Bates v. BAC Home Loans (In re Bates)
- Summarized by Adam Ballinger , Faegre Drinker Biddle & Reath LLP
- 13 years 9 months ago
- Citation:
- No. 10-6084 (B.A.P. 8th Cir. March 23, 2011)
- Tag(s):
-
- Ruling:
- Affirmed. Where a debtor has had two or more cases pending within the previous year that were dismissed, and neither case was a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the automatic stay under section 362(a) never goes into effect. No exception is made for property of the estate.
- Procedural context:
- Appeal from a bankruptcy court order denying a motion for reconsideration.
- Facts:
- The debtor filed a chapter 13 petition on July 21, 2008. That case was dismissed on June 15, 2009 for failure to make plan payments. The debtor filed a chapter 7 petition on July 10, 2009 and received a discharge on October 26, 2009. The debtor then filed a chapter 13 petition on December 31, 2009, which was dismissed on March 11, 2010 for failing to list previous bankruptcies. The debtor filed another chapter 13 petition on May 20, 2010 in which she listed her first two bankruptcy filings, but did not mention the December 31, 2009 chapter 13 case.
The debtor then filed a motion to extend the automatic stay pursuant to section 362. BAC Home Loans responded to the debtors motion by stating the no stay was in effect under section 362(d)(4) because she had several cases pending over the course of the year preceding May 20, 2010. The bankruptcy court entered an order denying the debtor's motion. BAC made a subsequent motion for a determination that the automatic stay was not in effect under section 362(c)(4) which the bankruptcy court entered on June 28, 2010. BAC proceeded to foreclose on real property owned by the debtor.
Four months later, the debtor filed a motion to cancel the foreclosure sale and for a determination that the automatic stay was in effect with respect to property of the estate. The bankruptcy court initially granted this motion, but denied it a day later, on November 3, 2010, when the bankruptcy court learned of the June 28, 2010 order holding that the automatic stay was not in effect pursuant to section 362(c)(4)(A)(i) and also that the debtor has had four bankruptcy filings within one year. The debtor filed a motion for reconsideration of the denial entered on November 3, 2010, which was also denied. Instead of appealing the November 3, 2010 order holding that the automatic stay was not in effect, the debtor instead appealed the denial of her motion for reconsideration.
- Judge(s):
- Kressel, Saladino, and Nail
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