In re Murray, 06-31616.

• Citation: 350 B.R. 408
• Decision Date: 11 September 2006
• Docket Number: No. 06-31616.,06-31616.
• Parties: In re Christian H. MURRAY, Helen S. Murray, Debtors.
• Court: United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Southern District of Ohio

Page 408

350 B.R. 408

In re Christian H. MURRAY, Helen S. Murray, Debtors.

No. 06-31616.

United States Bankruptcy Court, S.D. Ohio, Western Division at Dayton.

September 11, 2006.

As Amended September 13, 2006.

Scott A. Kramer, Esq., Dayton, OH, for the Debtors.

DECISION REGARDING MOTION FOR ORDER CONFIRMING INAPPLICABILITY OF THE AUTOMATIC STAY

THOMAS F. WALDRON, Bankruptcy Judge.

BACKGROUND AND ESTABLISHED EVENTS

Pending before the court are the Creditor's motion seeking an order that the automatic stay is not in effect in this case and the Debtor's response that creditor action involving the property in question must occur exclusively in the bankruptcy court during the pendency of this case. As a result of the competing, applicable bankruptcy provisions, the position of each party is correct.

The Court's record in this case establishes the following events. (Federal Rule of Evidence 201).

On June 23, 2006, counsel for Christian H. Murray and Helen S. Murray, the Debtors, filed a chapter 13 petition (Doc. 1) and a chapter 13 plan (Doc. 6) (the "Plan") together with other required documents (Does. 2, 3, 4, 5, 7, 8 and 9). The Plan proposed payments of $1,587 per month for sixty months and provided, inter alia, to cure a mortgage arrearage and maintain regular monthly payments on a first mortgage registered with Mortgage Electronic Registration Systems, Inc. (MERS) in connection with the Debtors' principal residence at 110 Yale Avenue (the "Property"), to avoid a junior mortgage (asserted to be wholly unsecured), to pay in full two "910 car claims"¹ and to provide no distribution to unsecured claims.

On June 30, 2006, a complete copy of the Plan and a separate notice listing various dates, including the 341 meeting (July 25, 2006) and the last day to object to confirmation (August 4, 2006), were sent to all creditors and parties in interest. (Does. 12, 13, 14).

On July 7, 2006, MERS, acting solely as nominee for Mortgage Investors Corporation and its servicing agent, GMAC Mortgage Corporation, filed a Notice of Appearance (Doc. 15); however, MERS did not attend the 341 meeting and did not file an objection to the Plan.

On August 14, 2006, an Order confirming the Plan was entered. (Doc. 28)

DETERMINATIONS UNDER 28 U.S.C. §§ 1334 AND 157

The Court has jurisdiction pursuant to 28 U.S.C. § 1334 and the Standing Order of Reference entered in this District. This proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (G), (L) and (0). These determinations are the subject of further explanation in this decision.

ISSUES AND ARGUMENTS PRESENTED FOR DETERMINATION

On August 1, 2006,, MERS filed a Motion For Order Confirming Inapplicability Of The Automatic Stay Pursuant To 11 U.S.C. Section 362(c)(3)(C)(ii)² (Doc. 25) arguing that the plain meaning of § 362(c)(4)(A)(ii) requires the Court to promptly enter an order confirming the automatic stay did not go into effect in this case. Specifically, the creditor argued that these individual Debtors, had two prior, joint cases pending within the previous year and, since both of those cases were dismissed and no other factors prevent the relief requested, the automatic stay did not go into effect when the petition in the present case was filed.

On August 21, 2006, the Debtors filed the Debtors' Response To Motion For Order Confirming Inapplicability Of The Automatic Stay Pursuant To 11 U.S.C. Section 362(c)(3)(C)(ii) (Doc. 32), in which they concede the prior filings and dismissals; however, they argue that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "2005 Act") does not contain any "[e]xpress language diminishing the jurisdiction of the Court over the estate property. Moreover, [the 2005 Act] made no change to the pre-2005 Act language of section 1306 (Property of the Estate) and 1327 (effect of Confirmation)", and conclude the stay must remain "in effect as to property of the estate."

DETERMINATION OF ISSUES PRESENTED

The Court will enter an order confirming that the automatic stay is not in effect in this case and determining that all actions involving property of the estate must be commenced in this bankruptcy court during the pendency of this case.

ANALYSIS

When Congress enacted the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the Code), it repealed and completely replaced the prior bankruptcy legislation (the Bankruptcy Act of 1898, Pub.L. No. 55-171, amended by the Chandler Act of 1938, Pub.L. No. 75-696, 52 Stat. 840). When Congress enacted the 2005 Act, Pub.L. No. 109-8, 119 Stat. 23, it did not repeal or replace the prior bankruptcy legislation (the Code). Instead, Congress merely attached a sidecar (the 2005 Act) to the existing bankruptcy vehicle (the Code). The operation of this oddly constructed vehicle is frequently difficult, depending on whether it is controlled solely by the provisions of the Code, solely by the provisions of the 2005 Act, or, as in this case, by some provisions of the 2005 Act and some provisions of the Code.³

PRELIMINARY ISSUE — "PROMPTLY"

Section 362(c)(4)(A)(ii) provides that "on request of a party in interest, the court shall promptly enter an order confirming that no stay is in effect." (emphasis added) This section is new language added by the 2005 Act and the word promptly is not defined within § 101 — Definitions, nor does it appear in § 102 — Rules of Construction, nor is assistance available from provisions of the Dictionary Act. 1 U.S.C. § 1.

As detailed later, the provisions of § 362(c) distinguish between circumstances where the automatic stay of § 362(a) goes into effect for only a limited period [§ 362(c)(3)] and circumstances where the stay does not go into effect at all [§ 362(c)(4)]. It is noteworthy that § 362(j) provides that "[o]n request of a party in interest, the court shall issue an order under subsection (c) confirming that the automatic stay has been terminated." Notably absent in this provision, in which the language closely tracks the language of § 362(c)(4)(A)(ii), is the word "promptly." This would indicate that Congress intended the court to enter an order "confirming that no stay is in effect" under § 362(c)(4)(A)(ii) in a time period more prompt than an order "confirming that the automatic stay has been terminated" under other provisions of § 362(c), which has no indication of the time period when an order should be entered; however, again, neither of these provisions aid in determining the time period which would constitute "promptly" under § 362(c)(4)(A)(ii). The Court is not aided by a congressionally designated definition of a specific time period.

In the absence of a definition supplied in existing bankruptcy legislation, the Supreme Court has turned to familiar dictionaries. See In re Cleaver, 333 B.R. 430, 434, fn. 5 (Bankr.S.D.Ohio 2005) ("The Supreme Court has routinely resorted to dictionaries to determine the common meaning of terms not defined in the Bankruptcy Code. See, e.g., Rousey v. Jacoway, 544 U.S. 320, 125 S.Ct. 1561, 1566-69, 161 L.Ed.2d 563 (2005); Cohen v. de la Cruz, 523 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998).") Black's Law Dictionary 1214 (Sixth edition 1990) defines promptly as follows: "Adverbial form of the word `prompt,' which means ready and quick to act as occasion demands. The meaning of the word, depends largely on the facts in each case, for what is `prompt' in one situation may not be considered such under other circumstances or conditions...." Other dictionaries provide similar information. The Court is only generally aided, but not specifically directed to any determinable period, by an examination of familiar dictionaries.

The Court notes the Motion (Doc. 25) does not request that the Court enter the order by any specific date and is accompanied by a Notice (Doc. 26) which provides the Debtors have twenty days in which to file a response. See Local Bankruptcy Rule 9013-1 ("Except as otherwise provided by Rules 2002 and 9006(f), such notice shall fix the response and service of response for twenty (20) days from the date of service as set forth on the certificate of service") The Debtor's response does not address the issue of a specific date for any order. The Court is not aided by any suggestions of the parties in this case.

The use of the amorphous word "promptly" in § 362(c)(4)(A)(ii) stands in stark contrast to the 2005 Act's more specific time periods in other provisions of § 362. For example, § 362(c)(3)(A) provides that the stay terminates "on the 30th day"; § 362(c)(3)(B) — "hearing completed before the expiration of the 30-day period"; § 362(c)(4)(B) — "if, within 30 days after the filing"; § 362(d)(3) — "or 30 days after the court determines"; § 362(e)(2) — "on the date that is 60 days after a request is made"; and, §§ 362(l)(3)(A) and (m)(2)(B) — "the court shall hold a hearing within 10 days."

It seems appropriate to conclude that, in the absence of language in the text of § 362(c)(4)(A)(ii) establishing a 30 day period, or some other specific period, when such a 30 day time period, or other specific time periods, are prevalent throughout the other provisions of § 362, the use of the word "promptly" does not require that the order be entered within 30 days of the request and does not otherwise require the entry of the order in any specific time period.

There are, nevertheless, factors a court may consider in a determination of promptly under § 362(c)(4)(A)(ii). These factors include the due process requirements reflected in the service and notice requirements of applicable national or local bankruptcy rules; the pled, or established, circumstances supporting a party's request that the order be entered by a specific date; separate statutory provisions which provide for the entry of orders by a specific date; the existence of undetermined, older matters of the same character, and other time-sensitive demands of the court's docket following the filing...