In re James, 2007 Bankr. LEXIS 152 (Bankr. S.D. Ga. January 17, 2007)(J. Barrett). Debtor filed her second case within a year, and filed a motion to continue the automatic stay beyond the thirty-day period of 11 U.S.C. §362(c)(3). The court denied the motion, as the debtor’s circumstances had not changed since her last case was dismissed for failure to make plan payments and, in fact, her income had decreased and her expenses had increased. "Upon the Court’s denial of the Motion, Debtor’s counsel immediately requested the Court deny the motion as moot, arguing that since no collection action was taken against the Debtor prior to the commencement of the current case, the automatic stay terminates as to no creditors, thereby mooting the motion." The court denied the motion.
At issue is the meaning of the terms "action taken" in 11 U.S.C. § 362 (c) (3) (A) which provides in pertinent part:
(c) Except at provided in (d), (e), (f), and (h) of this section-
(3)if a single or joint case is filed by or against 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 . . . (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. . . .
11 U.S.C. § 362 (c) (3) (A) (emphasis added by court).
The Debtor seizes upon the words "action taken" in § 362 (c) (3) (A) arguing that the automatic stay expires only as to creditors who have taken action prior to the filing of the second petition. The Court disagrees with this narrow reading of "action taken."
The Court finds that when "action taken" is read in context with the remaining provisions of § 362 (c) (3) its application is not limited to creditors that have taken action prior to the pendency of the current case. Subparagraphs (A), (B) and (C) of § 362 (c) (3) are conjunctive subparagraphs which should be read together. Section 362 (c) (3) (A) provides that the automatic stay with respect to any "action taken" shall terminate on the 30th day after the filing of the subsequent case. There is no temporal qualification on "action taken" that limits its application to past action. Section 362 (c) (3) (B) n5 provides on motion of a party in interest, if certain criteria are met, the Court may extend the stay as to "any or all creditors," not just creditors who have previously taken action. Then, § 362 (c) (3) (C) (i) n6 provides that cases filed by One Time Repeat Filers are presumptively filed in bad faith, but this presumption may be overcome as to "all creditors" if certain criteria are met. Finally, § 362 (c) (3) (C) (ii) n7 does instill a temporal element when it provides that the subsequent case is presumptively filed in bad faith "as to any creditor" that commenced a basic lift of stay proceeding during the pendency of the previous case and such action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor. Reviewing "action taken" in context of the entire § 362 (c) (3), the Court finds its application is not limited merely to creditors who have taken action prior to the pendency of the current case.
Section 362 (c) (3) is a new section added by BAPCPA, while §§ 362 (c) (l) and § 362 (c) (2), which both use the term "act" rather than "action taken," were adopted prior to BAPCPA and remain substantially unchanged by BAPCPA. Furthermore, the Court finds the plain and unambiguous language of § 362 (c) (3), when read in its entirety, indicates its application is not limited merely to creditors who have taken action prior to the filing of the current case.
The Paschal court also noted that the language of § 362 (c) (4) (A) (i) is different and concluded that Congress’ use of different language limited the scope of § 362 (c) (3) (A). While it may have been clearer if the language of the two sections tracked more closely, the two sections address different concepts. Section 362 (c) (3) addresses the One Time Repeat Filer and provides that the stay expires after 30 days, unless certain criteria are met. Whereas, § 362 (c) (4) addresses an individual debtor that has had 2 or more cases dismissed within a year of the filing of the subsequent case and provides that there is no stay, unless the court imposes one. Reading both sections in their entirety, the Court does not conclude that the omission of the "action taken" language from § 362 (c) (4) (A) (i) limits the scope of § 362 (c) (3) (A) to actions taken prior to the commencement of the current case.