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automatic stay applies to debtor – not property of the estate

In In re Jumpp, No. MW 06-031 (1st Cir. December 28, 2006)
The Bankruptcy Appellate Panel for the 1st Circuit ruled that 362(c)(3)(A), which provides that where a case is filed within a year of dismissal of an earlier case the stay is terminated 30 days after commencement unless extended by motion within that time, only terminates the automatic stay as to the debtor, not as to property of the estate. Reversing the Bankruptcy Court, the Appellate Panel ruled that the statute’s language that the “stay . . . shall terminate with respect to the debtor” does not affect the assets of the estate. In reaching its decision the Panel noted that

1.
the language in 362(c)(3)(A) is not ambiguous but rather relfects similar distinctions in other sections of the Code2.
Congress utilized different phrasing when it intended to refer to both the debtor and the estate3.
use of a lesser penalty in the section is consistent with the scheme promoted therein

The decision concurs with the vast majority interpreting this section of the Code, and the language cited is free from ambiguity; hence the penalty articulated in 362(c)(3)(A) seems illusory because a debtor could still protect their home from foreclosure by filing a second Chapter 13 case — presumably the very event Congress wanted to prevent. Then again the partisans of the BAPCPA had eight years to adjust the language if they in fact intended a different result.

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