February 5, 1979
IN THE MATTER OF RITA EBENHART, BANKRUPT-APPELLANT,
ALVIN HELLER, TOBIAS HELLER AND MORRIS DULBERG, APPELLEES.
Present: HONORABLE STERRY R. WATERMAN, HONORABLE WALTER R. MANSFIELD, HONORABLE WILLIAM H. TIMBERS, Circuit Judges.
Upon this appeal by Rita Ebenhart, Bankrupt-Appellant, from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, dated September 27, 1978, affirming an order of Bankruptcy Judge Stanley T. Lesser, dated July 17, 1978, denying appellant's motion to hold appellees in contempt for seeking to execute against appellant a warrant of eviction issued by the Civil Court of the City of New York and terminating any further stay of eviction, the order of the district court is hereby
AFFIRMED. Appellant's claim that her discharge in bankruptcy nullified the state court judgment permitting the landlord to repossess her apartment has already been adjudicated against appellant in a proceeding initiated by her in the Civil Court of the City of New York, in which she sought an order staying the eviction on the ground that it was barred by her discharge in bankruptcy. No appeal was taken from the Civil Court order. In view of that order appellant is precluded under principles of res judicata from relitigating that issue in the bankruptcy proceeding. See Heiser v. Woodruff, 327 U.S. 726, 733 (1946); In re Devereaux, 76 F.2d 522 (2d Cir. 1935); Prebyl v. Prudential Ins. Co., 98 F.2d 199, cert. denied, 305 U.S. 577 (1939).
In any event appellant fails to state a claim on the merits for the reason that a discharge in bankruptcy does not bar the landlord, who owns the apartment, from repossessing it any more than it precludes enforcement of a lien. See generally 1A Collier on Bankruptcy P17.29. Perez v. Campbell, 402 U.S. 637 (1971), relied upon by appellant, is clearly distinguishable. The effect of depriving the driver of his state license in that case was to compel payment of a debt discharged in bankruptcy whereas here repossession does not compel payment by appellant of the debt. It merely returns to the landlord property owned by him.
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