469 B.R. 643
Bankr. W.D. Va.2012Background
- Debtor Judy A. Pence filed a December 28, 2011 motion to extend the automatic stay after a December 16, 2011 Chapter 13 filing.
- A prior Chapter 13 petition (April 21, 2011) was dismissed because Pence had received a discharge under Chapter 7 within four years before that filing.
- The current petition is more than four years after the Chapter 7 discharge, but within one year of the April 2011 dismissal, triggering 30-day stay expiration absent extension.
- Debtor’s husband is not a joint debtor on the December 2011 petition; a raise in October 2011 is noted.
- Debtor’s schedules show a positive net monthly income and proposed plan payments of $180 for Dec–Feb and $147.50 monthly thereafter for 36 months, with about 10% to unsecured creditors.
- No creditors objected to the Motion to Extend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the automatic stay may be extended under § 362(c)(3)(B). | Pence argues good faith extension is warranted due to changed circumstances. | N/A | GRANTED; stay extended. |
| Whether a presumption of bad faith under § 362(c)(3)(C) applies. | Presumption arises if criteria are met. | No criteria are met in this case. | Presumption does not arise; not bad faith per § 362(c)(3)(C). |
| Whether the filing was in good faith under the totality of circumstances. | Changed financial circumstances and potential to successfully complete plan support good faith. | N/A | Debtor’s filing found to be in good faith; extension granted. |
| Whether Debtor can feasibly complete a Chapter 13 plan given income change. | Improved finances increase likelihood of plan completion. | N/A | Plan feasible; positive net income supports extension. |
Key Cases Cited
- In re Chaney, 362 B.R. 690 (Bankr.E.D.Va.2007) (establishes totality-of-the-circumstances approach to good faith under § 1325(a)(3) in this context)
- In re Thomas, 352 B.R. 751 (Bankr.D.S.C.2006) (good faith evaluated under preponderance standard when no § 362(c)(3) presumption applies)
- Neufeld v. Freeman, 794 F.2d 149 (4th Cir.1986) (guides consideration of § 1325 good faith factors in the Fourth Circuit)
- Baldassaro, 338 B.R. 178 (Bankr.D.N.H.2006) (cited for factors influencing good faith in later petitions)