United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
appellant Greg Griswold’s second recent appeal from a
decision of the United States Bankruptcy Court for the
Western District of Wisconsin related to a farm owned by
Laura Ann Wierzbicki. Griswold’s previous appeal arose
from Wierzbicki’s bankruptcy proceedings. The current
appeal arises from Griswold’s own bankruptcy. Griswold
appeals orders relating to the lifting of the automatic stay
to allow Wierzbicki’s trustee to proceed with
Griswold’s eviction. I will affirm the bankruptcy
parties have been involved in extensive litigation in both
state and federal courts. I draw the following information
from the dockets in this case, the previous bankruptcy
appeals filed by appellant Griswold, and the underlying
Griswold and Laura Ann Wierzbicki are the unmarried parents
of three minor children. Griswold and Brenda Zeddun, the
trustee in Wierzbicki’s bankruptcy, disputed ownership
of a farm originally owned by Wierzbicki that she transferred
to Griswold before filing for bankruptcy. In a September 15,
2015 order, I affirmed the judgment of the Bankruptcy Court
for the Western District of Wisconsin avoiding that transfer
as a “constructive fraudulent transfer” under the
Bankruptcy Code. See Griswold v. Zeddun, No.
14-cv-718 (W.D. Wis.).
October 2015, Zeddun obtained a judgment for eviction and
writ of restitution against Griswold in state court in an
attempt to remove him from the farm. Griswold countered by
filing his own voluntary petition for bankruptcy under
Chapter 7 of the Bankruptcy Code on October 28, 2015. The
next day, Zeddun filed a motion for relief from the automatic
stay and a motion for expedited hearing on that motion, on
the basis that the writ of restitution would expire November
November 2, 2015, hearing, Bankruptcy Judge Robert D. Martin
granted the motions for expedited hearing and for relief from
automatic stay, and also denied a motion for his recusal
raised by Griswold at the hearing. Griswold appeals all three
of these rulings.
court has jurisdiction over this appeal pursuant to 28 U.S.C.
§ 158(a)(1); the bankruptcy court’s order lifting
the automatic stay is an appealable final order. Colon v.
Option One Mortg. Corp., 319 F.3d 912, 916 n.1 (7th Cir.
2003) (“All courts that have considered the matter
agree that an order lifting the automatic stay is a final
judgment. . . . We see no reason to disagree with the other
circuits.”). I review the decision to lift the stay
under the abuse-of-discretion standard, while noting that a
court necessarily abuses its discretion when a decision is
based on erroneous conclusions of law. Id. at 916. I
review the bankruptcy court’s conclusions of law under
a de novo standard. Id.
11 U.S.C. § 362, the filing of a bankruptcy petition
serves to stay many types of legal actions or the enforcement
of various types of judgments against a debtor. But trustee
Zeddun sought to lift the stay for purposes of
Griswold’s eviction. Section 362(b) details when a
bankruptcy petition does not operate as an automatic stay;
one such circumstance is when a lessor has a pre-petition
judgment for possession of the property against the debtor.
See 11 U.S.C. § 362(b)(22). Judge Martin
ruled as follows:
[T]he only issue before me is one on which congress has
expressed itself clearly and directly. What is sought here
appears to me to be primarily a comfort order, but
there’s really no room for -- there’s no
discretion involved. The specific language of Section
362(b)(22) covers the fact, and . . . this hearing is
essentially redundant. I do grant the motion because
it’s compelled by the language of the statute.
Dkt. 3, at 14.
persuasively argues that Griswold’s appeal of the
ruling regarding the stay should be dismissed because it is
moot. Following Judge Martin’s ruling, Griswold did not
move for a stay of the ruling pending appeal in either the
bankruptcy court or this court, and Zeddun completed eviction
proceedings against him. And Griswold’s bankruptcy case
is now closed, for reasons unrelated to the stay; almost
immediately after Judge Martin’s ruling, Griswold moved
to dismiss his bankruptcy petition. That motion was denied
because the trustee was not certain that Griswold had no
non-exempt assets. The case was later dismissed after the
trustee concluded that Griswold’s estate indeed had no
non-exempt assets. See Dkt. 100 and 113 in the
underlying bankruptcy case, In re Griswold, No.
15-13875-rdm (Bankr. W.D. Wis.). Griswold did not oppose this
dismissal. So although Griswold asks for “all previous
adverse rulings made by Judge Martin . . . [to] be now
vitiated, ” Dkt. 4, at 44, it does not appear that
granting Griswold the relief he seeks would do him any good.
Griswold’s claim regarding the stay was not moot, I
would dismiss the appeal. Griswold has not shown that the
granting of the lift-stay motion was at all improper,
although I am not convinced that the reasoning for the
underlying decision was correct. From my review of applicable
statutes, it is not obvious that § 362(b)(22) should
have applied to the relationship between Wierzbicki and
Griswold. By the section’s own terms, it applies to
“residential property in which the debtor resides as a
tenant under a lease or rental agreement, ” and Zeddun
argued below that there was no lease or any other agreement
for Griswold to live on the farm; he was essentially
trespassing. This may be why Zeddun’s brief in the
bankruptcy court relied instead upon 11 U.S.C. §
362(d)(2), under which an automatic stay against an eviction
proceeding may be lifted if the debtor does not have any
equity in the property. See In re Griswold, Dkt. 8.
But the substantive question whether § 362(b)(22),
§ 362(d)(2), or some other section should apply to the
eviction proceedings is immaterial because Griswold did not
challenge Judge Martin’s application of ...