§ 60.4     (Rebuttable) Presumption of Lack of Good Faith
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 60.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

When a debtor files a Chapter 13 case within one year of the dismissal of a prior bankruptcy case, it is likely that parts of the automatic stay will terminate 30 days after the new petition because of § 362(c)(3).1 To avoid termination of the stay with respect to some or all creditors, the stay can be continued upon timely motion2 if the moving party demonstrates the current filing is “in good faith as to the creditors to be stayed.”3

[2]

There is a twist in § 362(c)(3)(C) with respect to proof of good faith to prevent termination of the stay: under some circumstances, there is a rebuttable presumption that the current case was “filed not in good faith.”4 The circumstances under which the current filing is presumed to be filed not in good faith are awkwardly stated in § 362(c)(3)(C)5 but might be somewhat simplified as follows:

 

 A.
As to all creditors there is a rebuttable presumption good faith is lacking if—
 

 

 

 

  1.
The debtor had more than one previous Chapter 7, 11 or 13 case pending within one year; or
 

 

 

 

  2.
A previous case was dismissed within one year, after the debtor failed to—
 

 

 

 

   a.
file or amend the petition or other required documents without substantial excuse (but mere inadvertence or negligence is not substantial excuse unless dismissal was caused by negligence of the debtor’s attorney);
 

 

 

 

   b.
provide adequate protection ordered by the court; or
 

 

 

 

   c.
perform the terms of a confirmed plan; or
 

 

 

 

  3.
There has been neither a substantial change in the financial or personal affairs of the debtor since dismissal of the last case nor “any other reason to conclude that” the most recent case will result in (a Chapter 7 discharge or) a confirmed plan that will be fully performed.6
 

 

 

 

 B.
As to any creditor that filed a request for relief from the stay in a previous case, there is a rebuttable presumption good faith is lacking if—
 

 

 

 

  1.
At dismissal of the prior case, a § 362(d) request for relief from the stay was either pending or had been resolved by terminating, conditioning or limiting the stay with respect to that creditor.7
 

 

 

[3]

There is one statutory exception to the rebuttable presumption that is physically separated from § 362(c)(3). New § 362(i) provides:

If a case commenced under chapter 7, 11, or 13 is dismissed due to the creation of a debt repayment plan, for purposes of subsection (c)(3), any subsequent case commenced by the debtor under any such chapter shall not be presumed to be filed not in good faith.8
[4]

The double negative in § 362(i) intercepts the presumption of a lack of good faith when the prior case was dismissed “due to the creation of a debt repayment plan.” Debt repayment plan is not a defined term. Perhaps the drafters had in mind “debt management plan” (DMP) sometimes negotiated by credit counseling agencies, typically in the context of restructuring credit card debt outside of bankruptcy.9 It is hard to imagine the dismissal of a bankruptcy case “due to” creation of a DMP—credit counseling agencies typically aren’t in the business of buying debtors out of bankruptcy cases.

[5]

The circumstances that give rise to a rebuttable presumption of a lack of good faith are not the same for “all creditors” under § 362(c)(3)(C)(i) as for a creditor that requested relief from the stay in a previous case under § 362(c)(3)(C)(ii). It is quite possible the presumption good faith is lacking will arise, for example, with respect to one creditor that moved for relief from the stay in a prior case but not arise as to any other creditors.10

[6]

Each condition that generates a presumption of lack of good faith with respect to all creditors is disjunctive in § 362(c)(3)(C)(i). In other words, any one condition will give rise to the rebuttable presumption, and the absence of a condition or proof contrary to a condition does not get the debtor out of the woods. For example, if there has been a substantial change in the debtor’s financial affairs since dismissal of the most recent prior case, the rebuttable presumption of a lack of good faith can still arise as to all creditors if the debtor failed to perform the terms of a prior confirmed plan. In In re Montoya,11 the presumption did not arise under § 362(c)(3)(C)(i)(I) because, although the debtor had two prior cases, only one was pending in the year preceding the current petition. However, the presumption did arise under § 362(c)(3)(C)(i)(II) because a prior Chapter 13 case was dismissed within a year when the debtor failed to perform the confirmed plan.

[7]

Some of the conditions that give rise to the presumption of a lack of good faith are strange or punitive. A failure to file or amend the petition or other documents without “substantial excuse” threatens the interests of all creditors and, perhaps not unreasonably, puts in question a debtor’s good faith. But inviting the debtor to demonstrate substantial excuse by proving negligence of the debtor’s own attorney pits debtor against counsel. The failure to provide adequate protection ordered in a prior case may have affected the rights of a lienholder in the prior case; it is not obvious why that failure should give rise to a presumption of lack of good faith toward all creditors in a subsequent case.

[8]

The rebuttable presumption that good faith is lacking because of failed adequate protection in a prior case applies only to adequate protection “ordered by the court.”12 Detailed elsewhere,13 under § 1326(a) adequate protection with respect to an allowed purchase money claim secured by personal property is required by statute in Chapter 13 cases. The statute does not contemplate an order for adequate protection unless a party in interest moves the bankruptcy court to modify, increase or reduce payments under § 1326(a)(3).14 Perhaps this suggests another reason for creditors to ask the bankruptcy court to enter an order with respect to preconfirmation adequate protection payments in Chapter 13 cases.15

[9]

The presumption that the current case was not filed in good faith arises under § 362(c)(3)(C)(i)(I) when two or more previous cases under Chapters 7, 11 and 13 were “pending” within the preceding year.16 No matter how many prior bankruptcy cases the debtor had, the presumption of a lack of good faith in § 362(c)(3)(C)(i)(I) does not arise when only one prior case was pending in the preceding year. As noted by one court, this has the “curious” effect that any number of pending cases within the previous year allows the stay to come into effect for 30 days under § 362(c)(3), notwithstanding that § 362(c)(4) precludes the stay entirely if two or more cases were pending and dismissed within the previous year.17 There is a modest incentive here for a debtor contemplating refiling to file a subsequent case before dismissal of a prior, pending case.

[10]

The three disjunctive grounds for the presumption of a lack of good faith with respect to all creditors in § 362(c)(3)(C)(i)(II) require that a previous case “was dismissed” within a year “after the debtor failed” to do one of the listed things.18 Dismissal “after” a listed failure lacks precision: the statute is unclear whether there must be any connection between dismissal of the prior case and the thing the debtor failed to do. Arguably, dismissal simply has to follow whatever the debtor failed to do and no causation or linkage is required by the statute—except, perhaps, when dismissal was “caused by” the negligence of debtor’s counsel.19

[11]

A similar issue has arisen with respect to the condition in § 109(g)(2) that renders ineligible a debtor who voluntarily dismissed a prior case “following the filing of a request for relief from the automatic stay.”20 There is a split of authority whether “following” connotes a causal link between the voluntary dismissal and the request for relief from the stay in § 109(g)(2).21 Similar arguments can be expected with respect to whether dismissal must be causally linked to a failure described in § 362(c)(3)(C)(i)(II) to raise the presumption of a lack of good faith.

[12]

The presumption of lack of good faith arises as to all creditors if the debtor failed to “file or amend the petition or other documents as required by this title or the court without substantial excuse.”22 Documents “required” to be filed “by this title” probably include the vast list of documents in § 521.23 Would failure to file a document required by the Bankruptcy Rules (only) give rise to this presumption?

[13]

It is not obvious where to look in Title 11 to determine when a petition or other document is required to be amended. Of course, Bankruptcy Rule 1009 permits amendment of “a voluntary petition, list, schedule, or statement” at “any time before the case is closed.” But Rule 1009 is not in Title 11 and Rule 1009 does not require amendment of a document required by Title 11 except, perhaps, “on motion of a party in interest, after notice and a hearing” when the court “may order any voluntary petition, list, schedule, or statement to be amended.”24 At this writing, the only case addressing § 362(c)(3)(C)(i)(II)(aa) concludes that a debtor’s failure to respond to a trustee’s motion to dismiss in a prior case is not a failure to file or amend a required document for purposes of the presumption of a lack of good faith in a subsequent Chapter 13 case.25

[14]

The exclusion of “mere inadvertence or negligence” from the universe of possible excuses for the failure to file or amend the petition or other documents—unless the dismissal was “caused by the negligence of the debtor’s attorney”—puts a difficult wrinkle in this trigger for the presumption of a lack of good faith. BAPCPA and Electronic Case Filing (ECF) have conspired to multiply the probabilities that individual debtors will have experienced a prior bankruptcy case that contained some default in the filing of a document.26 Sorting out whether fault for a prior default lies with the debtor, with debtor’s counsel or somewhere in between may determine whether the debtor avoids a presumption of lack of good faith in a subsequent case. This could be a not simple burden with powerfully distorting effects on the relationships between Chapter 13 debtors and their attorneys.

[15]

Counsel in the current Chapter 13 case may be forced to prove that counsel in a prior case committed professional negligence to prevent a presumption good faith is lacking in the current case. How would the debtor use the same lawyer in the current case that the debtor used in the prior case? An inadvertently omitted document may have led to dismissal of a prior case, but proof of “inadvertence” is insufficient to avoid a presumption of a lack of good faith in a refiling within a year. A debtor starting into the second case with the same attorney who filed the prior case—a not unusual circumstance—will be represented by an attorney who must “confess negligence” to protect the debtor from a presumption of a lack of good faith in the current case. This is not a pretty picture and would probably require current counsel to withdraw.

[16]

Dig deeper into the strangely worded parenthetical: Failure to file or amend the petition or other documents without substantial excuse will raise the presumption that the current petition is not filed in good faith) “(but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney).”27 “Inadvertence” is disjunctive with “negligence” in the first part of this parenthetical. By one possible reading, “mere inadvertence or negligence” by anyone is never a substantial excuse except that negligence by the debtor’s attorney is a substantial excuse when the prior dismissal was caused by that negligence.

[17]

Another way to read the parenthetical is that if the prior dismissal was caused by the negligence of the debtor’s attorney—without regard to whether that negligence related to the failure to file or amend a petition or other document—then “mere inadvertence” with respect to the filing or amendment of a document could be a substantial excuse. In (too many) other words, if a prior case was dismissed within a year after the debtor failed to file or amend the petition or other documents and that dismissal was caused by the negligence of the debtor’s attorney, mere inadvertence with respect to the filing or amendment of the petition or other document could be a substantial excuse that would avoid the presumption of a lack of good faith in the current case. Too many contortions here for a circumstance likely to arise often in consumer bankruptcy practice.

[18]

Failure to provide “adequate protection as ordered by the court” in a prior case that was dismissed within a year triggers the presumption that the current case was not filed in good faith under § 362(c)(3)(C)(i)(II)(bb). Adequate protection might be “ordered by the court” in several different circumstances, such as on a creditor’s motion for relief from the stay or a creditor’s motion to modify, increase or reduce preconfirmation adequate protection payments under § 1326(a)(3).28 In Chapter 13 cases after BAPCPA, Title 11 itself requires Chapter 13 debtors to provide preconfirmation adequate protection to some purchase money lienholders under § 1326(a)(1)(C),29 and at confirmation § 1325(a)(5)(B)(iii)(II) requires that payments to allowed secured claim holders must be sufficient to provide adequate protection during the period of the plan.30

[19]

It is arguable that a plan provision for payment of a personal property secured creditor entitled to adequate protection at confirmation by § 1325(a)(5)(B)(iii)(II) could be adequate protection “ordered by the court” if embodied in a confirmation order in a prior case. But preconfirmation adequate protection required by § 1326(a)(1)(C) typically comes without entry of a court order—permitted but not required by § 1326(a)(3)—and would not qualify as adequate protection “ordered by the court” for purposes of the presumption good faith is lacking in § 362(c)(3)(C)(i)(II)(bb).

[20]

Failure to “perform the terms of a plan confirmed by the court” is likely to be a major source of presumption that a subsequent case within a year was filed not in good faith under § 362(c)(3)(C)(i)(II)(cc). This condition seems particularly designed to capture Chapter 13 debtors who defaulted in payments under a prior confirmed plan.

[21]

Once again, the statute is not clear whether the prior dismissal must be based on or caused by the failure to perform the terms of the confirmed plan. Several reported decisions hold the presumption good faith is lacking applies under § 362(c)(3)(C) when a prior Chapter 13 case was dismissed within a year and the debtor failed to make payments required by the confirmed plan.31 These cases are not always specific whether the prior case was dismissed because of failure to make payments or for some other reason. Dismissal of a prior Chapter 13 case before confirmation will not support the presumption of a lack of good faith in § 362(c)(3)(C)(i)(II)(cc).32 The presumption in § 362(c)(3)(C)(i)(II)(cc) does not arise if the prior case was voluntarily dismissed when the debtor was current in payments under the confirmed plan.33

[22]

Section 362(c)(3)(C)(i)(III) raises the presumption a filing is not in good faith with respect to all creditors if there has not been a substantial change in the “financial or personal affairs” of the debtor since dismissal of the “next most previous case” or “any other reason” to conclude that the “later” case will be concluded with a Chapter 7 discharge or with a confirmed plan that will be fully performed under Chapter 11 or 13.34 There are several nests within this condition for birthing the presumption.

[23]

That courts are directed to consider both financial and personal affairs of the debtor suggests a broad view of this condition. “Substantial” modifies “change” and somewhat elevates the quantum of change that must be proven. If “financial” means something different than “personal”—as well it must—then the section invites proof of changes in a debtor’s personal affairs that are unrelated to the debtor’s finances—an odd possibility in this context. Perhaps most substantial changes in personal affairs have financial consequences, but debtors are sure to test the possibility that a substantial change in personal affairs that has minimal or indirect financial impact could interrupt the presumption in § 362(c)(3)(C)(i)(III) upon refiling.

[24]

It has been held that a failure to prove any substantial change in personal or financial affairs raises the presumption of lack of good faith in § 362(c)(3)(C)(ii).35 The presumption that good faith is lacking does not arise when there is evidence that the debtors’ financial circumstances have improved.36

[25]

The “any other reason” to conclude that the current case will be concluded with a Chapter 7 discharge or a confirmed and fully performed Chapter 13 plan is a linguistic challenge. To make sense of the sentence, the phrase “there has not been” probably should be replicated after the second disjunctive “or” in § 362(c)(3)(C)(i)(III). In the Chapter 13 context, this translates to two conditions: that there is some “other reason” to conclude that the current case will result in a confirmed plan and that the confirmed plan will then be fully performed. This “other reason” probably has to be something other than a substantial change in personal or financial affairs. It is unlikely that an insubstantial change in personal or financial affairs will suffice. It is hard to articulate any other reason that would bear favorably on confirmation and consummation of a plan without impacting the personal or financial affairs of the debtor.

[26]

Keep in mind that this inquiry will occur within 30 days of the petition—well before many Chapter 13 plans are ready for confirmation. “Any other reason” is soft enough to suggest preliminary review of the prospects for confirmation and consummation of a plan. One court stated the standard in § 362(c)(3)(C)(i)(III) is “a low one.”37

[27]

The rebuttable presumption that the current filing is not in good faith that arises more narrowly as to any creditor that commenced an action for relief from the stay in a previous case applies only if the prior case was dismissed when the request for relief from the stay was either pending or resolved by “terminating, conditioning or limiting the stay” with respect to the moving creditor. It is odd that § 362(c)(3)(C)(ii) uses “terminating, conditioning or limiting” when § 362(d) refers to relief “such as by terminating, annulling, modifying, or conditioning” the automatic stay. This looks like another exasperating circumstance in which the drafters of BAPCPA used different words to convey similar intended meaning. It has to be said that “annulling” the automatic stay is a well-developed concept that perhaps is not within the contemplation of § 362(c)(3)(C)(ii).38

[28]

The presumption that good faith is lacking arises when a prior Chapter 13 case was dismissed after a mortgage holder was granted relief from the stay under § 362(c)(3)(C)(ii).39 The bankruptcy court in In re Baldassaro40 observed that when the presumption of a lack of good faith arises under § 362(c)(3)(C)(ii), it is specific to the creditor that sought relief from the stay in the prior case and does not extend to all creditors unless there is a separate trigger for the rebuttable presumption under § 362(c)(3)(C)(i).41

[29]

There is nothing in § 362(c)(3)(C)(ii) to suggest that dismissal of the prior case has to be causally related to the request for relief from the stay in the prior case. As mentioned above with respect to § 362(c)(3)(C)(i)(II), this has been an eligibility issue in cases under § 109(g)(2) when a prior bankruptcy case was voluntarily dismissed following the filing of a request for relief from the stay but the dismissal and the request for relief from the stay were separated in time and causality.42 New § 362(c)(3)(C)(ii) seems only to require that the request for relief from the stay is either pending or resolved in one of the specified manners at dismissal of the prior case.

[30]

Any resolution of the stay relief request that did not result in terminating, conditioning or limiting the stay would not trigger the presumption of a lack of good faith in § 362(c)(3)(C)(ii). Stay relief requests are often resolved by agreement in ways that are either invisible or at least ambiguous. For example, a stay relief request in the prior case that was “stricken” or “resolved by agreement” might not raise the presumption of a lack of good faith in a subsequent case for § 362(c)(3) purposes.

[31]

To overcome a presumption that the current case is filed not in good faith, “clear and convincing evidence” must be presented by the party moving to extend the stay beyond 30 days.43 This elevated burden of proof only applies when the rebuttable presumption is triggered under § 362(c)(3)(C). When there is no presumption that refiling is not in good faith, the party moving for extension of the stay bears the ordinary burden of preponderance of the evidence.

[32]

The elevated burden of clear and convincing evidence could apply to some creditors and not others in the same case. For example, the presumption might arise under § 362(c)(3)(C)(ii) with respect to one creditor that brought a motion for relief from the stay in a previous case, raising the burden of clear and convincing evidence to extend the stay as to that creditor; but for all other creditors, if none of the conditions in § 362(c)(3)(C)(i) are present, the burden of proving good faith would be the ordinary preponderance of the evidence standard.

[33]

In the first instance, the burden to prove a condition that gives rise to the presumption good faith is lacking rests upon a party opponent to the motion to extend the stay beyond 30 days.44 As explained by the bankruptcy court in In re Collins:45

Initially, a court must determine whether a presumption . . . arises pursuant to § 362(c)(3)(C)(i) or (ii). . . . The standard of proof required to establish subparagraphs (i) and (ii) is a preponderance of the evidence, although the party upon which the burden falls varies. . . . [T]he burden rests on the opponent of the stay extension as to: whether more than one previous case was pending within the one-year period . . . ; whether a prior case was dismissed for one of the reasons set forth in § 362(c)(3)(C)(i)(II); and establishing that the particular creditor filed a § 362(d) motion in a previous case[.]46
[34]

Typically, the party moving for extension of the stay beyond 30 days will be the debtor in a Chapter 13 case and the opponent of stay extension will be one or more creditors and/or perhaps the trustee. Under the Collins reading of § 362(c)(3)(C), an opponent to extension of the stay must establish a condition that gives rise to the presumption that the current case is filed not in good faith else the clear and convincing standard would not apply to the debtor’s proof of good faith. The preponderance of the evidence standard applies to the opponent’s proof of a condition giving rise to the presumption that good faith is lacking. If the opponent fails to carry its burden by a preponderance of the evidence with respect to the presumption of a lack of good faith, then the debtor’s burden of establishing good faith is the preponderance of the evidence.47

[35]

There remains the possibility that the debtor will be without a visible opponent in the midst of the bouncing burdens of proof in § 362(c)(3)(C). When the debtor moves for extension of the 30-day stay and nobody responds, it can be argued that no presumption arises because an opponent bears the burden of proof with respect to the conditions in § 362(c)(3)(C)(i) and (ii). However, it has been held that the absence of opposition to a motion for stay extension under § 362(c)(3) does not require the bankruptcy court to continue the stay. As explained by the bankruptcy court in In re Castaneda:48

[T]he lack of opposition does not require the Court to continue the stay. Section 362(c)(3)(B) directs that a court may continue the stay “only if the party in interest [movant] demonstrates that the filing of the later case is in good faith.” . . . Consequently, the moving papers must establish the nonexistence of presumptive bad faith, or the moving papers must admit and rebut the presumption, even though the burden of proof technically rests upon the opponent and the motion may be unopposed.49
[36]

Once you have figured out the proper burden of proof, then the debtor must prove that the filing of the current case is in good faith as to creditors to be stayed beyond 30 days. The content of “good faith” in this context is not fleshed out by § 362(c)(3) and has quickly produced more heat than light in reported cases.50


 

1  See 11 U.S.C. § 362(c)(3), discussed in §§ 432.1 [ When Does § 362(c)(3) Apply? ] § 60.1  When Does § 362(c)(3) Apply? and 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

2  See § 432.3 [ Timing, Procedure and Form for Extension of Stay ] § 60.3  Timing, Procedure and Form for Extension of Stay.

 

3  11 U.S.C. § 362(c)(3)(B), discussed in § 432.5 [ Proof of Good Faith ] § 60.5  Proof of Good Faith.

 

4  11 U.S.C. § 362(c)(3)(C).

 

5  11 U.S.C. § 362(c)(3)(C) provides:

(C) for purposes of [§ 362(c)(3)(B)], a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)—
(i) as to all creditors, if—
(I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period;
(II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to—
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney);
(bb) provide adequate protection as ordered by the court; or
(cc) perform the terms of a plan confirmed by the court; or
(III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded—
(aa) if a case under chapter 7, with a discharge; or
(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and
(ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor[.]

 

6  See 11 U.S.C. § 362(c)(3)(C)(i).

 

7  See 11 U.S.C. § 362(c)(3)(C)(ii).

 

8  11 U.S.C. § 362(i).

 

9  Compare the use of the phrase “alternative repayment schedule” in 11 U.S.C. § 502(k), discussed in § 525.1 [ Claim Reduction under New § 502(k) ] § 138.9  Claim Reduction under § 502(k) after BAPCPA.

 

10  See, e.g., In re Baldassaro, 338 B.R. 178, 186 (Bankr. D.N.H. 2006) (“[T]he Debtor concedes that the 2006 Case was presumptively filed not in good faith as to MERS . . . because [MERS] had sought and received relief from the automatic stay in the 2005 Case . . . . [T]he rebuttable presumption does not arise in the 2006 Case as to all creditors pursuant to § 362(c)(3)(C)(i).”).

 

11  333 B.R. 449 (Bankr. D. Utah 2005).

 

12  See 11 U.S.C. § 362(c)(3)(C)(i)(II)(bb).

 

13  See § 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA.

 

14  11 U.S.C. § 1326(a)(3), discussed in § 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA.

 

15  See § 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA.

 

16  11 U.S.C. § 362(c)(3)(C)(i)(I). See, e.g., In re Hunt, No. 06-50835, 2006 WL 2431554 (Bankr. M.D.N.C. Aug. 18, 2006) (Presumption of lack of good faith arises under § 362(c)(3)(C)(i) because two prior cases were pending within one year of current case.).

 

17  See 11 U.S.C. § 362(c)(4), discussed in § 61.1  When Does § 362(c)(4) Apply?. See, e.g., In re Montoya, 333 B.R. 449, 455 n.11 (Bankr. D. Utah 2005) (Presumption of lack of good faith did not arise under § 362(c)(3)(C)(i)(I) because although debtor had two prior cases, only one was pending in preceding year. Court noted: “It is curious . . . that ‘more than 1 previous case’ could be pending and still have the stay in effect for 30 days under § 362(c)(3). This is because § 362(c)(4) precludes the stay from going into effect upon the filing of a case if 2 or more cases were pending within the previous year, but only if the 2 or more cases were dismissed. Therefore, BAPCPA provides more favorable treatment for a case refiled while a prior case is still pending, than it does for a case refiled after a prior case was dismissed.”).

 

18  11 U.S.C. § 362(c)(3)(C)(i)(II) (emphasis added).

 

19  See below in this section.

 

20  11 U.S.C. § 109(g)(2), discussed in § 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.

 

21  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.

 

22  11 U.S.C. § 362(c)(3)(C)(i)(II)(aa).

 

23  The documents required by 11 U.S.C. § 521 in a Chapter 13 case are discussed beginning at § 36.1  Commercial Forms.

 

24  Interim Bankr. R. 1009(a).

 

25  In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005).

 

26  See, e.g., 11 U.S.C. §§ 109(h) & 521(b), discussed in § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b). See also §§ 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1  Filing Requirements and Other Duties: A List and 388.1 [ Consequences of Failure to File Required Information, Including “Automatic Dismissal” ] § 42.2  Consequences of Failure to File Required Information, Including “Automatic Dismissal”.

 

27  11 U.S.C. § 362(c)(3)(C)(i)(II)(aa).

 

28  See §§ 48.1 [ Adequate Protection of Lienholders prior to Confirmation ] § 47.1  Adequate Protection of Lienholders before Confirmation, 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA and 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA.

 

29  See 11 U.S.C. § 1326(a)(1)(C), discussed in §§ 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA and 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA.

 

30  11 U.S.C. § 1325(a)(5)(B)(iii)(II), discussed in § 449.1 [ “Adequate Protection” after Confirmation ] § 74.15  “Adequate Protection” after Confirmation after BAPCPA.

 

31  See, e.g., In re Elliott-Cook, 357 B.R. 811 (Bankr. N.D. Cal. 2006) (Presumption of lack of good faith arises because previous Chapter 13 case was dismissed for failure to make payments under confirmed plan.); In re Morgan, No. 06-52183-MM, 2006 WL 3838412 (Bankr. N.D. Cal. Nov. 16, 2006) (Presumption of lack of good faith arises because previous Chapter 13 case was dismissed for failure to perform confirmed plan.); In re Penland, No. 06-11895, 2006 WL 2089893 (Bankr. E.D. Tenn. July 21, 2006) (Second bankruptcy filing was presumptively not in good faith because first case was dismissed after debtor failed to make plan payments.); In re Wilson, 336 B.R. 338, 347 (Bankr. E.D. Tenn. 2005) (“[E]ach case falls within the scope of § 362(c)(3)(C)’s presumption of being ‘filed not in good faith,’ because they were all dismissed after the respective Debtors failed to comply with the terms of Chapter 13 plans that were confirmed in prior cases.”); In re Montoya, 333 B.R. 449 (Bankr. D. Utah 2005) (Presumption of lack of good faith arose under § 362(c)(3)(C)(i)(II)(cc) because prior Chapter 13 case was dismissed when the debtor failed to perform under the plan.).

 

32  See In re Warneck, 336 B.R. 181, 185 (Bankr. S.D.N.Y. 2006) (Presumption good faith is lacking does not arise when prior case was dismissed before confirmation. “Because the Debtors’ Second Filing was dismissed for failure to make payments pursuant to a proposed plan of reorganization that had not yet been confirmed, the provision in Section 362(c)(3)(C)(i)(II)(cc)—failure to ‘perform the terms of a plan confirmed by the court’—does not apply.”).

 

33  See In re Montoya, 342 B.R. 312 (Bankr. S.D. Cal. 2006).

 

34  11 U.S.C. § 362(c)(3)(C)(i)(III).

 

35  See In re Collins, 335 B.R. 646, 651–52 (Bankr. S.D. Tex. 2005) (“[T]he Debtor’s financial affairs appear relatively unchanged. . . . There is no evidence that the Debtor’s personal affairs have substantially changed . . . . There is no evidence that the Debtor can propose a feasible plan . . . . [T]here is a rebuttable presumption that this was not filed in good faith.”).

 

36  See In re Warneck, 336 B.R. 181, 186 (Bankr. S.D.N.Y. 2006) (“The availability of third-party contributions of up to $1,500 per month (in addition to the Debtor’s disposable income) constitutes a ‘substantial change’ in both the financial and personal affairs of the Debtors.”).

 

37  In re Warneck, 336 B.R. 181, 186 (Bankr. S.D.N.Y. 2006) (“[I]t is not necessary to decide whether the plan as proposed can actually be confirmed. The standard in Section 362(c)(3)(C)(i)(III) is a low one—whether ‘any other reason’ exists ‘to conclude that the [Pending Case] will be concluded’ with a confirmed Chapter 13 plan that will be fully performed. . . . Debtors have shown a reasonable likelihood that they can propose a plan of reorganization that can be confirmed and fully performed.”).

 

38  Annulment of the automatic stay is discussed in § 82.2 [ Annulment of the Stay ] § 64.4  Annulment of the Stay.

 

39  See In re Garrett, 357 B.R. 128 (Bankr. C.D. Ill. 2006).

 

40  338 B.R. 178 (Bankr. D.N.H. 2006).

 

41  338 B.R. at 186 (“[T]he Debtor concedes that the 2006 Case was presumptively filed not in good faith as to MERS . . . because [MERS] had sought and received relief from the automatic stay in the 2005 Case . . . . [T]he rebuttable presumption does not arise in the 2006 Case as to all creditors pursuant to § 362(c)(3)(C)(i).”).

 

42  See 11 U.S.C. § 109(g)(2), discussed in § 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.

 

43  11 U.S.C. § 362(c)(3)(C).

 

44  See In re Castaneda, 342 B.R. 90, 95 (Bankr. S.D. Cal. 2006) (“The burden of establishing the presence of presumptive bad faith rests upon the opponent to the motion.”).

 

45  335 B.R. 646 (Bankr. S.D. Tex. 2005).

 

46  335 B.R. at 650.

 

47  See In re Collins, 335 B.R. 646, 650–51 (Bankr. S.D. Tex. 2005) (“[T]he burden rests on the debtor as to: whether there has been a change in circumstances or other reason to believe that the new case will result in a discharge. . . . If the court finds that a case is presumptively not filed in good faith, ‘such presumption may be rebutted by clear and convincing evidence to the contrary.’ . . . If the court does not find that a presumption arises against the debtor under § 362(c)(3)(C), the burden of establishing good faith is reduced to a preponderance of the evidence standard.”). Accord In re Charles, 334 B.R. 207 (Bankr. S.D. Tex. 2005) (To extend stay under § 362(c)(3) debtor has burden of proof with respect to good faith and that burden will be either a preponderance or clear and convincing evidence depending on whether the presumption of a lack of good faith arises; party opposing extension of stay has burden of proof by a preponderance of the evidence with respect to several elements of test whether presumption arises. Debtor must prove good faith as to creditors to be stayed by a preponderance of the evidence unless presumption of a lack of good faith arises. The preponderance of the evidence standard applies to determine whether the presumption arises. There are four factors that can lead to presumption of a lack of good faith. The first factor is that the debtor was a debtor in more than one case pending within the preceding year. 11 U.S.C. § 362(c)(3)(C)(i)(I). The burden of proving this factor rests on the party opposing extension of the automatic stay. The second factor is if a prior case was dismissed after the debtor failed to file or amend required documents without substantial excuse, failed to provide adequate protection or failed to perform the terms of a confirmed plan. 11 U.S.C. § 362(c)(3)(C)(i)(II). The burden of proving this factor rests on the party alleging that the debtor engaged in the specified conduct. This may be the nondebtor party, but the burden of proof for the affirmative defense of substantial excuse rests on the debtor. The third factor is the absence of a substantial change in financial or personal affairs of the debtor or any other reason to conclude that the case will be concluded with a discharge or confirmed and fully performed plan. Because the debtor is in a unique position to know about changed circumstances, the burden of proof by a preponderance of the evidence is on the debtor for this factor. The fourth factor is whether any creditor filed a § 362(d) motion in the prior case. The burden of proof on this issue rests on the party opposing extension of the automatic stay.).

 

48  342 B.R. 90 (Bankr. S.D. Cal. 2006).

 

49  342 B.R. at 95.

 

50  See § 432.5 [ Proof of Good Faith ] § 60.5  Proof of Good Faith.