§ 64.3     Prospective, In Rem and Automatic Relief from Stay
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 64.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Creditors sometimes become entitled to relief from the stay or the debtor becomes bound not to oppose relief from the stay by agreement before the filing of a Chapter 13 case, by agreed order during the current or a prior bankruptcy case, and sometimes by court order without the debtor’s consent. When the order is entered in settlement of a motion for relief from the stay in a pending bankruptcy case, it will often condition continuation of the stay and provide for automatic relief if the conditions fail.1 Sometimes such agreements or orders purport to grant relief from the stay prospectively in any future bankruptcy case that the debtor might file. Occasionally, the prospective grant of relief from the stay is worded that the debtor is precluded to oppose a request for relief from the stay if filed by a particular creditor. Orders for prospective relief from the stay sometimes are specific to an item of property and purport to be “in rem”—to automatically entitle a lienholder to relief from the stay with respect to the property in any future bankruptcy case filed by this debtor or by any other debtor claiming an interest in the property. The courts are struggling to define the circumstances under which agreements or orders for prospective relief from the stay are enforceable in Chapter 13 cases.

[2]

One form of this phenomenon, just creeping into Chapter 13 cases, that has been litigated under other chapters of the Code is the question whether a prepetition forbearance agreement that precludes or limits a debtor’s opposition to relief from the stay is enforceable. In In re Cheeks,2 the debtor signed a prepetition forbearance agreement that provided, “in the event a proceeding under Title 11, either voluntary or involuntary, is commenced by or against Mortgagor, Mortgagor will not oppose or object to Mortgagee’s Motion for Relief from the Automatic Stay (11 USC § 362).”3 The debtor failed to complete performance under the forbearance agreement and filed a Chapter 13 case to cure the remaining defaults. The bankruptcy court enforced the prepetition agreement by prohibiting the Chapter 13 debtor from opposing the mortgagee’s request for relief from the stay:

Pre-petition agreements such as set forth above have been held to be valid and enforceable. . . . Such agreements are distinguishable from an agreement which precluded a debtor from filing a bankruptcy petition in that the debtor has elected to forego only a single benefit of the Bankruptcy Code in exchange for the creditor’s forbearance. . . . Perhaps the most compelling reason for enforcement of the forbearance agreement is to further the public policy in favor of encouraging out of court restructuring and settlements.4
[3]

A year after deciding Cheeks, the same bankruptcy court refused to enforce an almost identical forbearance agreement on slightly different facts. In In re Riley,5 the prepetition agreement provided that the debtor “will not oppose or object to mortgagee’s motion for relief from the automatic stay” in the event of a bankruptcy filing. In contrast to Cheeks, the debtor in Riley fully performed the forbearance agreement. After curing that default, the debtor defaulted again, and the second default led to a Chapter 13 filing. Distinguishing Cheeks, the bankruptcy court held that the forbearance agreement did not preclude the debtor’s opposition to the mortgage holder’s request for relief from the stay:

Generally, forbearance agreements are enforceable when the parties have used the contract to afford a mortgagor the opportunity to avoid foreclosure. . . . However, such agreements must be strictly construed in light of the contractual language and the associated circumstances. . . . [T]he Debtor in this case is an elderly gentleman with seven years of education who testified that he had very little understanding of the forbearance agreement. . . . [T]here is no express language to indicate that the “waiver of stay” . . . is intended to address and survive the duration of the default then existing. . . . [T]he Court must conclude that the parties intended for the agreement to only apply to the default that existed in May of 1993, and not to a future default. . . . [T]he mortgage default addressed by the forbearance agreement had been cured. . . . In the case at hand, the mortgagor received the benefit of avoiding foreclosure in May of 1993, and the mortgagee received the benefit of substantial payments which cured the mortgage default. The relative benefits are substantially balanced and are no longer executory. This contrasts with the benefits analysis in the [In re Cheeks, 167 B.R. 817 (Bankr. D.S.C. 1994)] decision wherein the debtor had received the benefit of avoiding foreclosure, but the mortgagee had not received the income benefit for which it had bargained.6
[4]

It is not routine behavior in consumer debt relationships for creditors to bargain for protection from the bankruptcy stay like the agreement quoted in Cheeks and Riley. If bankruptcy courts follow Cheeks and enforce such agreements, it would be sensible for creditors to make greater use of forbearance agreements to deal with consumer borrowers in default but not yet in bankruptcy.

[5]

Similar issues arise when a stay relief order with conditions was entered during a prior bankruptcy case or at dismissal of a prior bankruptcy case.7 For example, in Brengettcy v. National Mortgage Co. (In re Brengettcy),8 an order denying relief from the stay in a prior Chapter 13 case stated, “‘[I]n the event this wage earner is dismissed, then debtor is prohibited from refiling as to National Mortgage Company unless she is able to show a change in circumstances.’”9 The prior case was dismissed, but the debtor refiled on the morning of National Mortgage’s noon foreclosure sale. The bankruptcy court determined that the automatic stay came into effect because the debtor was entitled to a hearing whether circumstances had changed to defeat the prior “drop dead” clause. The mortgage company was enjoined from evicting the debtor pending that hearing.

[6]

The court in Brengettcy did not need to address the question whether an unconditional prospective grant of relief from the stay in a prior case relieves a creditor of the need to seek relief from the stay in the next Chapter 13 case. Orders barring Chapter 13 debtors from refiling bankruptcy altogether have not always been enforced.10 Courts that bridle at agreements or orders that restrict a debtor’s right to file a Chapter 13 case might be more favorably inclined to enforce orders that merely condition the effect of the stay with respect to an individual creditor.11

[7]

For example, in In re Brumlik,12 the bankruptcy court found cause for relief from the stay that a stipulation and order for relief from the stay was entered in a prior Chapter 7 case that prohibited the debtor from delaying a foreclosure sale beyond a certain date, and on the eve of that foreclosure sale, the debtor filed a new Chapter 13 case. The court found that the order incorporating the stipulation in the prior Chapter 7 case was “entitled to full faith and credit” in the subsequent Chapter 13 case.13 In In re Green,14 an ex-spouse’s motion to terminate the stay was “GRANTED as to any future stay imposed by any future bankruptcy case filed by the debtor in regards to the debt subject to this order.” The debtor in Green filed seven bankruptcy cases between 1990 and 1997 to avoid paying child support, support was the only debt listed and the debtor’s conduct was “contemptible.”15 When the debtor’s rights in property were fully adjudicated in a foreclosure proceeding before the petition, courts have entered orders for prospective relief from the stay to permit the foreclosing creditor to complete clearing the title or to dispossess the debtor.16

[8]

On compelling facts, the bankruptcy court in In re Felberman17 enforced against a debtor’s spouse an order granting prospective relief from the stay entered in the debtor’s separate prior Chapter 13 case. Aaron Felberman filed three Chapter 13 cases between 1993 and 1995 to stop a foreclosure sale. Each case was dismissed for failure to make payments or to propose a plan. An order granting stay relief to a mortgage holder in Aaron Felberman’s third Chapter 13 case provided, “[A]ny future filing by the debtor, or any other person or entity with an interest in the subject property, [shall] not operate as an automatic stay against Movant except upon separate order of this court.”18 After dismissal of Aaron Felberman’s third Chapter 13 case, the mortgage holder scheduled a fourth foreclosure sale. Aaron Felberman’s wife filed a Chapter 13 petition the day before that sale. The mortgage holder went ahead with the foreclosure sale, and Mrs. Felberman moved to void the sale. The bankruptcy court held that the automatic stay never arose in the Felbermans’ fourth case because of the order in the third case abrogating future stays:

[S]ection 349(a) allows the bankruptcy court the alternative of conditioning the dismissal of a case with limitations on subsequent petitions where cause exists. . . . While many courts have sustained the validity of orders barring the debtor and/or non-debtor co-obligor/owner from future filings, some cases have found that such orders are improper. See [Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991)]. . . . The Frieouf opinion has received much criticism, focusing on the court’s interpretation of the second part of section 349(a) to mean that courts are constrained in limiting petitioners’ rights to re-file. . . . Most courts have rejected this reasoning, concluding that, so long as the dismissing court finds “cause,” a bankruptcy action may be dismissed with prejudice to the re-filing of a subsequent petition without violating the terms of section 349(a) or section 109(g). . . . Judge Connelly’s October 17, 1994 order did not raise a Frieouf issue because it did not limit either Felberman’s access to the bankruptcy court. It simply provided that any future filing by Aaron Felberman or his wife would not result in an automatic stay as to this specific creditor absent separate order of this Court. . . . It is true that this Debtor was not a party to her husband’s third bankruptcy case. But she had sufficient notice of the foreclosure sale. . . . [S]he could have made an appropriate motion challenging the validity of Judge Connelly’s order. . . . [T]he Debtor was not deprived of her due process right to seek timely legal redress . . . she simply chose not to exercise her due process rights. . . . The Felbermans have engaged in a . . . pattern of conduct to prevent FNB from foreclosing on their home. Their long history of non-payment and serial filings simply underscores their unity of interest and purpose and fully justifies Judge Connelly’s October 17 order.19
[9]

On even more egregious facts, the Bankruptcy Appellate Panel for the Ninth Circuit in In re Fernandez,20 validated a “in rem” order for relief from the stay in the fourth of five cases filed by related or affiliated debtors to stop a bank’s foreclosure. In Fernandez, the debtor and the debtor’s wife filed three Chapter 13 petitions, all dismissed with prejudice to refiling for 180 days based on failure to appear at meetings of creditors and failure to commence making payments. On the day of dismissal of the third petition, the debtor transferred real property known as the Sea View property to himself and a “Ms. Amador.” The next day Ms. Amador recorded her interest and filed a Chapter 7 petition that did not reveal the real estate. On the bank’s motion, but without notice to the debtor (who was not a party to Ms. Amador’s bankruptcy), an order terminating the automatic stay was entered that provided that “any relief from stay granted [the bank] herein be deemed binding and of full force and effect in this case and in any case filed by the Debtor or any other entity claiming an interest in the subject property within 180 days of the date of entry of this order granting relief from stay.”21 The debtor filed a fifth bankruptcy case one week after entry of this in rem order. The bank did not move for relief from the stay in the fifth case but went ahead with a foreclosure sale. The court validated the bank’s action and held that the in rem order for relief from the stay was effective in the debtor’s fifth case notwithstanding that the debtor was not a party to the bankruptcy case in which the order was entered:

[T]he Debtor acted in concert with Ms. Amador, and, therefore, should be charged, constructively, with receiving sufficient notice of the bank’s in rem relief from stay motion in the Amador case. Thus, the in rem order issued in the Amador case should be enforceable against the Debtor in the context of the case now before this court even without a further motion for relief from the stay in this case. . . . Based on the history of multiple filings and the bad faith of our Debtor and those associated with him, the court concludes that our Debtor is not entitled in this fifth related bankruptcy case to enjoy again the benefits of the automatic stay and that here, the bank was not required to obtain yet another order for relief from the stay before foreclosing on the Sea View property. Otherwise, the bankruptcy process becomes a farce . . . . At some point, a debtor’s bad faith conduct should allow a court to dispense with further notice and to conclude that a debtor’s conduct has deprived the debtor of the right to invoke yet another automatic stay. . . . [T]he in rem relief from stay order entered in the prior Amador bankruptcy case is enforceable against the Debtor, even though the Debtor in this case was not afforded written notice of the bank’s motion for relief from the stay in the Amador case and no relief from stay motion was filed and served in this case.22
[10]

In contrast, a substantial number of reported decisions are not receptive to the idea that orders or agreements in prior bankruptcy cases affect a debtor’s right to invoke the stay by filing a new Chapter 13 case. In In re Siciliano,23 the bankruptcy court rejected the proposition that an order granting relief from the stay in the debtor’s second Chapter 13 case had res judicata effect on a mortgage holder’s right to relief from the stay in the debtor’s fourth Chapter 13 case. The court found that a bankruptcy judge does not have the power to determine that the automatic stay will not be available in a subsequent case, and the passage of time between cases may justify a different result with respect to stay relief in the subsequent case.24 In Norwest Financial Tennessee, Inc. v. Coggins (In re Coggins),25 the same court that decided Brengettcy held that an order dismissing the debtor’s fourth bankruptcy case “with prejudice as to any refiling against Norwest” did not prohibit the filing of a fifth Chapter 13 case that stayed foreclosure by Norwest. Even the unconditional dismissal of the prior case did not suppress the automatic stay in a subsequent case because the debtor was entitled to a “judicial determination of whether the debtor had a sufficient change in circumstances to justify a refiling.”26 The bankruptcy court in In re Saline,27 granted lienholders relief from the stay in the debtor’s third bankruptcy case in four years but expressed doubt whether in rem relief with respect to future bankruptcy cases was ever available: “There is no basis in the Bankruptcy Code for the relief sought by the Movants. . . . Relief from the stay must be obtained pursuant to § 362(d), in the manner Movants have proceeded herein.”28 In In re Madison, 29 an agreement among counsel at dismissal of the debtor’s fourth bankruptcy case that if the debtor filed a fifth case and the fifth case failed, the debtor would be precluded from filing a sixth bankruptcy case that would invoke the automatic stay, was not enforceable because it was an agreement to waive the debtor’s right to file bankruptcy and “even bargained for and knowing waivers of the right to seek protection in bankruptcy must be deemed void.”30

[11]

The message of these cases for creditors is caution: A Chapter 13 case filed in violation of an agreement or order that purports to limit the effect of the automatic stay does not necessarily relieve the creditor of the burden to seek stay relief. Orders or agreements that purport to bar refiling altogether have not been warmly received by the courts. Narrowly targeted orders or agreements that specifically limit the effect of the automatic stay on an individual creditor are more likely to be enforced in the next case, but a substantial change in the debtor’s circumstances can overcome even unconditional prospective stay relief in a prior agreement or order. In rem orders granting relief from future stays with respect to a specific property are coming into vogue but so far appear only in reported cases dealing with serial or abusive filers. And even if prospective relief from the stay has been granted, the debtor who has experienced changed circumstances may seek an injunction to substitute for the stay during a subsequent case.31 There are no sure bets in this area of Chapter 13 practice.

[12]

Creditors fare better in the enforcement of agreements and orders for prospective relief from the stay when the agreement or order and the triggering condition occur in the same bankruptcy case. As explained by the U.S. Court of Appeals for the Fifth Circuit, a “drop dead” clause providing for automatic relief from the stay upon occurrence of some specified event is enforceable:

        A “drop dead” clause “allows a creditor to exercise its state law remedies upon default of a debtor under a plan without seeking further permission from the bankruptcy court.” . . .  [A] natural reading of Bankruptcy Code § 362 does not preclude the inclusion of “drop dead” clauses in the bankruptcy court’s order to modify the stay. . . . [B]ankruptcy courts should be afforded the latitude to fashion remedies they consider appropriate under the circumstances, including “drop dead” orders, as long as the bankruptcy court follows the Bankruptcy Code’s statutory mandate.32
[13]

Preconfirmation agreements or court orders that automatically grant relief from the stay in the event of default are routinely enforced and are a common method of settlement of preconfirmation motions for adequate protection.33 But even within the same case, one additional word of caution with respect to the automatic stay and drop-dead orders: Don’t forget about confirmation. Orders or agreements with respect to the automatic stay entered before confirmation in a Chapter 13 case may be overcome by the effects of the confirmation order under § 1327.34 For example, in Diviney v. NationsBank of Texas (In re Diviney),35 an order for relief from the stay entered before confirmation contained a drop-dead provision in favor of a bank. Because the provisions of the stay relief order were not incorporated into the order confirming the plan, the bank violated the automatic stay by repossessing the debtor’s car after confirmation even though the repossession was consistent with the drop-dead provision of the earlier order for relief from the stay.


 

1  See, e.g., Martin v. North Penn Sav. & Loan (In re Martin), 253 B.R. 346 (M.D. Pa. 2000) (Condition for automatic relief from the stay in settlement of motion for relief from the stay saves mortgage holder from violating the automatic stay when the debtor defaulted under the stipulated condition.); In re Dodson, No. 00-10464, 2003 WL 22056650 (Bankr. D.N.H. Aug. 28, 2003) (unpublished) (Stipulation in settlement of stay relief motion that creditor would be entitled to relief from the stay if the debtor subsequently defaulted is enforceable three years later when the debtor defaults.).

 

2  167 B.R. 817 (Bankr. D.S.C. 1994).

 

3  167 B.R. at 818.

 

4  167 B.R. at 818–19.

 

5  188 B.R. 191 (Bankr. D.S.C. 1995).

 

6  188 B.R. at 192–93.

 

7  See § 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal for discussion of dismissal with conditions.

 

8  177 B.R. 271 (Bankr. W.D. Tenn. 1995), rev’d on other grounds, 223 B.R. 684 (W.D. Tenn. 1998).

 

9  177 B.R. at 272.

 

10  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. But see Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 340 (2d Cir. 1999) (Dismissal “with prejudice” of prior Chapter 11 case rendered debtor ineligible to file subsequent Chapter 13 case; filing in violation of prior dismissal order was a nullity and bankruptcy court appropriately dismissed nunc pro tunc to the date of filing. Debtor was a bad faith serial filer who along with his wife filed four bankruptcy cases to stop a foreclosure sale. Bankruptcy court interpreted its own “dismissal with prejudice” to mean that the debtor was ineligible to refile. Authority for dismissal with prejudice is found in § 105(a) and § 349(a). Court sides with Colonial Auto Center v. Tomlin (In re Tomlin), 105 F.3d 933 (4th Cir. 1997), and rejects Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991). Cites Rowe v. Ocwen Federal Bank & Trust (In re Rowe), 220 B.R. 591 (E.D. Tex. 1997), aff’d without pub. op., 178 F.3d 1290 (5th Cir. 1999), for proposition that a filing in violation of prior ban is “a nullity and consequently, the automatic stay never actually came into effect.”).

 

11  See, e.g., In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496, at *6 (E.D. Pa. Aug. 18, 2000) (“In contrast to a dismissal with prejudice to the future filing of a bankruptcy petition, an order granting a particular secured creditor prospective relief from the automatic stay does not deny the debtor future access to the bankruptcy court. . . . If prohibiting future filings may be deemed ‘necessary or appropriate to carry out the provisions of [the Bankruptcy Code],’ so must the more moderate remedy of granting prospective relief from the automatic stay. Accordingly, the Court concludes that in an appropriate case, the Bankruptcy Code authorizes a grant of prospective relief from the automatic stay.”).

 

12  185 B.R. 887 (Bankr. M.D. Fla. 1995).

 

13  185 B.R. at 890. Accord In re Cody, 297 B.R. 906, 909 (Bankr. M.D. Fla. 2003) (Bank is granted relief from the stay for cause in fourth Chapter 13 case based in part on dismissal order in third case that enjoined the debtor from filing another bankruptcy case for 180 days and provided that “any attempt to invoke the automatic stay . . . is hereby annulled until June 16, 2003”; fourth case was filed on March 24, 2003. “The Court is concerned with why the Motion for Relief was filed in the first instance. The Order of Dismissal appears to provide that any bankruptcy filing prior to June 16, 2003 would not operate as a stay prior to June 16, 2003. The Court can only assume that SouthTrust did not complete its foreclosure action prior to June 16, 2003 and therefore felt it necessary to obtain an order granting relief from the stay. The Court is troubled by SouthTrust’s lack of dispatch. SouthTrust filed its Motion more than four months after Debtor filed the case. At some point, judicial economy, at least one rationale behind the Full Faith and Credit Doctrine, is undermined by a creditor’s undue deliberation.”).

 

14  214 B.R. 503 (Bankr. N.D. Ala. 1997).

 

15  214 B.R. at 509. See also In re Rowe, 239 B.R. 44, 54 (Bankr. D.N.J. 1999) (On mortgage holder’s request for relief from the stay in third bankruptcy case filed to save homestead, after finding that plan is not feasible, “[i]n view of the two prior filings by the debtors, this Court grants prospective relief to the Mortgagee Hudson and rules that any future bankruptcy filing by the debtors will not reimpose the section 362 stay as respects the within Property.”); In re Falotico, 231 B.R. 35 (Bankr. D.N.J. 1999) (On mortgage holder’s motion for relief from the stay, court sua sponte dismisses Chapter 13 petition with condition that no automatic stay will arise upon any refiling. Debtor filed three Chapter 13 cases to stop a foreclosure, debtor failed to pay taxes and to make repairs resulting in mortgage holder being wholly unsecured, debtor negotiated in bad faith and plan proposed to pay mortgage holder next to nothing.); In re Hric, 208 B.R. 21, 26 (Bankr. D.N.J. 1997) (Mortgage holder is entitled to “prospective relief from the automatic stay in the event of future bankruptcies” when Chapter 13 petition was filed after foreclosure sale but before delivery of sheriff’s deed and mortgage holder seeks relief to complete its foreclosure. Because § 1322(c)(1) “refers to the auction itself” and not to the subsequent delivery of a sheriff’s deed, the debtors have no power under § 1322 to rehabilitate the underlying mortgage. “[I]t would be an abuse of the bankruptcy process for the debtors or any purported successors in interest to delay issuance of the sheriff’s deed or their removal from the property by any future bankruptcy filings. Under such circumstances prospective relief from the automatic stay is granted.”).

 

16  See, e.g., St. Clair v. Beneficial Mortgage Co. (In re St. Clair), 251 B.R. 660, 665 (D.N.J. 2000) (Bankruptcy court appropriately ordered that “any future bankruptcy filed by the debtors would not impose an automatic stay of efforts by Beneficial Mortgage Company . . . to recover possession of real property” when Beneficial purchased property at foreclosure sale before the petition and was granted a writ of possession to evict the debtor.); In re Mangano, 253 B.R. 339, 345 (Bankr. D.N.J. 2000) (Lender is entitled to “prospective relief from the automatic stay” with respect to any future bankruptcy filing by the debtor because foreclosure auction occurred before the Chapter 13 petition and the debtor failed to redeem the property within the 60-day extended redemption period under § 108(b) of the Code. The debtor has no interest in the property, and “it would be an abuse of the bankruptcy process to delay or frustrate any further Homeside’s rights by any future bankruptcy filings.”).

 

17  196 B.R. 678 (Bankr. S.D.N.Y. 1995).

 

18  196 B.R. at 679.

 

19  196 B.R. at 682–84. 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 for further discussion of conditions and restrictions in orders dismissing Chapter 13 cases.

 

20  212 B.R. 361 (Bankr. C.D. Cal. 1997), aff’d, 227 B.R. 174 (B.A.P. 9th Cir. 1998).

 

21  212 B.R. at 364.

 

22  212 B.R. at 371–72. Accord In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496, at *6–*9 (E.D. Pa. Aug. 18, 2000) (In third Chapter 13 case filed by debtor or debtor’s husband to stop foreclosure sale, bankruptcy court mistakenly refused mortgage holder’s request for prospective relief from the stay and for dismissal with prejudice. “Together, therefore, §§ 105(a) and 349(a) enable the bankruptcy court to restrict a debtor’s ability to file subsequent petitions. . . . [T]he record reveals a history of serial bankruptcy filings by the Hamers on the eve of scheduled foreclosure sales, each case being dismissed for failure to comply with their Chapter 13 obligations. . . . [T]he Bankruptcy Court should have realized that the Debtor was impermissibly employing the Bankruptcy Code in repeated futile bankruptcy reorganization efforts solely to thwart Equity from exercising its legitimate contractual and state law foreclosure remedies.” The district court modified the bankruptcy court order to provide that “any automatic stay issued as a result of a future bankruptcy filing by the Debtor shall not apply to Equity’s interest in the premises.”); In re Roeben, 294 B.R. 840, 847–49 (Bankr. E.D. Ark. 2003) (In sixth bankruptcy case within six years filed by the debtor or the debtor’s nonfiling spouse, bankruptcy court finds “a pattern of gross abuse of the Bankruptcy Code” justifying an in rem order that automatic stay will not affect the debtor’s homestead for a period of six months. “[A]lthough Spouse was not joined as a party, . . . the Court finds that Debtor and Spouse acted in concert to abuse the automatic stay provisions of the Bankruptcy Code and charges Spouse with constructive notice of this proceeding . . . . [S]ince the Heber Springs Property is part of the bankruptcy estate, the Court finds it has jurisdiction over that property sufficient to enter an in rem order. . . . [T]hese particular facts warrant the Court’s exercise of authority under 11 U.S.C. § 105(a) to override the need for formal service of process on Spouse, . . . in order to protect the integrity of the bankruptcy process. . . . [T]he filing of a future bankruptcy petition by any individual or entity will not extend the protection of the automatic stay of 11 U.S.C. § 362(a) to the Heber Springs Property for a period of six (6) months from the date of entry of this Order. . . . ‘Whether what the court imposes is called an equitable servitude, a covenant running with the land, or a restraint on alienation, the result will be the same—the prohibition of any bankruptcy filing that will impose the automatic stay . . . as to the subject real property.’”).

 

23  167 B.R. 999 (Bankr. E.D. Pa. 1994).

 

24  In re Siciliano, 167 B.R. 999 (Bankr. E.D. Pa. 1994). See In re Rambo, 196 B.R. 181 (Bankr. W.D. Okla. 1996) (Order for stay relief in prior bankruptcy case that was silent with respect to refiling has no collateral estoppel or res judicata effect on the stay that arises when the debtor refiles.).

 

25  185 B.R. 762 (Bankr. W.D. Tenn. 1995).

 

26  185 B.R. at 764–65. Accord Friend v. Chemical Residential Mortgage Corp. (In re Friend), 191 B.R. 391, 393–96 (Bankr. W.D. Tenn. 1996) (Consistent with Norwest Financial Tennessee, Inc. v. Coggins (In re Coggins), 185 B.R. 762 (Bankr. W.D. Tenn. 1995), and Brengettcy v. National Mortgage Co. (In re Brengettcy), 177 B.R. 271 (Bankr. W.D. Tenn. 1995), order in third Chapter 13 case that “in the event of the dismissal of that case or in the event of relief from the automatic stay, the dismissal of the case or the lifting of the automatic stay would be with prejudice to the debtors’ refiling for 180 days as to Chemical Residential Mortgage Corporation” did not stop the automatic stay from coming into effect in the fourth case, and, because of changed circumstances, plan in fourth case was confirmed. Debtors owned residence for 18 years and failed in prior Chapter 13 case because both debtors lost jobs. Debtors “have had favorable changes of circumstances subsequent to the dismissal of their prior chapter 13 case.” Both returned to employment, a payroll deduction is in effect, and the plan proposed to cure the defaults with respect to Chemical’s mortgage. “Section 362(a) clearly provides that the filing of a bankruptcy petition ‘operates as a stay, applicable to all entities.’ . . . [T]he effect that this Court would give to ‘last opportunity’ orders . . . is, give them appropriate evidentiary weight as the Court balances all of the facts and circumstances. . . . [I]f the Court established a per se rule that those orders would waive the debtor’s automatic stay protections in future cases, that waiver could affect adversely the interests of other creditors. . . . [T]here are cases where debtors, who have had more than one chapter 13 opportunity, are able finally to demonstrate good faith, a change in circumstances, and financial ability to fund a successful chapter 13 plan. . . . ‘[L]ast opportunity’ orders . . . cannot preclude the Bankruptcy Court from a determination that the automatic stay is applicable in a refiling. . . . [T]he presence of such an order in a prior case has evidentiary value, and such an order may place upon the debtor an increased burden of showing a sufficient change of circumstances to justify a refiling.”).

 

27  No. 03-16794 HRT, 2003 WL 21459674 (Bankr. D. Colo. June 11, 2003) (unpublished).

 

28  2003 WL 21459674, at *1.

 

29  184 B.R. 686 (Bankr. E.D. Pa. 1995).

 

30  184 B.R. at 690. See also In re Vitanza, Nos. 01-15899, CIV.A. 02-0021, 2002 WL 1744634 (E.D. Pa. July 23, 2002) (unpublished) (Bankruptcy court misinterpreted stipulation in prior bankruptcy case that stay relief would be consensual in any future bankruptcy case; the prior agreement related to business entities in which the debtor was involved, but the order for prospective stay relief did not address a subsequent bankruptcy filing by the debtor individually.); In re Faulkner, 187 B.R. 1019, 1023–25 (Bankr. S.D. Ga. 1995) (Dismissal of prior Chapter 13 case based on “strict compliance” or “drop dead” order is not a “willful” failure to abide by a court order barring a subsequent filing under § 109(g)(1).).

 

31  See, e.g., In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496, at *9 (E.D. Pa. Aug. 18, 2000) (Bankruptcy court mistakenly refused mortgage holder’s request for prospective relief from the stay in debtor’s third Chapter 13 case, but debtor was entitled to provision in order that at the time of any future bankruptcy filing the debtor can “commence an adversary proceeding and seek an injunction pursuant to Fed. R. Bankr. P. 7001(7) if she can show a material change in circumstances.”).

 

32  Mendoza v. Temple-Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264, 1269–70 (5th Cir. 1997). Accord Martin v. North Penn Sav. & Loan (In re Martin), 253 B.R. 346 (M.D. Pa. 2000) (Mortgage holder did not violate the automatic stay by conducting sheriff’s sale because settlement of motion for relief from the stay included conditions on the continuation of the stay and the debtor then defaulted under the stipulated conditions.); In re Dodson, No. 00-10464, 2003 WL 22056650, at *3–*4 (Bankr. D.N.H. Aug. 28, 2003) (unpublished) (Stipulation in settlement of stay relief motion that creditor would be entitled to relief from the stay if the debtor subsequently defaulted is enforceable three years later when the debtor defaults. “This case presents one of the fact patterns which has caused this Court to cease approving stipulations in Chapter 13 proceedings which provide for relief from the automatic stay by affidavit for the duration of the bankruptcy proceeding. Once a debtor has cured arrears existing at the time the stipulation is entered into and performs thereafter for a period of time which depends primarily upon the debtor’s payment history, relief by affidavit under LBR 9071-1 should no longer be available. . . . However, that policy was not in effect when the Court approved the Stipulation. . . . It would be contrary to the legitimate expectations of the parties for the Court to fail to enforce final orders.”).

 

33  See §§ 48.1 [ Adequate Protection of Lienholders prior to Confirmation ] § 47.1  Adequate Protection of Lienholders before Confirmation and 67.2 [ Adequate Protection Rights ] § 57.2  Adequate Protection Rights.

 

34  See § 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.

 

35  211 B.R. 951 (Bankr. N.D. Okla. 1997), aff’d, 225 B.R. 762 (B.A.P. 10th Cir. 1998).