Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
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No. 10-6084
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In re: Wanda Ann Bates, *
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Debtor. *
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Wanda Ann Bates, * Appeal from the United States
* Bankruptcy Court for the Western
Debtor – Appellant, * District of Missouri
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v. *
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BAC Home Loans, formerly known *
as Countrywide Home Loans, *
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Creditor – Appellee. *
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Submitted: February 23, 2011
Filed: March 23, 2011
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Before KRESSEL, Chief Judge, SALADINO and NAIL, Bankruptcy Judges.
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KRESSEL, Chief Judge.
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Wanda Ann Bates appeals from the bankruptcy court’s 1 order denying her
motion for reconsideration of an order in which the court had vacated an order that
granted the debtor’s motion to cancel a foreclosure sale. We affirm.
BACKGROUND
Wanda Bates filed a chapter 13 petition on July 21, 2008. Her case was
dismissed on June 15, 2009 for failure to make plan payments. She filed a chapter
7 petition on July 10, 2009 and received a discharge on October 26, 2009. She
filed a chapter 13 petition on December 31, 2009. On January 21, 2010, that case
was dismissed for failure to file all required documents including complete
schedules. On January 22, 2010, the court vacated the dismissal and reinstated the
case, but on March 11, 2010 the court again dismissed the case, this time for
failure to list her previous bankruptcy filing on her petition. Bates filed yet another
chapter 13 petition on May 20, 2010. She listed her first two bankruptcy filings,
but did not mention the December 31, 2009 case.
On May 28, 2010, she filed a motion to “extend [the automatic] stay
pursuant to 11 U.S.C. § 362.” Although no statutory basis is cited, she stated that
the stay should be extended because her December 2009 chapter 13 case was
dismissed for failure to list her prior bankruptcy, she had been unrepresented by
counsel and had not known how to cure the defects, she now had obtained counsel,
she now could make the chapter 13 payments, the current case was in good faith,
and only one bankruptcy petition had been filed within a year of filing the case.
She did not mention the July 6, 2009 filing.
BAC Home Loans filed a response to the debtor’s motion, and argued that
under 11 U.S.C. § 362(d)(4), the automatic stay was not in effect in her case
because she had several cases pending over the course of the year preceding the
May 20, 2010 filing. The court denied Bates’ motion in a docket order on June 8,
1
The Honorable Jerry W. Venters, United States Bankruptcy Judge for
the Western District of Missouri.
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2010. Bates did not appeal. On June 25, 2010, BAC filed a request for an order
determining that there was no stay in effect pursuant to § 362(c)(4). Bates did not
file a response. A docket order so determining was entered on June 28, 2010.
Four months later, on October 28, 2010, Bates filed a motion “to cancel the
foreclosure sale and for determination as to the automatic stay pursuant to 11
U.S.C. § 362.” Bates stated that there was a foreclosure sale was pending.
Relying on a case from the Bankruptcy Appellate Panel for the Tenth Circuit she
argued that under §362(c)(3), the stay was still in effect as to property of the estate,
even if it was not in effect as to the debtor. Holcomb v. Hardeman (In re
Holcomb), 380 B.R. 813 (B.A.P. 10th Cir. 2008). She requested an expedited
hearing, which the court granted. On November 1, 2010, the court issued a docket
order granting Bates’ motion to cancel the foreclosure sale and further ordering
that the automatic stay was still in effect as to property of the estate.
Then on November 3, 2010, the court issued a docket order as follows:
Order of the Court, sua sponte, setting aside the Court’s Order entered
on November 1, 2010, granting the Debtor’s motion to cancel the
foreclosure sale scheduled on the Debtor’s real property on November
5, 2010. On June 28, 2010, Judge Dow of this Court entered an Order
that the automatic stay was not in effect in this case pursuant to
Section 362(c)(4)(A)(i) because this case is the Debtor’s fourth
bankruptcy filing within one year. Therefore, the Debtor was not
entitled to the relief requested in her motion to cancel the foreclosure
sale and the motion is hereby DENIED, and the creditor is free to
proceed with the foreclosure without obtaining relief from the
automatic stay.
On November 5, 2010, Bates filed a motion for “reconsideration” of the November
3 order. The court denied that motion in a docket order on November 8, 2010,
which stated, “The Motion is denied for the reasons set out in the Court’s Order of
11/03/2010. Debtor’s counsel continues to ignore Judge Dow’s Order of 6/28/2010
holding that there is no automatic stay in this case pursuant to Section
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362(c)(4)(A)(i) of the Bankruptcy Code because of the Debtor’s repeated
bankruptcy filings. The creditor does not need to obtain relief from the stay to
proceed with a foreclosure because there is NO STAY in effect in this case.” On
November 8, 2010, Bates filed a notice of appeal from the November 8 order
denying her motion for reconsideration, but did not appeal from the November 3
order denying her original motion.
On November 23, 2010, Bates filed a motion to stay the November 3, 2010
order pending appeal. On November 24, 2010, BAC filed a motion seeking relief
from the automatic stay to continue foreclosure proceedings. On November 30,
2010, the bankruptcy court granted a stay pending appeal. Bates argues on appeal
that “although the automatic stay was terminated due to the order denying the
motion to impose the automatic stay pursuant to 11 U.S.C. § 362(c)(4), when a
debtor has had two (2) or more cases dismissed within the year prior to the filing of
the current case it remains in effect with regard to property of the estate under 11
U.S.C. § 362(c)(1).” 2
STANDARD OF REVIEW
We review the bankruptcy court’s denial of a motion for reconsideration for
an abuse of discretion. United States v. Gurley, 434 F.3d 1064, 1069 (8th Cir.
2006) (denial of motion for reconsideration is reviewed for abuse of discretion, and
reconsideration should only be granted for cause); Arleaux v. Arleaux (In re
Arleaux), 229 B.R. 182, 184 (B.A.P. 8th Cir. 1999) (“The bankruptcy court’s
denial of a ‘motion to reconsider’ is reviewed for an abuse of discretion.”).
2
We note that the debtor has misstated the procedural history. She
never made a motion to impose the automatic stay pursuant to 11 U.S.C. §
362(c)(4). Rather, her May 28, 2010 motion was to “extend” the automatic stay.
Furthermore, the court’s June 28, 2010 order granted BAC’s motion for
declaratory relief that there was no stay in effect; it did not “terminate” the stay.
11 U.S.C. § 362(4)(A)(ii) (“on request of a party in interest, the court shall
promptly enter an order confirming that no stay is in effect”). The debtor never
appealed either of those orders.
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DISCUSSION
When interpreting a statute, the inquiry begins with the language itself and
when that language is unambiguous, “judicial inquiry is complete” unless there are
exceptional circumstances. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct.
698, 701, 66 L.Ed.2d 633 (1981). 11 U.S.C. § 362(c)(4) provides in relevant part:
(c) [. . .] (4)(A)(i) if a single or joint case is filed by or against a debtor
who is an individual under this title, and if 2 or more single or joint
cases of the debtor were pending within the previous year but were
dismissed, other than a case refiled under a chapter other than chapter
7 after dismissal under section 707(b), the stay under subsection (a)
shall not go into effect upon the filing of the later case; and (ii) on
request of a party in interest, the court shall promptly enter an order
confirming that no stay is in effect.
11 U.S.C.A. § 362(c)(4)(A)(i)-(ii). The debtor acknowledges that she has had two
prior cases dismissed within the year preceding the filing of her current chapter 13
bankruptcy case. Although she concedes that § 362(c)(4) applies in her case, she
argues that it must be read together with § 363(c)(3) to mean that “the terms of the
automatic stay are terminated ‘with respect to the debtor,’ [and] ‘property of the
debtor,’ but not with regard to ‘property of the estate.’” As a result, she believes
that BAC must obtain relief from the automatic stay prior to foreclosing on her
home.
We recognize a split of authority regarding which part of the automatic stay
terminates after thirty days pursuant to § 362(c)(3), and that many courts have
found its language to be ambiguous. See, e.g., In re Alvarez, 432 B.R. 839 (Bankr.
S.D. Cal. 2010) (comparing majority and minority approaches); In re Paschal, 337
B.R. 274, 277 (Bankr. E.D. N.C. 2006) (“In an Act in which head-scratching
opportunities abound for both attorneys and judges alike, § 362(c)(3)(A) stands
out. [. . .] The language of the statute is susceptible to conflicting interpretations,
and if read literally, would apply to virtually no cases at all. In sum, it’s a
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puzzler.”); In re Charles, 332 B.R. 538, 541 (Bankr. S.D. Tex. 2005) (noting that §
362(c)(3) is “at best, particularly difficult to parse and, at worst, virtually
incoherent.”). However, we do not need to reach that issue because, as the debtor
concedes, § 362(c)(4)(A)(i) is the applicable provision, and we find it
unambiguous.
The debtor has not provided any cases that support her contention that §
362(c)(4)(A)(i) should be interpreted to mean that “the terms of the automatic stay
are terminated ‘with respect to the debtor,’ [and] ‘property of the debtor,’ but not
with regard to ‘property of the estate.’” Many courts have concluded that §
362(c)(4)(A)(i) is unambiguous, and as far as we can tell, courts have universally
held that under § 362(c)(4)(A)(i), where a debtor has filed a third bankruptcy case
in a one-year period, the automatic stay never goes into effect. See, e.g., Holcomb,
380 B.R. at 816 (“These courts reason that if Congress meant to terminate the stay
in its entirety, it would have done so in plain language as it did in §
362(c)(4)(A)(i).”); In re Jumpp, 356 B.R. 789, 795 (B.A.P. 1st Cir. 2006) (“With
respect to debtors with two or more prior cases, section 362(c)(4)(A)(i) clearly
provides that ‘the stay under subsection (a) shall not go into effect upon the filing
of the later case.’”); In re Benefield, 438 B.R. 706, 709 (Bankr. D. N.M. 2010) (“In
this case, the stay never came into effect due to the two previous cases dismissed
within a year of the filing of this case. Section 362(c)(4)(A)(i) is unambiguous on
this issue.”); In re Curry, 362 B.R. 394, 399 (Bankr. N.D. Ill. 2007) (“Section
362(c)(4)(A)(i) thereby provides in no uncertain terms that the automatic stay does
not come into effect at all upon the filing of a debtor’s third bankruptcy case within
a one year period.”); In re Murray, 350 B.R. 408, 413 (Bankr. S.D. Ohio 2006) (“It
must be recognized that the plain meaning of the text ‘the stay under subsection (a)
shall not go into effect upon the filing of the later case’ results in a determination
that the automatic stay is not in effect in this case.”); Whitaker v. Baxter (In re
Whitaker), 341 B.R. 336, 342 (Bankr. S.D. Ga. 2006) (“For [filers of two or more
previous petitions], the stay does not go into effect automatically.”).
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The debtor’s arguments are nearly identical to the arguments advanced
unsuccessfully by the debtors in Nelson. Nelson v. George Wong Pension Trust (In
re Nelson), 391 B.R. 437 (B.A.P. 9th Cir. 2008). In Nelson, the debtors did not
dispute that they had previously had two bankruptcy cases pending and dismissed
within the year before their third bankruptcy case. Id. at 446. They argued that §
362(c)(4)(A)(i) was ambiguous because of its placement near § 362(c)(3)(A), and
that the automatic stay was in effect as to property of the estate but not property of
the debtor, so that the foreclosure sale of their home violated the automatic stay.
Id. The court rejected their arguments.
The 9th Circuit BAP noted that not only is the language of § 362(c)(4)(A)(i)
facially unambiguous, but also that the debtors’ interpretation conflicts with the
plain language: “To accept [the debtors’] position, a reader must somehow convert
the phrase in § 362(c)(4)(A)(i) providing that the § 362(a) automatic stay ‘shall not
go into effect’ to one providing that ‘the stay arises and is in effect, but may be
terminated.’” Nelson at 448. Second, “even if § 362(c)(3)(A) does distinguish
between stays against the debtor and property of the estate, we cannot simply
import an interpretation of § 362(c)(3) into (c)(4). To do so would violate a basic
principle of statutory interpretation, which advises that when Congress uses
particular language in one place in a statute, and does not use that language in
another place, the omission should be deemed intentional.” Id. The Nelson court
also rejected the debtors’ policy arguments: “Congress could, and did, intend the
consequences of repeat filings to be different, and potentially more severe, as the
number of successive filings increases.” Id. at 452. The court noted that although
some creditors might be harmed by § 362(c)(4), the debtors’ argument failed to
acknowledge that “under § 362(c)(4)(B), upon the prompt request of the trustee or
other interested party, the bankruptcy court may impose a stay against creditor
action if the bankruptcy filing was made in good faith.” Id.
It is clear to us that where a debtor has had two or more cases pending
within the previous year that were dismissed, and neither was a case refiled under a
chapter other than chapter 7 after dismissal under section 707(b), the automatic
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stay under § 362(a) never goes into effect. No exception is made for property of
the estate. The debtor’s arguments about whether the stay was “terminated” as to
the debtor or the debtor’s property are therefore misplaced because no stay ever
went into effect in this case. We conclude that the bankruptcy court did not abuse
its discretion in denying the debtor’s motion for reconsideration.
CONCLUSION
Because we find that the bankruptcy court did not abuse its discretion in
denying the debtor’s motion for reconsideration, we affirm.
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