Chapter 13 filed while 7 still pending-- never dismissed--- does 362(c) 30 day termination of the stay apply?
Posted: Sat Mar 21, 2015 6:14 pm
Client files chapter 7 case. It is an asset case and is pending-perhaps for years. We filed a concurrent chapter 13 to deal with substantial mortgage arrearages. A classic chapter 20.
11 U.S.C. 362(c)(3) in pertinent part states:
(3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707 (b) -
(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
(B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; and
(C) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)-
Does the 362(c) 30 day termination of the stay apply since the case was never dismissed? It would seem not to me, but would love some feedback. Thank you
Steve
Law Offices of Steven B. Lever
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