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In re Salzer

April 18, 1995

IN THE MATTER OF: THOMAS R. SALZER, D/B/A TRS AUTOMOTIVE, DEBTOR-APPELLANT


Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 93 C 338--William C. Lee, District Judge.

Before MANION and ROVNER, Circuit Judges, and NORGLE, District Judge. *fn*

NORGLE, District Judge

ARGUED FEBRUARY 6, 1995

DECIDED APRIL 18, 1995

This is an appeal from the district court's order affirming the bankruptcy court's grant of summary judgment in favor of the defendant in an action brought by the debtor for breach of the automatic stay. 11 U.S.C. sec. 362(a). We affirm.

I.

Thomas Rodger Salzer ("Salzer") filed a petition for relief pursuant to Chapter 11 of the Bankruptcy Code on December 6, 1989. Salzer was engaged in the business of automotive salvage, repair, and sales in Fort Wayne, Indiana. On or about July 28, 1992, while operating as debtor-in-possession, Salzer entered into an oral periodic lease with Donald E. Stinson ("Stinson") for non-residential real property at 2206 Broadway, Fort Wayne, Indiana (the "leasehold premises"). The rental amount was five hundred dollars per month, payable in advance, and the lease was on a month-to-month basis. Salzer paid rent in August, September, and October. He made no rent payments after October 1992.

Salzer's case was converted into a Chapter 7 case on September 29, 1992, and a trustee was appointed. The trustee did not act to assume or reject the oral lease between Salzer and Stinson within sixty days of the order of relief entered on September 29, 1992. On January 4, 1993, Salzer filed a list of property he claimed as exempt. The list included personal property located on the lease-hold premises. Salzer amended his list of exemptions on April 1, 1993. No objections were filed to either the original or amended list.

On March 1, 1993, on his own initiative, Stinson placed a utility trailer that was on the leasehold premises in a locked storage locker. Salzer had claimed the trailer as exempt property. On April 1, 1993, the trustee directed Stinson to secure the personal property located on the leasehold premises. Stinson did so by locking the leasehold premises with the personal property inside and denying Salzer access to it. Salzer had also claimed as exempt the property Stinson locked inside the leasehold premises. *fn1

On April 13, 1993, proceeding pro se, Salzer filed a complaint for damages pursuant to 11 U.S.C. sec. 362(h) in the bankruptcy court asserting that Stinson's actions violated 11 U.S.C. sec. 362(a)(3), a provision of the automatic stay. Subsequently, Stinson moved for summary judgment on the claim, and the bankruptcy court granted the motion. The district court affirmed, and Salzer appealed.

II.

We review the bankruptcy court's findings of fact under a clearly erroneous standard. In re Yonikus, 974 F.2d 901, 903 (7th Cir. 1992). We review conclusions of law made by the bankruptcy court de novo. In re Kazi, 985 F.2d 318, 320 (7th Cir. 1993).

A. Personal Property Secured at Trustee's Direction

Salzer contends that Stinson violated the automatic stay when, at the direction of the trustee, he secured the personal property located at the leasehold premises and denied Salzer access to it. Salzer theorizes that because there was no objection to his claim of exemption in the property within the thirty days allotted by Bankruptcy Rule 4003(b), title to the property revested in him, and he was entitled to physical possession of the property at the end of the thirty ...


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