In re Akwa

S. MARTIN TEEL, JR. U. S. BANKRUPTCY JUDGE

Chapter 13
Not for publication in West's Bankruptcy Reporter.

The debtor has filed a motion titled Motion to Extend Automatic Stay Against All Creditors as to Debtor Pursuant to 11 U .S.C. §§ 105(a), 362(c)(3)(A), (B); and to Recognize Continued Existence of Automatic Stay as to Property of the Estate. For the reasons stated by the court at a hearing of January 4, 2016, and as elaborated upon in this decision, the Motion must be denied.

Part of the motion seeks a determination that 11 U.S.C. § 362(c)(3) does not apply to property of the estate. The better interpretation is that § 362(c)(3) does apply to property of the estate. See In re Daniel, 404 B.R. 318 (Bankr. N.D. Ill. 2009); Laura B. Bartell, Staying the Serial Filer—Interpreting the New Exploding Stay Provisions of § 362(c)(3) of the Bankruptcy Code, 82 Am. Bankr. L.J. 201, 206-08, 218-26 (2008). See also, e.g., In re Reswick, 446 B.R. 362, 365 (B.A.P 9th Cir. 2011); In re Jupiter, 344 B.R. 754, 760, 762 n.12 (Bankr. D.S.C. 2006) (reporting that all of the bankruptcy judges of the district concurred with the opinion).

In this district, a decision, issued before In re Daniel was decided, viewed the statute differently from In re Daniel. See In re Tubman, 364 B.R. 574 (Bankr. D. Md. 2007). However, the Honorable Paul Mannes of this court has declined to follow In re Tubman, finding In re Daniel and In re Jupiter, and the afore-cited article by Professor Bartell, to be more persuasive. See In re Nwachukwu, Case No. 14-17937 (Dkt. No. 36), Transcript at 45, 46-47.

There are decisions issued after In re Daniel was decided that view the statute differently from In re Daniel by treating the language "with respect to the debtor" in § 362(c)(3) as unambiguous. See, e.g., In re Scott-Hood, 473 B.R. 133, 136 (Bankr. W.D. Tex. 2012). However, "[s]tatutory construction . . . is a holistic endeavor." United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). By interpreting the language "with respect to the debtor" in the context of the entirety of § 362(c)(3), In re Daniel represents a more holistic approach, and demonstrates that the language is ambiguous. For example, the opening phrase of § 362(c)(3) makes it applicable to a joint case filed by the debtor and the debtor's spouse when a single case of the debtor was dismissed within the preceding one-year period. The language "with respect to the debtor" would serve the purpose of clarifying that it is only with respect to the debtor whose prior case was dismissed, and not that debtor's spouse in the joint case, who under § 362(c)(3) faces the potential loss of the automatic stay. Upon determining that the statute is ambiguous, In re Daniel and similar decisions convincingly demonstrate that the only reasonable interpretation of § 362(c)(3) is that it applies to property of the estate.

Reading § 362(c)(3) as a whole, I conclude that the provision applies to property of the estate. The debtor's motion for a contrary declaration will be denied.

The debtor's motion also seeks to have the court extend the automatic stay pursuant to § 362(c)(3)(B). For reasons set forth on the record at the hearing of January 4, 2016, the debtor has not demonstrated that this case was filed in good faith. There has not been a substantial change in the debtor's financial evidence" that this case was filed in good faith. She did not carry that burden.

An order follows. Date signed January 05, 2016

/s/ _________

S. MARTIN TEEL
, JR.

U. S. BANKRUPTCY JUDGE

SITTING BY DESIGNATION

[Signed and dated above.] cc: Debtor; e-recipients of notice of orders.