11 U.S.C. § 362(c)(4); 11 U.S.C. § 105; Reimposition of Automatic Stay
In re Reed, Case No. 05-25051 (Bankr. N.D. Ga. February 2006)(Brizendine)
Debtors, having been debtors in a prior case within one year, filed a motion to reimpose the automatic stay pursuant to §362(c)(3), but scheduled a hearing on the motion after the expiration of 30 days after the petition date. The creditor argued that §362(c)(3)(B) required that if the hearing on such request is not held within 30 days, the court does not have jurisdiction to grant the request and reimpose the stay.
The court held that the debtors’ request to reimpose the stay was more properly characterized as a request under §105(a) as opposed to a reimposition of the automatic stay, and the relief is actually seeking to protect the court’s in rem jurisdiction over the debtors’ property. Therefore, seeking relief by motion, rather than a complaint, was appropriate. The court would hold a hearing to determine whether the debtors were entitled to the relief requested, with the standard of §362(c)(3)(C) being similar to the standard for the issuance of an injunction.
