§ 60.3 — Timing, Procedure and Form for Extension of Stay

Revised: July 20, 2007

[1]

Procedural issues abound when a debtor files a Chapter 13 case within one year of a prior pending and dismissed bankruptcy case, triggering stay termination under § 362(c)(3).1 When there has been one prior case pending and dismissed within a year, parts of the § 362(a) stay terminate with respect to the debtor on the 30th day after the current petition.2 Stay termination is not inevitable; § 362(c)(3)(B) permits continuation of the stay beyond 30 days after the petition as follows:

on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed[.]3
[2]

The stay can be continued only on motion of a “party in interest” and only (redundantly) after notice and a hearing that must be completed within 30 days of the petition. “Party in interest” is not defined for purposes of extension of the 30-day stay. It obviously would include the debtor in a Chapter 13 case. Perhaps it includes the Chapter 13 trustee or a creditor that supports the debtor’s most recent filing.4 A creditor that believes the automatic stay terminated under § 362(c) would request a confirming order using the separate procedure in § 362(j).5

[3]

The stay can be continued as to “any or all creditors (subject to such conditions or limitations as the court may then impose).”6 The stay can be continued only if the moving party demonstrates that the most recent filing is “in good faith as to the creditors to be stayed.”7 Detailed below,8 there is a rebuttable presumption of a lack of good faith in some circumstances that can be overcome only with clear and convincing evidence of good faith.9

[4]

Continuing the automatic stay beyond the 30-day termination in § 362(c)(3) is motion practice, and the strict statutory time periods demand careful attention. That the hearing on a motion to continue the stay must be completed within 30 days of the petition compels that the motion be filed with the petition if possible. Delay does not advantage the debtor. And timely filing the motion is not enough. Counsel must take whatever steps are required by local practice to ensure that a hearing is scheduled and “completed” within 30 days of the petition. The statute does not require entry of an order within 30 days of the petition, but completion of a hearing is task enough.

[5]

Reported decisions have quickly traced a hard line on the 30-day hearing completion requirement in § 362(c)(3)(B). Motions to extend the stay filed more than 30 days after the petition and motions filed within 30 days that can’t be heard until after 30 days have been rejected out of hand.10 One reported decision found that counsel’s failure to demand a hearing within 30 days of filing a § 362(c)(3) motion was fatal notwithstanding that the court failed to provide an appropriate Electronic Case Filing event to manage the timely filed motion.11

[6]

The question unanswered by these cases is: How much notice must be given to creditors of a motion to extend the automatic stay under § 362(c)(3)(B)? The answer is likely to be both fact-bound and reflective of local bankruptcy culture. In the Southern District of Georgia, a motion to extend the automatic stay was untimely three days before expiration of the 30-day period.12 Four days before the 30th day after the petition did not provide sufficient notice in the District of Vermont.13 Eleven days’ notice was not enough in the Central District of Illinois.14 Thirteen days before termination of the stay was a “debtor-created emergency” in the Southern District of New York.15 Five days’ and eight days’ notice by mail of a hearing on extension of the stay under § 362(c)(3) is not sufficient in the District of Minnesota, but notice mailed 14 days before the hearing date is sufficient.16 By local rule in the Eastern District of Michigan, a motion to extend the automatic stay under § 362(c)(3)(B) must be filed within seven days of the petition and the debtor must contact the judge’s courtroom deputy to obtain a hearing date that can be completed before 30 days after the petition.17 In the Eastern District of Tennessee, local rules require that motions under § 362(c)(3) be set for hearing at least 20 days after service.18

[7]

The message of these cases is that § 362(c)(3)(B) requires unusual diligence with respect to filing a stay extension motion and then shepherding the matter to a completed hearing within 30 days. The courts have assigned the risk of scheduling to debtor’s counsel notwithstanding local practices and Electronic Case Filing limitations that are not accommodating of accelerated hearings. The safe approach is to file a motion for extension of the stay with the petition and contact the clerk’s office for instructions to expedite hearing the motion.

[8]

Not so buried in these cases is concern about notice to creditors. The statute demands a hearing completed within 30 days of the petition and a likely consequence of this accelerated procedure is shortened notice to creditors. Chances are that debtor’s counsel will be responsible for giving notice of a motion to extend the stay under § 362(c)(3). If extension is requested with respect to all creditors, notice to some but not all creditors is likely to be insufficient.

[9]

Some courts have been sticklers for detail in the motion for extension of the stay under § 362(c)(3). For example, in In re Charles,19 the motion sought extension with respect to all creditors but did not “set forth a reasoned basis to extend the stay as to any creditor other than Citifinancial Mortgage Company.”20 The bankruptcy court instructed the debtors to “replead with sufficient allegations to place those creditors on fair notice of the issues that will be addressed at the hearing.”21

[10]

The content of the motion to extend the stay under § 362(c)(3)(B) is important when no opposition is filed. Section 362(c)(3)(B) states that the stay can be continued beyond 30 days “only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed.”22 Some courts have interpreted this sentence to require independent assessment of good faith by the bankruptcy court even when no timely opposition to extension is filed.23 These courts reward robust presentation of facts in the extension motion. Some decisions indicate that an unopposed motion for extension of the stay can be granted without hearing but, again, conditioned that the motion satisfies the court of the debtor’s good faith.24

[11]

The gist of these cases is that some courts will extend the stay under § 362(c)(3)(B) without hearing if the motion or supporting documents demonstrate good faith and no creditor responds in opposition. This is significant incentive for debtors’ counsel to file more than a bare-bones motion for extension when § 362(c)(3) is at issue. In some courts, an affidavit attesting to facts in support of the debtor’s good faith may be sufficient to overcome any presumption that arises under § 362(c)(3)(C) that the repeat filing is not in good faith.25 The reported decisions indicate that some courts will set § 362(c)(3)(B) motions for hearing without regard to whether opposition is voiced by any party in interest.

[12]

Debtors who fail to file a motion or fail to complete a hearing within the 30-day deadline in § 362(c)(3)(B) have searched elsewhere for authority to extend the stay or to impose a new stay when termination looms under § 362(c)(3). Two candidates for this stopgap are the general equitable powers of the bankruptcy court in § 105(a)26 and the statutory provision for imposing a stay in § 362(c)(4).27 There is controversy with respect to both platforms.

[13]

Citing Third Circuit authority that permits an injunction when a statutory bankruptcy stay has expired or a creditor has been granted relief from the stay, the bankruptcy court in In re Williams28 explained that a Chapter 13 debtor can seek an injunction under § 105(a) when the automatic stay terminates after 30 days under § 362(c)(3)(B):

In In re Wedgewood Realty Group, Ltd., 878 F.2d 693, 701 (3d Cir. 1989), the Court of Appeals for the Third Circuit held that a bankruptcy judge has the power, under section 105(a) of the Bankruptcy Code, to enjoin a creditor from acting against property of the estate, even if that same creditor had previously obtained relief from the bankruptcy stay. . . . [W]hen a portion of the bankruptcy stay under section 362(a) has been terminated by virtue of section 362(c)(3), the debtor may seek to enjoin creditors by virtue of section 105(a). . . . [T]he debtor must meet the traditional standards for injunctive relief.29

Other courts have expressed sympathy for debtors who have missed the 30-day deadline for extension of the stay under § 362(c)(3)(B) but have refused to use general equitable powers to issue injunctive relief once the stay has terminated under § 362(c)(3).30

[14]

Stretching a bit further, a few courts have concluded that imposition of a stay under § 362(c)(4) is available to a debtor who has failed to prevent termination of the stay under § 362(c)(3). Detailed below,31 § 362(c)(4) provides that no § 362(a) stay comes into effect when the debtor has more than one pending and dismissed bankruptcy case within the year preceding the current petition. Under § 362(c)(4)(B), a party in interest can request an order imposing a stay by motion filed within 30 days after the latest petition if the movant demonstrates that the current case is in good faith as to creditors to be stayed.32 Although imposition of the stay under § 362(c)(4)(B) appears available only when no stay arises at the petition because the debtor had more than one pending or dismissed bankruptcy case within a year, some courts have construed § 362(c)(4)(B) to be available to a debtor with only one prior case who is facing termination of the stay after 30 days under § 362(c)(3). As explained by the bankruptcy court in In re Toro Arcila:33

[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).34

This expansive interpretation of § 362(c)(4) has not been universally embraced.35

[15]

Debtors who fail to produce a convincing theory for extension of the stay may find themselves in a race to confirmation. Of course, § 362(c)(3) deals with the automatic stay, not with confirmation of plans. That the debtor fails to timely request an extension under § 362(c)(3)(B), fails to complete a hearing within 30 days or even fails to prove that the most recent case is filed in good faith is not fatal to confirmation of a plan. As the bankruptcy court observed in In re Tomasini,36 the good faiths required by § 1325(a)(3)37 and (a)(7)38 to confirm a Chapter 13 plan are perhaps similar but not “identical” to the good faith that must be demonstrated to extend the stay beyond 30 days under § 362(c)(3)(B).39

[16]

That the stay terminates 30 days after the petition under § 362(c)(3)(A) does not preclude confirmation or require dismissal of the Chapter 13 case. Confirmation may prevent creditors from exercising state law rights based on provisions of the confirmed plan or the binding effect of confirmation under § 1327(a).40 Time may be of the essence: once the stay terminates under § 362(c)(3), action by a creditor in state court can be preclusive of debt arrangement through the Chapter 13 plan.41 Confirming a plan before a creditor completes collection action is the debtor’s best strategy. Appeal of an order denying extension of the stay under § 362(c)(3)(B) is not an attractive alternative.42


 

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

 

3  11 U.S.C. § 362(c)(3)(B).

 

4  This might be true, for example, for an unsecured creditor that has a pecuniary interest in being paid through a Chapter 13 plan and little or no prospect of payment in Chapter 7 or outside of bankruptcy.

 

5  See 11 U.S.C. § 362(j) (“On request of a party in interest, the court shall issue an order under subsection (c) confirming that the automatic stay has been terminated.”). See, e.g., In re Curry, 362 B.R. 394 (Bankr. N.D. Ill. 2007) (On mortgage holder’s Motion to Confirm Termination or Absence of Stay bankruptcy court determines that entire stay terminated on the 30th day after the petition.). See also § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

6  11 U.S.C. § 362(c)(3)(B).

 

7  11 U.S.C. § 362(c)(3)(B), discussed in § 432.5 [ Proof of Good Faith ] § 60.5  Proof of Good Faith.

 

8  See § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

9  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.

 

10  See, e.g., In re Russ, No. 06-50143-LMK, 2006 WL 2683174 (Bankr. N.D. Fla. Aug. 4, 2006) (Motion for extension of stay under § 362(c)(3) filed on 31st day after petition is untimely; court has no mechanism or discretion to reimpose stay once it terminated.); In re Davis, No. 06-10463, 2006 WL 2088269 (Bankr. M.D.N.C. June 30, 2006) (Debtor’s second motion under § 362(c)(3)(B) filed more than 30 days after the petition is denied because motion to extend stay under § 362(c)(3)(B) must be heard before 30th day after petition.); In re Cartledge, No. 06-00119-JW, 2006 WL 3068829 (Bankr. D.S.C. Feb. 15, 2006) (Motion to extend stay under § 362(c)(3)(B) filed on 30th day after petition cannot satisfy requirement that hearing be conducted before expiration of stay; debtors’ failure to timely file motion and failure to schedule hearing before termination of stay is fatal to court’s authority to extend stay.); In re Harris, 342 B.R. 274, 277 (Bankr. N.D. Ohio 2006) (“Because debtor’s motion seeking an extension of the automatic stay was not even filed until 33 days after her case was filed, it would appear that such motion is not timely.”); In re Berry, 340 B.R. 636, 637–38 (Bankr. M.D. Ala. 2006) (Motion to extend automatic stay filed 64 days after the petition is untimely. “[Section] 362(c)(3)(B) permits the Court to extend the automatic stay provided that notice is given and a hearing completed within the thirty-day period. . . . There is nothing in the language of § 362(c) which suggests that the Court may impose a stay once the thirty-day period has expired.”); In re Moon, 339 B.R. 668, 670 (Bankr. N.D. Ohio 2006) (Stay terminated by operation of law on 30th day after petition when debtor failed to schedule a hearing that could be completed as required by § 362(c)(3)(B). Debtors filed motion to extend the automatic stay under § 362(c)(3) on the same day as petition but chose a hearing date more than 30 days later. There were “several Chapter 13 docket dates . . . available prior to the expiration of the thirty day limitation period. . . . [T]he record does not reflect where the Debtors requested an emergency hearing in order to meet the thirty day deadline. The Debtors were the movants and it was their ultimate burden to insure that the Motion was timely scheduled.”); In re Wright, 339 B.R. 474 (Bankr. E.D. Ark. 2006) (Debtor’s failure to file a motion until more than a month after the stay expired under § 362(c)(3)(A) is fatal to any argument that the bankruptcy court can impose a stay under § 362(c)(3) or (4).).

 

11  See In re Ziolkowski, 338 B.R. 543, 545–46 (Bankr. D. Conn. 2006) (Chapter 13 petition was filed on November 2, 2005. Electronic motion to extend stay under § 362(c)(3) was filed with the petition. Counsel selected “Motion to Extend Time” as the relevant ECF event, and clerk’s office set hearing for January 12, 2006. “[T]here was no motion ‘event’ on the court’s CM/ECF system to prompt the Clerk’s Office to properly schedule the Motion. As a result of the events in this case, that situation has been rectified: there is now an ‘event’ under the ‘motions’ category called ‘Extend Automatic Stay’ which Section 362(c)(3)(B) movants can select in order to generally assure timely scheduling of a Section 362(c)(3)(B) motion. However, to say that the Clerk’s Office should have scheduled the Motion for a hearing to be held prior to the Hearing Deadline is not dispositive here. The Debtors were the movants and it was their ultimate burden to insure that the Motion was timely scheduled. . . . [I]t was incumbent on the Debtors’ counsel to take action. A telephone call to the Clerk’s Office probably would have produced the necessary corrective action.”).

 

12  See In re Whitaker, 341 B.R. 336, 342 (Bankr. S.D. Ga. 2006) (“[T]he Debtors are no longer entitled to the § 362(c)(3)(B) safe harbor. Its applicable window is very narrow, requiring ‘notice and a hearing [be] completed before the expiration of the 30-day period’ . . . . The Whitakers’ problem, quite simply, is that their counsel failed to file a motion to extend the stay quickly enough. This Motion to Reinstate the Automatic Stay was filed 27 days after the filing date—just three days before the expiration of the 30-day period. As a result, the required notice and a hearing could not be completed in time.”).

 

13  See In re McFeeley, 362 B.R. 121, 123–24 (Bankr. D. Vt. 2007) (“[T]he Debtor did not file a motion to extend the stay in time to have a hearing held and concluded within 30 days of the date the instant case was filed. He filed his motion to extend the time on January 16, 2007, which was four days shy of the 30th day after this case’s filing . . . . At the January 18, 2007 hearing, the Court held that the expedited schedule on the motion to extend sought by the Debtor did not provide the creditor with sufficient notice.”), amending No. 06-10605, 2007 WL 509869 (Bankr. D. Vt. Feb. 15, 2007).

 

14  See In re Garrett, 357 B.R. 128, 131 (Bankr. C.D. Ill. 2006) (Motion to extend stay filed 19 days after petition made it “virtually impossible to serve notice and conduct a hearing prior to the expiration of the stay.”).

 

15  See In re Fishwick, No. 05-55020 (CGM), 2005 WL 3782588 (Bankr. S.D.N.Y. Nov. 22, 2005) (unpublished) (Application to extend the automatic stay pursuant to § 362(c)(3)(B) filed 17 days after the petition “represents a Debtor-created emergency.”).

 

16  See In re Taylor, 334 B.R. 660, 662–63 (Bankr. D. Minn. 2005) (Citing “requirements of constitutional due process” and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), “mailing the motion to creditors . . . eight days in advance of the hearing . . . or five days in advance of the hearing . . . is not ‘reasonably calculated . . . to apprise interested parties of the pendency of the [motion] and to afford them an opportunity to present their objections.’ . . . Given the similarity of the relief to a preliminary injunction, service of a motion under § 362(c)(3)(B) would be adequate . . . if . . . ‘filed and delivered not later than ten days, or mailed not later than fourteen days before the hearing date.’”).

 

17  See In re Thomas, No. 06-40107, 2006 WL 278544, at *1 (Bankr. E.D. Mich. Feb. 2, 2006) (unpublished) (“Because the Debtor did not comply with L.B.R. 4001-6(a) by failing (i) to file the motion timely within seven days after the petition was filed; and (ii) to contact the judge’s courtroom deputy to obtain a hearing with respect to the motion, . . . the Debtor’s motion to extend the automatic stay under § 362(c)(3)(B) is denied.”).

 

18  See In re Wilson, 336 B.R. 338, 347 (Bankr. E.D. Tenn. 2005) (Motions to extend stay under § 362(c)(3) are denied when the debtors failed to give proper notice to all creditors. “The Local Rules require all motions be set for hearing ‘at least 20 . . . days after service of the notice and motion’ . . . . None of the Motions to Extend Stay presently before the court provided creditors and parties in interest with twenty days[’] notice.”).

 

19  332 B.R. 538 (Bankr. S.D. Tex. 2005).

 

20  332 B.R. at 541.

 

21  332 B.R. at 541.

 

22  11 U.S.C. § 362(c)(3)(B), 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.

 

23  See, e.g., In re Castaneda, 342 B.R. 90, 95–96 (Bankr. S.D. Cal. 2006) (Because movant must prove good faith even when motion to continue stay under § 362(c)(3)(B) is unopposed, moving papers must include competent evidence that the presumption of bad faith does not arise or that rebuts the presumption. “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.’ . . . This necessarily means a court must make its own determination of good faith under the applicable evidentiary standard before it may continue the stay. 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. . . . [M]ere statements by the movant in the motion do not carry any evidentiary weight. . . . The movant must provide detailed, competent, evidence sufficient to satisfy all elements of § 362(c)(3)(B) and, if applicable, to rebut the presumption of bad faith in §§ 362(c)(3)(C)(i) and (ii). The evidence must be filed and served with the motion so that creditors can evaluate the integrity of the current case, and so that the Court can determine under the applicable evidentiary standard whether the later case was filed in good faith.”); In re Montoya, 342 B.R. 312, 316 (Bankr. S.D. Cal. 2006) (“[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] demonstrated that the filing of the later case is in good faith . . .’ (emphasis added). This necessarily means a court must make its own determination of good faith under the applicable evidentiary standard before it may continue the stay. 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.”); In re Mark, 336 B.R. 260, 263 (Bankr. D. Md. 2006) (Debtor must prove good faith to extend stay under § 362(c)(3) notwithstanding absence of objection. “[N]o creditors appeared to contest the Debtor’s Motion, but nevertheless Debtor is required to prove that the present case was filed in good faith as to the rights of all creditors who would be stayed under such an extended automatic stay.”).

 

24  See, e.g., In re Phillips, 336 B.R. 818, 820 (Bankr. E.D. Okla. 2006) (Unopposed motion to extend the automatic stay may be granted without hearing if there has been “proper notice and opportunity to object provided to all creditors.” “[T]o grant the Motion without a hearing, the Court must find that counsel in their Motion have properly pled all the elements under § 362(c)(3) including rebutting by clear and convincing evidence the presumption that the case was not filed in good faith.”); In re Charles, 332 B.R. 538, 543 (Bankr. S.D. Tex. 2005) (“Absent a timely filed objection to the continuation of the debtor’s automatic stay, the Court may grant the motion without a hearing.”).

 

25  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.

 

26  11 U.S.C. § 105(a) provides:

The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.

 

27  11 U.S.C. § 362(c)(4) is discussed in § 61.1  When Does § 362(c)(4) Apply?

 

28  346 B.R. 361 (Bankr. E.D. Pa. 2006).

 

29  346 B.R. at 371. Accord In re Whitaker, 341 B.R. 336, 346–47 (Bankr. S.D. Ga. 2006) (“Although the Debtors meet the statutory burden of good faith, their opportunity to use the § 362(c)(3)(B) safe harbor has passed. My only authority for reinstating the stay is to use the equitable powers conferred by § 105(a). . . . [R]e-imposition of the automatic stay is appropriate, and necessary to ensure an orderly payment to creditors under the Debtors’ chapter 13 plan.”).

 

30  See, e.g., In re Garrett, 357 B.R. 128, 131 (Bankr. C.D. Ill. 2006) (“[T]his Court finds that it is in agreement with the decision of In re Jumpp, 344 B.R. 21 (Bankr. D. Mass. 2006) . . . . [A]lthough . . . sympathetic to the plight of the debtors, the Court could not use its general equitable powers under 11 U.S.C. § 105(a) to impose a stay Congress has declared must terminate if the requirements of § 362(c)(3) are not met. . . . [T]he automatic stay . . . expired by operation of law . . . and cannot now be reimposed.”). See also In re Russ, No. 06-50143-LMK, 2006 WL 2683174 (Bankr. N.D. Fla. Aug. 4, 2006) (Motion for extension of stay under § 362(c)(3) filed on 31st day after petition is untimely; court has no mechanism or discretion to reimpose stay once it has terminated.); In re Cartledge, No. 06-00119-JW, 2006 WL 3068829 (Bankr. D.S.C. Feb. 15, 2006) (Debtors’ failure to timely file motion and failure to schedule hearing before termination of stay is fatal to court’s authority to extend stay that expired on 30th day after petition.); In re Berry, 340 B.R. 636, 637 (Bankr. M.D. Ala. 2006) (“There is nothing in the language of § 362(c) which suggests that the Court may impose a stay once the thirty-day period has expired.”).

 

31  See § 61.1  When Does § 362(c)(4) Apply?

 

32  11 U.S.C. § 362(c)(4)(B), discussed in § 61.2  Procedure, Timing and Form for Imposing Stay.

 

33  334 B.R. 224 (Bankr. S.D. Tex. 2005).

 

34  334 B.R. at 226–28. Accord In re Wright, 339 B.R. 474 (Bankr. E.D. Ark. 2006) (Although the stay imposition provisions of § 362(c)(4)(B) apply to debtors who have suffered expiration of the stay under § 362(c)(3)(A), a stay may be imposed under § 362(c)(4)(B) “only if a motion is filed within 30 days after the filing of the later case.” Debtor’s failure to file a motion until more than a month after the stay expired under § 362(c)(3)(A) is fatal to any argument that the bankruptcy court can impose a stay under § 362(c)(4)(A).); In re Beasley, 339 B.R. 472, 474 (Bankr. E.D. Ark. 2006) (Adopting In re Toro-Arcila, 334 B.R. 224 (Bankr. S.D. Tex. 2005), “section 362(c)(4)(B) applies to cases in which the automatic stay has expired under section 362(c)(3)(A). . . . [A] stay may be imposed under section 362(c)(4)(B) only if a motion is filed within 30 days after the filing of the later case.”).

 

35  See In re Whitaker, 341 B.R. 336, 343–46 (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. . . . With respect to first-time repeat filers, there is no specific grant of authority to reimpose the stay once it has lapsed under § 362(c)(3)(A).”).

 

36  339 B.R. 773 (Bankr. D. Utah 2006).

 

37  11 U.S.C. § 1325(a)(3) is discussed beginning at § 103.1  In General.

 

38  11 U.S.C. § 1325(a)(7) is discussed in § 496.1 [ Good-Faith Filing Requirement ] § 110.1  Good-Faith Filing Requirement after BAPCPA.

 

39  See §§ 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.

 

40  See In re Fleming, 349 B.R. 444 (Bankr. D.S.C. 2006).

 

41  See, e.g., In re Kurtzahn, 342 B.R. 581 (Bankr. D. Minn. 2006) (State court judgment for possession after debtor lost § 362(c)(3) extension (see In re Kurtzahn, 337 B.R. 356 (Bankr. D. Minn. 2006)) trumps confirmed plan that cures default and maintains payments; debtor should have raised confirmation as a defense in state court and can’t use adversary proceeding or injunction to overcome preclusive state court judgment. After debtor lost motion to extend stay under § 362(c)(3)(B), creditor obtained state court judgment for possession of debtor’s manufactured home. Debtor persisted in the bankruptcy court and confirmed a plan that cured default and maintained payments on the same debt. Debtor did not appeal state court judgment for possession but instead filed adversary proceeding in the bankruptcy court for an injunction to stop repossession pursuant to the state court order. Bankruptcy court was bound by state court determination that lienholder had right to immediate possession of the home.).

 

42  See, e.g., In re Walker, Nos. H-06-3796, 06-35035, 2007 WL 294157, at *1 (S.D. Tex. Jan. 29, 2007) (Applying criteria in 28 U.S.C. § 1292, debtor failed to establish grounds for interlocutory appeal of a bankruptcy court order confirming the absence of the automatic stay under § 362(c)(3)(A). “[S]ection 362(c)(3) provides clearly and unequivocally that where, as here, the debtor had a bankruptcy case dismissed within one year before filing the current bankruptcy case, the automatic stay ‘shall terminate . . . on the 30th day after the filing.’ . . . Subsection (c)(3)(B) contains a provision for a debtor to file a motion asking the bankruptcy court to continue the automatic stay, but it is undisputed that Debtor did not file such a motion in this case. . . . Debtor neither argues nor shows that allowing this interlocutory appeal will ‘materially advance the ultimate termination’ of the bankruptcy case.”).