FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
In re: SALLY ANN DURAN,
Debtor.
------------------------- No. 06-1264
SALLY ANN DURAN,
Appellant,
v.
AMERICREDIT FINANCIAL
SERVICES, INC.,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 05-cv-507-REB)
Submitted on the briefs: *
Sally Ann Duran, pro se.
Michael B. Levy, James E. Brown & Associates, P.C., Denver, Colorado,
for Appellee.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before PORFILIO, BALDOCK , and EBEL, Circuit Judges.
EBEL, Circuit Judge.
After carefully reviewing the bankruptcy and district courts’ decisions, the
record on appeal, the parties’ briefs, and the pertinent law, we agree with the
analysis in the district court’s order, In re Duran, No. 05-cv-507-REB (D. Colo.
Nov. 1, 2005). W e therefore adopt the district court’s decision as our own and
attach it as an appendix to this opinion. See Hollytex Carpet M ills, Inc. v. Okla.
Employment Sec. Comm’n (In re Hollytex Carpet M ills, Inc.), 73 F.3d 1516, 1518
(10th Cir. 1996) (adopting district court’s opinion as the opinion of the court of
appeals and attaching it as an appendix); Herrera v. UAW , 73 F.3d 1056, 1057
(10th Cir. 1996) (adopting analysis in published district court decision);
Wyo. Trucking Ass’n v. Bentsen, 82 F.3d 930, 931 (10th Cir. 1996) (adopting
district court’s decision as the opinion of the court of appeals and ordering the
district court’s decision to be published).
Duran’s additional arguments attempting to prosecute the crimes of
aggravated motor vehicle theft, Colo. Rev. Stat. § 18-4-409, and theft by
receiving, Colo. Rev. Stat. § 18-4-410, are unavailing because these statutory
proscriptions do not provide for private causes of action. See generally Diamond
v. Charles, 476 U.S. 54, 64-65 (1986) (holding that private citizens cannot
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compel enforcement of criminal law). Her attempt to collect damages under
Colorado’s rights in stolen property statute, Colo. Rev. Stat. § 18-4-405, is
likewise unavailing because there has been no showing of any criminal act.
See Itin v. Ungar, 17 P.3d 129, 134 (Colo. 2000) (holding that the statute requires
proof of a specified criminal act).
The judgment of the district court is A FFIRM ED. Appellant’s motion to
proceed on appeal w ithout prepayment of costs or fees is GRANTED.
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APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R obert E. Blackburn
Civil Case No. 05-cv-507 (REB)
In re SALLY ANN DURAN ,
Debtor,
SALLY ANN DURAN,
Plaintiff/Appellant,
v.
AMERICREDIT FINANCIAL SERVICES, INC.,
Defendant/Appellee.
__________________________________________________________________
ORDER AFFIRMING
__________________________________________________________________
Blackburn, J.
This matter is before me on the appeal of Sally Ann Duran from the order
entered by Bankruptcy Judge A . Bruce Campbell on M arch 7, 2005 (R. Doc. 58).
In that order, Judge Campbell denied Duran’s m otion for order of contempt as to
AmeriCredit Financial Services, Inc. Duran’s appeal is denied, and Judge
Campbell’s order is affirmed.
FACTS & PROCEDURAL STATUS
The facts are undisputed. On September 22, 2001, Duran purchased a 2001
Chevrolet truck, which was financed by AmeriCredit, the defendant/appellee.
AmeriCredit had a first lien on the truck, which lien was noted on the certificate
of title. Duran defaulted on the loan, and AmeriCredit instituted a state court
replevin action to recover possession of the truck. Duran filed a Chapter 13
bankruptcy petition one day before the hearing on AmeriCredit’s replevin action.
Under 11 U.S.C. § 362(a), the filing of a bankruptcy petition creates an
automatic stay on actions by a creditor to recover on a claim against the
bankruptcy debtor. On November 9, 2004, AmeriCredit field a M otion for Relief
from Stay in the Bankruptcy Court. AmeriCredit sought relief from the automatic
stay under 11 U.S.C. § 362(d). On December 8, 2004, the Bankruptcy Court held
a preliminary hearing on AmeriCredit’s motion. On December 9, 2004, the
Bankruptcy Court entered an Order Granting Relief From Stay (R. Doc. 41).
AmeriCredit repossessed the truck from Duran nine days later on December 18,
2004.
On February 22, 2005, Duran filed a M otion for Order of C ontempt against
AmeriCredit (R. Doc. 53). Duran claimed that AmeriCredit’s repossession of the
truck less than ten days after the court’s December 9, 2004, Order Granting Relief
form Stay violated the ten day stay of such orders created by Bankruptcy Rule
4001(a)(3). On M arch 7, 2005, the Bankruptcy Court issued the order at issue
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here, its O rder Denying M otion for Order of Contempt and Verified Objection to
Creditor’s Claim (R. Doc. 58). In his order Judge Campbell held that under
“11 U.S.C. § 362(e), the § 362(a) stay expires automatically once thirty days have
passed from the date a motion for relief from stay is filed, unless the court orders
the automatic stay continued.” Id. (emphasis in original). Citing his opinion in
In re Duran, 291 B.R. 542 (Bankr. Colo. 2003), Judge Campbell concluded that
the stay created under Rule 4001(3) was not applicable under the circumstances of
this case.
ANALYSIS
Section 362(e)(1) provides, in relevant part:
Thirty days after a request under subsection (d) of this section for relief
from the [automatic] stay of any act against property of the estate under
subsection (a) of this section, such stay is terminated with respect to the
party in interest making such request, unless the court, after notice and a
hearing, orders such stay continued in effect pending the conclusion of, or
as a result of, a final hearing and determination under subsection (d) of
this section. A hearing under this subsection may be a preliminary
hearing, or may be consolidated with the final hearing under subsection
(d) of this section. The court shall order such stay continued in effect
pending the conclusion of the final hearing under subsection (d) of this
section if there is a reasonable likelihood that the party opposing relief
from such stay will prevail at the conclusion of such final hearing.
Bankruptcy Rule 4001(a)(3) provides:
(3) Stay of order
An order granting a motion for relief from an automatic stay made in
accordance with Rule 4001(a)(1) is stayed until the expiration of 10 days
after the entry of the order, unless the court orders otherwise.
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Duran argues that the December 9, 2004, order lifting the automatic stay
was itself automatically stayed for ten days under Bankruptcy Rule 4001(a)(3),
and that AmeriCredit violated the Rule 4001(a)(3) stay when it repossessed the
truck on December 18, 2004. AmeriCredit argues, and Judge Campbell held, that
the stay of Bankruptcy Rule 4001(a)(3) is not applicable in the circumstances of
this case. I agree with Judge Campbell’s analysis.
Subsection (e) of section 362 states that the section 362(a) stay
automatically expires thirty days from filing of a section 362(d) stay relief
application unless one of two prescribed events occurs: (a) the court
orders the stay continued in effect pending an evidentiary hearing; or
(b) the court orders the stay continued in effect following a final
hearing--whether the "final" hearing is an initial or continued evidentiary
hearing. For event (a) to occur, the party opposing stay relief at a
preliminary, non-evidentiary hearing must demonstrate "reasonable
likelihood" of prevailing if the matter is set over to a final evidentiary
hearing. For event (b) to occur, the party opposing stay relief must prevail
in getting the stay relief application denied, either at an initial or
subsequent evidentiary hearing. Barring the occurrence of one of these
two events, there is no stay thirty days after an application for stay relief is
filed. It simply expires–“is terminated”–by Congress's mandate contained
in section 362(e).
In re Duran, 291 B.R. 542, 544 (Bankr. D. Colo. 2003). Applying the mandate
of § 362(e) to this case, the automatic stay terminated no later than December 10,
2004, 30 days after AmeriCredit filed its motion for relief from stay. Neither of
the events which may suspend the automatic expiration of the automatic stay
under § 362(e) occurred in this case.
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The key question is w hether the stay created under Bankruptcy Rule
4001(a)(3) suspends the automatic termination of the automatic stay when that
termination becomes effective 30 days after the filing of a motion for relief from
stay. I conclude that the Rule 4001(a)(3) stay cannot have that effect. The
United States Supreme Court has the power to prescribe rules for cases brought
under Title 11 of the United States Code. 28 U.S.C. § 2075. Although Congress
has an opportunity to review new rules before they become effective, Congress’
explicit approval is not required before a new rule becomes effective. Id. To the
extent a rule adopted by the Supreme Court abridges, enlarges, or modifies a
substantive right, the rule is ineffective, because § 2075 provides that such “rules
shall not abridge, enlarge, or modify any substantive right.” Id. For
AmeriCredit, the termination of the automatic stay under § 362(e) is a substantive
right. A secured creditor’s ability to recover its collateral, the property that is
security for the debt, is a substantive right. “[T]o the extent Bankruptcy Rule
4001(a)(3) is read to be inconsistent with the Congressional thirty-day stay
duration mandate of Code § 362(e), it would exceed the rule making power given
the Supreme Court by Congress in 28 U.S.C. § 2075.” In re Duran, 291 B.R.
542, 545 n. 4 (Bankr. D. Colo. 2003). Bankruptcy Rule 4001(a)(3) properly
cannot be read to stay the termination of an automatic stay beyond the thirty day
stay duration mandated by § 362(e). In this case, the automatic stay was
terminated as to AmeriCredit’s right to recover its collateral no later than
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December 10, 2004, as mandated by § 362(e). AmeriCredit did not violate the
automatic stay when it repossessed its collateral, the truck, on December 18,
2004.
THEREFORE , IT IS ORDERED as follow s:
1) That the appeal of Sally Ann Duran from the order entered by
Bankruptcy Judge A. Bruce Campbell on M arch 7, 2005 (R. Doc. 58), is
DENIED, and the order is AFFIRMED; and
2) Under Bankruptcy Rule 8014, the appellee shall be awarded his costs
incurred as a result of this appeal.
Dated November 1, 2005, at Denver, Colorado.
BY THE COURT:
s/ Robert E. Blackburn
Robert E. Blackburn
United States District Judge
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