as reprinted in, 2005 U.S.C.C.A.N. 88, *103 (2005). It did so through two new exceptions to the automatic stay.

See In re Williams, 371 B.R. at 105 (quoting and discussing subsections (b)(22) and (b)(23) to § 362 added in 2005).

Within the above-referenced legislative history to BAPCPA is the following highlight of the bankruptcy reforms enacted to protect lessors from tenant abuse of the automatic stay:

The bill also addresses a problem faced by thousands of large and small residential landlords across the nation whose tenants file for bankruptcy relief solely for the purpose of staying pending eviction proceedings so that they can live “rent free.”

* * *

Sec. 311. Automatic Stay. Section 311 of the Act amends section 362(b) of the Bankruptcy Code to except from the automatic stay a judgment of eviction with respect to a residential leasehold under certain circumstances. It is the intent of this provision to create an exception to the automatic stay of section 362(a)(3) to permit the recovery of possession by rental housing providers of their property in certain circumstances where a judgment for possession has been obtained against a debtor/resident before the filing of the petition for bankruptcy․ It is also the intent of this section to permit eviction actions based on illegal use of controlled substances or endangering property in certain circumstances.

Section 311 gives tenants a reasonable amount of time after filing the petition to cure the default giving rise to the judgment for possession as long as there are circumstances in which applicable nonbankruptcy law allows a default to be cured after a judgment has been obtained. Where nonbankruptcy law applicable in the jurisdiction does not permit a tenant to cure a monetary default after the judgment for possession has been obtained, the automatic stay of section 362(a)(3) does not operate to limit action by a rental housing provider to proceed with, or a marshal, sheriff, or similar local officer to execute, the judgment for possession.

H.R. Rep. No. 109-31(l), at 17, 74-75 (2005), as reprinted in 2005 U.S.C.C.A.N. 88, 103, 142.

2. Agreed Order for Stay Relief

Before digging into the language and application of § 362(b)(22), there is a threshold question, which is whether the Agreed Order for Stay Relief, entered on April 17, 2024, had any impact on Ms. Steele's ability to continue to contest the legality of NREA's continued prosecution of the Eviction Action. Section 362(d) of the Bankruptcy Code permits a court to grant retroactive relief from the automatic stay in certain situations in order to validate actions that have already occurred. Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909-10 (6th Cir. 1993). In fact, § 362(d), under which parties in interest can move for relief from the automatic stay, is flexible in the remedies that a court can fashion. Accordingly, the terms of the order entered by the Court are important and can reach a variety of outcomes. In this case, Ms. Steele agreed to grant NREA relief from the automatic stay, given the eviction had already happened and she would not be returning to the Property,³⁴ and the Agreed Order states that “the relief sought in Vinebrook's Motion for Relief from Stay is GRANTED.” Agreed Order at 2, ¶ 1. But there is no mention of whether this relief was retroactive or prospective only. Similar to the analysis of statutes and the body of law on ex post facto relief,³⁵ and in light of the reservation of rights by Ms. Steele, the best interpretation is that this relief was prospective. As to the reservation of rights, the terms of the resolution provide that Ms. Steele did “not waive any rights she may have against Vinebrook concerning her eviction from the Property or the disposition of her personal property.” Id. at 2, ¶ 2. Essentially, it appears the parties did not intend the Agreed Order to act as a determination of whether continuation of the Eviction Action violated the automatic stay, given that stay relief was not obtained until April 17, 2024, almost two weeks after the eviction occurred, and there being no suggestion of retroactive applicability.³⁶ In other words, the parties appear to have preserved the issues for determination as evidenced by the fact that Ms. Steele filed her original Complaint initiating this adversary proceeding the very next day, on April 18, 2024.

3. Analysis of § 362(l)

Sorting through the language of § 362(b)(22), the first issue is what subsection (l) has to say and how it might alter the application of this exception to the automatic stay, or at least subsection (a)(3) of § 362(a). Subsection (l) is a lengthy provision also added through BAPCPA in 2005.³⁷ In essence, it is an opportunity for a debtor who is subject to a judgment for possession to obtain a thirty (30)-day stay of the eviction action, but only:

if the debtor files with the petition and serves upon the lessor a certification under penalty of perjury that—

(A) under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment for possession was entered; and

(B) the debtor (or an adult dependent of the debtor) has deposited with the clerk of the court, any rent that would become due during the 30-day period after the filing of the bankruptcy petition.

11 U.S.C. § 362(l)(1)(A) and (B). It is undisputed, as confirmed by this Court's docket, that Ms. Steele filed no such certification to invoke § 362(l).³⁸ See 3 Collier on Bankruptcy ¶ 362.05[20] at 362-88 & n.214 (“Before the petition, former Official Form 1, was amended in 2015, it provided a space for the debtor to make the required certification. The certification is now made on a separate form, Official Form 101A, which should be filed with the petition, if applicable.”). None of the parties have argued that subsection (l) applied to this situation. In fact, in the Debtor's Motion to Determine § 362(b)(22) Inapplicable, which she filed twenty-one (21) days after her Petition, Debtor, by and through counsel, represented to the Court as follows:

It has never been the Debtor's intention to invoke the safe harbor provisions of §[ ]362([l]). She did not need to given the fact that §[ ]362(b)(22) does not apply. Nevertheless, the Debtor's financial and familial support resources are meager and she needed additional time to make appropriate plans to move her family – without being forced to go homeless or use shelters for the homeless. Her Chapter 7 bankruptcy case was a difficult measure to get that needed time, and Vinebrook and Mr. Lasky are depriving her of that time.

Mot. to Determine § 362(b)(22) Inapplicable at 6, n.2. Moreover, even if it had been Ms. Steele's intent to invoke § 362(l), it may well be that § 362(l) was unavailable to her because the Amended Eviction Complaint was based on illegal activity occurring at the Property and “[s]ection 362(l) only applies where the basis for the judgment for possession is a monetary default.” In re Kelly, 2014 Bankr. LEXIS 4663, at *8 (“ ‘The safe harbor exception of § 362(l) is a limited exception to § 362(b)(22) and is unavailable to a debtor where the reason for the pre-petition judgment is non-monetary.’ ” (quoting In re Paul, 473 B.R. 474, 476 (Bankr. S.D. Ga. 2012) (citations omitted)).

Given that subsection (l) was not utilized and likely did not apply, we are left with the remainder of § 362(b)(22), which can apply, and if it does, meant that subsection (a)(3) of the automatic stay did not apply in this case from the moment it was filed. See, e.g., 3 Collier on Bankruptcy ¶ 362.05[20] n.222 (“amendment to petition seeking to add certification under section 362(l) filed several weeks after petition date was not effective because stay exception under section 362(b)(22) took effect immediately upon filing of petition”) (citing In re Harris, 424 B.R. 44 (Bankr. E.D.N.Y. 2010))).

4. Arguments of the Parties and Analysis of § 362(b)(22)

NREA argues that its actions in evicting Ms. Steele during her bankruptcy were appropriate under the judgment for possession exception in § 362(b)(22). NREA interprets the March 12 Entry as a judgment for possession. Ms. Steele argues that the exception does not apply in this case because a judgment for possession must be both final and non-appealable. But even if the exception in § 362(b)(22) applies, that would not necessarily be the end of the story. From here we will first examine, overall, the scope of what the eviction action exception permits, in the absence of a landlord obtaining stay relief, and will then examine what constitutes a “judgment for possession” under Ohio law.

a) Scope of the Eviction Exception in § 362(b)(22)

Courts have held that exceptions to the stay should be narrowly applied. Stieg v. Hanson (In re Stieg), 509 B.R. 148, 152 (Bankr. S.D. Ohio 2014) (collecting cases). Thus, subsection (b)(22) of § 362 must be applied within the narrow confines of its language and NREA, charging forward with the Eviction Action was only able, without violating the automatic stay, to continue its Eviction Action against Ms. Steele with respect to the Real Property which, of course, only concerned possession of the residential property she was inhabiting. Although it may have been lawful under state law for NREA to simply leave her personal property on the curb or dispose of it after a certain period of time, the exception in § 362(b)(22) did not permit NREA to exercise control over her personal property, such as the couch and her cat, to damage, destroy, or dispose of it.³⁹ In other words, the automatic stay still applied to protect her personal property, which was property of the estate. Therefore, NREA could not simply damage and dispose of her personal property without consequence.

Again, § 362(b)(22) only excepts “the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides ․ with respect to which the lessor has obtained ․, a judgment for possession of such property against the debtor[.]” 11 U.S.C. § 362(b)(22) (emphasis added). Therefore, because a count for possession in an Ohio eviction action only concerns the issue of the entitlement to possession of the real estate (not to possession of any personal property), and because the exception in § 362(b)(22) must be read narrowly, Ms. Steele has stated a claim that NREA violated the automatic stay, particularly subsection (a)(3) of § 362, by exercising control over and damaging, destroying, or disposing of, her personal property. See In re Seaton, 462 B.R. 582, 593-94 (Bankr. E.D. Va. 2011) (“the exercise of full dominion over this [personal] property by detaining it, destroying it, and liquidating it, constituted a gross violation of the automatic stay by the Landlord.” (quoting B. Cohen & Sons Caterers, Inc. v. New Plan Realty Trust (In re B. Cohen & Sons Caterers, Inc.), 97 B.R. 808, 813-14 (Bankr. E.D. Pa. 1989)).

The Seaton case involved a motion for contempt against a landlord by chapter 7 debtors. Id. at 585-86. Therein, the debtors did “not contend that any of the events specifically relating to the institution or continuation of the Unlawful Detainer constitute a stay violation.” Seaton, 462 B.R. at 590. Instead, it was “only the removal and disposal of certain items of their personal property from the Apartment at Collinswood that they believe are sanctionable by this Court.” Id. This is analogous to Ms. Steele's case in two respects. First, the Court finds that the exception under § 362(b)(22) applies, such that NREA was able to continue the Eviction Action as to the Real Property. Second, Ms. Steele at no point disclaimed any interest in or abandoned the personal property which remained property of the estate. The Seaton case cited another opinion for the proposition that “the removal and disposal of a tenant's personal property at the leased premise was found to constitute a stay violation notwithstanding the fact the landlord had earlier obtained relief from the automatic stay to take possession of the premises[.]” Id. at 593-94 (citing In re B. Cohen & Sons Caterers, Inc., 97 B.R. 808). The key takeaway is that even if a landlord had relief from the automatic stay or the benefit of the exception in subsection (b)(22) of § 362 to “ ‘to regain possession of the premises[,]’ ” that “clearly [does] not give the Landlord relief from the stay or authority to detain or take any other action in reference to the personal property of the Debtor's estate on its Premises, even pursuant to lawful state-court processes.” Seaton, 462 B.R. at 594 (quoting In re B. Cohen & Sons Caterers, Inc., 97 B.R. at 813-14). Although the Court is not, at this time, reaching a conclusion or determination that NREA violated the automatic stay, as to its alleged actions with respect to Ms. Steele's personal property, there is a valid claim stated, such that, if proven, NREA would be liable for damages under § 362(k)(1), to the extent proven by Ms. Steele. See, e.g., In re Seaton, 462 B.R. at 606 (awarding amounts for “emotional distress damages,” for attorney's fees, and costs, pursuant to § 362(k)(1)).⁴⁰

b) What Constitutes a “Judgment for Possession”

The Bankruptcy Code, particularly within §§ 101 and 362, does not define the term “judgment for possession” as used in § 362(b)(22). The Bankruptcy Rules define a judgment as “any appealable order,” though that definition technically only applies to the use of the word in the Bankruptcy and Civil Rules and therefore is only instructive, not binding, for determining the meaning of the term as used in the Bankruptcy Code. Fed. R. Bankr. P. 9001(b)(7) and 9002(e); see also 28 U.S.C. § 2075 (providing that the Bankruptcy Rules “shall not abridge, enlarge, or modify any substantive right.”). In fact, Bankruptcy Rule 9001(a) provides that “definitions of words and phrases in §[ ] 101 ․ and the rules of construction in § 102 apply in these rules[,]” but there is no provision of the Bankruptcy Code that makes the definitions of words in the Bankruptcy Rules applicable in the Bankruptcy Code, as only Congress could do so. Moreover, how to interpret the term “judgment for possession” in the Bankruptcy Code ultimately bears in large part on the state law and rules of procedure applicable to the eviction action.

The Supreme Court has previously held that “where Congress uses terms that have accumulated settled meaning under ․ the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of those terms.” Hous. Auth. of Beaver Cnty. v. Alberts (In re Alberts), 381 B.R. 171, 177 (Bankr. W.D. Penn. 2008) (quoting Field v. Mans, 516 U.S. 59, 69 (1995) (citations omitted)). Black's Law Dictionary defines the word “judgment” to mean “[a] court's final determination of the rights and obligations of the parties in a case.” Judgment, Black's Law Dictionary (9th ed. 2009). Thus, bankruptcy courts have generally held that finality is a key aspect of a judgment for possession, and the judgment must contain a “requisite degree of firmness.” Alberts, 381 B.R. at 178. Further, certain orders or judgments for possession may lack the requisite degree of finality (or firmness) “due to statutory provisions affecting the standard of review on appeal,” such as when an order is subject to de novo review. Id. In other words, whether there is a judgment possession may well be a case-by-case analysis, not only due to the applicable state law, but also due to the exact procedural posture of the eviction action when the bankruptcy case is filed.

Going back to April 4, 2024, Ms. Steele, by and through counsel, has argued that “[p]ractically every bankruptcy court decision that has considered the issue has held that for the purposes of ․ §[ ]362(b)(22), a judgment for possession must be final and non-appealable for the exception to the automatic stay to apply.” Mot. to Determine § 362(b)(22) Inapplicable at 7-8, § II.B. (citing In re Tatum, No. 14-03676-NPO, 2015 Bankr. LEXIS 712 (Bankr. S.D. Miss. Mar. 6, 2015); In re Nitzsky, 516 B.R. 846, 847-50 (Bankr. W.D.N.C. 2014); Alberts, 381 B.R. at 177-78; In re Lewis, No. 8:16-bk-07166-RCT, 2017 Bankr. LEXIS 4696, 2017 WL 11569062 (Bankr. M.D. Fla. Sept. 13, 2016); Nicholson v. IFG Timber, L.L.C. (In re Nicholson), No. ID-18-1161-BKuF, 2019 Bankr. LEXIS 1921 (B.A.P. 9th Cir. June 18, 2019)). She further argued that although the March 12 Entry was effective on that date, it was not final on the basis that a party may file written objections to a magistrate's decision within fourteen (14) days pursuant to Ohio Rule of Civil Procedure 53(D)(3)(a)(iii). Mot. to Determine § 362(b)(22) Inapplicable at 8, § II.B; First Am. Compl. at 14-15, ¶ 86.a. Thus, Ms. Steele's counsel argued that even though Judge Gehres had signed off on the March 12 Entry, she still had a 14-day period to file written objections, such that the March 12 Entry could not have become final until March 26, 2024, which was postpetition. First Am. Compl. at 14-15 (citing Bibb v. Garrett, 2021-Ohio-1316, at ¶¶ 14-15 (10th Dist.)).

Courts have differed in their analysis of whether a judgment for possession must be final and non-appealable, or simply final and not subject to an ongoing appeal (or not subject to de novo review), but in each case the outcome is dependent upon applicable state law and the exact procedural posture of the eviction immediately prior to bankruptcy. In Alberts, the debtor had taken appropriate steps to timely appeal the judgment for eviction, giving rise to de novo review under Pennsylvania state law. Alberts, 371 B.R. at 178. Thus, the Alberts court held that the state court judgment was not final because it was being appealed de novo and thus lost its binding finality. Id. The Alberts court therefore did not hold that a judgment must be final and non-appealable, but rather that the judgment must be final and not under de novo review on appeal.

The Nitzsky court held that “a judicial order must be final and non-appealable” to be a judgment for possession. In re Nitzsky, 516 B.R. at 849. In Nitzsky, the debtor had received a summary ejectment order nine days prior to filing bankruptcy and had not taken any steps to appeal. Id. However, the debtor's failure to attempt an appeal did not control because under North Carolina state law a summary ejectment was not final until after a ten-day appeal period expired, and it was during that ten-day period that the debtor filed for bankruptcy. Id. The Court held that because any action under a summary ejectment was stayed during the ten-day appeal period, the summary ejectment order lacked the finality required to be a judgment for possession at the time of filing. Id.

In Tatum, the issue before the bankruptcy court was whether to grant relief from the automatic stay with respect to a rental purchase agreement concerning a piece of property and a manufactured home. 2015 Bankr. LEXIS 712, at *2. Prepetition, the Neshoba County Justice Court “entered a judgment ․ ordering the Debtors to pay $3,574.00 to [the creditor] and vacate the Subject Property within thirty (30) days.” Id. Prior to expiration of the thirty-day period the Debtors filed a chapter 13 bankruptcy and, over a month later, the creditor filed a motion for relief to hold that the automatic stay did not apply due to the exception in § 362(b)(22). Id., at *3. The Tatum court found that § 362(b)(22) did not apply, agreeing “with the Nitzsky and Alberts courts’ analysis of the term ‘judgment,’ ” to hold “that an order must be final and non-appealable to constitute a ‘judgment for possession’ for the purposes of § 362(b)(22).” Id. at *7 (citing Nitzsky, 516 B.R. at 847-50). Since the debtors in Tatum filed for bankruptcy on the twenty-eighth day of their thirty-day appeal period under Mississippi law following the eviction judgment, the Tatum court held that the eviction order was not a final judgment. Tatum, 2015 Bankr. LEXIS 712, at *8. However, the Tatum court focused on the subject to review provisions in Alberts and Nitzsky without discussing whether Mississippi had similar state laws or appellate review provisions. Id. at *7 (citing Alberts, 381 B.R. at 177-78.). Further, the debtors in Alberts had taken steps to actually pursue an appeal of the eviction action. Alberts, 381 B.R. at 175. But in Tatum it did not appear that the Debtors had ever appealed.

Finally, Ms. Steele cites Lewis for further support, although she references the 2017 opinion that involved a subsequent bankruptcy, not the preceding 2016 opinion dealing with interpretation of the eviction exception. See Lewis, 2017 Bankr. LEXIS 4696, at *8 (observing that because the 2017 bankruptcy was Debtor's second within one year, “the automatic stay expired 30 days after the petition was filed” and then the creditor completed the eviction). The prior 2016 opinion in that case, however, contained a short analysis of § 362(b)(22). In re Lewis, No. 8:16-bk-07166-RCT, 2016 Bankr. LEXIS 4757, at *1-3, 2016 WL 11708144 (Bankr. M.D. Fla. Sept. 13, 2016. Therein, the bankruptcy court observed that prior to the petition date “the Hillsborough County Court awarded the Creditor a judgment for possession and writ of possession.” Id. at *1. Thus, notwithstanding the plain language of § 362(b)(22), which only requires a “judgment for possession,” the Lewis court found that § 362(b)(22) did not apply because, as of the petition date, the Debtor had both a “motion for rehearing” and a motion to vacate the judgment for lack of jurisdiction” pending that had not been ruled on by the state court. Id.

There are a couple of troubling aspects to this line of cases, to the extent not factually distinguishable. First, a judgment by the state trial court with jurisdiction over an eviction action is “final” before the appeal period runs, unless there is a special provision of state law to the contrary. If that is the last word of the state trial court, then the judgment is not subject to revision by the trial court. And, typically, unless a stay is obtained, the judgment is enforceable. There would be no right of appeal if the judgment were not final. This line of cases purports to rely upon the “Black's Law Dictionary's definition of ‘judgment’ as ‘[a] court's final determination of the rights and obligations of the parties in a case.’ ” Tatum, 2015 Bankr. LEXIS 712, at *6-7 (citing Nitzsky, 516 B.R. at 847-50; Alberts, 381 B.R. at 177-78 (both quoting Black's Law Dictionary (8th ed. 2004))). However, this line of cases actually layers on top an additional requirement that the final judgment also be “non-appealable,” a requirement which is simply not found in § 362(b)(22). If the state trial court has issued a final, as opposed to interlocutory, judgment, that judgment is the trial court's final word. And any future word to the contrary would be by a different court, an appellate court. Further, unless the Debtor obtains a stay of execution of the final judgment for possession, it typically remains enforceable. However, if the Debtor does obtain a stay, then they would be protected from eviction until the appeal process runs its course, separate and apart from the automatic stay.

This raises a second troubling aspect of this line of cases, which is that if the state trial court has issued a final judgment prior to the bankruptcy, then the Rooker-Feldman doctrine likely would prevent the bankruptcy court from sitting in appellate review of the judgment for possession, yet there would be no requirement for the debtor to pursue an appeal, leading to the very situation that § 362(b)(22) was enacted to combat. Accordingly, absent an appeal going forward in a state appellate court, there is no possibility of a different outcome and the bankruptcy case is only delaying the inevitable and stymying the continuation of the eviction action which the plain language of § 362(b)(22) appears to permit. And that appears to contradict the very reason for enactment of the eviction exception in § 362(b)(22), in order to counteract the use of bankruptcy, after a state court has entered judgment for possession, simply to forestall the eviction.

The United States Bankruptcy Appellate Panel for the Ninth Circuit (“9th Circuit B.A.P.”), in an unpublished decision, held that the bankruptcy court below had not erred in determining the eviction exception in § 362(b)(22) did apply to a judgment for possession because it “had already been appealed and affirmed by the Idaho Supreme Court prior to the petition date.” Nicholson, 2019 Bankr. LEXIS 1921, at *8-10. In addition, the bankruptcy court below had held that “the appeal of the 60(b) Order, while maybe a potential collateral attack on the Second Amended Judgment, did not affect the judgment's finality.” Id. at *9. Thus, the 9th Cir. B.A.P. considered whether a “judgment for possession” as that term is used in § 362(b)(22) had to be a “final, non-appealable judgment for possession prior to the petition date.” Id. at *8. And in essence, the 9th Cir. B.A.P. found that the bankruptcy court's ruling was correct because “the Second Amended Judgment was not subject to de novo review when Nicholsons filed their bankruptcy case.” Id. at *9. The Nicholson decision dealt with a year's-long legal battle in which the eviction order had already been subject to multiple motions for relief from judgment under Idaho Rule of Civil Procedure 60(b), the denial of which was under appeal at the time of filing. Id. at *3-4. While an appeal for de novo review may call into question the finality of a judgment, a review under an abuse of discretion standard under the applicable Idaho civil rule did “not affect the judgment's finality or suspend its operation.” Id. at *10 (quoting Idaho R. Civ. P. 60(c)(2)). Notably, the Nicholson case, while acknowledging that the case law found all required a “final, non-appealable judgment for possession prior to the petition date,” ultimately did not require all appeals to be exhausted and focused on whether the particular appeals under the applicable state law would impact the finality of the judgment for possession.

Recently, the 9th Circuit B.A.P. issued a published opinion which, in dicta, both distinguished and called into question the Nicholson court's definition of a judgment for possession, and by extension puts into question the line of case law that grafts a requirement for a non-appealable final judgment onto the language of § 362(b)(22). LoCali Mgmt. Grp., LLC v. Rodriguez (In re Rodriguez), No. CC-25-1130-CNL, __ B.R. __, 2026 Bankr. LEXIS 1706, at *17 n.6, 2026 WL 2014307, at *14 (B.A.P. 9th Cir. July 10, 2026). First, the 9th Circuit B.A.P. observed that “[i]n addition to the fact that Nicholson is unpublished, and therefore not binding, Nicholson involved Idaho law[,]” as opposed to California law as analyzed in the LoCali decision. Id. at *17, n.6. Second, the 9th Circuit B.A.P. questioned “whether it is appropriate to add the words ‘final’ and ‘non-appealable’ to the plain language of § 362(b)(22), which requires only a ‘judgment for possession.’ ”). Id; see also In re Resnicow, No. 24-10354, 2024 Bankr. LEXIS 983, at *13-15, 2024 WL 1773433, at *4-5 (Bankr. S.D.N.Y. Apr. 24, 2024) (discussing the party's differing positions on whether a judgment for possession must be final or final and non-appealable, but ultimately not deciding “whether a judgment must be ‘final’ and unappealable to support application of [ ] § 362(b)(22)” because the judgment at issue was rendered on March 5, 2024, the same day the bankruptcy case was filed). Of course, the 9th Circuit B.A.P. then proceeded to conclude that “for other reasons” § 362(b)(22) was inapplicable—that the automatic stay remained in effect—because even though the lessor had “obtained a judgment for possession and obtained and served a writ of possession prior to Ms. Rodriguez filing her bankruptcy petition[,]” the “lockout” had been stayed by the state court at the time of filing. LoCali, 2026 Bankr. LEXIS 1706, at *17. Thus, “LoCali could not enforce its judgment for possession because of the state court stay.” Id. Moreover, under California law, “an unlawful detainer judgment remains subject to modification by the trial court any time before restoration of the premises to the landlord.” Id. (citing Cal. Civ. Proc. Code § 918(a) (“the trial court may stay the enforcement of any judgment or order”); Cal. Civ. Proc. Code § 1179 (“The court has the discretion to relieve any person against forfeiture on its own motion”); SRO Hous. v. Dyce, 223 Cal. App. 4th Supp. 1, *4, 167 Cal. Rptr. 3d 394 (2014)). Thus, on the petition date “the unlawful detainer judgment and writ of possession were not enforceable ․ because they were stayed pending the trial court's review of Ms. Rodriguez's motion to vacate the default judgment.” LoCali, 2026 Bankr. LEXIS 1706, at *18. Thus, the lessor did not have an “enforceable judgment for possession as of the petition date.” Id. But, “[u]nlike Nicholson,” the 9th Circuit B.A.P. reached its conclusion in LoCali “not by analyzing the finality or appealability of the judgment ․, but simply by giving effect to the state court's orders effective on the petition date.” Id. at *17. This was a change in analysis.

In addition to the shift in analysis by the 9th Circuit B.A.P. in LoCali, there was a concurring opinion that walked through the minutiae of California unlawful detainer actions. Id. at *27-29. As well as reciting much of the legislative history to BAPCPA that is set forth in this Opinion and Order. Id. at *34-36. And the concurrence likened the balancing of “[t]he respective interests and rights of both tenants and landlords ․ in this provision, with the entry of a judgment for possession serving as the brightline test.” Id. at *35. The concurrence then went to analyze that “Nicholson also does not stand for the proposition that a judgment for possession must be final and non-appealable for § 362(b)(22) to apply.” Id. at *36. And further observed that “[j]ust as § 362(b)(22) does not say ‘final, non-appealable’ it also does not say ‘non-stayed.’ ” Id. at *37. Accordingly, the concurrence stated that “[§] 362(b)(22) simply requires ‘a judgment for possession,’ which existed in this case, albeit unenforceable.” Id.

While obviously not binding on this Court, the LoCali decision makes two salient points. First, the terms “final” and “non-appealable” are not contained in the plain language of § 362(b)(22), such that a “judgment for possession,” may only need to be a final appealable order. This would be consistent with the definition of “judgment” in Bankruptcy Rules 9001(b)(7) and 9002(e), which both define “judgment” to mean and include “any appealable order.” Second, however, rather than, or perhaps as a backstop analysis to, “analyzing the finality or appealability of the judgment” held by a lessor, applying § 362(b)(22) could be a pragmatic exercise of “giving effect to the state court's orders effective on the petition date.” LoCali, 2026 Bankr. LEXIS, at *18. In other words, whether § 362(b)(22) applies depends on the facts, the applicable state law and rules of procedure for eviction actions, and, in particular, when a judgment is treated as “final” under that state's laws and procedures. Accordingly, this Court, sitting in Dayton, Ohio, within the Southern District of Ohio, will need to examine the laws of the State of Ohio, and potentially the Ohio Rules of Civil Procedure, as well as any applicable Local Rules of Court, in this case the Dayton Municipal Court.

c) Eviction and Judgment of Restitution in Ohio

Closer to home, United States Bankruptcy Judge Russ Kendig analyzed Ohio law and § 362(b)(22) in the context of ruling on a “Debtor's Motion for Clarification,” which appears to have been similar in nature to the request for declaratory judgment before this Court in this adversary proceeding. See In re Maggiore, No. 16-60234, 2016 Bankr. LEXIS 972, 2016 WL 1238852 (Bankr. N.D. Ohio Mar. 29, 2016). Therein he observed as follows:

A judgment for possession concerns who is entitled to possession. It is not about money, per se. While the underlying determination may depend on amounts owed, a judgment for possession does not always go hand in hand with a monetary judgment. For example, under O.R.C. § 1923.081, if a forcible entry and detainer action goes to trial, the trial may include issues regarding past due rent and damages. (emphasis added) Similarly, when a judge finds a forcible entry and detainer complaint is true, he “shall render a general judgment against the defendant, in favor of the plaintiff, for restitution of the premises and costs of the suit.” O.R.C. § 1923.09(A). Here, the judgment for possession was clearly issued as a result of nonpayment of rent, as evidenced by the magistrate's findings issued on January 14, 2016, which were adopted and confirmed by the Massillon Municipal Court on January 19, 2016. Consequently, there was a monetary default underlying the judgment for possession and Debtor's position is not well-taken.

In re Maggiore, 2016 Bankr. LEXIS 972, at *5-6, 2016 WL 1238852, at *2 (emphasis added). While the precise issue in Maggiore was actually whether § 362(l) could apply, which Ms. Steele readily acknowledges is not at issue here, that case indicates that under Ohio law a “judgment for possession” is an entry entered by a magistrate of a municipal court, once adopted and confirmed by a judge of such municipal court. Id. Moreover, Judge Kendig concluded that “Debtor's failure to comply with the statutory requirements made the exception in § 362(b)(22) applicable[,]” such that “Landlord's set out on February 16, 2016 did not violate a bankruptcy stay.” Id. at *7.

To drill down on this point, the docket for the eviction action before the Massillon Municipal Court at issue in the Maggiore case shows that the January 14, 2016 entry was a “Report of Magistrate” that was followed by a “Judgment Entry for Magistrate Report Approved by Judge ․ on 01-19-2016 for First Cause of Action Writ to Issue” on January 19, 2016. See https://www.starkcjis.org/#/case/detail/MMC/2015CVG01274. The same day, January 19, 2016, the docket reflects that a “Writ of Restitution Issued.” Id. Thus, as in this case, the Maggiore case identified the Massillon Municipal Court's entry for restitution, on count one of a typical forcible entry and detainer complaint, to be the “judgment for possession” under § 362(b)(22), not the subsequent writ of restitution. Thus, the question is whether there is some reason the March 12 Entry for restitution in this case, entered on March 12, 2024, was not yet final when Ms. Steele filed bankruptcy on March 14, 2024.

Under Ohio law, “ ‘[a] forcible entry and detainer action decides the right to immediate possession of property and ‘nothing else.’ ” Miami Valley Hous. v. Jackson, 2012-Ohio-5103, ¶ 5 (2d Dist.) (quoting Goldstein v. Patel, 2003–Ohio–4386, ¶ 4 (9th dist.) (quoting Seventh Urban Inc. v. Univ. Circle Prop. Dev. Inc., 67 Ohio St.2d 19, 25, n. 11, 423 N.E.2d 1070 (1981))). Thus, an “Entry of Restitution” is the final judgment that awards restitution of the premises to the landlord. Miami Valley at ¶ 3. “A judgment issuing a writ of restitution in an eviction proceeding is a final, appealable order despite the existence of other claims and without regard to Civ.R. 54(B).” Day v. Derry, 2024-Ohio-791, ¶ 11 (11th Dist.) (citing Dixon v. Anderson, 2018-Ohio-2312, ¶ 4 (1st Dist.); Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981) (“a judgment entry giving or denying a present right to possession of property, under R.C. Chapter 1923, is appealable even though all the causes of action have not been adjudicated”)).

The March 12 Entry entered in the Eviction Action was a final and enforceable judgment under Ohio law. Ms. Steele's contention to the contrary has no support in Ohio law. This is evidenced by the fact that the Dayton Municipal Court issued the Writ of Restitution on March 21, 2024, just nine (9) days after it was docketed. And it is also confirmed by Ohio law holding that “[t]he automatic stay provision in Civ.R. 53(D)(4)(e)(i) does not apply to forcible entry and detainer actions.” Gold Key Realty v. Collins, 2014-Ohio-4705, ¶ 5 n.2 (2d Dist.) (citing Colonial Am. Dev. Co. v. Griffin, 48 Ohio St.3d 72, 549 N.E.2d 513 (1990) (interpreting former Civ.R. 53(E)(7)); Miele v. Ribovich, 90 Ohio St.3d 439, 739 N.E.2d 333 (2000) (stating that its decision “is not intended to affect our previous holdings in Colonial Am. Dev. Co. ***”); Cherry v. Morgan, 2012-Ohio-3594, ¶ 5 (2d Dist.). Thus, Ms. Steele would have been required to seek a stay, which it is doubtful she could have done given the March 12 Entry was based on her own agreement to vacate a property in which illegal felony drug activity had allegedly been conducted.

A more recent opinion by the Court of Appeals of Ohio, Second Appellate District, Montgomery County (the “Second District”) confirms that the March 12 Entry was final and appealable. See Richart v. Greenlee, 2024-Ohio-4509 (2d Dist.). Therein, regarding an entry granting restitution, the Second District observed that “[a] judgment on a forcible entry and detainer action is immediately appealable as arising from a special proceeding.” Id. at ¶ 18 (citing Cerise Capital LLC v. Dewberry, 2022-Ohio-1874, ¶ 8 (2d Dist.); Sholiton Indus., Inc. v. Royal Arms, Ltd., 1999 Ohio App. LEXIS 2531, 1999 WL 355898, *8 (2d Dist. June 4, 1999)). Although in Ms. Steele's case it appears that count two for money damages for unpaid rent was withdrawn by amendment of the Eviction Complaint, even if it had not been, “a pending claim for damages does not affect the finality of the judgment in a forcible entry and detainer action.” Greenlee, at ¶ 18 (citing Mehta v. Johnson, 2022-Ohio-3934, ¶ 12 (1st Dist.); Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981) (superseded on other grounds)). Thus, the March 12 Entry, based on Ms. Steele's in-court agreement made on January 11, 2024, which was closely examined and confirmed on February 29, 2024, was enforceable on the date the Entry was journalized by the Dayton Municipal Court on March 12, 2024.

While true that parties can ordinarily “file written objections to a magistrate's decision within 14 days of the filing of the decision[ ]” in question, “[t]he trial court may enter judgment either during the 14-day period for filing objections or after the 14 days have expired.” Greenlee, 2024-Ohio-4509, ¶ 21 (citing Civ. R. 53(D)(4)(e)(i)). However, in the context of forcible entry and detainer actions, this does not apply, as noted above:

“Civ.R. 1(C) expressly states that the Rules of Civil Procedure, to the extent that they would, by their nature, be clearly inapplicable, do not apply to forcible entry and detainer actions.” Gold Key Realty v. Collins, 2d Dist. Greene No. 2013 CA 57, 2014-Ohio-4705, ¶ 15. Applying Civ.R. 1(C), the Ohio Supreme Court in Griffith concluded that the automatic stay provisions in former Civ.R. 53(E)(7), now in Civ.R. 53(D)(4)(e)(i), do not apply to forcible entry and detainer actions. Griffith at the syllabus.

Kettering Square Apts. v. Crawford, 2017-Ohio-9054, ¶ 8 (2d Dist.); Civ. R. 1(C)(3) (stating [the Ohio Rules of Civil Procedure], “to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure ․ in forcible entry and detainer ․”). The Gold Key opinion further explains that “if the trial court has entered judgment before the time for filing objections has run, the tenant need not file objections and, instead, should file a notice of appeal from the trial court's judgment.” Gold Key, 2014-Ohio-4705, ¶ 19.

As in Greenlee, in this case the Eviction Action was before a Magistrate for the hearing on count one, for restitution of the Property, but the March 12 Entry was signed by a Judge of the Dayton Municipal Court; thus, nothing identified it “as a magistrate's decision, nor did it contain any of the language that Civ. R. 53(D)(3)(a)(iii)[⁴¹ ] requires magistrate's decisions to include.” Greenlee, at ¶ 26. Rather, it reflected Ms. Steele's agreement. And, as in Greenlee, the March 12 Entry “was the judgment” on NREA's “forcible entry and detainer action, and it was immediately appealable.” Id. Moreover, Ms. Steele never objected to the March 12 Entry. In fact, according to the docket for the Eviction Action, Ms. Steele's counsel only ever objected to the Magistrate's Order issued on April 3, 2024, which is not binding on this Court anyhow.

Ohio Revised Code (“R.C.”) Chapter 1923 governs a landlord's eviction of a tenant by forcible entry and detainer. Pursuant to R.C. § 1923.13, “[w]hen a judgment of restitution is entered by a court in an action under this chapter ․ at the request of the plaintiff or the plaintiff's agent or attorney, that court shall issue a writ of execution on the judgment[.]” R.C. § 1923.13(A). Under Ohio law, the “judgment of restitution” could be the end of the forcible entry and detainer action as it grants judgment to the owner of the real property. It is only if the holdover tenant fails to comply with that judgment that the next step, a writ of restitution, becomes necessary. See, e.g., Dayton Municipal Court Rule 3.7(J) (providing “[i]f the defendant (tenant) fails to vacate or remove personal property from the premises after restitution is granted by the Court, the plaintiff/owner may initiate a Writ of Restitution within 30 days from the date of the Entry of Restitution.”). The March 12 Entry was, in fact, an “Entry of Restitution” as that phrase is used in Dayton Municipal Court Rule 3.7(J) as the Dayton Municipal Court, upon Mr. Lasky's request, proceeded to the next step of issuing the Writ of Restitution on March 20, 2024. And Dayton Municipal Court Rule 3.7(I) provides that “[i]f the Court grants restitution of the premises to the plaintiff, the defendant (tenant) shall vacate the premises and remove all personal property.” There is no indication in R.C. Chapter 1923 or Dayton Municipal Court Rule 3.7 – Forcible Entry and Detainer Procedure – that the next step, the entry of a writ of possession, is stayed for any period of time following the entry of the judgment of restitution (the March 12 Entry), such that a landlord has a valid judgment for possession at the moment of entry.

As recited in the Background section, the March 12 Entry reflected the agreement of Ms. Steele and NREA that she “agree[d] to vacate the premises by March 15, 2024 by midnight” and that if she failed to do so, “a writ of restitution [would] issue forthwith.” Entry at 1 (Ex. D to First Am. Compl.). Nothing in the text of the March 12 Entry indicates that it is not a final order that grants NREA possession of the Property as of March 16, 2024. See Rulli v. Rulli Bros., 2003-Ohio-4005, ¶ 2 (7th Dist.) (“A judgment entry giving or denying a present right to possession of property under R.C. Chapter 1923 is a final, appealable order[.]”) (citing Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981); Witkowski v. Arditi, 123 Ohio App.3d 26, 30, 702 N.E.2d 1231 (7th Dist. 1997)). Thus, because Civ. R. 53 does not apply to a forcible entry and detainer action, and given that Ms. Steele agreed to all the terms of the March 12 Entry, as represented to the Dayton Municipal Court, Ms. Steele could not stay the effect of the March 12 Entry by filing an objection.

In addition to lacking the ability to stop the Eviction Action under Ohio law through an objection to the March 12 Entry, Ms. Steele did not have a right of appeal because she effectively waived it by agreeing to the Entry. It is well established under Ohio law that a party to a consent judgment is not permitted to appeal from that judgment unless they expressly reserve the right to do so. In the context of an appeal from an agreed judgment and decree in foreclosure, the rationale underlying this statement of law has been stated as follows:

A judgment entry to which the parties voluntarily agree and/or consent is essentially a contract between the parties. See Ohio State Medical Bd. v. Zwick (1978), 59 Ohio App. 2d 133, 139, 392 N.E.2d 1276; Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 39, 285 N.E.2d 324. As such, the parties are bound by its terms.

Furthermore, “[a] party to a consent decree or other judgment entered by consent may not appeal unless it explicitly reserves the right to appeal. The purpose of a consent judgment is to resolve a dispute without further litigation, and so would be defeated or at least impaired by an appeal. The presumption, therefore, is that the consent operates as a waiver of the right to appeal. It is because the parties should not be left guessing about the finality and hence efficacy of the settlement that any reservation of a right to appeal should be explicit.” Tradesmen Internatl., Inc. v. Kahoe (Mar. 16, 2000), Cuyahoga App. No. 74420, 2000 Ohio App. LEXIS 1062, 2000 WL 283081, at *7, quoting Assn. of Community Orgs. for Reform Now v. Edgar (C.A.7, 1996), 99 F.3d 261, 262. See also, Bromley v. Hinton and Keith Development, Summit App. No. 20730, 2002 Ohio 1249, ¶ 10; Chase v. Chase (May 31, 2001), Franklin App. No. 00AP-951, 2001 Ohio App. LEXIS 2439, 2001 WL 579804, at *2-4; Sharp v. Sharp, Franklin App. No. 01AP-665, 2002 Ohio 1040, ¶ 13; Miklovic v. Shira, Knox App. No. 04-CA-27, 2005 Ohio 3252, ¶ 31; Wasson v. Brumbaugh (June 26, 1981), Wood App. No. WD-80-70, 1981 Ohio App. LEXIS 11872, 1981 WL 5686, at *2.

Deutsche Bank Nat'l Trust Co. Ams. v. Weber, 2010-Ohio-1630, ¶¶ 13-14 (12th Dist.) (finding “Deutsch Bank voluntarily consented to the language and terms within the agreed judgment[ ]” such that it was “precluded from asserting error with regard to priority when it is clear that the terms of the agreed entry include the trial court's finding that CSEA has a first and best lien”); see also RTO Funding, LLC v. Bryant, 2023-Ohio-1775, ¶ 9 (6th Dist.) (quoting Capital Income & Growth Fund, LLC v. Hanson, 2016-Ohio-2973, ¶ 7 (6th Dist.) (quoting Deutsche Bank Nat'l Trust Co. Americas, 2010-Ohio-1630, ¶ 13)). A contract is binding and enforceable when it “encompasses the essential terms of the agreement[.]” Hinds v. Muskingum Cnty., 2017-Ohio-8212, ¶ 17 (5th Dist.) (citing Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d 586 (8th Dist. 1983)).

In this situation, the Dayton Municipal Court held not one, but two hearings to ensure that the March 12 Entry correctly reflected the parties’ agreement to resolve the restitution portion of the Eviction Action by Ms. Steele voluntarily vacating by March 15, 2024, and if not, being forcibly evicted through a writ of restitution. Again, a party to a consensual decree typically cannot appeal the order unless the right is explicitly reserved. RTO Funding, 2023-Ohio-1775, ¶ 9 (citations omitted). However, for a consensual entry to be filed, the parties must be in agreement on the meaning of the terms. Hinds, 2017-Ohio-8212, ¶ 26; see also Kohler v. Kohler, 2009-Ohio-3434 (2d Dist.) (adopting an agreed entry where the essential terms were clear and read into the record while both parties and their counsel were present in court.). When an agreed order is unsigned, but the parties are in agreement on the essential terms and both parties were represented when the agreement was read into the record, a consent entry may still constitute a binding contract. Reynolds v. Reynolds, 2022-Ohio-334, ¶ 8 (11th Dist.) (citations omitted).

While the March 12 Entry was not signed by either party, “the parties and their attorneys appeared” at the January 11, 2024 hearing. First Am. Compl. at 3, ¶ 16. According to Ms. Steele, at the January 11, 2024 hearing the parties agreed to terms to resolve the Eviction Action: “The terms were read into the DMC's record for the Eviction Action as follows. a. Plaintiff would vacate the premises on or before midnight on March 15, 2024, and b. If Plaintiff failed to vacate the premises before the expiration of such time, a writ of restitution would be issued forthwith.” Id. at 3, ¶ 17. Further, counsel for both parties were present at the February 29, 2024 hearing, where the only disagreement to be determined was whether the parties had agreed to a rental payment term at the prior hearing, and the magistrate listened to a recording of the prior hearing. Id. at 4, ¶¶ 18, 22. The presiding Magistrate determined that “the only terms agreed to: were that Plaintiff would ‘vacate the Property by the 15th of March and that any failures for her to do so a writ could be issued.’ ” Id. at 4, ¶ 22. Throughout the First Amended Complaint, Ms. Steele does not dispute that it was the parties’ agreement for possession of the Property to return to NREA by March 15, 2024. Ms. Steele confirms that these were the terms that were agreed upon at the January 11, 2024 hearing and that the terms were read into the record in the presence of both parties without objection. Id. at 3, ¶ 7. Both NREA and Ms. Steele were present and represented at that hearing, and both parties were represented at the subsequent hearing on February 29, 2024. Id. at 3-4, ¶¶ 16, 22. Finally, the March 12 Entry indicates that “[t]he parties agreed to the following terms” and did not reserve any issues for appeal. Id., Ex. D. Therefore, the March 12 Entry was a consent agreement, from which Ms. Steele had no right of appeal.⁴²

Just because the automatic stay did not apply to continuation of the Eviction Action does not mean, however, that NREA could take any actions that went beyond what is permitted by the eviction exception in § 362(b)(22), which must be narrowly construed. Thus, if NREA or its representatives damaged Ms. Steele's personal property, including but not limited to her couch and her cat, she still has a valid claim against NREA for violation of subsection (a)(3) of the automatic stay as the exercise of control over property of the estate, beyond just regaining possession of the Real Property can violate the automatic stay under subsection (a)(3) of § 362, as is further discussed below. It also could have given rise to state law tort claims. See, e.g., In re Bowers, 666 B.R. 374, 388 n.11 (Bankr. C.D. Cal. 2025) (“If Debtor suffered damages in connection with any loss of his personal property in September 2024, in connection with the handling of Debtor's personal property after Debtor was evicted from the Apartment, Debtor may pursue his rights to recover such damages from OZH in state court.”).

Ms. Steele, personally and through her counsel, confirmed to the Magistrate of the Dayton Municipal Court at three (3) separate hearings held on January 11, February 29, and postpetition on April 2, 2024, that she would vacate the Property. To allow her to then file bankruptcy and use the automatic stay, notwithstanding the existence of an agreed judgment for possession, the eviction exception in § 362(b)(22) and her failure to follow § 362(l), as a further delay to her eviction would undercut the very purpose for the exception in § 362(b)(22), which is to prevent the use of bankruptcy to excuse her failure to vacate the Property. Taking as true the facts as pled by Ms. Steele in her First Amended Complaint, along with a review of the public records of the Dayton Municipal Court attached to and referenced in the First Amended Complaint, the Court finds and concludes that Ms. Steele has not stated a valid claim that § 362(b)(22) was inapplicable. With respect to continuing the Eviction Action, NREA did not violate § 362(a)(3) of the Bankruptcy Code because the exception under § 362(b)(22) applied to allow NREA to continue the Eviction Action without having to obtain relief from the automatic stay.

As the 9th Circuit B.A.P. recently held, “Congress added § 362(b)(22) to the [Bankruptcy] Code in 2005 ‘to prevent abuse of the automatic stay as a last-minute eviction shield.’ ” LoCali, 2026 Bankr. LEXIS 1706, at *16 (quoting Allegheny Cnty. Hous. Auth. v. Marciniak (In re Marciniak), 676 B.R. 148, 151 (Bankr. W.D. Pa. 2026)). The facts alleged in the First Amended Complaint lead to the conclusion that Ms. Steele attempted to use her chapter 7 bankruptcy as a last-minute effort to avoid completion of the Eviction Action after agreeing, months earlier, to resolve that Eviction Action by voluntarily vacating the Property. Even though she was given two months to vacate, she failed to follow through, went to a third hearing to acknowledge her agreement yet again and assured the Magistrate of the Dayton Municipal Court that she would leave, yet she once more failed to do so. Thus, she bought herself almost two and a half more weeks of occupancy by filing her bankruptcy. To hold that the exception did not apply in this instance would be to condone what appears to have been an effort by Ms. Steele to continue to delay the inevitable. This is surely not what Congress intended to encourage in enacting § 362(b)(22); rather, it is precisely the type of delay and burden that it sought to eliminate for landlords obtaining a judgment for possession prior to bankruptcy, as NREA did, by Ms. Steele's agreement.⁴³ Moreover, it is notable that in this circumstance NREA likely could have filed a certification under § 362(b)(23) at the outset of Ms. Steele's bankruptcy case, due to the alleged illegal drug activity at the Real Property, which potentially could have headed off this adversary proceeding over the applicability of § 362(b)(22).

To look at this from another angle, subsection (b)(22) of § 362 effectively changes whether the landlord or tenant has the burden to file something with the bankruptcy court if a judgment for possession has been entered prepetition. Thus, instead of the landlord having to seek relief from the automatic stay, the burden is shifted to the debtor tenant to file the certification required under § 362(l) and pay thirty days of rent (like one month's rent), lest “subsection (b)(22) shall apply immediately ․ and relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property[.]” 11 U.S.C. § 362(l)(4)(A). Here, the March 12 Entry was not only obtained by NREA, but it had been agreed to before the Dayton Municipal Court by Ms. Steele and her counsel. And even if § 362(b)(22) did not exist, the Court most likely would have granted NREA relief from the automatic stay to continue the Eviction Action, given the allegations that Ms. Steele had not paid rent since at least November 2023, because there was a Notification of Public Use Nuisance, and her one-year lease term expired at the end of 2023. In this situation, it would not be equitable to allow her to remain in possession of the Real Property. This is not, as alleged by Ms. Steele, a situation in which she was hastily or unjustifiably evicted before the Lease was up and without due process of law or a final judgment for possession.⁴⁴ Based on her own allegations, she failed to abide by her own agreement to vacate the Real Property and, fundamentally, filed bankruptcy, in whole or in part, to simply get a little more time.

Years before BAPCPA was enacted, Judge Clark of this Court had occasion to consider whether a chapter 13 debtor, “despite the entry of a judgment in a forcible entry and detainer suit,” could still assume and cure a lease. See In re Collier, 163 B.R. 118 (Bankr. S.D. Ohio 1993). Therein, Judge Clark determined that an order entered by the Dayton Municipal Court in a forcible entry and detainer action that granted the plaintiff restitution of the premises was the final judgment, not the subsequent writ of restitution. Id. at 119-21. Judge Clark explained that:

In this court's view, the next step in the eviction process (a writ of restitution) does nothing to further delineate the substantive rights and liabilities of the parties under the lease. A writ of restitution is ministerial in nature and merely enforces the state court's previous declaration regarding the parties’ rights.

Id. at 121 (citing, in footnote 3, State ex rel. Marsol Apt. Co. v. Vannuci, 68 Ohio App.2d 181, 428 N.E.2d 468, 470 (8th Dist. 1980)). In the Marsol Apartment decision, the Eighth District Court of Appeals, Cuyahoga County wrote:

We hold that, under Ohio law, where a party prevails in an action for forcible entry and detainer, it is the clear legal duty of the bailiff to remove defendant's (tenant's) possessions as well as his person from the premises after the writ of restitution has been issued by the court in order to effect the restitution of the premises to the lawful owner.

68 Ohio App.2d at 183. Accordingly, this additional case law confirms that the entry of restitution entered in an Ohio forcible entry and detainer action is the “judgment for possession” for purposes of § 362(b)(22).

Ms. Steele fails to explain what, if anything, would be a final appealable judgment for possession of the Real Property within the Eviction Action if it was not the March 12 Entry. Pursuant to R.C. § 1923.13(A), “[w]hen a judgment of restitution is entered by a court in an action under this chapter, ․ that court shall issue a writ of execution on the judgment ․” R.C. § 1923.13(A). Therefore, the final step, which is ministerial, is that “within ten days after receiving a writ of execution described in division (A) ․ of section 1923.13 of the Revised Code, the ․ bailiff shall execute it by restoring the plaintiff to the possession of the premises ․” R.C. § 1923.14(A). A writ of restitution is obviously not a judgment as it is a ministerial action; thus, the final substantive entry by an Ohio court in an eviction action, and the only thing that could possibly be the judgment for possession under Ohio law in the Eviction Action, is the March 12 Entry. That is the only entry—the judgment of restitution—appealable on the count for possession in a forcible entry and detainer action, as recognized in R.C. § 1923.14(A). It is not an interlocutory order. Rather, because a judgment (an entry) of restitution is enforceable upon entry ⁴⁵ and a writ of restitution is required to be executed within ten days, the eviction could happen before the appeal period runs. Thus, it would render the exception in § 362(b)(22) of little utility, as applied to Ohio evictions, if a judgment for restitution had to become non-appealable before it could be considered a “judgment for possession” within a bankruptcy, even though it is a final and enforceable judgment for restitution outside of bankruptcy. That approach does not make sense and does not track the plain language of § 362(b)(22), which requires a “judgment for possession,” not a non-appealable judgment for possession. Thus, without currently opinion on any other permutation of how an eviction action can play out under Ohio law,⁴⁶ the simplest approach, as suggested by the recent LoCali opinion, is to recognize under Ohio law that an entry (judgment) of restitution that finally determines the issue of possession, once entered by an Ohio court, is a “judgment for possession” for the purposes of § 362(b)(22), subject to any actions that a tenant may take to stay that judgment of restitution under Ohio Rule of Appellate Procedure 7 and R.C. § 1923.14(A). Here, however, Ms. Steele took no such action and under Ohio law she could not have successfully appealed the agreed judgment for possession, such that the “finality” of the March 12 Entry was not in question.⁴⁷ Accordingly, the March 12 Entry shifted the burden to Ms. Steele to invoke the automatic stay through § 362(l), which she did not do.

The approach advocated by Ms. Steele would not account for the practical reality that forcible entry and detainer actions are “an expedited method to recover possession of real property.” Olentangy Commons Owner LLC v. Fawley, 2023-Ohio-4039, ¶ 11 (10th Dist.) (citations omitted). And, again, § 362(l) provides the remedy in bankruptcy for those debtors who wish to invoke the automatic stay for thirty days or more to challenge an Ohio judgment for restitution, in addition to any continued ability to seek a stay of execution under Ohio law pursuant to Ohio Rule of Appellate Procedure 7 and R.C. § 1923.14(A). But here, it appears that Ms. Steele may not have been able to meet the requirements of § 362(l) such that she took the approach of challenging the applicability of § 362(b)(22).

Based on the foregoing and considering that the record of the Eviction Action in Dayton Municipal Court, which has been put before this Court by Ms. Steele in detail, will not change, it is appropriate for this Court to rule on the legal issue focused on by the parties – the applicability of the eviction exception in § 362(b)(22). Because Count I of the First Amended Complaint is presented as seeking a declaratory judgment that the eviction exception in § 362(b)(22) is “inapplicable,” the Court cannot grant and will dismiss Count I pursuant to Civil Rule 12(b)(6) because “it appears beyond doubt that [Ms. Steele] can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Maxus Cap. Grp., LLC v. Uhrich (In re Level Propane Gases, Inc.), No. 09-8047, 2010 Bankr. LEXIS 882, at *7 (B.A.P. 6th Cir. Apr. 2, 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957))). Under these specific circumstances, the Court cannot conclude that the eviction exception in § 362(b)(22) was inapplicable. That said, even though this Court concludes that the eviction exception in § 362(b)(22) did apply because the March 12 Entry for restitution was a “judgment for possession,” that does not mean that all of NREA's and Mr. Lasky's actions are excepted from the automatic stay. In other words, the issue of the scope of the eviction exception in § 362(b)(22) is still alive and will be addressed within the context of Count II of the First Amended Complaint below, which is not being dismissed.

F. Count II – § 362(a)(1), (a)(3), and (a)(6) of the Automatic Stay, and § 362(k)

Ms. Steele alleges in Count II that NREA and Mr. Lasky violated not only subparagraph (a)(3) of the automatic stay (§ 362), but also violated subsections (a)(1) and (a)(6), to which the exception in § 362(b)(22) does not apply. See First Am. Compl. at 16-17, ¶¶ 93-94. Subparagraph (a)(1) of the automatic stay is expansive in the way it prevents the continuation of a judicial action against a debtor that was commenced prepetition, or to recover a claim against the debtor that arose prepetition, whereas subparagraph (a)(3) concerns property of the estate and acts to obtain possession or to exercise control over such property. But conversely, if the continuation of an eviction action does not violate subparagraph (a)(3) because of the exception in § 362(b)(22), it would not make sense that continuation of that eviction action would still violate subparagraph (a)(1)⁴⁸ because that could render the exception in § 362(b)(22) of little use. In other words, application of (a)(1) would seem to conflict with the exception in § 362(b)(22). At this stage, however, because Ms. Steele has adequately pled a claim that NREA has plausibly violated at least subsection (a)(3) of the automatic stay by exercising control – damaging, destroying, or disposing – of her personal property (property of the estate), the Court need not attempt to determine which subsections of the automatic stay were violated, as it only takes one to trigger liability under § 362(k)(1). Szoke v. Chase Home Fin., Inc. (In re Szoke), Nos. 06-42182, 12-4048, 2012 Bankr. LEXIS 6299 (Bankr. N.D. Ohio Aug. 28, 2012) (ruling on a motion to dismiss, “[b]ecause the Court finds that the Debtors have stated a plausible claim for alleged violation of the automatic stay in § 362(a)(3), the Court does not need to determine if the Complaint also states a plausible claim for violation of § 362(a)(6)”). Accordingly, the Court will not, at this time, set about to determine whether Ms. Steele has stated plausible claims under subparagraphs (a)(1) or (a)(6).

As recited below, “[a]n individual seeking damages for a violation of the stay has the burden of establishing three elements ․ : (1) the actions were taken in violation of the automatic stay; (2) the violation was willful; and (3) the violation caused actual damages.” Haywood v. Villa at City Ctr. (In re Haywood), No. 25-04074-LSG, 2025 Bankr. LEXIS 1739, at *5-7, 2025 WL 2056106, at *2 (Bankr. E.D. Mich. July 22, 2025) (quoting Collet v. Lee Oil Co. (In re Collet), No. 13-8033, 2014 Bankr. LEXIS 2250, at *10, 2014 WL 2111309, at *4 (B.A.P. 6th Cir. May 21, 2014)). Ms. Steele has adequately alleged all three elements in respect to the damage, destruction, or disposition of her personal property. And even though § 362(b)(22) was applicable to continuation of the Eviction Action, a narrow construction of the eviction exception does not except these actions. See Seaton, 462 B.R. at 593-94; see also Williams, 371 B.R. at 112-13 (concluding that even though no automatic stay went into place due to debtor's failure to “fulfill the requirements of § 362(l),” such that no stay relief was required to pursue an eviction action, “[w]ith respect to the personal property that remains in the Residence, the automatic stay remains in place”).

To the extent that NREA had continued to seek a monetary judgment against Ms. Steele, that could have potentially violated either § 362(a)(1) or (a)(6); however, both the allegations of the First Amended Complaint, as well as the docket of the Dayton Municipal Court for the Eviction Action, indicate that as of December 18, 2023, well before Ms. Steele filed her bankruptcy, NREA, by and through Mr. Lasky, had amended the FE&D Complaint to only assert a claim for restitution of the Real Property due to illegal drug activity. See Def.’s Ex. B to Answer (Doc. 4-1); First Am. Compl. at 3, ¶ 14. Further, although NREA, also by and through Mr. Lasky, allegedly filed a Motion for Default Judgment on March 4, 2024 seeking a monetary judgment (apparently on a then non-existent count two) and “submitted and received the [Dayton Municipal Court] Judge's signature on a form Entry Granting Default Judgment and Scheduling Matter for a Hearing to determine monetary damages” on March 14, 2024,⁴⁹ Ms. Steele did not file her Petition for chapter 7 relief until 9:38 p.m. that evening. First Am. Compl. at 4-5, ¶¶ 23, 27, 28; Petition (Doc. 1). There is no allegation in the First Amended Complaint that NREA took any action after Ms. Steele filed her Petition to continue to seek a monetary judgment; rather, all the allegations, as well as the items on the Dayton Municipal Court's docket, appear to concern continuation of the Eviction Action through the: (a) Writ of Restitution; (b) the April 2, 2024 hearing; (c) the resultant April 4 Magistrate's Order; (d) a Motion to Stay Writ of Restitution filed by Ms. Steele's Counsel, Mr. Willison, on April 4, 2024; and (e) Objections to Magistrate's Decision, also filed by Mr. Willison. See First Am. Compl. at 8, ¶¶ 47-49. In fact, the only item on the docket regarding a default judgment is Defendant's Motion to Set Aside Default Judgment that was filed on April 12, 2024, but which is also not mentioned in the First Amended Complaint.

Accordingly, based on the allegations of the First Amended Complaint, as matched up against the docket for the Eviction Action, Ms. Steele has alleged a claim for violation of the automatic stay at least under § 362(a)(3) due to NREA or its agents’ actions to damage, destroy, and dispose of Ms. Steele's personal property, which was property of the estate, because those actions are not excepted from the automatic stay pursuant to the eviction exception in § 362(b)(22), as narrowly construed. The Court does not, however, determine whether there are any actions that NREA is alleged to have taken postpetition that could have violated subsections (a)(1) or (a)(6) of the automatic stay (§ 362). But Ms. Steele's viable allegations under Count II of the First Amended Complaint, upon which Ms. Steele has alleged a claim to hold NREA responsible for damages under § 362(k)(1), are that NREA damaged, destroyed, or disposed of her personal property, including but not limited to the couch and missing cat, and caused her emotional distress by doing so (and by leaving a vulgar makeshift sign on her allegedly damaged couch). NREA claims that Ms. Steele claims are “insufficient to support relief under § 362(k)[,]” but for purposes of simply alleging her claims, she has adequately pled facts supporting her claim, the proof will be assessed later. NREA's citation to Dawson v. Ram Motors, LLC (In re Dawson), 665 B.R. 796, 805-06 (Bankr. S.D. Ohio 2025), which was an opinion issued on a motion for summary judgment (finding the creditor violated the automatic stay and was liable for actual and punitive damages, as well as attorney fees), not on a motion to dismiss, is unavailing; in short, proving is different than alleging.

Last, on the issue of Ms. Steele stating a claim, it is obvious that NREA knew about Ms. Steele's bankruptcy case, having filed a Motion for Stay Relief in her chapter 7 bankruptcy early on, only five days after she filed bankruptcy, and having debated the implications of the bankruptcy case before the Dayton Municipal Court. Thus, NREA and its agents ⁵⁰ subsequent actions are sufficiently pled to be “willful” given that Ms. Steele has alleged that NREA (and Mr. Lasky) “knew of the stay and violated the stay by an intentional act[;]” namely, by damaging, destroying, or disposing of her personal property. TranSouth Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676, 687 (B.A.P. 6th Cir. 1999) (cited in Resp. at 12, ¶ 28). NREA takes issue in its Motion to Dismiss with whether its actions were “willful,” but the case law cited therein pre-dates the amendments to § 362(k), also enacted as part of BAPCPA. See In re Seymoure, No. 07-4960, 07-4967, 2008 U.S. Dist. LEXIS 18968, at *6-7, 2008 WL 699584, at *2 (D.N.J. Mar. 12, 2008) (stating that through BAPCPA in April 2005, “subsection (h), which dealt with ‘willful’ violations of automatic stays, was redesignated as subsection (k)” and “Paragraph 1 of subsection (k) was amended to include an exception to the subsection, which was provided by the addition of Paragraph 2 to the subsection.”) And regardless of whether In re University Medical Center is still viable (in the Third Circuit), it was a unique situation involving the Department of Health and Human Services withholding payments for Medicare services rendered postpetition, a far more complex legal issue than is presented in this case.⁵¹ And the In re University Medical Center opinion was in conflict with even the Third Circuit Court of Appeals’ prior precedent that “[w]hether the party believes in good faith that it had a right to the property is not relevant to whether the act was ‘willful’ or whether compensation must be awarded.” 973 F.2d at 1088 (quoting In re Atl. Bus. & Cmty. Corp., 901 F.2d at 329 (quoting In re Bloom, 875 F.2d 224, 227 (9th Cir. 1989) [quoting INSLAW, Inc. v. United States, 83 B.R. 89, 165 (Bankr. D.D.C. 1988)])). Moreover, a defendant's good faith is simply not something that can be assessed in the context of a motion to dismiss under Civil Rule 12(b)(6), and it does not appear that the Sixth Circuit Court of Appeals has adopted an analysis like that in In re University Medical Center. See, e.g., Springer v. RNBJ RTO LLC (In re Springer), No. 16-3007, 2017 Bankr. LEXIS 2304, at *7 (Bankr. W.D. Ky. Aug. 16, 2017) (“A creditor's good faith belief that its intentional actions did not violate the automatic stay is not a defense to a § 362(k) action.” (citing Sharon, 234 B.R. at 688)). “[E]ven if the creditor's belief is based on ‘a mistake of law or legal dispute regarding its rights[,]” good faith is not a defense to a § 362(k) action. Springer, 2017 Bankr. LEXIS 2304, at *7 (quoting In re Johnson, 253 B.R. 857, 861 (Bankr. S.D. Ohio 2000); Fleet Mortg. Group, Inc. v. Kaneb (In re Kaneb), 196 F.3d 265, 268-69 (1st Cir. 1999) (“A good faith belief in a right to the property is not relevant to a determination of whether the violation was willful.”). At this stage it is simply a question of whether Ms. Steele has stated a plausible claim for relief that NREA violated the automatic stay, and she has. NREA will have a chance to attempt to prove any defenses.

G. Civil Rule 9(g) on Special Damages Does Not Apply

Section 362(k)(1) provides that “in appropriate circumstances” an “individual injured by any willful violation of a stay provided by this section ․ may recover punitive damages.” NREA contends, in its Motion to Dismiss, that Civil Rule 9(g), concerning “special damage” applies to Ms. Steele's attempt to recover for her “emotional distress and punitive damages” such that the First Amended Complaint is “independently deficient” and “Plaintiff should be barred from pursuing special damages or be required to amend the Amended Complaint in order to set forth sufficient allegations with the requisite detail and causal specificity.” Mot. to Dismiss at 18-19, ¶¶ 52, 55. In the context of § 362(k), the matter is pretty straightforward. Ms. Steele is alleging that she was damaged by NREA's violation of the automatic stay by damaging, destroying, and disposing of her personal property—property of the estate.

Ms. Steele does not have to “ ‘state a claim’ for punitive damages” and case law provides that “[p]unitive damages are not an item of special damage.” Smith v. Smith (In re Smith), 489 B.R. 875, 889 (Bankr. M.D. Ga. 2013) (citing Scutieri v. Paige, 808 F.2d 785, 790-90 (11th Cir. 1987) (“district court clearly erred in not submitting punitive damage issue to jury even when complaint did not specifically request punitive damages because ‘complaint specifically alleged that Defendants acted maliciously, wantonly, willfully and in bad faith and with a reckless disregard for Plaintiffs’ rights.’ ”); Guillen v. Kuykendall, 470 F.2d 745, 748 (5th Cir. 1972) (“It is not necessary to claim exemplary damages by specific denomination if the facts show that the wrong complained of was inflicted with malice, oppression, or the like circumstances of oppression.”) (citations and internal quotation marks omitted)); see also Blewster v. Garvey, No. 19-11914, 2020 U.S. Dist. LEXIS 260785, at *10-11, 2020 WL 12740544, at *4 (E.D. La. Sept. 23, 2020) (“While the phrase ‘special damages’ is not defined by the Rule, courts in this circuit have consistently held that punitive damages are not special damages.” (citing Schexnayder v. Bonfiglio, 167 F. App'x 364, 367 (5th Cir. 2006))). Thus, Ms. Steele's “factual allegations would be enough to put [NREA] on notice that punitive damages [a]re at issue[.]” Smith, 489 B.R. at 889. Whether Ms. Steele can prove her entitlement to punitive damages is an evidentiary issue, which is not presently before the Court. See, e.g., Mitchell v. Anderson (In re Mitchell), 545 B.R. 209, 223 (Bankr. N.D. Ohio 2016) (“Punitive damages are appropriate only when a creditor acts egregiously, vindictively, or with intentional malice.” (citing Bankers Healthcare Grp., Inc. v. Bilfield (In re Bilfield), 494 B.R. 292, 304 (Bankr. N.D. Ohio 2013) (quoting In re Baer, No. 11-8062, 2012 Bankr. LEXIS 2849, 2012 WL 2368698, at *10 (B.A.P. 6th Cir. June 22, 2012))). Moreover, some courts hold that “emotional distress damages are actual damages that can be recovered for a stay violation.” Mitchell, 545 B.R. at 222 (quoting Bilfield, 494 B.R. at 302-03). “An award of punitive damages is within the bankruptcy court's discretion where actual damages are an insufficient deterrent to further violations.” Mitchell, 545 B.R. at 223 (citing Archer v. Macomb Cnty. Bank, 853 F.2d 497, 500 (6th Cir. 1988)).

In short, all that Ms. Steele needs to do at this phase is provide a “short and plain statement” of the willful violation of the automatic stay and, as to damages, allege some basis that she has been harmed. See Cousins v. CitiFinancial Mortg. Co. (In re Cousins), 404 B.R. 281, 285, 289-90 (Bankr. S.D. Ohio) (Walter, J.) (stating that § 362(k)(1) “allows a debtor to recover ‘actual damages including costs and attorney fees.’ ”). Here, Ms. Steele has validly stated a claim for violation of the automatic stay, outside the narrow scope of what is permitted by § 362(b)(22), and has alleged injuries for “dispossession and destruction of the vast majority of her personal property;” “[c]ontinuing and permanent [ ] dispossession of Plaintiff's pet cat;” and “[e]xtreme emotional distress[.]” First Am. Compl. at 17, ¶ 95. Based on this she requests “actual damages, costs and reasonable attorney fees and expenses[,]” and asserts that she is “entitled to recover appropriate punitive damages.” Id. at 18, ¶ 98-99. This is rooted in the detailed factual background she recounted in her First Amended Complaint and is sufficient to withstand the Motion to Dismiss. See Haywood, 2025 Bankr. LEXIS 1739, at *5-7. “Whether such damages should be awarded in this particular case is a matter to be determined on another day following an evidentiary hearing.” Cousins, 404 B.R. at 291; see also In re Paige, 678 B.R. 588, 600 (Bankr. S.D. Ohio 2026) (noting that “courts that have awarded [emotional] damages have required medical or other corroborating evidence showing severe emotional distress and not ‘fleeting and inconsequential distress, embarrassment, humiliation, and annoyance.’ ” (quoting Cousins, 404 B.R. at 290-91)). For now, the First Amended Complaint states a “plausible claim to recover damages under [ ] § 362(k) for a violation of the automatic stay.” Haywood, 2025 Bankr. LEXIS 1739, at *6-7.⁵²

H. Motion for a More Definite Statement Under Civil Rule 12(e)

Although Ms. Steele's filings are, at times, a bit hyperbolic, she does have a fair point that the Complaint, as well as the First Amended Complaint, are replete with detailed allegations concerning the circumstances of NREA's alleged violation of the automatic stay. Precisely who did what and when, with respect to the damage, destruction, and disposition of Ms. Steele's personal property does not have to be fully detailed at the moment given that we have to take as true the allegations that it was at NREA's behest as a continuation of its Eviction Action. This is not a fraud claim to which Civil Rule 9(b) would apply, is not required and is a topic for discovery. There is more than enough information with respect to what happened to Ms. Steele's personal property as a result of the Eviction Action that NREA and Mr. Lasky pursued postpetition. And the case cited by NREA in this regard has no application to the type of claim asserted in this adversary proceeding, for violation of the automatic stay, where there is no doubt whatsoever as to the “soul of the claim.” Mot. to Dismiss at 19, ¶ 57 (citing Kensu v. Corizon, Inc., 5 F.4th 646, 647, 650, 653 (6th Cir. 2021) (addressing an inmate's meandering lengthy and unclear complaint “[a]lleging several deprivations of constitutional rights” and concluding that “neither court nor defendant can easily identify the soul of the claim.”)). NREA already answered the Complaint once, and they can do so again.

V. Conclusion

The premise upon which Ms. Steele filed her Motion to Determine § 362(b)(22) Inapplicable, followed by her Complaint, and later her First Amended Complaint, was that the March 12 Entry was not a “judgment for possession, by ‘equivalency’ or otherwise, for the purpose of [ ] § 362(b)(22)” because “it was neither final nor non-appealable.” Compl. at 12, ¶ 72; First Am. Compl. at 14-15, ¶¶ 85, 87. Ms. Steele asserted in conclusion to Count I of the First Amended Complaint that she is “entitled to a declaratory ruling that the exception provided by [ ] § 362(b)(22) is inapplicable to any order coming from the DMC prior to March 14, 2024, at 9:[3]8 p.m., and specifically, the March 12, 2024, ‘Entry’.” First Am. Compl. at 15, ¶ 88 (emphasis in original). But that view is not supported by the language of § 362(b)(22), the legislative history to the purpose of enactment of corresponding subsections (b)(22) and (l) to § 362 under BAPCPA, and application of the exception to the Eviction Action under Ohio law, Ohio civil rules of procedure, the local rules of the Dayton Municipal Court, and the facts of this case as alleged by Ms. Steele, taking all of her allegations as true and based upon the docket of the Eviction Action.

To recap: (a) Dayton Municipal Court Rule 3.7(I) and (J) indicate the Entry was an “Entry of Restitution,” entitling NREA to obtain a Writ of Restitution if Ms. Steele failed to leave the Real Property by midnight on March 15, 2024; (b) the March 12 Entry was based on Ms. Steele's in-court agreements on January 11 and February 29, 2024, to vacate by March 15, 2024; (c) under Ohio law, Civ. R. 53(D) did not apply to permit Ms. Steele to automatically stay the March 12 Entry;⁵³ (d) because Ms. Steele agreed to the March 12 Entry, not once, but twice before the Magistrate of the Dayton Municipal Court, with counsel, she did not have a right of appeal under Ohio law; and (e) she did not, or perhaps could not, utilize the option provided for by § 362(l) to remain in the Real Property for thirty more days. Thus, under Ohio law a “judgment for possession” for purposes of § 362(b)(22) is the entry or judgment of restitution, in this case the March 12 Entry, which was the final judgment of the Dayton Municipal Court on the issue of possession of the Real Property. Therefore, Ms. Steele has failed to state a plausible claim for declaratory judgment in Count I of her First Amended Complaint that § 362(b)(22) was inapplicable. Taking all the facts she alleged as true, though not her legal conclusions therefrom,⁵⁴ the Court determines that § 362(b)(22) did apply, and because she did not (or could not) invoke § 362(l), no automatic stay ever went into place with respect to NREA's continuation of the Eviction Action as to possession of the Real Property. Accordingly, the Motion to Dismiss is hereby granted, in part, such that Count I of the First Amended Complaint is hereby DISMISSED.

Count II, however, remains viable, and in this regard the Motion to Dismiss is hereby denied, in part. Because the eviction action exception in § 362(b)(22) is to be narrowly construed and only permitted the continuation of the Eviction Action to recover the Real Property – the residential property in which Ms. Steele resided – said exception did not authorize NREA to “obtain possession of” or “to exercise control over” property of the estate that was not the residential property in which Ms. Steele resided (i.e., her personal property), such that Ms. Steele has, at a minimum, stated a valid claim for relief in Count II, to the extent Ms. Steele is alleging that NREA violated § 362(a)(3) by, without limitation, damaging, destroying, and disposing of her personal property, such as (but not limited to) the couch and missing cat. And because she has stated a valid claim for violation of the automatic stay under § 362(a)(3), because she is an “individual,” and because she has sufficiently alleged that NREA's purported violation of the automatic stay was done with full knowledge of Ms. Steele's bankruptcy such that it was “willful” under § 362(k)(1), she is entitled to proceed with Count II.

However, apart from proceeding with the Eviction Action and potentially violating the automatic stay by exercising control over her personal property, the Court is not determining whether any other actions, judicial or otherwise, as alleged by Ms. Steele, violated subsections (a)(1) or (a)(6) of § 362, which are not excepted by § 362(b)(22). That is a question for another day – whether the facts alleged in the First Amended Complaint establish a violation of the automatic stay under subsections (a)(1) or (a)(6) of § 362. Therefore, for all the reasons stated in this Opinion and Order, Ms. Steele's First Amended Complaint states a plausible claim for relief, albeit not on the basis that NREA violated § 362(a)(3) by continuing the Eviction Action, such that the Court will not, at this time, dismiss Count II and Ms. Steele will have the opportunity to prove that NREA or Mr. Lasky violated the automatic stay. Although there was a “judgment for possession,” in the form of the March 12 Entry prior to Ms. Steele filing bankruptcy, and she did not invoke § 362(l) such that no automatic stay ever went into place to stop NREA from obtaining a writ of possession to displace Ms. Steele, that did not give NREA the right to mishandle and mistreat her personal property, even if they may have arguably acted in accordance with Ohio eviction law. The § 362(b)(22) exception must be narrowly construed and does not except from the automatic stay acts to exercise possession or control over property of the estate, particularly personal property.

NREA's claim in its Motion to Dismiss that Civil Rule 9(g) applies to Ms. Steele's assertion of entitlement to punitive damages is legally incorrect. Therefore, NREA's motion for a more definite statement under Civil Rule 12(e), which was included in its Motion to Dismiss, is also denied. Ms. Steele has more than adequately alleged the facts giving rise to her claim that NREA or its agents violated § 362(a)(3) therefore potentially entitling her to damages under § 362(k)(1). Obviously, whether she can prove those claims is another matter, but for now it is certainly plausible, and the burden will be on her to establish damages. Accordingly,

IT IS HEREBY ORDERED that the Motion to Dismiss is granted, in part, and denied, in part, as set forth above, such that Count I is hereby DISMISSED, but Count II remains as it states, at a minimum, a plausible claim that NREA violated (a)(3) of the automatic stay (§ 362) and is therefore liable for damages under § 362(k)(1); and

IT IS FURTHER HEREBY ORDERED that NREA shall file a responsive pleading to Count II of the First Amended Complaint within fourteen (14) days after the entry of this Opinion and Order;

IT IS FURTHER HEREBY ORDERED that the Court anticipates scheduling a status conference with the parties to discuss the remaining matters pending before this Court in this adversary proceeding in order to determine if this Opinion and Order enables the parties to proceed with mediation as they had previously requested, if it may lead to a resolution without mediation, or if setting a new case schedule would be appropriate to move this adversary proceeding toward conclusion. And, if the latter, whether other pending motions remain for adjudication; and

IT IS FURTHER HEREBY ORDERED that prior to holding a status conference, the parties to this adversary proceeding (Plaintiff, Defendants, Third-Party Plaintiffs and Third-Party Defendants) shall file a status report regarding the foregoing matters, as set forth in the ordinal paragraph immediately above regarding the impact of this Opinion and Order on the remaining matters pending in this adversary proceeding, by or before October 13, 2026.

IT IS SO ORDERED.

FOOTNOTES

1.   Hereinafter, unless otherwise noted, all sections cited are sections of title 11 of the United States Code (the “Bankruptcy Code”).

2.   See In re Rinegard-Guirma, 654 B.R. 390, 396 (Bankr. D. Or. 2023) (concluding that motions to seek determinations regarding the scope of the automatic stay “are analogous to motions to terminate, annul, or modify the automatic stay” which are core matters under 28 U.S.C. § 157(b)(2)(G)).

3.   The Court is not opining on its subject matter jurisdiction over NREA's third-party indemnity and contribution claims at this time, and no inference should be drawn from the Court's reference herein to NREA's filing on that issue. In other words, the Court reserves judgment on that issue.

4.   Ms. Steele was originally represented only by Timothy M. Cooper with Recovery Law Group, APC out of Cleveland, Ohio when she filed her chapter 7 case. See Petition at 7.

5.   Citations to docket entries hereinafter will be to those in Adversary Proceeding No. 24-3011, unless otherwise noted.

6.   Background derived from the allegations of the First Amended Complaint is not, at this time, established fact, but on a motion to dismiss the Court must accept all factual allegations as true. See infra., § IV.A.

7.   See also Rieser v. Moorman (In re Equity Land Title Agency, Inc.), 370 B.R. 154, 157 n.1 (Bankr. S.D. Ohio 2007) (Waldron, J.) (“The Defendants correctly note the court's review of the Clayton decision is a matter of judicial notice of the court's records and may be reviewed on a motion to dismiss.” (citing Papasan v. Allain, 478 U.S. 265, 268 (1986)); see also Mehdipour v. Anchor Commer. Bank (In re Chariots of Palm Beach, Inc.), Nos. 17-19455-MAM, 17-19458-MAM, 18-01360-MAM, 2019 Bankr. LEXIS 3013, at *5, 2019 WL 4744900, at *2 (Bankr. S.D. Fla. Sept. 27, 2019) (“Courts may take judicial notice of public records including proceedings in its own docket as well as proceedings in other courts without the need to convert a motion to dismiss into a motion for summary judgment.” (quoting In re All Am. Semiconductor, Inc., 427 B.R. 559, 564-65 (Bankr. S.D. Fla. 2010) (citing Universal Express, Inc. v. United States Sec. and Exch. Comm'n, 177 F. App'x 52, 53-54 (11th Cir. 2006))); Anchieta v. Wells Fargo Bank, N.A. (In re Anchieta), No. 8-23-08026-las, 2025 Bankr. LEXIS 1513, at *50, 2025 WL 1748387, at *17 (Bankr. E.D.N.Y. June 24, 2025) (“A court may also take judicial notice of matters of public record, including documents filed in other court proceedings, when considering a motion to dismiss.” (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991); “Additionally, a court may ‘take judicial notice of its own orders’ and ‘its own records.’ ” (quoting Rosado-Acha v. Red Bull GmbH, No. 15 Civ. 7620, 2016 U.S. Dist. LEXIS 84543, at *7, 2016 WL 3636672, at *7 (S.D.N.Y. June 29, 2016) (further citations omitted)).

8.   In a number of the filings preceding the Complaint filed in this adversary proceeding, as well as the First Amended Complaint, Ms. Steele refers to the entity identified in her Lease, which is “VineBrook Homes, LLC, a Delaware limited liability company, as the authorized agent for NREA VB III, LLC, the owner of property described in Section 2 (collectively, the ‘Lessor’)[.]” Ex. A to First Am. Compl. (Doc. 93-1) at 1, § 1; see also Ex. “A” to Motion of Vinebrook Homes LLC for NREA VB III, LLC for Relief from Stay as to 1351 Oakdale Ave, Dayton, OH 45420 (Estate Doc. 9-1) (appearing to be the original copy of the Lease that was refiled as Exhibit A to the First Amended Complaint based on the overlapping ECF-stamps in the header and which was reviewed for purposes of obtaining the words covered by the Exhibit A sticker on the copy of the Lease attached to the First Amended Complaint). However, in the First Amended Complaint Ms. Steele noted that “upon review of the applicable records maintained by the Ohio Secretary of State, Vinebrook Homes, LLC, a Delaware limited liability company, was merged out of existence in May 2015.” First Am. Compl. at 2, n.2. Either way, Plaintiff named the Owner of the Real Property, NREA VB III, LLC, as the original Defendant in the Complaint and one of two Defendants in her First Amended Complaint.

9.   The Real Property is also sometimes referred to herein as “1351 Oakdale.”

10.   A copy of this document was later filed with the Court by Third-Party Defendants as Exhibit A (Doc. 111-1) with their Third-Party Defendants’ Exhibit List (Doc. 111).

11.   Ms. Koch was allegedly Mr. Steele's girlfriend.

12.   A copy of this Complaint was later filed with the Court by Third-Party Defendants as Exhibit 2 (Doc. 111-1) with their Third-Party Defendants’ Exhibit List (Doc. 111).

13.   Unless otherwise noted in this Opinion and Order, all references to Exhibits are to the Exhibits attached to the First Amended Complaint.

14.   Paragraph 28 of the First Amended Complaint alleges the Petition was filed at 9:48 p.m., but the ECF-stamp on the Petition shows “21:38:11.” Petition at 1-46.

15.   The Magistrate's Order entered in the Eviction Action on April 3, 2024 corroborates this allegation, stating that the “Notice of Bankruptcy Case Filing” was transmitted to the Dayton Municipal Court by fax. Magistrate's Order, Vinebrook Homes, LLC for NREA VB III, LLC v. Steele, Dayton M.C. No. 2023 CVG 6454 (Apr. 3, 2024) (the “April 3 Magistrate's Order”) (Ex. F to First Am. Compl.).

16.   No images of the filings on the Dayton Municipal Court's docket are available online.

17.   Vinebrook Homes, LLC for NREA VB III, LLC, as a creditor, also filed and served a Notice of Motion for Relief from Stay [ ] as to 1351 Oakdale Ave., Dayton, OH 45420 (Case No. 24-30467, Doc. 10).

18.   The April 3 Magistrate's Order corroborates this allegation as well. April 3 Magistrate's Order at 1 (Ex. F to First Am. Compl.).

19.   The arguments are summarized in the First Amended Complaint but are not recounted herein as they do not appear to be germane at this time. See First Am. Compl. at 6-7, ¶ 42.a-c.

20.   This motion was later withdrawn as moot following the eviction on April 18, 2024 (Case No. 24-30467, Doc. 17).

21.   Mr. Lasky, as NREA's counsel, also asserted in its Sixth Defense that “debtor's counselors’ failure to likewise use due care in failing to utilize Form 101B does not translate into a cause of action for the Debtor herein ․” Compl. at 2, ¶ 9. And, oddly, NREA made a jury demand. Compl. at 3.

22.   Beyond the Public Use Nuisance notification and allegations of illegal drugs being present on the Property, the Court has no allegations before it as to Ms. Steele's involvement and obviously makes no conclusions in that regard.

23.   Also in the Final Pretrial Order, the Court set a deadline of December 31, 2024 for either: (a) the parties to brief “the issue of whether Defendant is entitled to a jury trial on either of the Plaintiff's claims[ ]” or (b) Defendant to waive its jury demand. Final Pretrial Order at 2.

24.   The Third-Party Defendants filed an Amended Supplemental Motion to Stay Proceedings (Doc. 88) on December 23, 2025, to which an expanded Certificate of Service was attached.

25.   This allegation, however, does not appear to be relevant to the issue of whether § 362(b)(22) applies to NREA or Mr. Lasky's activities in the Eviction Action. Rather, it appears to ultimately relate to the issue of whether punitive damages would be warranted.

26.   As noted in the Jurisdiction section of this Opinion and Order, NREA also referenced Civil Rule 12(b)(1) as a basis for its Motion to Dismiss, but does not elaborate on this point, except to mention jurisdiction in passing in the context of the Declaratory Judgment Act.

27.   Available in pdf format on the Court's website at https://www.ohsb.uscourts.gov/content/mediation-program-procedures.

28.   Including all Exhibits, namely JJ, KK, LL, MM, and NN, this filing was 579 pages. This supplemented Lasky's prior Third-Party Defendant's Motion for Leave to File Motion for Summary Judgment (Doc. 124), filed on March 3, 2026, to which Exhibit U was attached, and which incorporated by reference Exhibits A through T (Doc. 111), a 99-page submission filed in conjunction with what began as a Motion of Third-Party Defendants to Stay Proceedings on Third-Party Complaint (Doc. 77), filed by Lasky on November 13, 2025, itself a 90-page submission, followed by Third-Party Defendants’ Supplemental Motion to Stay Proceedings (Doc. 84), a 49-page filing, and Third-Party Defendants’ Amended Supplemental Motion to Stay Proceedings (Doc. 88). Ultimately, at the hearing held on February 12, 2026, Lasky attempted to conduct a full-blown trial to support a request for dismissal, which the Court declined to entertain and resulted in the Order (Doc. 121) entered on February 20, 2026, denying Lasky's Motion to Stay (Doc. 77) and Amended Supplemental Motion to Stay (Doc. 88), but also granting Lasky leave to file a motion to dismiss the First Amended Complaint, time to answer, move to dismiss or abstain from hearing the Third-Party Complaint, and setting a deadline for NREA, as Third-Party Plaintiff to file a brief concerning this Court's subject matter jurisdiction to hear and determine the Third-Party Complaint.

29.   Civil Rule 8(a) is made applicable to this adversary proceeding by Bankruptcy Rule 7008, with certain additional requirements for alleging jurisdiction and stating whether the pleader consents to the entry of final orders by the bankruptcy court, neither of which are presently at issue.

30.   As in almost all districts in the United States, pursuant to 28 U.S.C. § 157(a), the United States District Court for the Southern District of Ohio has referred “all cases under title 11 and ․ all proceedings arising under title 11 or arising in or related to a case under title 11” to the Bankruptcy Judges for this District, through the Amended General Order No. 05-02 (Amended Standing Order of Reference) entered on September 16, 2016.

31.   In re Williams, 371 B.R. 102, 105 (Bankr. E.D. Pa. 2007) (“The automatic stay provided by 11 U.S.C. § 362(a) is one of the fundamental debtor protections provided by the bankruptcy laws.”).

32.   Notably, although some of the allegations regarding illegal drug activity on the Real Property suggest that subsection (b)(23) of § 362(b) was applicable to except the Eviction Action from the automatic stay, NREA did not comply with subsection (b)(23) by filing “a certification under penalty of perjury that such an eviction action [that seeks possession of the residential property ․ based on endangerment of such property or the illegal use of controlled substances on such property] has been filed ․” 11 U.S.C. § 362(b)(23). See 3 Collier on Bankruptcy ¶ 362.05[21]. Accordingly, only subsection (b)(22) could have applied to except some or all of NREA's actions from subsection 362(a)(3) of the automatic stay.

33.   PL 109-8, Apr. 20, 2055, 119 Stat. 23, Sec. 311. Section 311 of BAPCPA, which concerned the automatic stay, also added subsections (b)(23), (l), and (m) to § 362(b), and subsection (l) corresponds to subsection (b)(22), while subsection (m) corresponds to subsection (b)(23).

34.   It is worth noting that the one (1) year term of the Lease ended on December 20, 2023, at which point the Lease would become month-to-month until either party presented written notice thirty days prior to termination. Lease at 1,¶ 3. Thus, it appears that Ms. Steele was a holdover tenant at the time of eviction.

35.   The Court is cognizant of the Supreme Court of the United States’ pronouncement on the use of nunc pro tunc orders in Roman Catholic Archdiocese of San Juan v. Feliciano, 589 U.S. 57, 65 (2020) (“[p]ut colorfully, ‘[n]unc pro tunc orders are not some Orwellian vehicle for revisionist history—creating ‘facts’ that never occurred in fact.’ ” (quoting United States v. Gillespie, 666 F. Supp. 1137, 1139 (N.D. Ill. 1987) and citing Missouri v. Jenkins, 495 U.S. 33, 49 (1990))). However, there remain unique circumstances in which it remains appropriate to use a nunc pro tunc order. Feliciano, 589 U.S. at 65 (stating that “[f]ederal courts may issue nunc pro tunc orders, or ‘now for then’ orders, Black's Law Dictionary, at 1287, to ‘reflect[ ] the reality’ of what has already occurred” (quoting Missouri v. Jenkins, 495 U.S. at 49)).

36.   Agreed Order Granting Motion for Relief From Stay Filed by Vinebrook Homes, LLC for NREA VB III, LLC (ECF 9) (Est. Doc. 16).

37.   Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. 109 Stat. 23, 109 P.L. 8, § 311.

38.   “The letter ‘L’ is italicized, to distinguish it from the number ‘1’.” In re Kelly, 2014 Bankr. LEXIS 4663, at *4 n.4.

39.   Although not alleged in the First Amended Complaint, such that the Court cannot at this time take the allegation as true, regarding the mystery of the missing cat Ms. Steele alleges in her Response that “DJ Gucci DJ was given away to some unknown third party by one of NREA's contractors[.]” Resp. at 5, § II.

40.   This by no means suggests the amounts are appropriate to this case.

41.   This provision states, in relevant parts, as follows: “A magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate” and “shall indicate conspicuously that a party shall not assign error on appeal the court's adoption of any factual finding or legal conclusion, ․ unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b).” Civ. R. 53(D)(3)(a)(iii).

42.   However, even if Ms. Steele had a right of appeal, at the time she filed bankruptcy the March 12 Entry still remained a valid and enforceable final judgment that had not been stayed. See, e.g., Gara v. Gara, 2015-Ohio-4401, ¶ 16 (2d Dist.) (“The only method by which a defendant appealing a judgment of forcible entry and detainer may prevent the cause from becoming moot is stated in R.C. 1923.14[ ]” which “provides a means by which the defendant may maintain, or even recover, possession of the disputed premises during the course of his appeal by filing a timely notice of appeal, seeking a stay of execution, and posting a supersedeas bond.” (quoting Cherry v. Morgan, 2012-Ohio-3594, ¶ 4-5 (2d Dist.) (citations omitted))). And, as the 9th Circuit B.A.P. observed in the recent LoCali opinion, § 362(b)(22) simply requires a “judgment for possession,” not specifying the type or precise status of said judgment, leaving flexibility to apply this subsection to the particular circumstances of each case under the applicable state law and rules of civil procedure.

43.   Based on the matters before this Court, Ms. Steele never contended that she had any legitimate basis upon which to contest the Eviction Action, and, in fact, she never attempted to contest the Eviction Action before the Dayton Municipal Court.

44.   The Court does not opine today on whether this case would have been decided differently had Ms. Steele not agreed to the March 12 Entry for restitution. The Eviction Action may have unfolded differently if she had not. In that event, NREA no doubt would have prosecuted the Eviction Action and Ms. Steele likely would have had less time to vacate, given there never appeared to be any doubt that she was in default of the terms of the Lease. Requiring a landlord to wait for the expiration of an appeal period applicable to a prepetition judgment for possession to enforce the judgment for possession postpetition, when the landlord is not required to do so under Ohio law outside of bankruptcy, would seem to undercut the eviction exception in § 362(b)(22). As with the inapplicability of Civ. R. 53(D), while there is a process to stay a final entry of restitution, pursuant to R.C. § 1923.14, which requires the tenant to obtain a stay and post a bond, unless and until any such stay is obtained an entry of restitution is enforceable. This is because under Ohio law a judgment of restitution is immediately enforceable and even an appeal would not stay execution of the writ of restitution. This process is discussed in Richart v. Greenlee, 2024-Ohio-4509 (2d Dist.). Moreover, if a tenant fails to obtain a stay of execution of the writ of restitution and is evicted, any appeal of the restitution order becomes moot. See, e.g., Miami Valley Hous. v. Jackson, 2012-Ohio-5103, ¶ 5-6 (2d Dist.) (“The only method by which a defendant appealing a judgment of forcible entry and detainer may prevent the cause from becoming moot is stated in R.C. 1923.14.” (quoting Cherry v. Morgan, 2012–Ohio–3594, ¶ 4)).

45.   The fact that the March 12 Entry gave Ms. Steele until the end of March 15, 2024 to vacate does not mean it was non-final (interlocutory) or that the automatic stay prevented it from taking effect. Because it clearly disposed of the entirety of the claim for restitution in NREA's FE&D Complaint, in accordance with Ms. Steele's own agreement, it clearly was the final judgment for restitution in the Eviction Action. That said, as a “judgment for possession,” § 362(b)(22) was invoked upon Ms. Steele filing her chapter 7 bankruptcy case because she did not file Official Forms 101A or 101B to invoke § 362(l), such that it (§ 362(b)(22)) took effect immediately, the same as if she had identified the judgment for possession in her filings as required by § 362(l)(5)(A), but did not file a certification under § 362(l)(1) or (l)(2), as set forth in § 362(l)(4)(A), which expressly provides that “relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property[.]” 11 U.S.C. § 362(l)(4)(A).

46.   Take, for example, a hypothetical situation in which the judgment, entry, or order of restitution signed by a municipal court judge, which decides the issue of possession in an Ohio eviction action, is entered on October 1, 2026. Pursuant to R.C. § 1923.13 the landlord submits and obtains the issuance of a writ of restitution on October 8, 2026, which must be executed by the bailiff or other designated official within ten days, pursuant to R.C. § 1923.14. This means the eviction would happen by October 19, 2026, at the outside, which is still before a thirty-day appeal period would run under Ohio Rule of Appellate Procedure 4(A)(1). To adopt Ms. Steele's approach would mean that under § 362(b)(22) there never was a “judgment for possession,” even though the eviction is over and done, which thereby will ordinarily moot any appeal. See Day v. Derry, 2024-Ohio-791, ¶¶ 6 (11th Dist.) (“Where a tenant fails to perfect a stay of the writ of restitution, and possession of the premises is restored to the landlord, there is no relief a reviewing court may grant on appeal of the judgment granting the writ.” (citing Concrete, Inc. v. City of Willowick, 2020-Ohio-71, ¶ 5 (11th Dist.))).

47.   This fact may well distinguish this case from other Ohio eviction actions that may ultimately come before this Court.

48.   Regarding subsection (a)(1) of § 362, the question appears to be whether, after Ms. Steele filed her Petition, NREA continued any judicial action against Ms. Steele beyond seeking the eviction of Ms. Steele from the Real Property, which is beyond the bounds of the eviction exception under § 362(b)(22), as narrowly construed. However, the parties have not addressed this issue, focusing instead on the preceding question of whether the eviction exception applied. See, e.g., Resp. at 3 (“In the main, NREA's MTD rises or falls on one pivotal issue – the application of 11 U.S.C. § 362(b)(22) (citing Motion to Dismiss (Doc. 106), passim).

49.   The docket for the Eviction Action in Dayton Municipal Court shows two entries on March 14, 2024, the first at 2:51 p.m. which states “[a] Motion finding of Granted entered for the Motion for Default Judgment that was filed by Lasky & Scharrer – Plaintiff Attorney on 03/01/2024[,]” and the second at 3:49 p.m. which states “Entry document imaged[.]” Vinebrook Homes, LLC for NREA VB III, LLC v. Steele, Dayton M.C. No. 2023-CVG-006454, available at: https://clerkofcourt.daytonohio.gov/PA/CvCaseSummary.cfm?cid=aldFSzhlNFIybkU9.

50.   “Under ‘general principles of agency law ․ a creditor-principal is liable under § 362(k) for the acts of an agent ․ who willfully violates the automatic stay taken when those acts are within the scope of their principal-agent relationship.’ ” Bankers Healthcare Grp., Inc. v. Bilfield (In re Bilfield), 494 B.R. 292, 301 (Bankr. N.D. Ohio 2013) (quoting In re Webb, 472 B.R. 665 at n. 4 (quoting Theokary v. Abbatiello (In re Theokary), 444 B.R. 306, 323-24 (Bankr. E.D. Pa. 2011))); see also In re Stringer, 586 B.R. 435, 446 (Bankr. S.D. Ohio 2018). Note that the Webb opinion at 470 B.R. 439 (B.A.P. 6th Cir. 2012) was withdrawn by the publisher and replaced with 472 B.R. 665, which appears to contain no analysis; however, there is a subsequent opinion at No. 07-13703, 2012 Bankr. LEXIS 3858, at *5, 2012 WL 3638005, at *2 (Bankr. N.D. Ohio Aug. 22, 2012), which also cites the Theokary opinion on this point.

51.   The other case cited by NREA, California Coast University, also a Third Circuit Court of Appeals’ opinion, held that “[t]hough we conclude University Medical remains good law, the District Court correctly found that CCU failed to establish a defense under that case.” 13 F.4th at 347. Moreover, it will be NREA's burden to establish any such defense and is simply not an issue on this Motion to Dismiss which tests the viability of Ms. Steele's First Amended Complaint.

52.   It is also worth remembering that stay violations are often pursued through a motion filed in the main bankruptcy case, not through a separate adversary proceeding that entails more procedure. Paige, 678 B.R. at 600 (citing Buckeye Check Cashing, Inc. v. Meadows (In re Meadows), 396 B.R. 485, 498 (B.A.P. 6th Cir. 2008)).

53.   Notably, nowhere in Ms. Steele's Response to the Motion to Dismiss does she suggest that Ohio Civ.R. 53(D) applied to the March 12 Entry, as she previously did in her First Amended Complaint. See First Am. Compl. at 14-15, ¶ 86.a.

54.   “[A] court is not required to accept as true unwarranted legal conclusions and/or factual allegations.” In re Level Propane Gases, Inc., 2010 Bankr. LEXIS 882, at *7 (quoting Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 327 (6th Cir. 2007) (citation omitted)).