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In re Sandra J. Curry, 06 B 13096

In re Sandra J. Curry, 06 B 13096

Issued: February 22, 2007

Judge: Jack B. Schmetterer

Court held that §362(c)(3)(A) terminates the automatic stay as to both property of the estate as well as property not included in the estate. Debtor’s initial Chapter 13 case was dismissed for failure to make timely payments to the trustee. Debtor subsequently refiled under Chapter 13 but failed to file a motion extending the automatic stay under §362(c)(3)(B). Movant/mortgage holder thereafter filed a Motion to Confirm Termination or Absence of Stay.

Debtor answered by arguing that Debtor’s property is protected by the automatic stay because §362(c)(3)(A) applies to “the person and property of [the] debtor but not property of the estate.” The Court explicitly rejected the reasoning found in In re Pashcal, 337 B.R. 274 (Bankr. E.D.N.C. 2006) which argued that had the BABCPA’s drafters sought to eliminate the automatic stay in its entirety it would have mirrored the language found in §362(c)(4)(A)(i) (automatic stay does not come into effect at all upon the filing of a debtor’s third bankruptcy case within any one year). Here, the Court determined that “the drafters [of the BAPCPA] intended to terminate the automatic stay in its entirety” so as to discourage repeated bad faith filings.

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  • creditor

    I am a creditor (real estate note holder) in a bankruptcy case, Debtor had filed two cases within 1 year period. Co-Debtor husband is the co-borrower of the mortgage but is a non-filer. In the first case, I got stay lift due to Debtor failed to make post petition payments and failed to cure post-petition default. The first case eventually was dismissed because for reason she did not cooperate with trustee to enter wage withholding agreement. After her first case got dismissed, she immediately (within 12 days of previous dismissal, and 1 day prior to a scheduled foreclosure) refiled a new case. I doubt she’ll make any mortgage payment in this new case. My question is, if her 2nd case get dismissed again, then her husband files a bankruptcy, does debtor (husband now) still gets automatic stay? Husband filing as single case would be considered a brand new case, as if the couple never had any case dismissed?