Expert: Mark J. Markus- California Bankruptcy Attorney - 4/14/2010

Question
A tenant (Restaurant) filed Chap. 13 in 2008. They are over $200k behind on lease. Tenant company is in Georgia, property is in NC.  Tenant has two locations in NC. Motion to dimiss filed by Trustee May/09 for failure to pay court fees and file financials. Debtor caught up financial filings/fees. Motion to lift stay filed by my attorney in June/09. Agreement worked out with debtor and accepted by court as addendum to lease in July/09. Plan was accepted in Nov/09. Tenant has not paid per addendum as agreed. Tenant let insurance lapse in Nov/09 to date. Tenant abandoned property first week of Mar/10. Tenant has removed approx. $20k of FF&E(on lease) for other restaurant. Tenant had all utilities shut off. Building has had on-going vandalism since tenant abandoned. I have new potential lessee, but my attorney contends current tenant is "debtor in possession" even though he abandoned property. Quote from my attorney: "Please understand, even if the tenant is removing property from your building, we cannot, as a matter of commercial/civil law, take steps to enforce our rights as landlord until the bankruptcy stay is lifted.  I surmise that any attempt to have the sheriff or constable intervene would fall on deaf ears." .  Motion is being filed to lift stay but will take weeks. Is there a faster way I obtain possession of my property to protect it?  Best regards, Alan

Answer
First, there is no debtor-in-possession in a Chapter 13 case.  That is a designation exclusive to Chapter 11.  In any event, you can file an Ex Parte Application to have the Motion for Relief From Stay heard on shortened notice, so it shouldn't take weeks.  The procedures for doing this depend on the local rules of the bankruptcy court in whatever jurisdiction the case was filed (I'm not clear on whether it is NC or GA).

http://www.bklaw.com/