§ 58.9     Real Estate, Landlord and In Rem Exceptions after BAPCPA
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 58.9, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

There are new exceptions to the automatic stay that affect Chapter 13 debtors who own real property or rent residential property.

[2]

The exception to the automatic stay in § 362(b)(18) for the creation or perfection of a statutory lien for ad valorem property taxes has been expanded to include any “special tax” or “special assessment on real property whether or not ad valorem.”1 This enlarged exception applies to a tax “or assessment” that comes due after the petition. In other words, taxes that become due or that are assessed after the petition can become a lien on a Chapter 13 debtor’s real property without violating the automatic stay. This expanded stay exception increases the likelihood that Chapter 13 debtors who fail to pay property taxes or other assessments during the Chapter 13 case will face perfected liens that become enforceable as soon as the Chapter 13 case is completed or dismissed.

[3]

BAPCPA set about to validate in rem relief from the stay by two new provisions of § 362. Section 362(d)(4) authorizes a bankruptcy court order for relief from the stay with respect to real property that is binding in any bankruptcy case purporting to affect the property filed within two years after entry of the order. Section 362(b)(20) creates a new exception to the automatic stay for an act to enforce a lien against real property when an order allowed by § 362(d)(4) has been entered. Together, these two new subsections have several intricate conditions, contradictions and exceptions to exceptions.

[4]

New § 362(d)(4) requires the bankruptcy court to grant relief from the stay:

(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, and defraud creditors that involved either—
(A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or
(B) multiple bankruptcy filings affecting such real property.
If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court, except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and recording.2
[5]

This extended grant of relief from the stay applies only to real property and is only available to a creditor with a lien. Strangely, the court must find that the filing of the Chapter 13 petition was “part of a scheme to delay, hinder and defraud creditors.”3 This conjunctive reformulation of the traditional description of a fraudulent conveyance sets a high bar for the creditor that has been frustrated in efforts to realize on its lien.

[6]

The scheme to delay, hinder and defraud creditors must involve either transfer of an ownership interest without consent of the lienholder (or court approval) or multiple bankruptcy filings affecting the real property.4 The alternative condition that there has been transfer of all or part of ownership of the property without consent of the secured creditor (or court approval) seems to apply even if consent of the lienholder is not required to transfer ownership. Multiple bankruptcy filings “affecting” the real property could be interpreted to extend to spouses filing separately and the like.

[7]

The hanging paragraph at the end of new § 362(d)(4) conditions the two-year extended effectiveness of an order for relief from the stay that the order must be recorded in compliance with applicable state laws governing notices of interests or liens in real property. The section instructs any state, federal or local governmental unit to accept a certified copy of a § 362(d)(4) order for “indexing and recording.” The hanging paragraph permits the debtor in a subsequent case to move for relief from the § 362(d)(4) order based on “changed circumstances or for good cause shown.”

[8]

New § 362(d)(4) looks like a self-contained provision for relief from the stay effective with respect to liens on real property in any bankruptcy case filed within two years if the order is recorded in the appropriate real property records. It is at least odd that the drafters of BAPCPA saw a need to enact a second exception to the automatic stay dealing with the same order for extended relief from the stay. In the process of enacting a second provision, they created important contradictions.

[9]

New § 362(b)(20) states that the filing of a bankruptcy petition does not operate as a stay

under subsection (a), of any act to enforce any lien against or security interest in real property following entry of the order under subsection (d)(4) as to such real property in any prior case under this title, for a period of 2 years after the date of the entry of such an order, except that the debtor, in a subsequent case under this title, may move for relief from such order based upon changed circumstances or for other good cause shown, after notice and a hearing.5
[10]

The first thing to notice about new § 362(b)(20) is that it is an exception to the automatic stay only with respect to any “act to enforce any lien against or security interest in” real property affected by an order under new § 362(d)(4). An order for relief from the stay under § 362(d)(4) could be broader than or more narrow than relief with respect to lien enforcement.

[11]

The new exception in § 362(b)(20) is energized by “entry of the order under subsection (d)(4)” in a prior bankruptcy case and is effective for two years after the date of entry of that order. There is no mention in § 362(b)(20) of recording the order entered in the prior case as required by § 362(d)(4). Does the reference in § 362(b)(20) to “entry of the order under subsection (d)(4)” incorporate the condition in the hanging paragraph at the end of § 362(d)(4) that the order must be recorded before it has extended binding effect? The drafters of new § 362(b)(20) accurately tracked the exception in new § 362(d)(4) that the debtor in the subsequent case may seek relief from the order for extended relief from the stay based on changed circumstances or good cause. Neither new section suggests what changed circumstances or good cause would be sufficient to overcome the extended two-year effect of an order for stay relief.

[12]

To be on the safe side, a lienholder that successfully proves the conditions in § 362(d)(4) for extended relief from the automatic stay should immediately record a certified copy of the order in the appropriate office where real estate liens are recorded. If circumstances have changed or there is good cause for relief from the order for extended relief from the stay, the debtor should file an appropriate motion with the petition in the subsequent case. No stay is in effect and lien enforcement may continue while the debtor litigates relief from the prior order.

[13]

Early cases interpreting new § 362(d)(4) and (b)(20) raise two issues: (1) Did Congress really intend the conjunctive “and” in § 362(d)(4)?; and (2) now that the Bankruptcy Code contains a statutory in rem automatic stay exception, can courts fashion nonstatutory in rem stay relief that is other or different than what appears in § 362(d)(4) and (b)(20)?

[14]

The bankruptcy court in In re Abdul Muchaimin6 concluded that the conjunctive in § 362(d)(4) was purposeful and requires proof of a scheme to defraud before the stay exception is available. Consulting legislative history and finding nothing absurd in this construction, the court gave this detailed account of § 362(d)(4):

To obtain Section 362(d)(4) relief, the court must find three elements . . . . First, Debtor’s current bankruptcy filing must have been part of a scheme. . . . Second, the object of the scheme must be: “to delay, hinder and defraud” creditors. . . . Congressional use of the conjunctive “and” rather than the disjunctive “or” in BAPCPA § 362(d)(4) appears deliberate. . . . [T]he legislative history itself uses “and.” H.R. 109-31(I), at 69. . . . [W]hile it may be easier for creditors to prove a scheme to delay, hinder or defraud in the disjunctive, requiring the three elements to be present by use of the conjunctive “and” is neither absurd or shocking to common sense, especially since Section 362(d)(4) relief extends for two years. Conversely, since delay is inherent with operation of the automatic stay that arises whenever a bankruptcy case is filed, it would be absurd to conclude that delay alone, in the disjunctive, would trigger the special relief under Section 362(d)(4). . . . [T]he court must find the filing of the petition commencing a bankruptcy case was part of a scheme to delay and to hinder and to defraud creditors. . . . Third, the final element for Section 362(d)(4) relief is that the scheme “involved either” (a) the transfer of some interest in the real property without the secured creditor’s consent or approval, or (b) multiple bankruptcy filings affecting the property. . . . The transfer or the multiple filings thus must somehow be connected with or included in the scheme to delay, hinder and defraud creditors. . . . Congress did not create a statutory presumption of fraud. . . . None of the movants have come forward, however, to make a prima facie showing that the filing of Debtor’s petition was part of a scheme to defraud creditors. No creditor has alleged that there was any false representation or that the creditor has been damaged as a result of any misrepresentation. There has been no allegation or proof that the creditors’ secured position has been damaged as a result of the bankruptcy filings, only delayed. In order to obtain relief under Section 362(d)(4), a creditor must make a prima facie showing of cause for relief.7
[15]

An important holding in Abdul Muhaimin is the assignment to the moving creditor of the burden to produce prima facie evidence of a scheme to defraud. Perhaps it is always true that debtors file Chapter 13 at least in part to “delay” or to “hinder” collection by creditors. The same cannot be said of the “defraud” predicate in § 362(d)(4). It is the unusual Chapter 13 case that is filed to defraud a creditor. Proof of intent to defraud is not simple. As configured by BAPCPA, § 362(d)(4) sets appropriately high standards for in rem relief from the stay.

[16]

Reported decisions deliver conflicting messages whether the enactment of § 362(d)(4) and (b)(20) impacts pre-BAPCPA case law addressing in rem relief from the stay. Detailed elsewhere,8 many courts have found authority for in rem relief from the stay effective with respect to property in future bankruptcy cases filed by the debtor or by others to whom the debtor might transfer an interest in property. The terms and conditions for in rem stay relief vary significantly in the pre-BAPCPA cases. This is a judge-made remedy that is very fact sensitive.

[17]

The in rem stay relief available after BAPCPA is narrowly tailored in § 362(d)(4) and (b)(20). Few of the reported pre-BAPCPA cases reveal facts that would satisfy the conditions now applicable to in rem stay relief.

[18]

In Johnson v. TRE Holdings, LLC (In re Johnson),9 the Bankruptcy Appellate Panel for the Ninth Circuit considered a pre-BAPCPA Chapter 13 case in which a creditor conducted a foreclosure sale in violation of the automatic stay. The offending creditor argued that its postpetition foreclosure sale did not violate the stay because of an “in rem” order granting stay relief in a prior bankruptcy case filed by a different individual who transferred an interest in real property to the debtor moments before the filing of the current Chapter 13 case. The issue became whether the in rem order in the prior case insulated the creditor from the current stay violation.

[19]

The Ninth Circuit BAP acknowledged that BAPCPA did not apply but found in the enactment of § 362(b)(20) and (d)(4) evidence that in rem stay relief was not authorized before BAPCPA:

The structure of what Congress deemed it necessary to do and the post-2005 regime embodied by §§ 362(b)(20) and (d)(4) confirms [sic] the validity of our conclusion that the pre-2005 Code did not authorize an “in rem” stay relief order to trump the automatic stay in future cases.10
[20]

Johnson is sure to be controversial. In Abdul Muhaimin, discussed above, the Bankruptcy Court for the District of Maryland concluded that the enactment of § 362(b)(20) and (d)(4) did not preclude nonstatutory in rem relief of the sort fashioned in pre-BAPCPA cases:

[In re Yiman, 214 B.R. 463 (Bankr. D. Md. 1997)] recognized that creditors have the option to request, in addition to relief from the automatic stay under Section 362(d), the imposition of an equitable servitude on property in which a debtor has an interest . . . . The justification for the Yiman doctrine . . . is “to forestall the [debtors’] continuing abuse of the bankruptcy process” . . . . BAPCPA § 362(d)(4) is not inconsistent with the Yiman doctrine. . . . [R]elief under Yiman is not superceded by BAPCPA § 362(d)(4).11
[21]

Continuing the theme of protecting real estate lenders, BAPCPA added a new exception to the automatic stay in § 362(b)(21) for:

any act to enforce any lien against or security interest in real property—
(A) if the debtor is ineligible under section 109(g) to be a debtor in a case under this title; or
(B) if the case under this title was filed in violation of a bankruptcy court order in a prior case under this title prohibiting the debtor from being a debtor in another case under this title.12
[22]

Under § 109(g), an individual may not be a debtor under any chapter of title 11 if within 180 days a prior case was dismissed for willful failure of the debtor to abide by orders of the court or to appear before the court in proper prosecution of the case, or the debtor voluntarily dismissed the prior case following the filing of a request for relief from the stay.13 New § 362(b)(21)(A) states that the filing of a Chapter 13 petition does not invoke an automatic stay under § 362(a) with respect to enforcement of a lien against real property if the debtor refiled within 180 days of one of the prohibited dismissals described in § 109(g). So far, so good.

[23]

The problem, of course, is that lienholders are reluctant to make the judgment whether the debtor is ineligible under § 109(g) without filing a motion to dismiss or some other procedural vehicle to get a court order. This is understandable because there is too much reported case law making the conditions for ineligibility under § 109(g) less than perfectly clear—especially when the prior bankruptcy case was voluntarily dismissed following the filing of a request for relief from the stay but the debtor prevailed with respect to that request.14

[24]

If the debtor is ineligible under § 109(g), the weight of authority holds that the filing of a Chapter 13 petition by the ineligible debtor did not commence a bankruptcy case and thus no automatic stay came into effect in the first place.15 The drafters of BAPCPA created an exception to a nonexistent stay but clarified none of the murk about when the stay is nonexistent.

[25]

It is interesting that new § 362(b)(21) only cross-references ineligibility under § 109(g). What if the debtor is ineligible because the debtor did not receive the briefing within 180 days of filing the Chapter 13 case required by new § 109(h)(1)?16 There is no exception (new, or otherwise) to the automatic stay in § 362(b)(21) when a debtor is ineligible under § 109(h). Then again, if the debtor is ineligible under § 109(h), there is controversy whether the stay arose in the first place.17 So we are back to the question, what was the drafters’ intent in the enactment of § 362(b)(21)(A)?

[26]

There is a bit more sense behind the new stay exception in § 362(b)(21)(B), quoted above. It has become quite the fashion for bankruptcy courts—especially in serial filing situations—to enter orders prohibiting debtors from refiling a bankruptcy case for some specified time.18 Sometimes such orders do not specify a consequence if the debtor files anyway, in violation of the order. New § 362(b)(21)(B) specifies that a refiling in violation of an order in a prior case does not raise an automatic stay with respect to enforcement of a lien against real property.

[27]

New § 362(b)(22), in combination with new § 362(l), creates a complex new exception to the automatic stay in § 362(a)(3) (only) allowing the continuation (only) of an eviction or unlawful detainer action by a lessor of residential property in which the debtor resides as a tenant under a lease or rental agreement but only if the lessor obtained a judgment for possession before the Chapter 13 petition.19 There are important predicates to this new exception to the automatic stay.

[28]

First, only the automatic stay in § 362(a)(3) is at issue—an act to obtain possession of property of the estate or property from the estate or to exercise control over property of the estate.20 In other words, the residential lessor is not free of the automatic stay to take a judgment against the debtor for money damages or any other relief—the lessor can only continue an eviction.

[29]

“Continue” is the magic word. The eviction or unlawful detainer action must be pending at the filing of the petition. The word “commencement” appears nowhere in new § 362(b)(22).

[30]

The debtor must be residing as a tenant in the residential property and there must be a lease or rental agreement. “Agreement” could be construed to include an oral lease, but maybe not. The judgment for possession must have been obtained before the filing of the Chapter 13 petition.

[31]

If all of the conditions in § 362(b)(22) are satisfied, no automatic stay arises at the filing of a Chapter 13 petition unless the debtor jumps through the nested hoops in new § 362(l). Somewhat simplified, a Chapter 13 debtor can buy 30 days of automatic stay under § 362(l)(1) notwithstanding the prepetition judgment for possession and pending eviction action described in § 362(b)(22) if the debtor does three things simultaneously with filing the Chapter 13 petition:

 

 1.
The debtor must indicate on the Chapter 13 petition that a judgment for possession of residential property in which the debtor resides as a tenant was obtained and the lessor must be identified by name and address.21
 

 

 

 

 2.
The debtor must file with the petition and serve on the lessor a certification under penalty of perjury that,
 

 

 

 

  a.
Under applicable nonbankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment was entered; and
 

 

 

 

  b.
The debtor (or an adult dependent) has deposited with the clerk of the bankruptcy court any rent that will become due during the 30 days after the petition.22
 

 

 

 

 3.
The debtor must deposit with the clerk of the bankruptcy court the 30 days of rent described in the certification immediately above.
 

 

 

[32]

If the debtor does the things listed above, then the exception to the automatic stay in new § 362(b)(22) does not apply for 30 days after the petition. In other words, the stay is in effect for 30 days.

[33]

But the 30-day stay won by filing the certification and making the rent deposit isn’t worth more than 30 days of peace unless the debtor can, within 30 days after the petition, cure the entire monetary default that gave rise to the judgment for possession.23 To keep the stay beyond 30 days, the debtor must file and serve on the lessor a second certification under penalty of perjury that the debtor (or an adult dependent of the debtor) has cured the entire monetary default. This is tough duty for most Chapter 13 debtors. That first 30 days is also the period in which the debtor must commence payments to the Chapter 13 trustee and to any lessor of personal property and to the holder of any allowed purchase money claim secured by personal property under § 1326(a)(1).24 If the debtor can’t come up with a complete monetary cure, the stay will expire 30 days after the petition and the pending eviction action can proceed.

[34]

New § 362(l) contains nearly a page and one-half of intricate additional instructions relating to the new exception to the stay just described. If the lessor that holds the prepetition judgment for possession objects to any certification filed by the debtor, the bankruptcy court must hold a hearing within 10 days to determine if the certification is true. If the court upholds the objection, the new exception to the automatic stay in § 362(b)(22) applies immediately without an order for relief from the stay.25 If the debtor fails to file either of the certifications described above, then the § 362(b)(22) exception to the stay applies immediately without an order for relief from the stay.26 The precise form of the certification required with the petition is specified in new § 362(l)(5)(B).27 Taking statutory detail to new heights, § 362(l)(5)(C) requires that the “standard forms” (electronic and otherwise) used in bankruptcy shall be amended to reflect the requirements of this subsection. And then there is new § 362(l)(5)(D), which requires the clerk of the bankruptcy court to arrange for “prompt transmittal” to the lessor of any rent deposited by the debtor.28

[35]

About all you can say is that the lessors of residential real property were well organized and their say about BAPCPA was heard. Any Chapter 13 debtor who can negotiate the maze of new § 362(b)(22) and (l) deserves both to keep the apartment and to succeed in the Chapter 13 case.

[36]

One significant question unanswered by new § 362(b)(22) and (l) is whether assumption of the underlying lease under §§ 365 and 1322(b)(7) before or as part of the Chapter 13 plan interrupts the intricately orchestrated stay relief. Under § 365(b) and § 1322(b)(7), a Chapter 13 debtor can assume an unexpired lease of residential property and cure or provide adequate assurance of prompt cure of any monetary default before or as part of confirmation of a plan.29 Assumption of the lease with a court order approving the curing of defaults would at least disrupt any pending eviction action. Chapter 13 debtors should consider immediately moving to assume any residential lease that the debtor desires to keep that might be unprotected because of new § 362(b)(22) and (l).

[37]

Section 362(b)(23) contains a new exception to the automatic stay—again with respect to residential real property—based on endangerment or illegal use of controlled substances. This time, it is the lessor that files and serves a certification under penalty of perjury that an eviction action has been filed or that the debtor has within 30 days endangered the property or illegally used or allowed use of a controlled substance on the property.30

[38]

Fifteen days after the lessor’s certification, the new exception to the stay in § 362(b)(23) applies without an order for relief unless the debtor files an objection to “the truth or legal sufficiency of the certification.”31 If the debtor timely files and serves an objection, the bankruptcy court must hold a hearing within 10 days to determine “if the situation giving rise to the lessor’s certification . . . existed or has been remedied.”32 If the debtor proves that the “situation” did not exist or has been remedied, the stay remains in effect; if the debtor fails to carry either burden, new § 362(b)(23) triggers immediately without an order for relief from the stay.33

[39]

New § 362(b)(23) and (m) are likely to produce some fascinating hearings in the bankruptcy courts. It is not uncommon for landlords to believe that Chapter 13 debtors are not taking proper care of their apartments or rental homes. Evidence of endangerment is somewhat easier to come by than evidence of illegal drug use, but in either case, the debtor’s denial and evidence of “remedial” action will not be dull. Bankruptcy court findings that the property is endangered or that illegal drug activity is present could be preclusive in subsequent state court litigation between the landlord and the debtor. Chapter 13 debtors who want to keep leased residential property will have to contest any certification of endangerment or drug use to avoid a default that would then support eviction.

[40]

Finally, in new § 362(b)(24) there is the shortest but perhaps most troublesome new exception to the automatic stay enacted by BAPCPA: “under subsection (a), of any transfer that is not avoidable under section 544 and that is not avoidable under section 549.”34

[41]

On first reading, new § 362(b)(24) is either impenetrable or just doesn’t say anything of interest to Chapter 13 practitioners. A second and third look reveals stealth weapons for foreclosing creditors in Chapter 13 cases.

[42]

Section 544 contains the “strong arm” powers that are sometimes exercised by debtors and trustees in Chapter 13 cases to avoid unperfected liens and to challenge prepetition transfers of property that are avoidable under state law.35 Section 549 empowers the Chapter 13 trustee to avoid postpetition transfers of property that are not authorized by title 11 or by a court order.36

[43]

Sometimes a Chapter 13 case is filed to stop a foreclosure on real property. If the lienholder goes ahead with the foreclosure after the petition, many courts have concluded that the sale and any subsequent transfer of the property to the successful bidder are violations of the automatic stay that are void or voidable without regard to whether the purchaser was aware of the Chapter 13 petition.37 It is sometimes argued that the postpetition transfer of property to a good-faith purchaser at a foreclosure sale cannot be avoided as an unauthorized postpetition transfer under § 549 unless a copy or notice of the petition was recorded before the transfer.38 In response, several courts have concluded that avoidance of the postpetition transfer to the successful purchaser is not necessary under § 549 because the sale itself is void or voidable as a violation of the automatic stay.39

[44]

New § 362(b)(24) seems to say that there is now an exception to the automatic stay for a transfer that is not avoidable under § 544 or under § 549. A legitimate foreclosure sale commenced before the Chapter 13 petition that is completed after the petition when the purchaser is a bona fide purchaser in good faith without knowledge of the Chapter 13 case may be insulated from the void or voiding effect of the automatic stay by new § 362(b)(24) unless the petition or a notice of bankruptcy was filed in the proper registrar’s office in time to constitute constructive notice to any purchaser at the foreclosure sale. Because new § 362(b)(24) creates an exception to the automatic stay only for “any transfer” that is not avoidable, this new stay exception may fall short of insulating a postpetition foreclosure sale itself.40

[45]

The issues raised by new § 362(b)(24) spill beyond the scope of this discussion,41 but the message for Chapter 13 debtors and their attorneys is loud and clear: if a foreclosure sale is pending, notice of the filing of the petition should be recorded immediately in the appropriate real property records. Debtor’s counsel should consider appearing at the foreclosure sale and announcing that a petition has been filed. Notice of the filing to only the foreclosing creditor or to the sheriff or agent conducting the sale may not be sufficient.

[46]

There is one exception to the automatic stay added by BAPCPA that it is hoped will not be misinterpreted to apply in Chapter 13 cases, but there is a tingle of reason to worry. Section 521(a)(2) requires individual debtors in Chapter 7 cases to file and perform a “Statement of . . . Intention” with respect to consumer debts secured by property of the estate. There is no doubt that § 521(a)(2) does not apply in Chapter 13 cases. Notwithstanding this undisputed lack of application, there has long been a permissible ground for conversion or dismissal of a Chapter 13 case in § 1307(c)(10) that the debtor has failed to “timely file the information” required by what is now § 521(a)(2).42

[47]

BAPCPA added a new § 362(h), which provides that the automatic stay in § 362(a) terminates with respect to personal property and that personal property exits the bankruptcy estate “if the debtor fails within the applicable time set by § 521(a)(2)” to file and perform the statement of intention. Because § 521(a)(2) requires a statement of intention only in a Chapter 7 case, there is no reason for courts to mistakenly conclude that the automatic stay expires when a Chapter 13 debtor fails to file the statement of intention that a Chapter 13 debtor is not required to file. One court has reported a decision confirming that the new provision for termination of the automatic stay in § 362(h) is not applicable in a Chapter 13 case.43 That Congress has repeatedly and mistakenly included failure to timely comply with § 521(a)(2) as a ground for conversion or dismissal of a Chapter 13 case is brief pause for concern with respect to new § 362(h).


 

1  11 U.S.C. § 362(b)(18).

 

2  11 U.S.C. § 362(d)(4) (emphasis added).

 

3  11 U.S.C. § 362(d)(4).

 

4  11 U.S.C. § 362(d)(4)(A), (B).

 

5  11 U.S.C. § 362(b)(20).

 

6  343 B.R. 159 (Bankr. D. Md. 2006).

 

7  343 B.R. at 167–70.

 

8  See § 82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay.

 

9  346 B.R. 190 (B.A.P. 9th Cir. 2006).

 

10  346 B.R. at 197.

 

11  343 B.R. at 171–73. Accord In re Anderson, 341 B.R. 365, 371 n.7 (Bankr. D.D.C. 2006) (Although § 362(b)(21) is not applicable, bankruptcy court retains inherent authority to order that any bankruptcy petition filed by the debtor or the debtor’s spouse within the next 365 days shall not give rise to an automatic stay or codebtor stay against eviction efforts by the purchaser at a foreclosure sale. In a note, “[n]othing in the BAPCPA suggests that Congress intended to eliminate a bankruptcy court’s power under 11 U.S.C. § 105 to issue, when necessary and appropriate, an order precluding an automatic stay from arising in a subsequent case. That it effectively codified such protective orders in 11 U.S.C. § 362(b)(20) and (21) in some instances in the case of real estate lien foreclosures does not demonstrate that it intended to deprive a bankruptcy judge of crafting such protective orders when warranted in other circumstances. If anything, BAPCPA suggests an intention that bankruptcy cases not be used as an instrument of abuse.”).

 

12  11 U.S.C. § 362(b)(21).

 

13  11 U.S.C. § 109(g)(1) and (2), discussed in §§ 21.1 [ 180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General ] § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General23.1 [ 11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay ] § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay.

 

14  See § 23.1 [ 11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay ] § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay.

 

15  See § 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?.

 

16  See 11 U.S.C. § 109(h)(1), discussed beginning at § 18.1  In General.

 

17  See § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?. See, e.g., In re Brown, 342 B.R. 248 (Bankr. D. Md. 2006) (New § 362(b)(21) demonstrates that a petition filed by a debtor who is ineligible under § 109(h) does commence a bankruptcy case and invokes the automatic stay, notwithstanding that the bankruptcy court subsequently dismisses the petition.). Accord In re Mills, 341 B.R. 106 (Bankr. D.D.C. 2006); In re Hawkins, 340 B.R. 642 (Bankr. D.D.C. 2006); In re Ross, 338 B.R. 134 (Bankr. N.D. Ga. 2006).

 

18  See §§ 20.1 [ Court-Imposed Restrictions on Eligibility to Refile ] § 24.1  Court-Imposed Restrictions on Eligibility to Refile and 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

19  11 U.S.C. § 362(b)(22) and (l) are discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

20  11 U.S.C. § 362(a)(3).

 

21  11 U.S.C. § 362(l)(5)(A), discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

22  11 U.S.C. § 362(l)(1)(A), (B), discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

23  11 U.S.C. § 362(l)(2), discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

24  11 U.S.C. § 1326(a)(1), discussed in §§ 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA, 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA and 427.1 [ Preconfirmation Rights of Landlords and Lessors ] § 57.4  Preconfirmation Rights of Landlords and Lessors after BAPCPA.

 

25  11 U.S.C. § 362(l)(3).

 

26  11 U.S.C. § 362(l)(4).

 

27  11 U.S.C. § 362(l)(5)(B) states:

(B) The form of certification filed with the petition, as specified in this subsection, shall provide for the debtor to certify, and the debtor shall certify—
(i) whether a judgment for possession of residential rental housing in which the debtor resides has been obtained against the debtor before the date of the filing of the petition; and
(ii) whether the debtor is claiming under paragraph (1) that under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment of possession was entered, and has made the appropriate deposit with the court.

 

28  11 U.S.C. § 362(l)(5)(D), discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

29  See 11 U.S.C. § 1322(b)(7), discussed in §§ 172.1 [ Debtor Can Assume, Assign or Reject Executory Contracts ] § 102.1  Debtor Can Assume, Assign or Reject Executory Contracts and 495.1 [ Leases and Executory Contracts after BAPCPA ] § 102.3  Leases and Executory Contracts after BAPCPA.

 

30  11 U.S.C. § 362(b)(23).

 

31  11 U.S.C. § 362(m)(1), (2)(A).

 

32  11 U.S.C. § 362(m)(2)(B).

 

33  11 U.S.C. § 362(m)(2)(C), (D).

 

34  11 U.S.C. § 362(b)(24).

 

35  See § 53.1 [ Strong-Arm Powers, Statutory Liens, Preferences and Fraudulent Conveyances ] § 50.3  Strong-Arm Powers, Statutory Liens, Preferences and Fraudulent Conveyances.

 

36  See 11 U.S.C. § 549, discussed in § 53.2 [ Postpetition Transfers ] § 50.7  Postpetition Transfers.

 

37  See § 75.1 [ Examples of Stay Violations, and Not ] § 62.1  Examples of Stay Violations, and Not.

 

38  See 11 U.S.C. § 549(c), discussed in §§ 53.2 [ Postpetition Transfers ] § 50.7  Postpetition Transfers and 75.1 [ Examples of Stay Violations, and Not ] § 62.1  Examples of Stay Violations, and Not.

 

39  See § 75.1 [ Examples of Stay Violations, and Not ] § 62.1  Examples of Stay Violations, and Not.

 

40  See In re Striblin, 349 B.R. 301, 303–04 (Bankr. M.D. Fla. 2006) (New exception to stay in § 362(b)(4) for a transfer that is not avoidable under § 544 and that is not avoidable under § 549 does not insulate postpetition foreclosure sale even if sale is not avoidable under § 549. Chapter 13 petition was filed on April 18, 2006. Foreclosure sale occurred on May 4. High bidder was not aware of Chapter 13 case. “Section 549 applies only to debtor initiated transfers. . . . [E]ven were the Court to find that § 549 applies to non-debtor initiated transfers, § 549(c) insulates a transfer to a bona fide purchaser, not the foreclosure sale itself, from the automatic stay. . . . ‘Nothing in either § 549(c) or new § 362(b)(24) makes the holding of the postpetition foreclosure sale an exception to the automatic stay. If the intent of BAPCPA was to validate postpetition foreclosure sales held in innocence of the bankruptcy filing, it would have referenced the foreclosure sale, and not just the subsequent transfer to the purchaser at the sale.’ Because the Sale is not a transfer to which § 549 applies in the first instance, it is not ‘not avoidable under section 549’ and is therefore not an exception to the automatic stay as set forth in § 362(b)(24). Because none of the exceptions to the automatic stay applies . . . purchase of the Property at the Sale was void and without effect.”).

 

41  For further discussion of 11 U.S.C. § 362(b)(24), see Randolph J. Haines, Does BAPCPA Validate Some Postpetition Foreclosure Sales That Would Otherwise Violate the Automatic Stay?, 9 Norton Bankr. L. Adviser 1 (2005). See also Thompson v. Margen (In re McConville), 110 F.3d 47 (9th Cir. 1997).

 

42  See 11 U.S.C. § 1307(c)(10), discussed in §§ 312.1 [ Cause for Conversion ] § 141.3  Cause for Conversion and 333.1 [ Cause for Dismissal—In General ] § 152.2  Cause for Dismissal—In General.

 

43  In re Schlitzer, 332 B.R. 856 (Bankr. W.D.N.Y. 2005).