The 2005 Amendments to the bankruptcy code included some changes to application of the automatic stay in serial bankruptcy cases. Under 11 U.S.C. §362(c)(3), a Debtor who files a case within one year of the dismissal of a prior case only gets the stay for 30 days, unless extended on timely motion. Under 11 U.S.C §362(c)(4), a Debtor who files a case within one year of the dismissal of two or more prior cases gets no stay at all, unless imposed on timely motion. If the stay is not extended or imposed, a party in interest can file a motion to confirm that no stay is in effect.
Seems simple enough, but alas, it isn’t. Some Courts have concluded that the inclusion of the phrase "with respect to the debtor" in §362(c)(3) and omission of that phrase from §362(c)(4) means that the 30 day stay terminates only as to the debtor and the debtor’s property, but does not terminate with respect to property of the bankruptcy estate. These Courts have held that if the 30 day stay is not extended on timely motion, Creditors can take action against the Debtor by making collection calls and sending collection letters, but can not take action against property of the bankruptcy estate by repossessing or foreclosing their collateral.
Other Courts have concluded that the phrase "with respect to the debtor" in §362(c)(3)and omission of that phrase from §362(c)(4) means that the 30-day stay applies to one spouse in a joint case, where one spouse had a prior bankruptcy case dismissed within a year of the filing of the current case. These Courts have criticized opposing views as contrary to legislative intent, and held that unless extended on timely motion, the 30 day stay terminates in its entirety.
Recently, Bankruptcy Judge Wedoff considered the issue and held that the 30 day stay terminates in its entirety. In Re Daniels, 2009 Bankr. LEXIS 919. Previously, Judge Schmetterer came to the same conclusion. In Re Curry, 324 B.R. 394, 2007 Bankr. Lexis 474.
Seems simple enough, but alas, it isn’t. Some Courts have concluded that the inclusion of the phrase "with respect to the debtor" in §362(c)(3) and omission of that phrase from §362(c)(4) means that the 30 day stay terminates only as to the debtor and the debtor’s property, but does not terminate with respect to property of the bankruptcy estate. These Courts have held that if the 30 day stay is not extended on timely motion, Creditors can take action against the Debtor by making collection calls and sending collection letters, but can not take action against property of the bankruptcy estate by repossessing or foreclosing their collateral.
Other Courts have concluded that the phrase "with respect to the debtor" in §362(c)(3)and omission of that phrase from §362(c)(4) means that the 30-day stay applies to one spouse in a joint case, where one spouse had a prior bankruptcy case dismissed within a year of the filing of the current case. These Courts have criticized opposing views as contrary to legislative intent, and held that unless extended on timely motion, the 30 day stay terminates in its entirety.
Recently, Bankruptcy Judge Wedoff considered the issue and held that the 30 day stay terminates in its entirety. In Re Daniels, 2009 Bankr. LEXIS 919. Previously, Judge Schmetterer came to the same conclusion. In Re Curry, 324 B.R. 394, 2007 Bankr. Lexis 474.
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