Perhaps request injunction under 105?
Sent from my iPhone - please excuse typos.
> On Dec 9, 2015, at 5:50 PM, Shannon Doyle
sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
> Hi Nick I understand 362(c)(3)(B) and I know you can impose the stay after the third case but the problem here is client filed a second case and did not continue the stay. Thirty days lapsed and so now what? If the judge doesnt follow Rinard is the debtor out of luck for reimposing the stay? Lets say there is no stay and the lender doesnt act. The case gets confirmed. Is the lender then bound by the confirmation order?
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> Shannon A. Doyle
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> Attorney | Virtual Bankruptcy Assistant
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> Phone: 855-378-4080
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> Fax: 562-249-8435
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> Sent: Wednesday, December 09, 2015 4:41 PM
> To:
cdcbaa@yahoogroups.com
> Cc:
ngebelt@goodbye2debt.com
> Subject: RE: [cdcbaa] Motion to Impose Stay
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> Dear Giovanni,
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> I have reimposed the stay with a motion. See, e.g., 8:15-bk-11774-TA.
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> Given that: (a) there is a form for the motion, F 4001-1.IMPOSE.STAY.MOTION,
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> (b) there is nothing pertaining to reimposing the automatic stay in Fed. R. Bankr. Proc. 7001,
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> (c) LBR 4001-1(d) specifies that a motion should be used to extend or impose the stay,
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> (d) pursuant to 11 U.S.C. 362(c)(3)(B) the hearing on reimposing the stay must be completed before the postpetition thirty day period expires, and
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> (e) thirty days is insufficient time to prosecute an adversary proceeding to completion to reimpose the stay,
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> it is clear that the debtor must obtain the relief by motion rather than adversary proceeding.
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> However, you are quite correct that whether the stay terminates with respect to property of the estate (as opposed to the debtor) is up to the predilection of the judge. Although in In re Reswick, 446 B.R. 362 (B.A.P. 9th Cir. 2011) the BAP held that the stay terminates with respect to both the debtor and property of the estate on the thirty-first day after filing the second case, according to Judge Clarkson in In re Rinard, 451 B.R. 12 (Bankr. C.D. Cal. 2011), BAP decisions do not have precedential force. Therefore, in Rinard Judge Clarkson specifically rejected Reswick and held that the stay remains in effect regarding property of the estate, even though it no longer applies to the debtor.
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> And Shannon, 362(c)(3)(B) answers your question.
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> All the best,
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> Nick
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> Nicholas Gebelt
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> Nicholas Gebelt, Ph.D., J.D.
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> Attorney at Law
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> Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
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> Sent: Wednesday, December 09, 2015 3:46 PM
> To:
cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Motion to Impose Stay
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> I recall that an AP is needed. However, if the Judge in the case believes that the stay as to the estate has not expired in this second case, your client's assets may be protected anyway.
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> On Wed, Dec 9, 2015 at 3:24 PM, Mark Jessee
jesseelaw@aol.com [cdcbaa] wrote:
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> Must be filed and heard within 30 days of second case's filing.
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> Mark Jessee
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> Sent from my iPhone
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> On Dec 9, 2015, at 2:19 PM, Shannon Doyle
sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
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> Is a motion to impose the stay appropriate in a second filing within 1 year when the stay has already expired after 30 days of the filing of the second case?
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>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
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> Fax: 562-249-8435
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>
> --
>
> Giovanni Orantes, Esq.*
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