IN RE CHAPTER 13, CHRISTIAN, (Bankr.D.Md. 1999)

E. Stephen Derby, Judge

Movant has requested in rem relief from the automatic stay against Debtor and her spouse based solely on bad faith multiple filings by Debtor and her spouse, without any allegation of harm to movant flowing from the multiple filings. Debtor answered and asserted she was "current on all post-petition installment loan payments" and that she "is willing and able to make post-petition payments, as well as all payments under her plan." Debtor failed to appear at the hearing to offer evidence that she had made all post-petition payments to movant as presumptively required by Local Bankruptcy Rule 3070-1(a) as adequate protection. See 11 U.S.C. § 362(g). Movant appeared through counsel, but offered no admissible evidence of particular harm resulting from the serial filings to justify relief from the automatic stay or the imposition of in rem relief that would adversely affect the rights of Debtor's nondebtor spouse.

Movant relies on In re Yiman, 214 B.R. 463 (Bankr. D. Md. 1997) where the bankruptcy court utilized its powers under 11 U.S.C. § 105 to impose an equitable servitude on real property of the Debtor and her spouse. The court found in granting the Trustee's motion to dismiss that there had been a continuous abuse of the bankruptcy process for the purpose of forestalling foreclosure, and the purpose of the equitable servitude was to prevent the automatic stay from extending to the subject property before a date certain, even if another bankruptcy case was filed. There are significant differences between Yiman and the subject motion.

Unlike Yiman, there has been no evidentiary showing here that the serial filings were an abuse of the bankruptcy process to forestall foreclosure. There is no allegation that movant had attempted to foreclose in the 176 days between dismissal of the immediately prior case and this one or in the more than 7 month bankruptcy free period in 1997-1998. Further, in Yiman the Lender's motion for in rem injunctive relief was denied, as must this motion, as procedurally deficient under Fed.R.Bankr.P. 7001(7). Consequently, the motion for in rem relief will be denied for failure to make the necessary showing and because it is procedurally deficient. The stay, however, will be conditioned on the Debtor making the monthly payments on the home loan in accordance with the terms of the applicable note. Among the payment provisions of the note are ones which (1) make payments due on the first of each month, (2) impose a late charge on payments made after the 15, and (3) require at least a 30th day notice on default and an opportunity to cure before the loan may be accelerated. Movant filed this motion first day after the first post-petition payment became subject to a late charge, and there is no allegation that notice of the opportunity to cure was given.

Therefore, it is, this 10th day of November, 1999, by the United States Bankruptcy Court for the District of Maryland,

ORDERED, that the Motion for In Rem Relief from Stay to Permit Foreclosure of Deed of Trust is denied; and it is further

ORDERED, that continuation of the automatic stay as to Movant is conditioned on Debtor making her regular monthly note payments to Movant as required by the terms of the note, as modified and amended.

cc: Edie C. Omer, Esquire The Fisher Law Group, PLLC 9440 Pennsylvania Avenue, Suite 350 Upper Marlboro, Maryland 20772

Nancy Howell Christian 5245 Rising Sun Lane Ellicott City, Maryland 21043

Ellen Cosby, Trustee P.O. Box 20016 Baltimore, Maryland 21284-0016

Office of the U.S. Trustee 300 West Pratt Street Suite 350 Baltimore, Maryland 21201