I CANNOT AFFORD MY HOME ANY LONGER. I FILED A CHAPTER 13 BANKRUPTCY TO SURRENDER MY HOME. WHAT CAN I DO IF THE TOWNSHIP IS COMING AFTER ME FOR NOT CUTTING THE GRASS FOR 2 MONTHS?
This has been an issue in bankruptcy for years where a debtor tries to surrender property under a chapter 13 plan and tries to force the lienholder to assume all ongoing and future maintenance responsibility.
In an extremely recent decision, in re Victor Achinivu, 17-30949, the debtor filed a motion to enjoin the City of Trenton from initiating and prosecuting any municipal ordinance violation with respect to properties that the debtor owned in Trenton, NJ.
The debtor filed a chapter 13 initially and did not pay property taxes for several years, so the City had tax sales but there were no bidders, so it defaulted to the City of Trenton. After stay relief was granted, the debtor filed a modified plan to surrender both properties, which was confirmed.
Right after the Order confirming modified plan was entered, the debtor filed a Motion seeking injunctive relief against the City for ongoing and future property code violations.
The issue was whether the Court should enjoin the city to enforce its property enforcement so the debtor could get his fresh start, versus whether the court should absolve the debtor from honoring his commitment to the community when he owns real estate.
The Court first held that the debtor did not meet his burden of establishing a preliminary or permanent injunction. The Judge then gave a detailed analysis of surrendering property in chapter 13.
The Court’s Decision
The court held that there was no provision in the debtor’s plan for vesting of his two properties in the City of Trenton. Even if vesting was put in the debtor’s plan, the creditor would have had to accept it. Thus, the purported grantee has to accept the vesting to constitute a legal transfer of property.
In addition, the Court held that a debtor could not override Section 362(b (4), which excepts the automatic stay for a governmental unit exercising its police powers.
Thus, the court denied the debtor’s motion.
Steven N. Taieb, Esquire has been a south jersey bankruptcy
attorney for 35 years and is board certified in consumer
bankruptcy law by the American Board of Certification
which is accredited by the American Bar Association.