In re Tavera

645 B.R. 299

IN RE: Jenifer Montano TAVERA, Debtor.

Case No. 6:21-bk-04805-LVV

United States Bankruptcy Court, M.D. Florida, Orlando Division.

Signed September 30, 2022

Filed October 3, 2022

ORDER GRANTING IN PART EMERGENCY MOTION FOR SANCTIONS FOR VIOLATION OF THE AUTOMATIC STAY

Lori V. Vaughan, United States Bankruptcy Judge

The Debtor, Jenifer Tavera ("Tavera") had a strained relationship with her landlord Hossein Makhzan ("Makhzan"). A payment dispute resulted in an eviction action and then bankruptcy, but the situation only got worse from there. Tensions escalated and Tavera eventually moved out. Now she claims Makhzan violated the automatic stay by sending her notices to vacate, harassing her with text messages, frequently attempting to inspect her home, interfering with her utilities and exhibiting overall stalking-type behaviors. Makhzan claims he was just trying to protect his property by inspecting the Property under the terms of the lease and that Tavera was the one harassing him. Both parties are in the wrong, to an extent, but only Tavera is protected by the automatic stay. After considering the testimony and evidence admitted at trial,¹ the Court concludes that Makhzan violated the automatic stay by some of his actions (not all of them) and sanctions are appropriate.

Background Facts

Tavera entered into a residential lease agreement ("the Lease") with Makhzan on August 25, 2015 for a townhome located at 148 Clearlake Circle in Sanford, FL ("the Property").² Tavera's parents were also parties to the Lease.³ Tavera's parents, her sister and her son all resided in the Property as acknowledged in the Lease. The Lease provided that Makhzan had the right to enter into the premises "at reasonable times and upon reasonable notice for the purpose of inspecting the premises ... or for making necessary repairs."⁴ At all relevant times, Makhzan owned the townhome next door at 146 Clearlake Circle which he used as an office.

It is unclear exactly when the trouble began, but Tavera started having difficulties paying rent which resulted in Makhzan filing an action for eviction prepetition on August 6, 2021.⁵ At trial, Tavera claimed she was not delinquent on the Lease payments due to rental assistance she received from Seminole County which was paid to Makhzan. Tavera also testified that Makhzan began demanding "extra money" from her during the prepetition period.⁶ However, the disputes over prepetition rent are irrelevant to the Court's analysis and the Court makes no finding as to whether Tavera was in default when she filed for bankruptcy.

While the eviction was pending, on October 22, 2021 (the "Petition Date"), Tavera filed a petition for chapter 7 bankruptcy.⁷ Tavera listed Makhzan on her Schedule G,⁸ and he was mailed notice of the bankruptcy filing and meeting of creditors on October 27, 2021.⁹

Alleged Stay Violations

Unfortunately, the bankruptcy filing did not allay the animosity between the parties or resolve their dispute. On October 31, 2021, Makhzan posted a notice on Tavera's door addressed to "148 Clear Lake Circle Tenants," stating they would soon receive a notice from the sheriff to vacate the Property, explaining that any possessions remaining in the Property would be trashed ("October 31 Notice").¹⁰ Makhzan does not deny posting the October 31 Notice. Instead, Makhzan testified that he was unaware of the bankruptcy at the time and only became aware of the bankruptcy a few days later, on November 2 - during a hearing in the eviction action.¹¹ Makhzan was permitted to move forward with the eviction action against Tavera's parents who were not protected by the automatic stay. On December 2, 2021 Final Judgment of Possession was entered as to Tavera's parents, but not Tavera.¹² The parents subsequently moved out of the Property,¹³ but Tavera and the other family members remained.

On January 2, 2022 Makhzan posted another notice titled, Notice from Landlord to Tenant - Termination for Failure to Pay Rent ("Jan. 2 Notice").¹⁴ The Jan. 2 Notice was addressed directly to Tavera. It stated Tavera was indebted to Makhzan in the amount of $1,350 and demanded payment or possession of the Property within three days.¹⁵ The Jan. 2 Notice did not state whether the indebtedness was for the pre or post-petition period, but $1,350 reflects one-months’ rent. Tavera did not vacate the Property.

On January 11, 2022, Makhzan requested the Circuit Court reopen the eviction action, evidently because Tavera's parents filed an appeal in the matter.¹⁶ The case was reopened, but Makhzan did not file any further pleadings. On January 12, Makhzan texted Tavera stating that if she agreed to return the Property to him on January 20, he would allow her parents to enter the home and help her move.¹⁷ That same day, Makhzan posted a notice at the residence addressed to "The Tenant of 148 Clear Lake Circle," stating that it was a "24 hours’ notice from the landlord to visit and inspect the property" ("Jan. 12 Notice").¹⁸ A hand-written note from Makhzan at the bottom of the Jan. 12 Notice accused Tavera's parents of trespassing and threatened to call the police on them.¹⁹ Tavera subsequently called the police to file a report for harassment.²⁰

Makhzan repeatedly demanded an inspection of the Property and even entered the Property one evening without Tavera's consent. On January 22, Tavera's doorbell camera recorded Makhzan with officers from the Sanford Police Department entering the home without permission between 9 and 9:30 p.m.²¹ Makhzan testified that he entered the Property because he was concerned there was a leak in the home due to recent storm activity and that he believed Tavera had abandoned the Property.²² Makhzan and the officers tried to call Tavera before entering but they could not reach her.²³ Makhzan then entered the Property with his key. Makhzan testified that the Property was empty except for a few boxes, as Tavera had already moved out.²⁴ When Tavera called Makhzan complaining that he had entered the Property, he and the officers exited.

Tavera claims that Makhzan was using his inspection rights to harass her family into moving out. Makhzan argues he was only exercising his rights under the Lease and Florida law to inspect the Property as he was concerned about damage. He also claims that Tavera, by January 22 at least, had moved, but refused to turn the Property over to him out of spite. While Makhzan is correct that he has certain inspection rights, the evidence supports Tavera's claim. On January 23, Tavera texted Makhzan that she did not give him permission to enter the Property.²⁵ Makhzan responded by saying that he does not need her permission.²⁶ He then called her a criminal and a low-life and told her that she will regret trying to have him arrested for entering the Property the night before.²⁷ The next day, on January 24, Makhzan texted Tavera:

Because of your threatening, I will be inspecting the house every day until I get possession of the house. If you are not there tomorrow, I will gain access to secure the abandoned property.²⁸

Attached to the text was another notice stating that Makhzan will enter and inspect the Property.²⁹

The texts continued. On January 24, Makhzan texted a photo of a note attached to a door. While many words were misspelled, the note essentially threatened that your house will be flooded, set on fire and destroyed if you trespass or harass us again.³⁰ Makhzan testified that Tavera posted this note on his door and his text was telling her to stop.³¹ Makhzan's text goes on to state, "Now you are done!"³² Tavera testified that she did not post this note on Makhzan's door and that this was instead a threat being made against her.³³ However, she admitted that the note was not posted on her door. On January 25, Makhzan texted Tavera that her family was taking advantage of the system and that she cannot deny him access to the Property.³⁴ He went on to text, "(u)ntil you officially surrender the property to me, I will want you there every day for inspection."³⁵

Several videos and photos were submitted into evidence which depict the parties arguing in the road or the driveway of the Property and Makhzan taking photos or videos of either the townhome or the tenants. Tavera claims this is further evidence of Makhzan harassing her family to force them to leave. Makhzan even testified that he filed criminal charges against Tavera for forgery (he claims she forged documents submitted to the Circuit Court).³⁶ Makhzan later offered to drop the forgery case against Tavera if she delivered possession to him.³⁷

Makhzan does not deny sending any of these texts, posting the notice, or making any of these statements, but he does deny that he harassed Tavera. Instead, Makhzan contends that he was only protecting his property by enforcing his legal right to inspect and that Tavera was taking unfair advantage by not paying rent yet refusing to return the Property. During this period, however, Makhzan never seeks stay relief or files anything in the Bankruptcy Court.

On January 26, Tavera filed an Emergency Motion for Sanctions for Violation of the Automatic Stay.³⁸ Makhzan then filed an Emergency Motion for an Order Confirming Termination of Automatic Stay on February 2.³⁹ The Court held a preliminary hearing on February 15 to consider both motions. At the hearing, Tavera was asked how much time she needed to move. Tavera said she only needed one day.⁴⁰ Makhzan's Stay Relief Motion was granted in part and Tavera was ordered to return possession of the Property. The Debtor received her discharge on February 15, and therefore the stay was lifted by operation of 11 U.S.C. § 362(c)(2).

A trial was held on Tavera's Motion for Sanctions on April 14. Both Tavera and Makhzan participated and submitted testimony and evidence. Neither party was represented by counsel. The animosity between the parties was evident at trial with each party repeatedly accusing the other of lying and a variety of bad acts, making...