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In re Genaro

United States Bankruptcy Appellate Panel of the Ninth Circuit
May 14, 2007
BAP AK-06-1358-ZRB (B.A.P. 9th Cir. May. 14, 2007)

Opinion


In re: BRENDA GENARO, Debtor. BRENDA GENARO, Appellant, v. WELLS FARGO BANK, N.A., Appellee BAP No. AK-06-1358-ZRB United States Bankruptcy Appellate Panel of the Ninth CircuitMay 14, 2007

NOT FOR PUBLICATION

Argued and Submitted at Anchorage, Alaska, April 5, 2007

Appeal from the United States Bankruptcy Court for the District of Alaska. Bk. No. 06-00198. Honorable Donald MacDonald IV, Chief Bankruptcy Judge, Presiding.

Before: ZIVE, RIMEL and BRANDT, Bankruptcy Judges.

Hon. Gregg W. Zive, Chief Bankruptcy Judge for the District of Nevada, sitting by designation.

Hon. Whitney Rimel, Bankruptcy Judge for the Eastern District of California, sitting by designation.

MEMORANDUM

I

Debtor/Appellant, Brenda Genaro (" Genaro"), raises one issue on appeal: whether the bankruptcy court correctly applied 11 U.S.C. § 362(c)(3) to rule that the automatic stay had terminated thirty days after Genaro had filed her petition, when she had been a debtor in a prior case that had been dismissed less than a year earlier, and she took no action to continue the stay within the thirty days allowed by statute.

Unless otherwise indicated, all statutory references are to U.S.C. Title 11.

II

FACTS

Genaro filed a Chapter 13 bankruptcy petition March 24, 2006, in the District of Alaska, case number 06-0075. That case was dismissed May 2, 2006. The dismissal was not pursuant to § 707(b). Genaro filed a subsequent Chapter 13 bankruptcy petition June 9, 2006, giving rise to the present case. Creditor/Appellee, Wells Fargo Bank, N.A., (" Wells Fargo") asserts that it has a lien on or security interest in Genaro's residence. On July 28, 2006, more than thirty days after that petition was filed, Wells Fargo filed a motion pursuant to § 362(j) to confirm that the stay had terminated automatically by operation of § 362(c)(2). Genaro filed an objection to the motion on August 17, 2006. A hearing was originally set for August 29, 2006, but was rescheduled to September 12, 2006. One day prior to the hearing, on September 11, 2006, Genaro filed a motion for continuation of the automatic stay. On September 13, 2006, the bankruptcy court issued an Order, Memorandum, and Judgment confirming that the stay had terminated pursuant to § 362(c)(3). Genaro moved for reconsideration of the court's orders on September 20, 2006, and the court denied her request on September 22, 2006. Genaro filed her notice of appeal September 29, 2006.

The case out of which this appeal arises was Genaro's fifth bankruptcy filing. Genaro filed a Chapter 7 case in 2000, which resulted in a discharge; a Chapter 13 in 2001 which was dismissed in 2002; a second Chapter 13 in 2003 which was dismissed in 2004; a third Chapter 13 filed May 2, 2006, dismissed in 2006; and the current case filed June 9, 2006.

III

STANDARD OF REVIEW

The bankruptcy court's legal conclusions, including its interpretation of the Bankruptcy Code, are reviewed de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005).

IV

DISCUSSION

A. 11 U.S.C. § 362(c)(3)

The statute, in pertinent part, states as follows:

(c) Except as provided in subsections (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, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--

(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;

(B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; . . .

Among other things, the automatic stay prevents the enforcement of liens and security interests against a debtor's property. § 362(a)(4).

B. The Bankruptcy Court Properly Determined that the Stay Terminated Thirty Days after the Petition was filed in the Instant Case.

1. Plain Meaning of the Statute

The parties do not dispute the meaning of the statute.

Statutory interpretation begins with the plain language of the statute. U.S. v. Hanousek, 176 F.3d 1116, 1120 (9th Cir. 1999). The Supreme Court directs that " where, as here, the statute's language is plain, the sole function of the courts is to enforce it according to its terms." See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citation omitted).

Particular phrases of a statute must be construed in light of the overall purpose and structure of the whole statutory scheme. Hanousek, 176 F.3d at 1120 (citing United States v. Lewis, 67 F.3d 225, 228 (9th Cir. 1995)). " When we look to the plain language of a statute in order to interpret its meaning, we do more than view words or sub-sections in isolation. We derive meaning from context, and this requires reading the relevant statutory provisions as a whole." Id. (quoting Carpenters Health & Welfare Trust Funds v. Robertson (In re Rufener Constr.), 53 F.3d 1064, 1067 (9th Cir.1995)).

In reading § 362(c)(3) as a whole, the meaning is clear: if a debtor files a bankruptcy petition that is dismissed within one year of the filing of a subsequent petition, and where no motion and hearing to extend the duration of the automatic stay is completed within thirty days from the filing of the subsequent petition, the stay automatically terminates on the thirtieth day after the filing of the subsequent petition.

In the present case, there is no dispute that Genaro was a debtor in a Chapter 13 case that was dismissed within one year prior to the filing of the present case. As indicated in the facts above, Genaro was a debtor in a Chapter 13 case filed March 24, 2006. That case was dismissed May 2, 2006. The petition in her present case was filed June 9, 2006, a little over one month after the prior dismissal. Genaro did not file a motion to continue the stay until September 11, 2006, ninety-four days after the filing of her Chapter 13 petition in the instant case. Section 362(c)(3)(B) mandates that the motion and hearing be completed within thirty days. Genaro did not satisfy this requirement.

Genaro, however, contends that the statute should not apply to her because her current filing was not in bad faith. However, a showing that the latest bankruptcy filing is in good faith is only one of two requirements for continuing the automatic stay. The statute requires not only a showing of good faith, but that the party desiring that the stay remain in effect make that showing at a hearing " completed within the 30-day period." As indicated above, the statutory scheme set forth in § 362(c)(3)(B) was not satisfied by Genaro.

Neither party asserts Genaro acted with subjective bad faith.

Wells Fargo also notes that " [t]he fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning." Union Bank v. Wolas, 502 U.S. 151, 158, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991). In other words, Wells Fargo argues that the plain meaning of the statute must be given effect despite the fact that good faith filers who fail to extend the stay within thirty days may be harmed by the lifting of the stay. That is a correct statement of the law: the statute is clear, and the court's job is to apply it as written. Ron Pair Enterprises, Inc., 489 U.S. at 241. Therefore, regardless of Genaro's good faith, because she did not complete a motion and hearing to continue the stay within thirty days of filing her petition in the instant case, § 362(c)(3)(A) and (B) served to terminate the automatic stay in the present case on the thirtieth day after she filed her petition.

2. Pro Se Litigants

Pro se litigants are not excused from compliance with the rules. Warrick v. Birdsell, 278 B.R. 182, 187 (9th Cir. BAP 2002) (debtor's status as pro se litigant did not excuse her failure to understand and follow bankruptcy court rule governing time for appeal, particularly in light of fact that she held law degree and also ran paralegal firm); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (pro se litigant's good faith mistake as to deadline for demanding a jury trial not sufficient to grant relief to allow the untimely demand); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (noting that pro se litigants are not excused from following court rules); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (pro se litigants must follow same rules of procedure that govern other litigants); Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (noting in a criminal context that the right of self-representation is not a license to disregard relevant rules of procedural and substantive law).

Genaro argues that her present bankruptcy case was not a repeat filing within the intent of § 362(c)(3) and that she is a layperson who should not be held to strict compliance with the requirements of the statute. Being a layperson does not excuse Genaro from the requirements of the statute, especially in light of the fact that she has an extensive history of representing herself in bankruptcy. Pro se litigants must follow the same rules that govern other litigants. Pro se litigants are not excused from following bankruptcy court rules and certainly not from following substantive law.

Here, § 362(c)(3)(B) gave Genaro thirty days to request that the stay remain in effect. Her failure to do so is not excused because she is pro se.

C. Denial of Reconsideration

Genaro also appealed the bankruptcy court's order denying reconsideration in her notice of appeal, but she neither included any of the relevant papers in her excerpts of record, as required by Rule 8009 (b), Fed. R. Bankr. App., nor made any reference to it in her brief, much less presented any argument for its reversal. Although this panel frequently overlooks the former deficiency for pro se appellants and takes judicial notice of the pertinent items in the bankruptcy court's docket, In re Blumer, 95 B.R. 143, 146 (9th Cir. BAP 1988); In re Joseph, 208 B.R. 55, 58 (9th Cir. BAP 1997), ordinarily, the panel does not consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief. In re Jodoin, 209 B.R. 132, 143 (9th Cir. BAP 1997); see also Laboa v. Calderon, 224 F.3d 972, 981 n. 6 (9th Cir. 2000) (issues not specifically and distinctly argued in the opening brief are deemed waived). Without any argument at all we are handicapped; accordingly we deem any issue regarding the order denying reconsideration waived.

V

CONCLUSION

Genaro had the opportunity to show that the filing was not the type of abusive, repetitive filing that § 362(c)(3) serves to prevent. Genaro failed to avail herself of that opportunity within thirty days. Instead, ninety-four days after the filing of the petition Genaro finally moved to have the stay continued in effect. She did so too late, and the bankruptcy court properly confirmed that the automatic stay terminated thirty days after Genaro filed her bankruptcy petition in the present case. § 362(c)(3)(A) and (B); § 362(j). Additionally, Genaro has not shown any error in the bankruptcy court's denial of her motion for reconsideration.

Accordingly, we AFFIRM.


Summaries of

In re Genaro

United States Bankruptcy Appellate Panel of the Ninth Circuit
May 14, 2007
BAP AK-06-1358-ZRB (B.A.P. 9th Cir. May. 14, 2007)
Case details for

In re Genaro

Case Details

Full title:In re: BRENDA GENARO, Debtor. v. WELLS FARGO BANK, N.A., Appellee BRENDA…

Court:United States Bankruptcy Appellate Panel of the Ninth Circuit

Date published: May 14, 2007

Citations

BAP AK-06-1358-ZRB (B.A.P. 9th Cir. May. 14, 2007)