In Re Curry
MEMORANDUM OPINION ON MOTION TO CONFIRM TERMINATION OR ABSENCE OF AUTOMATIC STAY
This proceeding relates to the Chapter 13 bankruptcy case filed by Sandra Curry (“Debtor”) on October 12, 2006. Debtor filed her previous voluntary bankruptcy
BAPCPA amended the Bankruptcy Code to include
Ameriquest Mortgage Company (“Ameriquest” or “Movant”) holds a mortgage in foreclosure on Debtor’s residence located at 12606 Loomis, Calumet Park, Illinois (the “Property”). Ameriquest filed its Motion to Confirm Termination or Absence of Stay (the “Motion”) seeking an order confirming that the automatic stay completely terminated on November 11, 2006, the thirtieth day after this new case was filed. Ameriquest argues that the automatic stay fully terminated on that date pursuant to
The Motion requires a determination of whether
For reasons set forth below, it is held that
JURISDICTION AND VENUE
This Court has jurisdiction to entertain this matter pursuant to
UNDISPUTED FACTS
1. Ameriquest Mortgage Company (“Ameriquest” or “Movant”) is the holder of an Adjustable Note dated August 22, 2003 in the amount of $85,000, which is secured by a Mortgage dated August 22, 2003 in the amount of $85,000 on the residential property located at 12602 Loomis, Calumet Park, Illinois 60827 (the “Property”). On December 14, 2004, Ameriquest filed in state court its complaint to foreclose the mortgage, in which action foreclosure judgment was entered but sale was not yet held.
3. Case No. 05-37752 was dismissed on August 17, 2006 for failure to make timely payments to the Chapter 13 Trustee.
4. The instant case was filed by Debtor for relief under Chapter 13 on October 12, 2006.
5. Debtor never filed a motion in this case to extend the automatic stay pursuant to
6. On November 21, 2006 Ameriquest filed its pending a Motion to Confirm Termination or Absence of Stay (the “Motion”). On December 13, 2006 Debtor filed an Answer to the Motion.
7. Any facts contained in the Discussion below shall constitute additional undisputed facts.
DISCUSSION
The issue in this case is whether
Section
____(A) the stay 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 shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Many opinions have grappled with interpreting this provision.
See In re Paschal,
The doctrine of plain meaning is a recognized doctrine to be applied where appropriate, not where the statute lacks plain and unambiguous language:
“It is an axiom of statutory interpretation that the plain meaning of an unambiguous statute governs, barring exceptional circumstances.” Wachovia Bank, N.A. v. Schmidt,388 F.3d 414 , 416 (4th Cir.2004).Section 362(c)(3)(A) , however, is far from being unambiguous. The Fourth Circuit recently emphasized in In re Coleman,426 F.3d 719 (4th Cir. 2005), that “[i]n analyzing statutory language, [courts] must first ‘determine whether the language at issue has a plain and unambiguous meaning.’ ” Coleman, 426 F.3d at 725 (4th Cir.2005), quoting Robinson v. Shell Oil Co.,519 U.S. 337 , 340,117 S.Ct. 843 , 846,136 L.Ed.2d 808 (1997). That analysis is “guided ‘by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’ ” Coleman,426 F.3d at 725 , quoting Shell Oil,519 U.S. at 341 ,117 S.Ct. at 846 .
In re Paschal,
Since the statute at issue here has no “plain and unambiguous meaning,” it has no plain meaning to be followed. Instead, its language must be interpreted with reference to both the statutory wording and the broader context of BAPCPA changes.
Under
Debtor argues that the Property is protected by the automatic stay because
Most opinions deciding this issue have reached the result supporting Debtor’s position.
See In re Jumpp,
A minority view holds that the automatic stay terminates in its entirety.
See In re Jupiter,
Property of the Bankruptcy Estate
Since the issue here is whether
Sections 541 and 1306 of the Bankruptcy Code broadly incorporate all of Debtor’s pre-petition and post-petition property into Debtor’s estate. Upon the filing in bankruptcy, an estate comprised of all legal and equitable interests of a debtor is created.
(a) The commencement of a case under section 301, 302, 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.
The Chapter 13 estate is larger than the Chapter 7 estate as it includes all property specified in
Based on the inclusiveness of
When interpreting a statute, the starting point “ ‘is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.’”
Sapperstein v. Hager,
Contrasting
Some opinions discussing this issue have reached their decisions by focusing on the differing language found in
It has been opined that if Congress intended to terminate the automatic stay in its entirety under
An opinion by Bankruptcy Judge Small which is often followed noted:
If Congress wanted to terminate the stay of all the protections of the automatic stay in§ 362(c)(3)(A) it could easily have used language similar to that in§ 362(c)(4)(A) ® (“the stay under subsection (a) shall not go into effect upon the filing of the later case”). Congress instead chose to describe the termination of stay quite differently ... Since Congress, in terminating aspects of the automatic stay in§ 362(c)(3)(A) , chose language that is so vastly different than the straightforward language it used when it terminated all protections of the stay in§ 362(c)(4)(A) ®, the court concludes that§ 362(c)(3)(A) is not as broad as§ 362(c)(4)(A) ® and that all of the protections of the automatic stay are not eliminated by§ 362(c)(3)(A) .
In re Paschal,
However, that reasoning cannot survive a close parsing of the provision at issue in context of other Code provisions.
Section
Section
(1) ... the stay ...
(2) with respect to any action taken
(3) with respect to a debt or property securing such debt
(4) with respect to any lease
(5) shall terminate
(6) with respect to the debtor
(7) on the 30th day after the filing of the later case.
The second and sixth phrases have generally stirred up most controversy.
Reading all but those two phrases, the remaining parts say that the stay “shall terminate” with respect to property securing debt on the 30th day “with respect to any action taken” pertaining to that property.
Second Phrase: “with respect to any action taken”
To the extent the stay is modified, modification applies only when there has been “any action taken” with respect to property affected. The first issue is whether there was an “action taken with respect to a debt or property securing such debt....” A good discussion found on what is meant by “action” is that of Judge Small in Paschal. Id. at 279-81. It was reasoned there, with applicable authority relied on, that “action” means “a formal judicial administrative or similar undertaking,” not any “act” that may be outside such formal judicial setting. Id. at 280.
In this case, such an “action” was filed through presentation of the still pending state court foreclosure action against the Property.
Sixth Phrase: “with respect to the Debtor”
Viewing the sixth phrase of
The remaining language, “with respect to the debtor” does two things: (1) it
Related Provisions and Legislative History
Interpreting
First,
Furthermore,
Finally, the foregoing
In short, the majority of opinions on this issue would reduce the “shall terminate” language in
CONCLUSION
For the foregoing reasons, it is concluded that