1

The court’s jurisdiction was not at issue. This Memorandum Opinion constitutes our

findings of fact and conclusions of law.

IN THE UNITED STATES BANKRUPTCY COURT

FOR WESTERN DISTRICT OF PENNSYLVANIA

IN RE:

Alberta Gillcrese Bankruptcy No. 05-50408 JKF 

Debtor Chapter 13

Bankers Trust Company of Related to Dkt. No. 25

California, N.A.

Movant

v. 

Alberta Gillcrese

and

Ronda J. Winnecour, Esquire (Trustee)

Respondents

Appearances:

Michael S. Geisler, Esq., Counsel to Debtor

Angela Abreu, Esq., Counsel to Bankers Trust Company of California, NA

MEMORANDUM OPINION1

This court issued an oral order denying the Motion to Confirm the Termination or

Absence of Stay on June 29, 2006. This memorandum opinion is in support of that order.

Movant, Bankers Trust Company of California, N.A., seeks a determination that the

automatic stay as to the property of the estate has been terminated pursuant to 11 U.S.C.

§362(c)(3)(A). The Debtor initially filed for bankruptcy under chapter 13 on June 3, 2002. 

Bankr. No. 02-26026 JKF. Due to the Debtor’s failure to make plan payments, the court

dismissed that case on September 21, 2005. Three months later, on December 18, 2005, the

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Debtor filed the instant chapter 13. No motion was filed to extend the automatic stay. For

purposes of the bank’s motion, the Debtor’s counsel concedes that the automatic stay as to the

Debtor’s property and the Debtor has terminated as a result of the passage of 30 days

following the Debtor’s second filing. Thus, those issues are not before the court and the court

offers no opinion thereon. The only issue before us is whether the automatic stay terminates

as to the property of the estate pursuant to 11 U.S.C. §362(c)(3)(A).

Section 362(c)(3)(A) is one of the provisions of the Bankruptcy Code added as a result

of the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

(BAPCPA). Since the addition of this section, bankruptcy courts have had the opportunity to

interpret §362(c)(3)(A). Several have stated that §362(c)(3) is poorly written. See, e.g., In re

Baldassaro, 338 B.R. 178, 182 (Bankr.D.N.H. 2006)(“poorly written”); In re Collins, 334

B.R.655, 658 (Bankr.D.Minn. 2005)(“clumsily drafted”). See also In re Paschal, 337 B.R.

274, 277 (Bankr.E.D.N.C. 2006). However, despite uncomplimentary prior reviews, the

mandatory initial step in statutory interpretation “is to determine ‘whether the language at

issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’”

 Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001) (quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 340 (1997)). “The plainness or ambiguity of statutory language is determined

by reference to the language itself, the specific context in which the language is used, and the

broader context of the statute as a whole.” Id. (quoting Robinson, 519 U.S. at 341). When

the court finds that the language at issue has a clear meaning, it “need not look further.” Id.

(quoting Robinson, 519 U.S. at 341). 

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Movant also directed this court to an opinion that contains language suggesting that

the court had uncovered a clear and “unmistakable” legislative intent that should control this

court’s interpretation of §362(c)(3)(A) and terminate the automatic stay as to the property of

the estate. In re Collins, 334 B.R. 655, 658 (Bankr.D.Minn. 2005). On closer inspection, that

court spoke generally about Congress’ intent with regard to §362(c)(3) in its entirety. More

recently, in a related opinion, that same court acknowledged the specific, unique statutory

language of §362(c)(3)(A). In re Taylor, 334 B.R. 660, 661 (Bankr.D.Minn. 2005).

3

Turning to the relevant language, §362(c)(3)(A) provides: 

“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). 

The movant’s interpretation of §362(c)(3)(A), that it terminates all the protections of

the automatic stay including the protection of the property of the estate, hinges upon the

legislative intent of BAPCPA. The sparse legislative history relevant to §362(c) states that

§362(c) was amended “to terminate the automatic stay within 30 days in a chapter 7, 11, or 13

case filed by or against an individual if such individual was a debtor in a previously dismissed

case pending within the preceding one-year period.” H.R. Rep. No.109-31(I) at 69 (2005),

reprinted in 2005 U.S.C.C.A.N. 88, 138.2

 The movant asserts that this is one of those “rare”

occasions where the “literal application of a statute will produce a result demonstrably at odds

with the intentions of its drafters.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,

242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). Thus,

rather than looking to the actual language of the statute, as the court is normally required to

do, the movant urges the court to consult the legislative history first, on the theory that the

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statute does not comport with the intent of Congress. In support of this argument, the movant

cites the Paschal opinion, supra, claiming that the Paschal court read an ambiguity in

§362(c)(3)(A) so as to require an inquiry into the legislative history. A reading of Paschal

establishes that the court found statutory irregularities only with regard to the prefatory

language of §362(c), which defines the repeat filers governed by §362(c), as opposed to the

language of §362(c)(3)(A), which deals with the property affected by the termination of the

automatic stay. Paschal, 337 B.R. at 277. In further search of support, the movant points to

the wording of §362(c)(4)(A)(i) which provides that when an individual debtor has filed for

bankruptcy three or more times in one year, after dismissal of the prior two or more cases,

“the stay under subsection (a) shall not go into effect upon the filing of the later case.” 11

U.S.C. §362(c)(4)(A)(i). The movant argues that the broad, expansive wording of that section

further bolsters the overriding intention of Congress to strictly limit the operation of the

automatic stay when the debtor in question is a repeat filer. However, the opposite conclusion

is equally as plausible. Congress must be presumed to know that it has used two differently

worded statutes that apply in two different circumstances.

Although the movant’s interpretation finds some support in the relevant legislative

history and the overall construction of §362(c), general legislative intent cannot overcome

specific, unambiguous statutory language. Garcia v. United States, 469 U.S. 70, 73 (1984),

rehearing denied 469 U.S. 1230 (1985). Indeed, “only the most extraordinary showing of

contrary [legislative] intentions ... would justify a limitation on the ‘plain meaning’ of the

statutory language.” Id. Undoubtedly, Congress intended to curtail the automatic stay under

some conditions for repeat filers through the addition of §362(c)(3)(A). Even if one chose to

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conclude that the statute is poorly written, the fact that Congress used different words and

made different choices to cover different circumstances is not justification to ignore the

explicit language of the statute when a specific provision is unambiguously clear. See Lamie

v. United States Trustee, 540 U.S. 526 (2004). Even though the provision may be “awkward,

and even ungrammatical . . . that does not make it ambiguous on the point at issue.” Id. at

534. Consequently, because the language at issue in this dispute is clear, this is not an

occasion to delve into the uncertain waters of legislative history. See Antonin Scalia, A Matter

of Interpretation 29-37 (Amy Gutmann ed., Princeton University Press 1997). 

Section 362(c)(3)(A) in relevant part concerning the dispute at hand is unambiguous.

The provision at issue in §362(c)(3)(A) provides that when an individual who has previously

had a bankruptcy case dismissed within one year files for bankruptcy again within that same

twelve-month period, the automatic stay “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). The plain language

of the statute clearly indicates that, after the 30 day period, the automatic stay will terminate

as to the debtor. Noticeably missing from this provision is any reference to the property of the

estate.

In contrast, §362(c)(4)(A)(i) takes a broader stance on the abrogation of the automatic

stay when the debtor files at least three such cases. That section prevents the automatic stay

under subsection (a) from taking effect at all when the third or later case is filed. If Congress

wanted to expansively sweep away the protections of the automatic stay in situations

governed by §362(c)(3)(A), it could have done so similarly to the way that it did in

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As noted at the outset, this court is not called upon to determine whether 

§362(c)(3)(A) reaches property of the debtor.

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§362(c)(4)(A). Instead, Congress limited the termination of the automatic stay in

§362(c)(3)(A) to the enumerated items. The Supreme Court has been very clear that when

“Congress includes particular language in one section of a statute but omits it in another . . . 

it is generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)). Thus, the “plain language” of 

§362(c)(3)(A) does not terminate the automatic stay as to the property of the estate after the

initial 30-day period expires.

Likewise the section is clear on its face that §362(c)(3)(A) applies to the debtor. This

is not a distinction without a difference. Acts against a debtor can be taken “with respect to a

debt . . . .” 11 U.S.C. §362(c)(3)(A). For example, an eviction action can be brought against

a debtor “with respect to” a lease. 11 U.S.C. §362(c)(3)(A). A suit against a debtor can be

taken on a note a debtor signed (i.e., “with respect to a debt”). 11 U.S.C. §362(c)(3)(A). 

These “in personam actions” can be brought whether or not an action is commenced “in rem”

against the res.3

This court is not alone in its interpretation of §362(c)(3)(A). Several courts have

reached the same conclusion. See, e.g., In re Johnson, 335 B.R. 805, 806 (Bankr.W.D.Tenn.

2006) (“the plain language of §362(c)(3)(A) dictates that the 30-day time limit only applies to

‘debts’ or ‘property of the debtor’ and not to ‘property of the estate’”); In re Jones, 339 B.R.

360, 365 (Bankr.E.D.N.C. 2006) (“It is abundantly clear from the plain language of 

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cc:

THE CASE ADMINISTRATOR WILL SERVE A COPY OF THIS MEMORANDUM

OPINION ON THE FOLLOWING:

Angela Sheffler Abreu, Esq.

c/o Tucker Arensberg

1500 One PPG Place 

Pittsburgh, PA 15222-5401

Michael S. Geisler, Esq.

410 Jonnet Building

Monroeville, Pa 15146

Jay B. Jones, Esq.

c/o Phelan Hallinan & Schmieg, LLP

One Penn Center at Suburban Station

1617 John F. Kennedy Boulevard, Suite 1400

Philadelphia, PA 19103-1814

Ronda J. Winnecour, Esq. (Trustee)

Suite 3250, USX Tower

600 Grant Street 

Pittsburgh, PA 15219

Office of the United States Trustee

1001 Liberty Avenue, Suite 970

Pittsburgh, PA 15222

Dated: 7/20/2006 

15:00:11

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