In other words, "the movant must carry the initial burden of establishing a prima facie case for relief under § 362(d)." In re Powell, 223 B.R. 225, 232 (Bankr. N.D. Ala. 1998); In re Kowalsky, 235 B.R. 590, 594 (Bankr. E.D.Tex. 1999). A prima facie case requires a showing by the movant of"a factual and legal right to the relief that it seeks." In re Elmira Litho, Inc., 174 B.R. 892, 902 (Bankr. S.D.N.Y. 1994).
The initial burden of proof of establishing a prima facie case under either subsection rests with the movant; thereafter, the burden shifts to the debtor. In re Powell, 223 B.R. 225, 232 (Bankr. N.D. Ala. 1998). The Court can quickly dispose of any argument that stay relief is due to be granted under Section 362(d)(2) and will thus address it first.
Although Debtor has a second vehicle, Debtor testified credibly that the Dodge Caravan is necessary for an effective reorganization. See, e.g.,In re Powell, 223 B.R. 225, 235 (Bankr. N.D. Ala. 1998) (holding that two vehicles were necessary for debtor's effective reorganization). Debtor has four children, two of which require child safety seats, and his wife is pregnant.
Ohlsson offered no proof that the asset was adequately protected. See In re Powell, 223 B.R. 225, 234 (Bankr. N.D. Ala. 1998) (explaining that a debtor can establish adequate protection of a creditor's interest in collateral by, inter alia, providing proof of periodic payments to the creditor, providing proof of an enforceable insurance policy on the collateral, and/or providing proof of proper maintenance of the property). The lack of protection is alone sufficient to support the court's decision to lift the automatic stay under § 362(d)(1). 11 U.S.C. § 362(d)(1).
Adequate protection includes providing proof of enforceable insurance on collateral. In re Powell, 223 B.R. 225, 234 (Bankr. N.D. Ala. 1998). Thus, to the extent that Mrs. Melincavage has failed to provide Ally with proof of proper insurance on the Vehicle, Ally is not being adequately protected and cause exists to grant the Motion.
. . . Once the movant establishes sufficient evidence of its prima facie case for relief, the debtor has the burden of proof on all issues other than his equity in the collateral under § 362(d)(2)." In re Powell, 223 B.R. 225, 232 (Bankr. N.D. Ala. 1998) (citations and footnotes omitted). As an initial matter, Serra has argued that the Hyundai is not property of the estate.
Grubbs v. Houston First American Sav. Ass'n., 718 F.2d 694, 698 (5th Cir.1983); In re Stafford, 123 B.R. 415, 420 (N.D.Ala. 1991) ("The clear language of section 1322(b)(5) ..."); In re Truss, 404 B.R. 329, 332 (Bankr.E.D.Wis.2009) (section 1322(b)(5) is specific and clear in its language); In re Hanson, 310 B.R. 131, 134 (Bankr.W.D.Wis.2004) (11 U.S.C. § 1322(b)(5) is specific and clear in its language); In re Powell, 223 B.R. 225, 231 (Bankr.N.D.Ala.1998); In re Stokes, 39 B.R. 336, 339 (Bankr.E.D.Va.1984) (the clear language of § 1322(b)(5)); In re Chambers, 27 B.R. 687 (Bankr.S.D.Fla. 1983). Congress enacted § 1322(b)(5) for treating long term debt on which the last payment is due after the date the final payment under the plan is due. House Report No. 95-595, 95th Cong. 1st. Sess. 429 (1977). It allows a debtor the discretion to "provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due."
Furthermore, Midfirst did not offer any evidence in support of its motion, although the movant has the burden of making an initial showing of "cause" for relief from the stay under section 362(d). In re Powell, 223 B.R. 225, 232 (Bankr. N.D. Ala. 1998). If the movant fails to make an initial showing of cause, the motion should be denied without further consideration. Capital Communications Federal Credit Union v. Boodrow (In re Boodrow), 126 F.3d 43, 48 (2nd Cir. 1997), cert. denied, 522 U.S. 1117 (1998). If the movant makes that initial showing, the burden falls on the debtor with respect to all other issues except for the issue of the debtor's equity in the collateral, which remains on the movant throughout. 11 U.S.C. § 362(g)(1) (2).
And while a debtor's failure to perform their statement of intent does not alone terminate the effect of the automatic stay, the notice function served by § 521(2)(A) means that a creditor can hardly be faulted for taking reasonable measures — including as here, the acceptance of payment — in reliance upon a debtor's stated intention. See In re Powell, 223 B.R. 225, 231-32 (Bankr. N.D.Ala. 1998). Finally, as it regards the issue of fairness, the structure and aims of the Bankruptcy Code cannot be ignored. It has never been the policy of the Bankruptcy Code to prevent Debtors from voluntarily agreeing to repay their debts.
See, e.g., In re Republic Techs. Int'l, LLC, 267 B.R. 548, 554 n. 3 (Bankr. N.D. Ohio 2001); In re Powell, 223 B.R. 225, 234 (Bankr.N.D.Ala. 1998). Likewise, allowing a creditor to inspect its collateral after making a reasonable request satisfies § 361(3).