In Re Robinson
ORDER DENYING DEBTOR’S MOTION TO REINSTATE STAY
On April 15, 2010, Debtor Annie Robinson, through counsel, filed her Motion to Reinstate Automatic Stay & Request for Expedited Hearing (DN 39, the “Motion”), seeking an expedited hearing and an order enjoining Chrysler Financial (“Chrysler”) from repossessing the Debtor’s 2006 Chrysler 300 automobile (the “Car”). According to the Motion, Chrysler is “threatening to repossess the vehicle because the original stay in this proceeding was terminated because the prior Chapter 13 filing was within one year of this filing.” See Motion at ¶ 9.
Because of sеveral patent deficiencies in the Motion, both substantive and procedural, the court has determined to enter an order summarily denying the Motion, without рrejudice to renewal in an adversary proceeding.
In support of the Motion, Debtor’s counsel explains that the Debtor filed a volun
On March 17, 2010, the court confirmed the Debtor’s Chapter 13 plan, as amended (DN 35 & 36, the “Plan”). The Plan provides that Chrysler will retain its security interest in the Car, and will have a secured claim in the amount of $10,425.00, to be paid through the Plan, with interest at 6%, and equal monthly payments of $225.00. See Plan (DN 35) at p. 8. The Debtor’s fifth amendment to her Plan provides that after confirmation, all property of the estate vests in the Debtor. See Plan, DN 36. Therefore, upon confirmation, thе Car was no longer included within the property of the estate, but was again “property of the Debtor.” See 11 U.S.C. § 1327(b). Shortly after confirmation, the Debtor becamе concerned that Chrysler intended to repossess the Car, so she filed this Motion.
The Motion is deficient for at least three reasons. First, before the court will expedite a hearing on any motion, the party seeking to expedite that hearing must file two separate motions-one to expedite and a separate motion for the relief requested. See LBR 9013Q). Here, the Debtor made a request to expedite the hearing and in the same motion requested reinstatement of the stay. Second, and closely related, “[e]very request for an order from the Court shall be filed in a separate motion except for requests for alternative relief which may be contained in one motion.” See LBR 9013(g). The Motion requested two orders for two distinct kinds of relief that were not altеrnative.
By requiring adherence to these local rules, the court is not standing on mere ceremony: separate motions serve to alert the cоurt and adverse parties to distinct claims for relief. They also facilitate the use of the court’s Case Management/Electronic Case Filing system (“CM/ECF”). Docketing separate motions serves a notice function, and electronic docketing systems such as CM/ECF depend upon the filers to separately identify distinct requests for relief.
Third, although the Motion is styled as one to “reinstate” the automatic stay, in effect it seeks to enjoin Chrysler from repossessing the Car. Thе Bankruptcy Code authorizes a party in interest to bring a motion to extend the automatic stay, only “after notice and a hearing
completed before the expiration of the 30-day period
...”
See
11 U.S.C. § 362(c)(3)(B) (emphasis addеd). Therefore, to the extent the Motion requests an extension of the stay, it is untimely. To the extent the Motion seeks injunctive relief, other than injunctive relief еxpressly provided for in a reorganization plan, it is proeedurally im
The court has interpreted 11 U.S.C. § 362(c)(3)(A) as drawing a distinction between actions against the debtor or property of the debtor, on the one hand, and actions against property of the estate, on the other. Other courts, endeavoring to make sense of the “curious way” Congress framed 11 U.S.C. § 363(c)(3)(A),
1
have similarly concluded that, for debtors with two cases pending within the same year, the automatic stay terminates thirty days after filing the second case — with respect to the debtоr and property of the debtor, but not with respect to property of the estate.
See In re Johnson,
To summarize, thе Car is not protected by the automatic stay and the court is unwilling to enjoin Chrysler given the procedural and substantive defects in the Motion. Nevertheless, nothing in this order shall be construed to prevent the Debtor from seeking injunctive relief against Chrysler in an adversary proceeding, but the court will condition such reliеf upon proof of the traditional grounds for such equitable relief.
The court recognizes that requiring an adversary proceeding before awarding any injunctive relief adds expense and delay, but believes these consequences flow from a natural reading of the court’s rules and the Bankruptcy Codе. By enacting § 362(c)(3)(A), Congress clearly intended to impose some procedural penalties on “repeat filers,” but nevertheless afforded debtors а relatively inexpensive means of extending the automatic stay, provided they act quickly.
See
11 U.S.C. § 362(c)(3)(B) (motion to extend stay). The Debtor in the Present Case did not take advantage of this avenue for relief, and must therefore pursue an injunction
NOW, THEREFORE, IT IS HEREBY ORDERED that the Motion (DN 39) is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve this Order upon William H. Shaw, Esq., Annie Robinson, Mary K. Viegelahn, Esq., and Kellie C. Arman Schone, Esq.
IT IS SO ORDERED.
Notes
.
In re Harris,