In re Dev
These matters come before the court upon the Motion for In Rem Relief from
I. BACKGROUND
The Debtor and Mr. Dev were married on May 6, 1992. During their marriage, on June 24, 2008, they executed a promissory note ("Note") in favor of CFCU for the original principal amount of $189,000.00. The Note requires monthly payments to CFCU in the amount of $1,118.01 for a period of 30 years. Repayment of the Note is secured by a Deed of Trust executed by the Debtor and Mr. Dev which encumbers real property ("Property") located at 404 Silvergrove Drive, Cary, North Carolina. CFCU properly perfected its lien on the Property by recording the Deed of Trust with the Wake County Register of Deeds.
The Property was the marital residence of the Debtor and Mr. Dev until July 1, 2014, at which time the parties separated, and Mr. Dev relocated. The Debtor and their minor child remained and continue to reside at the Property. Upon petition of Mr. Dev, the Wake County District Court, File Number 13 CVD 11338, granted an absolute divorce on September 4, 2015.
Since her separation from Mr. Dev, the Debtor has filed in this district three petitions for relief under Chapter 13 of the United States Bankruptcy Code:
(1) Case Number 15-00158-5-SWH filed on January 9, 2015 and dismissed on October 15, 2015 for failure to make plan payments;
(2) Case Number 16-02500-5-DMW ("2016 Bankruptcy") filed on May 11, 2016 and dismissed on September 12, 2017 for failure to make plan payments; and
(3) The current case filed on February 13, 2018.
Each of these cases was filed to, among other reasons, prevent foreclosure of the Property by CFCU. As stated in the CFCU Stay Motion, "[t]he initial foreclosure action was initiated by CFCU in 2016, but due to the bankruptcy filings by the debtor, CFCU has not been successful in completing the process. The prior filings were both filed during the 10-day upset bid period, rendering the foreclosure sales invalid." CFCU Stay Motion, ¶ 12, ECF No. 15.
In each case, the Debtor proposed a Chapter 13 plan providing for monthly conduit payments on the Note and a cure of its pre-petition arrearage. According to a Proof of Claim filed by CFCU in this case on April 30, 2018, at the time of the
32 monthly payments of $1,118.01 $35,776.32 Fees 4,574.33 Funds in Suspense (55.68) __________ Total Pre-petition Arrearage $40,294.97
The scheduled value of the Property securing the Note is $250,000.00.
The CFCU Stay Motion requests relief from the automatic stay imposed by § 362(a) to allow CFCU to complete a foreclosure of its security interest in the Property. Although the CFCU Stay Motion does not pray specifically for relief from the co-debtor stay under § 1301, CFCU's counsel clarified at the hearing that CFCU believes it also requires this relief to foreclose the Property and orally amended the CFCU Stay Motion to include this additional request. CFCU contends that it lacks adequate protection in the Property due to the default on the Note, constituting cause for relief pursuant to § 362(d)(1). Additionally, CFCU asserts that the Debtor's third bankruptcy petition was filed in bad faith, is an abuse of the Bankruptcy Code, and is part of a scheme to delay, hinder and defraud CFCU; therefore, the requested in rem relief should be binding in future cases filed within two years pursuant to § 362(d)(4)(B). CFCU notes that upon similar motions filed in the Debtor's two prior cases, the parties executed consent orders conditioning the continuance of the automatic and co-debtor stays upon timely plan payments for a period of 12 months. The Debtor defaulted in her obligations under both consent orders, resulting not only in modification of the applicable stays but dismissal of the cases.
As part of his action for divorce, on December 15, 2014, Mr. Dev filed a request for equitable distribution of marital property, and in the Dev Stay Motion, he seeks relief from the automatic stay to continue the equitable distribution proceeding in state court. Mr. Dev also prays the court to award him sanctions against the Debtor, asserting that her repeated bankruptcy filings and default on the Note have injured his credit rating and prevented him from obtaining a loan to buy new property, despite his being able to afford to do so. He wants the Property sold to satisfy the Note and outstanding ad valorem tax obligations. The Debtor counters that absent agreement of the parties, the state court cannot order the Property sold, citing Miller v. Miller , --- N.C.App. ----,
At the initial hearing on the Dev Stay Motion, the court questioned sua sponte whether the automatic stay is even in effect, because this case was filed within a year of the 2016 Bankruptcy's dismissal and the stay ostensibly terminated on the 30th day after the petition pursuant to § 362(c)(3)(A). The Debtor responded that any termination of the automatic stay under § 362(c)(3)(A) does not apply to actions against property of the estate such as the Property, citing this district's cases of
II. JURISDICTION
This matter is a core proceeding pursuant to
III. DISCUSSION
Upon the filing of a bankruptcy petition, the automatic stay imposed by § 362(a) operates to stay, inter alia -
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title;
...
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title.
"The automatic stay is a bedrock principle upon which the Code is built; the importance of § 362 cannot be over-emphasized." In re Seaton ,
With section 302 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), titled "Discouraging Bad Faith Repeat Filings," Congress attempted to curb debtor abuse and limit the protections of the automatic stay to serial filers by adding the following restriction:
Except as provided in subsections (d), (e), (f), and (h) of this section-
...
(3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)-
(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing a 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.
The Debtor's current petition was filed within a year of dismissal of the 2016 Bankruptcy, triggering the application of § 362(c)(3)(A). The Debtor did not seek timely an extension of the automatic stay beyond 30 days pursuant to § 362(c)(3)(B),
in an Act [i.e., BAPCPA] in which head-scratching opportunities abound for both attorneys and judges alike, § 362(c)(3)(A) stands out. It uses the amorphous phrase "with respect to" a total of four times in short order andraises questions about the meaning of the words "action taken," and "to the debtor." The language of the statute is susceptible to conflicting interpretations, and if read literally, would apply to virtually no cases at all. In sum, it's a puzzler.
Paschal ,
1. § 362(c)(3)(A) and "Action Taken"
In Paschal , the court focused on the phrase "action taken" and compared the word "action" to the broader term "act" used in other subsections of § 362. Applying established principles of statutory construction, the court concluded that-
the term "action" means a formal action, such as a judicial, administrative, governmental, quasi-judicial, or other essentially formal activity or proceeding. Furthermore, the action with respect to which the stay terminates is an "action taken," which means an action in the past, prior to the filing of the debtor's bankruptcy petition.
[t]here remain other issues with respect to § 362(c)(3)(A). Yet to be decided is the meaning in § 362(c)(3)(A) of the term "with respect to the debtor." If the stay is lifted as to an "action taken," does the stay terminate with respect to the property of the estate or only with respect to the debtor? That is an interesting question that need not be decided in this case.
2. § 362(c)(3)(A) and "With Respect to the Debtor"
In the present case, the parties do not dispute that the Property constitutes property of the estate, which includes "all legal or equitable interests of the debtor in property as of the commencement of the case."
a. Jones and the Majority View
In Jones , the court turned its attention to the words "with respect to the debtor" contained within § 362(c)(3)(A). The court
if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case ....
As it did in Paschal , the court recognized that "[i]t is an axiom of statutory interpretation that the plain meaning of an unambiguous statute governs, barring exceptional circumstances."
Section 362(c)(3)(A) as a whole is not free from ambiguity, but the words "with respect to the debtor" in that section are entirely plain; a plain reading of those words makes sense and is entirely consistent with other provisions of § 362 and other sections of the Bankruptcy Code. Section 362(c)(3)(A) provides that the stay terminates "with respect to the debtor." How could that be any clearer?
Id. at 363 (emphasis added). The court did not consider legislative history, because it found the statute's language clear; however, the court admitted that BAPCPA's legislative history favors the opposing arguments that § 362(c)(3)(A) terminates all the protections of the automatic stay under § 362(a). Id. at 364.
With Jones , this district, during the early months following the enactment of BAPCPA, joined the United States Bankruptcy Court for the Western District of Tennessee in holding that under § 362(c)(3)(A), the automatic stay terminates as to actions taken against the debtor and against property of the debtor but not as to actions taken against property of
[w]hen read in conjunction with subsection (1), ... the plain language of § 362(c)(3)(A) dictates that the 30-day time limit only applies to "debts" or "property of the debtor" and not to "property of the estate." As a result, the automatic stay continues to protect "property of the estate" as long as it remains "property of the estate."
Johnson ,
Judge Small's analysis in Jones is thorough, well-reasoned, and persuasive, and when presented by the Debtor, this court almost followed obligingly its precedent; however, it was stopped short by a nagging sense that the result is at odds with the title of section 302 of BAPCPA: "Discouraging Bad Faith Repeat Filings." The court undertook a renewed examination of § 362(c)(3)(A) and discovered an alternative minority interpretation of "with respect to the debtor," using a more refined ocular prescription than that used by Judge Small.
b. Jupiter and the Minority View
A few months after Jones , the Honorable John E. Waites of the neighboring United States Bankruptcy Court for the District of South Carolina rejected boldly the emerging view that § 362(c)(3)(A) does not operate to terminate the automatic stay with respect to property of the estate, finding that such interpretation "is demonstrably at odds with Congress's intent to deter bad faith, successive filings, fails to consider the context of § 362(c)(3) as a whole, and fails to account for the ambiguities in § 362(c)(3)(A)." In re Jupiter ,
The Jupiter court believed that under a plain meaning examination of § 362(c)(3)(A), the operative and controlling word is that the stay under § 362(a)"terminates," and the remaining language of "with respect to the debtor" defines which debtor is affected by the provision, because "in a joint case, a 'debtor' may not necessarily mean both debtors if one debtor did not have a case dismissed within the year prior to the current petition date."
The United States Bankruptcy Court for the Eastern District of New York presented recently an astute analysis of § 362(c)(3)(A) in In re Bender ,
The focus of the Court's analysis is on specific actions with respect to specific property , not the broader categories of property of the estate or property of the debtor. In other words, the stay is lifted "with respect to a debt or property securing such debt " and with respect to leases-regardless of whether the property or the least is property of the estate or property of the debtor. To limit the effect of § 362(c)(3)(A) to the debtor or property of the debtor would so limit its effectiveness as to not support what this Court believes to be, the congressional intent to protect the secured creditor or lessor seeking to continue judicial, administrative or other proceedings commenced prepetition with respect to debts, property securing such debts or leases.
This does not mean that a two time repeat filer can gain no protection for the § 362(a) stay. However, it is the debtor now that must come to the Court to seek protection. In the case of a two time repeat filing, rather than requiring the secured creditor to seek relief under § 362(d) the burden shifts to the debtor to affirmatively seek to impose the stay under § 362(c)(3)(B), or the stay will be lifted on the 30th day by operation of law as to real property foreclosures, evictions and other actions against secured collateral.
The court finds the now-established minority interpretation of § 362(c)(3)(A) introduced by Jupiter to be more logical and consistent with legislative intent than that taken previously by Judge Small in Jones . As recognized by the court in Reswick , the majority interpretation renders
[v]ery few creditors would seek to pursue only the debtor personally, or property of the debtor. Indeed, this interpretation would provide no meaningful relief to creditors in chapter 13 cases, where repeat filings are most prevalent. Creditors in a chapter 13 case could take no action against property that the debtor owned at the time the case was commenced, because it is property of the estate under section 541(a)(1), and they could take no action against property that the debtor acquired post-petition because it would also constitute property of the estate under section 1306(a).
Reswick ,
In Daniel , the United States Bankruptcy Court for the Northern District of Illinois looked beyond BAPCPA's legislative history to that of the never-passed House of Representatives' Bankruptcy Reform Act of 1998 and Senate's companion Consumer Bankruptcy Reform Act of 1998. Each bill contained a section virtually identical to § 362(c)(3)(A) that was drafted to address abuse identified by a National Bankruptcy Review Commission created by Congress as part of the Bankruptcy Reform Act of 1994. Daniel ,
Some debtors file for Chapter 13 ... on the eve of a foreclosure or eviction for the sole purpose of delaying the state legal process. When the threat passes, they dismiss their cases, only to file again when the mortgagee or landlord brings another legal action to seize control of the property. The ability to file repeatedly for Chapter 13 relief increases a debtor's leverage in negotiations with creditors. In regions where this problem is particularly acute, judges have devoted significant time and resources to developing tools to address this problem.
Benefitting from the wisdom of courts that have analyzed § 362(c)(3)(A) in the dozen years since Jones , the court conclusively deviates from this precedent and adopts the minority position
c. The Bender Approach
Until recently, most cases interpreting the phrase "with respect to the debtor" in § 362(c)(3)(A), whether adopting the majority or minority position, did not address separately Judge Small's interpretation in Paschal of the words "action taken." In Bender , however, the court analyzed the entire subsection and implemented a hybrid approach of agreeing with the minority that "with respect to the debtor" does not limit the termination of the automatic stay as to property of the estate but following Paschal in finding that the termination is limited to the continuation of formal "actions taken" prior to the bankruptcy filing. Bender ,
In Goodrich , Judge Brown divided her consideration of § 362(c)(3)(A) into three options which she called the majority approach, the minority approach, and the Bender approach. Although urged by the moving creditor to adopt the Bender approach, she concluded that Congress intended § 362(c)(3)(A) to serve as a significant deterrent to bad-faith repeat filers by terminating after 30 days all protections of
Congress's use of the phrase "action taken" in contract to "act" used elsewhere in the statute should not be ignored. In addition, [the Paschal ] interpretation of the statute is consistent with this Court's view that § 362(c)(3)(A) was intended to apply and shift the burden from the creditor to the debtor in cases where, as here and in many cases, a debtor uses bankruptcy in order to stymie judicial, administrative or other proceedings with respect to debts, property securing such debts and leases.
Bender , 562. B.R. at 583. This court sees merit in both positions. While leaning toward agreement with the Bender approach, the court will for now leave the Paschal interpretation of the phrase "actions take" undisturbed in the interest of stare decisis , because the results in this case would be the same under either interpretation. As noted supra , both CFCU's foreclosure proceeding and Mr. Dev's equitable distribution action qualify as "actions taken" as that phrase is interpreted by Paschal .
In Goodrich , the court's reversal of its interpretation of § 362(c)(3)(A) was prompted by a secured creditor's motion for reconsideration of McFeeley . Judge Brown recognized that the debtor relied justifiably upon McFeeley when it chose not to move to extend the automatic stay under § 362(c)(3)(B) as to the collateral property of the estate and, therefore, exercised her powers under § 105
B. Applicability of the Co-debtor Stay to In Rem Actions
Although CFCU's request for relief from the automatic stay is mooted by this court's determination that the stay terminated under § 362(c)(3)(A), CFCU presented a separate request for relief from the co-debtor stay imposed by § 1301. In an opinion issued prior to Bender , Judge Grossman determined that the termination of the automatic stay pursuant to § 362(c)(3)(A) does not likewise terminate the co-debtor stay. In re Lemma ,
There is no language in section 362(c)(3) that states or implies that when the stay terminates automatically with respect to the debtor by reason of his prior filings, the co-debtor stay terminates as well. Similarly, section 1301 sets forth theinstances when the co-debtor stay applies as well as exceptions to those instances; the termination of the automatic stay pursuant to section 362(c)(3) is not a listed or implied exception.
This court routinely entertains requests for relief from the co-debtor stay in tandem with requests for relief from the automatic stay by mortgage creditors seeking to foreclose real property collateral, and although seeking co-debtor stay relief is the standard practice in this district, the court questions whether the co-debtor stay even applies to prevent a foreclosure sale. The co-debtor stay dictates that-
[e]xcept as provided in subsections (b) and (c) of this section, after the order for relief under this chapter, a creditor may not act, or commence or continue any civil action, to collect all or part of a consumer debtor from any individual that is liable on such debt with the debtor, or that secured such debt, unless-
(1) such individual became liable on or secured such debt in the ordinary course of such individual's business; or
(2) the case is closed, dismissed, or converted to a case under chapter 7 or 11 of this title.
[o]ne of the pivotal differences between in rem and quasi in rem actions is whether the defendant is the property or a named person. In in rem actions, the property itself is the defendant, while in quasi in rem actions, a named party is the defendant. In a foreclosure action, the property is not the defendant. Rather, the mortgagor, the person whose interest in the real estate is the subject of the mortgage, is a necessary party defendant to the foreclosure proceedings. As such, the proceeding must be brought against a named party and a foreclosure action must be a quasi in rem action.
Unlike in Illinois, a foreclosure of real property in North Carolina is conducted generally under a power of sale clause in the deed of trust, and while mortgagors are statutorily entitled to notice of the proceedings, they are not named defendants or parties to the action. See
(1) as between the debtor and the individual protected under subsection (a) of this section, such individual received the consideration for the claim held by such creditor;
(2) the plan filed by the debtor proposes not to pay such claim; or
(3) such creditor's interest would be irreparably harmed by continuation of such stay.
IV. CONCLUSION
The automatic stay imposed by § 362(a) with respect to Mr. Dev's equitable distribution action against the Debtor and with respect to CFCU's foreclosure of the Property terminated under § 362(c)(3)(A) on March 15, 2018, which is 30 days after the Debtor's petition. This termination did not likewise terminate the co-debtor stay imposed by § 1301(a), but to the extent that the co-debtor stay precludes foreclosure of the Property or collection on the Note from Mr. Dev, relief is appropriate under § 1301(c). Although not addressed at the hearing, the court agrees with the Debtor that Mr. Dev has failed to state a viable claim for recovery of damages from the Debtor; now therefore,
It is ORDERED, ADJUDGED, and DECREED as follows:
1. Mr. Dev's request for relief from the automatic stay be, and hereby is, denied as moot;
2. Mr. Dev's request for imposition of sanctions against the Debtor be, and hereby is, denied;
3. CFCU's request for relief from the automatic stay be, and hereby is, denied as moot; and
4. CFCU's request for relief from the co-debtor stay be, and hereby is, granted.
SO ORDERED.
Notes
Except for within formal citations, references to the Bankruptcy Code,
This subsection provides that-
on 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 and all creditors (subject to 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 ....
(1) the debtor files a motion for continuation of the automatic stay within 5 days of the petition date;
(2) no objection is filed by a party in interest;
(3) the motion is accompanied by a notice of motion and the debtor's affidavit or unsworn declaration under28 U.S.C. § 1746 with sufficient facts to support the motion; and
(4) the motion and accompanying documents are timely served on all creditors and the trustee, if one has been appointed, contemporaneous with the filing of the motion.
E.D.N.C. LBR 4001-1(d).
An unnumbered or "hanging" paragraph contained within § 521(a) provides that if an individual Chapter 7 debtor does not reaffirm or redeem property within 45 days as required by § 521(a)(6), then "the stay under section 362(a) is terminated with respect to the personal property of the estate or of the debtor which is affected ...."
Most of these opinions were issued within a year of Jones and unfortunately lack a diversified analysis.
The original Order included the phrase "for this district." This matter was not heard en banc and is not binding on the other judges in this district. The use of the phrase "for this district" was intended to signal a diversion from the prior opinions of the court.
"The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title."
The title of the CFCU Stay Motion specifically uses the words "in rem ," suggesting that CFCU is only seeking relief to pursue in rem actions, but that title also fails to reference the co-debtor stay in addition to the automatic stay. It is logical to assume that CFCU would want to seek collection of any foreclosure deficiency from Mr. Dev, so the court will assume that in personam relief is also desired.