In this chapter 13 case, the Court granted the creditor's earlier § 362(j) motion for a declaration that the stay had automatically terminated under § 362(c)(3)(A) because Debtor had been a debtor in another case within the last year and had not been granted an extension of the stay under § 362(c)(3)(B). In that order, the Court cited to In re Holcomb, 380 B.R. 813 (B.A.P. 10th Cir. 2008), which held “the automatic stay terminates under § 362(c)(3)(A) only with respect to the debtor and the debtor's property but not as to property of the estate.” Id. at 816.
Subsequently, the creditor filed this motion for stay relief under § 362(d)(1). The creditor argued § 362(c)(3)(C) creates a rebuttable presumption that Debtor's case was filed in bad faith, and the creditor's burden to show cause for relief under § 362(d)(1) is satisfied if Debtor fails to rebut the presumption with clear and convincing evidence as provided under § 362(c)(3)(C). The Court rejected the creditor's argument, holding the effect of the § 362(c)(3)(C) rebuttable presumption of bad faith is limited to motions for extension of the stay under § 362(c)(3)(B).
The Court went on to hold Debtor had filed his Chapter 13 petitions in good faith, following the reasoning set forth in In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005), a post- BAPCPA repeat filing case. The Court analyzed a number of factors, including the length of time between petitions, the nature of the debts, the Debtor's motive, the effect on creditors, the reason the prior case was dismissed, the likelihood of funding and completing a plan, and the position of the creditors. Based on the evidence, the Court weighed those factors in Debtor's favor and denied relief from stay. The Court further noted that Creditor's collateral had substantial equity providing adequate protection, even if specific payments to cure any arrearage had yet to be finalized by the plan confirmation process.
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