§ 61.1     When Does § 362(c)(4) Apply?
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 61.1, at ¶ ____, LundinOnChapter13.com (last visited __________).

Rev:  July 26, 2007

[1]

In contrast to the 30-day limitation on some parts of the automatic stay that arises under § 362(c)(3) when one prior bankruptcy case was pending and dismissed within a year,1 when two or more cases were pending and dismissed within one year of the current petition, new § 362(c)(4) disables the entire automatic stay in the following terms:

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 section 707(b), the stay under [§ 362(a)] shall not go into effect upon the filing of the later case[.]2
[2]

New § 362(c)(4) is every bit as intricate as the new 30-day stay termination in § 362(c)(3),3 and the two sub-subsections contain many identical and almost identical provisions. Yet, for no obvious good reason, the words, sentence structure and punctuation in § 362(c)(4) are sometimes different than in § 362(c)(3) and the differences are material.

[3]

Under new § 362(c)(4), no automatic stay under § 362(a) goes into effect when “a single or joint case is filed by or against a debtor who is an individual under this title” if “two or more single or joint cases of the debtor were pending within the previous year but were dismissed.”4 The analogous portion of the 30-day stay termination in § 362(c)(3) speaks of a debtor “who is an individual in a case under chapter 7, 11 or 13.”5 Was some difference intended other than the chapter limitation on the current case in § 362(c)(3)? A current Chapter 12 case seems to be excepted from the 30-day stay termination in § 362(c)(3) but is subject to the no-stay rules in § 362(c)(4). A current Chapter 13 refiling is subject to both new limitations on the automatic stay.

[4]

A straightforward reading of § 362(c)(4)(A) requires that the two or more prior cases must have been both “pending” and “dismissed” during the year before the current petition. It is easy to visualize a previous case pending but not dismissed during the previous year6 but more difficult to imagine a prior case dismissed within a year that was not also “pending” within the year. Theoretically, perhaps, a prior case could have been administratively closed more than a year before the current petition and then an order of dismissal entered in that (closed?) case within a year of the current case. It will require strangeness or silliness to give any meaning to “pending” in § 362(c)(4)(A).

[5]

In its straightforward application, § 362(c)(4) contemplates no automatic stay goes into effect when two or more prior cases of the debtor were pending and dismissed in the previous year. Several reported decisions read the new subsection in this straightforward way and hold that no automatic stay comes into effect under § 362(c)(4)(A)(i) when a Chapter 13 debtor suffered dismissal of two or more prior cases within the previous year.7 Section 362(c)(4) does not apply to a debtor’s third bankruptcy case pending within a year when only one prior case was dismissed within the year.8

[6]

The disruption of the automatic stay in § 362(c)(4) applies if two or more cases were pending and dismissed within the previous year “other than a case refiled under section 707(b).”9 Of course, there is no such thing as a case “refiled under section 707(b).” Chapter 7 cases are dismissed (or converted to Chapter 13 by consent) under § 707(b). The meaning of “refiled” in this context is cloudy.

[7]

Detailed above,10 in § 362(c)(3) there is the similar phrase “other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b).”11 First speculation is that the similar language in § 362(c)(3) is what the drafters meant to say in § 362(c)(4)(A)(i). But there are other possible constructions. The phrase “other than a case refiled under section 707(b)” could mean that the stay arises normally—and the limitation in § 362(c)(4) does not apply—if any of the cases dismissed during the prior year were Chapter 7 cases dismissed for abuse under § 707(b). Straining further, a third reading might be that only a dismissal of the most recent prior case under § 707(b) defeats the limitation in § 362(c)(4). What if there were three cases in the prior year and one was a Chapter 7 case dismissed for abuse under § 707(b)—does the stay arise or not? There will be unanswerable questions here because the phrase “other than a case refiled under section 707(b)” is nonsense.

[8]

And what if a prior case within the year was “stricken” rather than “dismissed”? This has been a hot-button issue with respect to the disposition of cases when the debtor failed to satisfy the prepetition briefing requirement in § 109(h).12 Some courts have refused to dismiss cases filed by § 109(h) ineligible debtors but instead have stricken the petition or case.13 In the § 362(c)(4) context, some courts have concluded that a petition or case stricken within a year because the debtor was not eligible under § 109(h) is not a case that was pending and dismissed and does not count toward the two cases necessary to bar the stay from arising in the current case.14

[9]

The barrier to the automatic stay in § 362(c)(4) triggered by two or more dismissed cases within a year should not be confused with the presumption that the current case is filed “not in good faith” that arises when two or more cases were pending within a year of the current case. This presumption is important when the debtor seeks to extend the stay beyond 30 days under § 362(c)(3)(C)15 or seeks to impose a stay in the first instance under § 362(c)(4)(D).16 The presumption in both § 362(c)(3) and (c)(4) arises by counting pending prior cases within a year without regard to whether any of those pending cases also was dismissed within the year.

[10]

The stay that does not ignite when the conditions stated in § 362(c)(4) are present is “the stay under subsection (a).”17 The cross-reference to “subsection (a)” captures § 362(a), which contains eight subsections that describe the whole automatic stay that arises at a petition in bankruptcy. This is a broad and all-inclusive statement that no § 362(a) stay comes into effect when two or more prior bankruptcy cases were pending and dismissed within a year as described in § 362(c)(4)(A)(i).

[11]

Section 362(c)(4)(A)(i) is in marked contrast to the stay that terminates on the 30th day after the petition under § 362(c)(3)(A) when there has been only one prior pending and dismissed case within a year. Detailed elsewhere,18 under § 362(c)(3)(A), the stay that terminates on the 30th day after the petition when there has been one prior pending and dismissed case is “under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease . . . with respect to the debtor.”19

[12]

There has been controversy about the meaning of “any action taken” in § 362(c)(3)(A). Some courts have concluded that if no “action” had been “taken” in a nonbankruptcy forum before the current petition, stay termination under § 362(c)(3) does not apply.20 The unconditional language in § 362(c)(4)(A)(i) is not subject to a restrictive reading of this sort.

[13]

The multiple, limiting, “with respect to” phrases in § 362(c)(3) do not appear in § 362(c)(4). Many courts have held that the stay that terminates in 30 days under § 362(c)(3) is only with respect to the debtor and property of the debtor and does not expose property of the estate.21 The § 362(a) stay that does not arise when § 362(c)(4) applies more broadly leaves the debtor and all property of the estate vulnerable to collection action.

[14]

In addition, the 30-day stay termination in § 362(c)(3) applies only to debt or property securing debt or a lease “with respect to the debtor.” If the current case is a joint case and if there is a stay with respect to a debt or collateral or a lease that runs in favor of a joint debtor who was not a debtor in a prior case that was dismissed within a year, then there is an automatic stay in effect for the joint debtor that does not terminate 30 days after the petition under § 362(c)(3).22 In other words, the 30-day stay termination in § 362(c)(3) is clearly measured as to each debtor separately in a joint case.

[15]

Section 362(c)(4) is not quite so clearly worded on this point. Under § 362(c)(4)(A)(i), if an individual has been a debtor in two or more single or joint cases pending within the previous year that were dismissed, then the stay under § 362(a) “shall not go into effect upon the filing of the case.” There is no reference here to “the debtor” as there is in § 362(c)(3)(A). Neither is there any statement that filing a joint case when only one spouse was a debtor in two prior dismissed cases within a year forfeits the protection of the stay for the spouse who was not a debtor in two prior dismissed cases within a year. Courts interpreting § 362(c)(4)(A)(i) have concluded, notwithstanding the differences in language between § 362(c)(3) and (c)(4), spouses are considered separately to determine whether there were two (or more) pending and dismissed cases within a year of the current petition.23

[16]

There are strategic considerations here for married debtors when one or both have prior bankruptcy experience.24 When joint debtors face foreclosure or repossession of property owned jointly and one spouse has one or more prior bankruptcy cases that were dismissed within a year, filing a Chapter 13 case for only the inexperienced spouse invokes an automatic stay that interrupts foreclosure or repossession notwithstanding that the nonfiling spouse could not separately command the same protection. Also, nothing in § 362(c)(4) addresses the codebtor stay in § 1301. The full protection of the codebtor stay arises under § 1301 even when § 362(c)(4) unplugs the automatic stay because of two prior pending and dismissed cases within a year.25

[17]

On request of a party in interest, when the conditions in new § 362(c)(4)(A)(i) are present, the bankruptcy court is instructed to “promptly enter an order confirming that no stay is in effect.”26 “Promptly” is not defined. The failure to use a more specific period such as the 30-day and 60-day periods found elsewhere in § 362 led one bankruptcy court to conclude that 48 days after a motion is prompt entry of an order confirming that no stay is in effect for purposes of § 362(c)(4)(A)(ii).27 There is no consequence specified when a bankruptcy court fails to act promptly on a motion to confirm the absence of the stay.

[18]

Some notice must be given and opportunity for a hearing when a party in interest requests an order that no stay is in effect. Local rules will define practice in this area. The party requesting an order that no stay is in effect has the initial burden to prove the conditions in § 362(c)(4)(A)(i). The debtor might then, for example, contest whether a case has been “refiled under section 707(b)” to overcome a request for prompt entry of an order confirming that no stay is in effect. If the debtor believes that the counting and timing of dismissals of prior cases do not preclude a stay from coming into effect, opposition to a motion under § 362(c)(4)(A)(ii) would be appropriate.

[19]

When no stay arises because of § 362(c)(4), by motion filed within 30 days after the current petition, a party in interest can request a stay as to any or all creditors and subject to such conditions or limitations as the court may impose.28 After notice and a hearing, if the moving party demonstrates that the current case is “in good faith as to the creditors to be stayed,”29 the bankruptcy court can impose a stay that is effective “on the date of the entry” of the order allowing the stay to go into effect.30 A motion to impose the stay must be filed within 30 days of the current petition but, unlike § 362(c)(3)(B),31 there is no deadline for completion of the hearing on a timely filed motion to impose a stay under § 362(c)(4)(B).32

[20]

Similar to the 30-day stay termination in § 362(c)(3)(C),33 there is a rebuttable presumption that the current case is filed not in good faith under the circumstances described in § 362(c)(4)(D). This presumption can be rebutted by clear and convincing evidence to the contrary.34 Proving good faith to support imposition of a stay as to some or all creditors when § 362(c)(4) is applicable is likely to be similar to proving good faith for purposes of extending the 30-day stay when § 362(c)(3)(C) is applicable.35

[21]

The predicate in § 362(c)(4)(A)(i) that two prior cases were pending and dismissed within a year distinguishes this bar to any stay arising in the current case from the 30-day stay termination provision in § 362(c)(3). Detailed above,36 when only one prior case was pending and dismissed within a year, parts of the automatic stay terminate 30 days after the current petition unless on timely motion and hearing the bankruptcy court finds that the current case is filed in good faith with respect to creditors to be stayed.37 In contrast, § 362(c)(4)(A)(i) requires two prior pending and dismissed cases within a year of the current petition. The two sections do not appear to overlap except in the sense that the debtor passes through the one-case predicate to the 30-day stay termination in § 362(c)(3) on the way to two prior dismissed cases and no stay in § 362(c)(4).

[22]

However, this separation has been tested by debtors who failed to timely request an extension of the stay that terminates on the 30th day after the petition when § 362(c)(3) is applicable. Section 362(c)(3)(B) provides strictly that the stay that expires 30 days after the petition in the current case under § 362(c)(3)(A) can be extended only after notice and a hearing “completed” before expiration of the 30-day period.38 Debtors who fail to file a timely motion for extension or who fail to arrange a hearing that can be completed within 30 days have searched outside of § 362(c)(3) for a source of authority to continue the expiring stay or to impose a new stay. Several courts have looked to § 362(c)(4) and—notwithstanding its requirement of two prior pending and dismissed cases within a year—some courts have found that imposition of a stay under § 362(c)(4) is available in a one-prior-case scenario when extension of the stay beyond 30 days under § 362(c)(3) is not.39 These courts torture the “two-case” predicate in § 362(c)(4)(A)(i), and there are convincing contrary cases.40

[23]

When § 362(c)(4) is applicable and no stay is in effect, the Chapter 13 debtor is exposed to creditor collection action in other courts. There is still the race to confirmation and the possibility that a confirmed plan will bind creditors in ways that limit or defeat collection action in other courts.41 There is also the question of bankruptcy court jurisdiction with respect to property of the Chapter 13 estate. As explained by the bankruptcy court in In re Murray,42 notwithstanding that no stay arises because of § 362(c)(4), BAPCPA did not amend 28 U.S.C. § 1334(e)(1), which vests in the district court exclusive jurisdiction over all property of the Chapter 13 estate:

The absence or termination of the automatic stay does not remove property from the Debtors’ estate. . . . The automatic stay is a procedural issue, which, absent other factors, permits or prohibits proposed actions. . . . [T]he entry of an order confirming that the automatic stay is not in effect does not, during the pendency of this case, authorize any action against the Property, except in this court. . . . [A]n order lifting the automatic stay by itself does not release the estate’s interest in the property and “the act of lifting the automatic stay is not analogous to an abandonment of the property.” . . . Congress limited § 362(c)(4) to issues concerning the stay and not to issues concerning property of the estate. . . . Although the Court will enter an order confirming the automatic stay is not in effect in this case, the court determines that all actions involving the Property must be commenced exclusively in this bankruptcy court during the pendency of this case.43
[24]

Section 362(c)(4) is likely to spawn a new phenomenon: Chapter 13 cases with confirmed plans in which no automatic stay is in effect. Debtors with multiple prior bankruptcy cases will be tempted to attempt a stayless Chapter 13 for lack of alternative remedies in or out of bankruptcy court. Creditors may be convinced to allow a naked case to proceed if the plan is rich enough and if the debtor is paying regularly through the plan. Debtor’s counsel will have the added burden of overcoming bad bankruptcy history and the understandable reluctance of creditors to buy into another round. It will be interesting to see if Chapter 13 cases can succeed without the protective envelope of the automatic stay.


 

1  See 11 U.S.C. § 362(c)(3), discussed beginning at § 60.1  When Does § 362(c)(3) Apply?

 

2  11 U.S.C. § 362(c)(4)(A)(i).

 

3  See discussion of 11 U.S.C. § 362(c)(3) beginning at § 60.1  When Does § 362(c)(3) Apply?

 

4  11 U.S.C. § 362(c)(4)(A)(i).

 

5  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?.

 

6  This distinction between pending and dismissed has significance in § 362(c)(3)(C)(i)(I). See § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

7  See, e.g., In re Winters, No. 06-70447, 2006 WL 3392890 (Bankr. W.D. Va. Nov. 22, 2006) (No stay arose under § 362(c)(4) because the debtors had two previous cases pending within a year and both were dismissed because debtors failed to comply with confirmed plans.); In re Ortiz, 355 B.R. 587 (Bankr. S.D. Tex. 2006) (Section 362(c)(4) applies because debtor had two prior cases pending within a year and both prior cases were dismissed.); In re Jones, No. 06-51316-13, 2006 WL 3371791, at *2 (Bankr. M.D.N.C. Nov. 16, 2006) (“Because the Debtors had two prior bankruptcy cases dismissed within the preceding year of the fifth and current bankruptcy case, the automatic stay did not arise in the present case pursuant to § 362(c)(4).”); In re Murray, 350 B.R. 408 (Bankr. S.D. Ohio 2006) (Section 362(c)(4)(A) is not ambiguous and its plain meaning does not produce a result demonstrably at odds with intent of Congress that no automatic stay arises when two prior cases were pending and dismissed within a year.); In re Mullins, No. 06-10948, 2006 WL 2571027 (Bankr. M.D.N.C. Sept. 1, 2006) (No automatic stay arose under § 362(c)(4) because debtors had two prior bankruptcy cases dismissed within preceding year.); In re Sarafoglou, 345 B.R. 19 (Bankr. D. Mass. 2006) (No stay arises for § 362(c)(4) purposes in third Chapter 13 case within a year.).

 

8  See In re Hunt, No. 06-50835, 2006 WL 2431554 (Bankr. M.D.N.C. Aug. 18, 2006) (Although debtor had three bankruptcy cases pending within a year, second of the prior cases was a Chapter 7 case that ended in a discharge, not in dismissal.).

 

9  11 U.S.C. § 362(c)(4)(A)(i).

 

10  See § 432.1 [ When Does § 362(c)(3) Apply? ] § 60.1  When Does § 362(c)(3) Apply?.

 

11  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?.

 

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

 

13  See § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?.

 

14  See In re Maxey, No. 06 36773, 2006 WL 3834218, at *3 (Bankr. S.D. Tex. Dec. 27, 2006) (Section 362(c)(4) does not apply when one prior case was dismissed within a year but second prior case within year was stricken because debtor did not satisfy prepetition briefing requirement. In chronicle of nine bankruptcy petitions by debtor and spouse to stop foreclosure sale, court annuls stay retroactively to validate postpetition foreclosure sale and declines to find good faith for purposes of extending stay in § 362(c)(3). Bankruptcy court refuses mortgage holder’s invitation to look at serial filings by family members as a single filing for purposes of § 362(c)(4). “The language of § 362(c)(4) leaves no room for such an interpretation. . . . [A]lthough there were two petitions filed by Ms. Maxey within the previous year, there were not two previous dismissals. Option One did not appeal the Court’s order striking Ms. Maxey’s December 2005 petition rather than dismissing her case. . . . Mr. Maxey’s filings are not counted under the plain language of § 362(c)(4).”); In re Valdez, 335 B.R. 801, 803–04 (Bankr. S.D. Fla. 2005) (Chapter 13 petition dismissed because pro se debtor did not request a § 109(h) briefing will not count as a prior case for purposes of § 362(c)(3) or (4). “Because the petition failed to provide Mirielys Valdez status as a debtor, the Court will not consider this a dismissed case in which the individual was the debtor, for purposes of denying the imposition of the automatic stay in a subsequently filed case pursuant to 11 U.S.C. § 362. Thus, the Court views the criteria established by 11 U.S.C. § 109 as jurisdictional. Should Mirielys Valdez proceed to obtain budget and credit counseling as required under 11 U.S.C. § 109(h)(3), she will then be eligible to become a debtor under 11 U.S.C. § 109 and any petition thereafter filed in a timely manner, within 180 days after completion of the credit counseling services, will be treated as her first petition, not subject to 11 U.S.C. § 362(c)(3) or (c)(4).”).

 

15  See 11 U.S.C. § 362(c)(3)(C), discussed in §§ 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith and 432.5 [ Proof of Good Faith ] § 60.5  Proof of Good Faith.

 

16  See 11 U.S.C. § 362(c)(4)(D), discussed in §§ 434.1 [ (Rebuttable) Presumption of Lack of Good Faith ] § 61.3  (Rebuttable) Presumption of Lack of Good Faith and 434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

17  11 U.S.C. § 362(c)(4)(A)(i).

 

18  See § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

19  11 U.S.C. § 362(c)(3)(A), discussed in § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

20  See § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

21  See § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

22  See § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

23  See, e.g., In re Maxey, No. 06 36773, 2006 WL 3834218 (Bankr. S.D. Tex. Dec. 27, 2006) (Serial filings by family members are dissected and each spouse counted separately for purposes of § 362(c)(4).); In re Haisley, 350 B.R. 48 (Bankr. E.D. La. 2006) (Spouses are analyzed separately for purposes of § 362(c)(4); when one spouse had two prior bankruptcy cases dismissed within a year but other spouse was not a debtor within preceding year, automatic stay was not in effect with respect to first spouse but was in effect with respect to second.).

 

24  Similar issues arise with respect to joint debtors and the codebtor stay. See 11 U.S.C. § 1301, discussed in § 436.1 [ Codebtor Heaven ] § 65.3  Codebtor Heaven after BAPCPA.

 

25  See § 436.1 [ Codebtor Heaven ] § 65.3  Codebtor Heaven after BAPCPA.

 

26  11 U.S.C. § 362(c)(4)(A)(ii).

 

27  In re Murray, 350 B.R. 408, 412 (Bankr. S.D. Ohio 2006) (The word “promptly” is not defined by the Bankruptcy Code. There is no useful legislative history. Section 362 elsewhere contains specific 30-day and 60-day time periods not found in § 362(c)(4). “[T]he Court determines that the order confirming the stay is not in effect in this case, which will be entered . . . 48 days from the filing of the Motion . . . is entered promptly.”).

 

28  11 U.S.C. § 362(c)(4)(B), discussed in § 433.2 [ Procedure, Timing and Form for Imposing Stay ] § 61.2  Procedure, Timing and Form for Imposing Stay.

 

29  11 U.S.C. § 362(c)(4)(B), discussed in § 434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

30  11 U.S.C. § 362(c)(4)(C), discussed in § 433.2 [ Procedure, Timing and Form for Imposing Stay ] § 61.2  Procedure, Timing and Form for Imposing Stay.

 

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

 

32  See § 433.2 [ Procedure, Timing and Form for Imposing Stay ] § 61.2  Procedure, Timing and Form for Imposing Stay.

 

33  See 11 U.S.C. § 362(c)(3)(C), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

34  11 U.S.C. § 362(c)(4)(D), discussed in § 434.1 [ (Rebuttable) Presumption of Lack of Good Faith ] § 61.3  (Rebuttable) Presumption of Lack of Good Faith.

 

35  See §§ 432.5 [ Proof of Good Faith ] § 60.5  Proof of Good Faith and 434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

36  See § 60.1  When Does § 362(c)(3) Apply?

 

37  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?.

 

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

 

39  See, e.g., In re Toro-Arcila, 334 B.R. 224, 226–28 (Bankr. S.D. Tex. 2005) (Debtor with one prior case who filed motion to extend the stay on 30th day under § 362(c)(3) is eligible for re-imposition of stay under § 362(c)(4) after expiration of 30 days. “[A]t first blush, § 362(c)(4) appears to apply only to multiple repeat filers and not to first-time repeat filers. . . . The problem with the ‘first blush’ interpretation is that it renders virtually all of § 362(c)(4)(D) to be meaningless surplusage. Section 362(c)(4)(D)(i)(I) applies to all creditors in all cases governed by § 362(c)(4)(A). If the ‘later case’ referred to in § 362(c)(4)(B) must be a later case of a type described in § 362(c)(4)(A), then there will be no instances in which the language in §§ 362(c)(4)(D)(i)(II), (D)(i)(III), or (D)(ii) would ever be considered. . . . [T]he Court concludes that Congress intended for subsection (B) to apply to cases in which there is a timely request that the stay be imposed, whether the case is the first repeat filing or a subsequent repeat filing. This interpretation gives meaning to subsection (D) and provides a more consistent application of §§ 362(c)(3) and (4).”).

 

40  See, e.g., In re Davis, No. 06-10463, 2006 WL 2088269 (Bankr. M.D.N.C. June 30, 2006) (To the extent second motion to extend stay may be interpreted as a motion to impose the stay under § 362(c)(4)(B), motion must be denied because debtor had only one case within prior year.); In re Whitaker, 341 B.R. 336, 342–43 (Bankr. S.D. Ga. 2006) (Disagreeing with In re Toro-Arcila, 334 B.R. 224 (Bankr. S.D. Tex. 2005), extension of the stay under § 362(c)(4) is not available to one-time repeat filers who move for extension too late to give notice and have a hearing within 30 days of the petition. “It is true that § 362(c)(4)(B) provides repeat filers an opportunity to protect the estate under § 362. Unlike § 362(c)(3)(B), it does not require that notice and a hearing be completed within 30 days of the filing of the petition. . . . The problem is that this separate safe harbor is only available to multiple repeat filers. The Whitakers are ineligible for the simple reason that they filed just one prior case in the previous year.”).

 

41  See 11 U.S.C. § 1327(a), discussed in § 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors. See also §§ 242.1 [ Confirmation as a Defense to Relief from the Stay ] § 124.2  Confirmation as a Defense to Relief from the Stay and 243.1 [ Does Confirmation Dissolve the Stay? ] § 124.3  Does Confirmation Dissolve the Stay?.

 

42  350 B.R. 408 (Bankr. S.D. Ohio 2006).

 

43  350 B.R. at 418–20.