FILED

U.S. Bankruptcy Appellate Panel

of the Tenth Circuit

February 27, 2015

Blaine F. Bates

Clerk

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE ROBERT ALYN RAEL and

LISA LYNN RAEL,

Debtors.

BAP No. WY-14-035

ROBERT ALYN RAEL and LISA

LYNN RAEL,

Appellants,

Bankr. No. 08-20251

Chapter 11

v. OPINION

*

WELLS FARGO BANK, N.A.,

Appellee.

IN RE ROBERT ALYN RAEL and

LISA LYNN RAEL,

Debtors.

BAP No. WY-14-048

ROBERT ALYN RAEL and LISA

LYNN RAEL,

Appellants,

Bankr. No. 08-20251

Chapter 11

v.

WELLS FARGO BANK, N.A.,

Appellee.

Appeal from the United States Bankruptcy Court

for the District of Wyoming

This unpublished opinion may be cited for its persuasive value, but is not

*

precedential, except under the doctrines of law of the case, claim preclusion, and

issue preclusion. 10th Cir. BAP L.R. 8026-6.

BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 1 of 18
Before KARLIN, SOMERS, and JACOBVITZ, Bankruptcy Judges.

KARLIN, Bankruptcy Judge.

Debtors Robert and Lisa Rael (the “Raels”) contend that after their case

was closed and they defaulted on their confirmed individual Chapter 11 plan,

their main creditor Wells Fargo Bank, N.A. (“Wells Fargo”) was required to

return to the bankruptcy court to enforce its preserved lien rights rather than

proceed in state court. They contend Wells Fargo violated the stay when it failed

to do so. Because we agree with the bankruptcy court’s decision that there was

no violation of the automatic stay, and that the bankruptcy court did not have

exclusive jurisdiction to enforce the terms of the Raels’ confirmed plan, we affirm

the decisions of the bankruptcy court.

1

I. Procedural Timeline

The timeline and procedural posture of the Raels’ case, while not unique to

individual Chapter 11 proceedings generally, lead to the underlying disputes. The

bankruptcy court confirmed the Raels’ individual Chapter 11 plan, and the Raels

elected to close their case prior to receipt of a discharge. Wells Fargo

subsequently filed two state court actions: one to enforce the terms of the

confirmed Chapter 11 plan based on the Raels’ plan default and one to determine

lien priorities. The state court entered judgment against the Raels in the first case

(without objection by the Raels as to the state court’s jurisdiction or power to

hear the matters). Sometime later, the Raels reopened their Chapter 11 case and

filed a motion to show cause and/or for contempt against Wells Fargo.

The parties did not request oral argument, and after examining the briefs

1

and appellate record, the Court has determined unanimously that oral argument

would not significantly aid in the determination of this appeal. See Fed. R.

Bankr. P. 8019(b)(3). The case is therefore ordered submitted without oral

argument.

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 2 of 18
The Raels argued both that: 1) Wells Fargo violated the automatic stay of

11 U.S.C. § 362(a) because of its enforcement actions against property of the

2

estate, and 2) that Wells Fargo violated the terms of the Raels’ confirmed Chapter

11 plan by seeking relief in state court, rather than in the bankruptcy court. The

bankruptcy court ruled that there was no stay violation. It cited both § 362(c)(2),

which states that “the stay of any other act . . . continues until . . . the time the

case is closed,” and Houlik, a Tenth Circuit BAP opinion applying § 362(c) to

3 4

an individual Chapter 11 case and holding that the automatic stay terminated as to

estate property upon plan confirmation under § 362(c)(1) and as to all other

property upon the closing of the case under § 362(c)(2). The bankruptcy court

5

also rejected the Raels’ argument that the bankruptcy court had exclusive

jurisdiction to enforce the provisions of their plan and that the state court actions

were, therefore, improper. It again relied on Houlik, which held that when there

is no automatic stay or discharge injunction violation to support jurisdiction, a

bankruptcy court does not have jurisdiction to determine a post-confirmation

wrongful possession action.

6

After the bankruptcy court denied their motion to show cause and/or for

contempt, the Raels requested reconsideration, this time focusing their argument

on § 362(c)(1). The bankruptcy court again denied the motion, this time ruling

that it was inappropriate for the Raels to advance new arguments in a motion for

reconsideration. The Raels appealed both orders in their first appeal. But they

All future statutory references are to Title 11 of the United States Code,

2

unless otherwise specified.

11 U.S.C. § 362(c)(2)(A).

3

In re Houlik, 481 B.R. 661 (10th Cir. BAP 2012).

4

Id. at 669-70.

5

Id. at 676.

6

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 3 of 18
were not done; advancing a “continuing violation” theory, they then filed yet

another motion to show cause and/or for contempt, presenting the same

arguments. The bankruptcy court again denied the motion on the same bases,

resulting in a second appeal. The Raels’ appeals were companioned by this Court

and are resolved by this opinion.

II. Background Facts

The Raels filed an individual Chapter 11 bankruptcy petition in 2008, and

their plan was confirmed in January 2010. The plan provided they would not

receive a discharge until they completed all payments under their plan. About a

year after their plan was confirmed, they filed a final report and motion for final

decree, seeking to close their case to avoid paying the United States Trustee’s

quarterly fee assessments. Over objections by both the United States Trustee and

Wells Fargo, the bankruptcy court entered a Final Decree and Order Closing Case

in March 2011. Neither the motion requesting case closing nor the resulting order

addressed any aspect of the automatic stay or suggested the closing was anything

but a full and complete closure of the case.

Several months after the case was closed, Wells Fargo filed a motion to

dismiss or convert the bankruptcy case based on the Raels’ default. The Raels

objected, arguing that because their case was closed, the bankruptcy court did not

have jurisdiction to grant relief. The motion remained undecided, and the

bankruptcy court later noted it had not ruled on Wells Fargo’s motion because the

case was closed.

Finding no relief at the bankruptcy court, Wells Fargo filed a complaint in

state court in November 2011, alleging the Raels had breached their contract

when they defaulted on the terms of the confirmed plan. The Raels answered the

state court complaint, failing to raise any jurisdictional defense to that court

hearing the matter, and the state court entered judgment for Wells Fargo in

September 2012.

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 4 of 18
A few months later, in December 2012, Wells Fargo next filed a state court

action seeking a determination that Wells Fargo had a superior lien over lien

rights of other defendants/creditors in certain property that the Raels acquired

before they commenced their Chapter 11 bankruptcy case. Wells Fargo then

installed a locked fence around one of the properties in February 2013.

More months passed. On May 28, 2013, the Raels moved to reopen their

bankruptcy case to enforce the terms of their confirmed plan and to bring a

contempt action for Wells Fargo’s alleged violation(s) of the automatic stay. The

court reopened the Raels’ bankruptcy case in June 2013. Several months later, in

September 2013, the parties filed a stipulated motion for relief from automatic

stay to allow Wells Fargo to foreclose on the subject properties (i.e., the

properties that were the subject of the state court proceedings). The order

approving that stipulated motion was entered on October 21, 2013.

Notwithstanding their stipulation to the bankruptcy court granting stay

relief, the Raels filed their first motion to show cause and/or for a finding of

contempt by the bankruptcy court on October 15, 2013. They alleged that Wells

Fargo was in contempt for violating §§ 362(a)(3), (5), and (6) based on the state

court actions filed before the stipulated stay relief, and for violating terms of the

Raels’ confirmed Chapter 11 plan, generally alleging that the property at issue

remained property of the estate and subject to the automatic stay. While this

motion was pending—but after the stipulated relief order was entered, Wells

Fargo proceeded to change the locks at two of the properties, and, in January

2014, foreclosed on them.

Several months later, in April 2014, the bankruptcy court denied the Raels’

contempt motion, finding there was no stay violation and that Wells Fargo was

entitled to enforce its rights under the confirmed plan in state court. As stated

above, the bankruptcy court also denied a subsequent motion for reconsideration

and a second motion for an order to show cause and/or for contempt. The appeals

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 5 of 18
that are the subject of this opinion followed.

III. Jurisdiction and Standard of Review

This Court has jurisdiction to hear timely-filed appeals from “final

judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,

unless one of the parties elects to have the district court hear the appeal. Neither

7

party elected to have this appeal heard by the United States District Court. The

parties have therefore consented to appellate review by this Court. The orders of

the bankruptcy court (i.e., denying the Raels’ first motion to show cause and/or

for contempt, motion for reconsideration, and second motion to show cause and/or

for contempt) fully and finally resolved the parties’ disputes and are therefore

final orders for purposes of appeal. The Raels timely appealed those orders and

8

this Court, therefore, has jurisdiction over the appeals.

The issues raised in these appeals are legal issues, which this Court reviews

de novo. “De novo review requires an independent determination of the issues,

9

giving no special weight to the bankruptcy court’s decision.”

10

28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002 (now also

7

at Fed. R. Bankr. P. 8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001-3

(now codified at 10th Cir. BAP L.R. 8005-1, effective December 1, 2014).

See In re Eneco, Inc., No. UT-09-013, 2010 WL 744351, at *4 (10th Cir.

8

BAP Mar. 2, 2010) (bankruptcy court order denying motion for contempt is final

for purposes of review).

Jantz v. Karch (In re Karch), 499 B.R. 903, 906 (10th Cir. BAP 2013)

9

(interpretation of statutory language is reviewed de novo) (citing Pierce v.

Underwood, 487 U.S. 552, 558 (1988)); Diviney v. Nationsbank of Tex., N.A. (In

re Diviney), 225 B.R. 762, 769 (10th Cir. BAP 1998) (“Whether a party’s actions

. . . violated the automatic stay is a question of law [that] is reviewed de novo.”)

(quoting Barnett v. Edwards (In re Edwards), 214 B.R. 613, 618 (9th Cir. BAP

1997)); Korngold v. Loyd (In re S. Med. Arts Cos., Inc.), 343 B.R. 250, 254 (10th

Cir. BAP 2006) (bankruptcy court’s subject matter jurisdiction is an issue of law

that is reviewed de novo) (citing Salt Lake Tribune Pub. Co., LLC v. AT & T

Corp., 320 F.3d 1081, 1095 (10th Cir. 2003)).

AG New Mexico, FCS, ACA v. Borges (In re Borges), 510 B.R. 306, 321

10

(10th Cir. BAP 2014) (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 238

(1991)).

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 6 of 18
IV. Discussion

A. Application of the Automatic Stay in Individual Chapter 11

Cases Post-confirmation

The filing of a petition in bankruptcy automatically imposes a stay that

prohibits most attempts by a debtor’s creditors to enforce their claims. The

11

duration of that stay is generally defined in § 362(c). The issue in this appeal is

whether the stay in the Raels’ case remained in effect when Wells Fargo initiated

state court proceedings or otherwise enforced its rights under the Raels’

confirmed plan.

The relevant subsections of § 362(c), which are subject to specific

exceptions not applicable here, provide:

(1) the stay of an act against property of the estate under subsection (a)

of this section continues until such property is no longer property of the

estate;

(2) the stay of any other act under subsection (a) of this section

continues until the earliest of–

(A) the time the case is closed;

(B) the time the case is dismissed; or

(C) if the case is a case . . . under chapter 9, 11, 12, or 13 of this

title, the time a discharge is granted or denied[.]

12

The Raels contend that Wells Fargo’s enforcement actions were taken against real

property that constituted property of the estate and, therefore, § 362(c)(1) is the

applicable subsection. But the bankruptcy court concluded that the stay

terminated as to all of the Raels’ property when they elected to close their case in

March 2011. All of Wells Fargo’s disputed conduct occurred between November

2011 (when it filed the first state court complaint) and February 2013 (when it

fenced in and locked one of the disputed properties). Thus, if the stay terminated

when the bankruptcy court closed the case in March 2011, there was no stay in

place that Wells Fargo’s subsequent enforcement efforts could violate.

11 U.S.C. § 362(a).

11

11 U.S.C. § 362(c)(1)-(2) (emphasis added).

12

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 7 of 18
On appeal, the Raels argue that the automatic stay remains in effect in

individual Chapter 11 cases post-confirmation because of the interplay between

§§ 362(c)(1), 1141(b), and 1115(a). The Raels, as the party alleging a stay

violation, bear the burden to prove Wells Fargo violated the stay.

13

As noted above, § 362(c)(1) expressly states that the automatic stay “of an

act against property of the estate . . . continues until such property is no longer

property of the estate.” Section 1141(b) then states that “[e]xcept as otherwise

14

provided in the plan or the order confirming the plan, the confirmation of a plan

vests all of the property of the estate in the debtor.” Because the plan and

15

confirmation order the Raels drafted did not elect to provide otherwise, the simple

reading of these two statutes resulted in all property of the estate, at least as it

existed on the date of confirmation, vesting in the Raels at confirmation. As a

result, the automatic stay protecting that property—which included the property

the Raels had pledged to Wells Fargo—terminated upon confirmation of the

Raels’ plan in January 2010.

The Raels argue that § 1115(a) conflicts with § 1141(b), because § 1115(a)

states that in individual Chapter 11 cases, property of the estate includes property

“acquire[d] after the commencement of the case . . .” and “earnings from services

performed by the debtor after the commencement of the case . . . ,” as long as that

property was acquired or earned “before the case is closed, dismissed, or

converted . . . .” The Raels then analogize these Chapter 11 sections to similar

16

Chapter 13 sections, and discuss the split of authority in Chapter 13 cases over

See Johnson v. Smith (In re Johnson), 501 F.3d 1163, 1171-72 (10th Cir.

13

2007).

11 U.S.C. § 362(c)(1).

14

11 U.S.C. § 1141(b).

15

11 U.S.C. § 1115(a)(1)-(2).

16

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 8 of 18
whether the property of the estate remains property of estate after confirmation

until discharge, and is therefore protected by the automatic stay. In the Chapter

13 context, there is no Tenth Circuit or BAP opinion deciding this issue, and

17

there are no opinions at all on the issue in the Chapter 11 context.

There is no real dispute that the bankruptcy court did not address this

argument (analogizing Chapter 11 provisions to Chapter 13 cases and the split in

the case law in those cases). And Wells Fargo responds to this argument, and the

Raels’ appeal, by arguing that the Raels waived this argument on appeal by

failing to make the same argument at the bankruptcy court. It is true that the

Raels’ briefing and advocacy on this issue at the bankruptcy court are not clear.

In their first motion for an order to show cause and/or for contempt, the Raels

only generally argued that the real property at issue was property of the estate and

subject to the automatic stay. In their motion for reconsideration, in response to

the bankruptcy court’s ruling that § 362(c)(2) and Houlik defeated their claims,

however, the Raels then pushed the issue that § 362(c)(1), rather than § 362(c)(2),

should be considered by the bankruptcy court.

The bankruptcy court, in ruling on the motion for reconsideration, held that

it was not appropriate for the Raels to advance the § 362(c)(1) argument, because

the Raels could have raised the argument in their prior briefing and did not. It

was not until briefing in support of their second motion for show cause and/or

contempt that the Raels fully briefed their argument about the interplay between

The Tenth Circuit has recognized the split in the Chapter 13 case law

17

concerning the Chapter 13 vesting provisions and property of the estate, but has

not indicated which approach it will follow. See United States v. Richman (In re

Talbot), 124 F.3d 1201, 1207 n.5 (10th Cir. 1997) (acknowledging question over

the vesting provisions of § 1327(b) and its impact on estate property upon

confirmation of a Chapter 13 plan). The Tenth Circuit BAP has done the same.

See In re Vannordstrand, 356 B.R. 788, No. KS-05-091, 2007 WL 283076, at *2

(10th Cir. BAP Jan. 31, 2007) (noting the “disputed issue” of whether “the

‘vesting’ of estate property in the debtor [in a Chapter 13 case] acts to terminate

§ 1306’s inclusion of post-petition acquired property in the estate” but

determining it need not decide the issue in that case).

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 9 of 18
§§ 362(c)(1), 1141(b), and 1115(a) and their analogy to the Chapter 13 case law.

Ultimately, it is a close call whether the Raels sufficiently and timely

raised the argument at the bankruptcy court that they now press on appeal. But

18

because the Raels’ argument is without merit based on the simple application of

the plain language of the Bankruptcy Code to the facts of this case, and based on

binding precedent, we elect to dispose of it.

Debtors do not satisfactorily address the Tenth Circuit BAP opinion in

Houlik, which has facts and issues similar to those at hand. In Houlik, after the

19

individual Chapter 11 debtors’ plan was confirmed, the court administratively

closed the case prior to debtors’ receipt of their discharge. The debtors’

20

confirmed plan expressly vested all property in the debtors at confirmation. The

21

debtors reopened their bankruptcy case several months later, alleging a violation

of the automatic stay as well as a violation of the discharge injunction and the

plan confirmation order. Regarding the alleged violation of the automatic stay,

22

the Houlik panel applied § 362(c) and held the following:

Pursuant to § 362(c)(1), the stay of an act against property of the estate

continues only until such property is no longer property of the estate.

As a result, in this case [where the plan itself vested property in the

debtors upon confirmation], the automatic stay imposed with respect to

the [property] when the [debtors] filed their Chapter 11 petition

terminated upon Plan confirmation. Additionally, § 362(c)(2) provides

that the stay of any other act against the [debtors] to collect on a

prepetition claim continues only until the case is closed, the case is

The review applicable on appeal would change if the Raels had not

18

properly raised the issue at the bankruptcy court. See Barber v. T.D. Williamson,

Inc., 254 F.3d 1223, 1227 (10th Cir. 2001) (noting that when an appellant failed

to timely raise an issue in the lower court, then the only review available is for

plain error) (citing Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1289 (10th

Cir.1999)).

Houlik, 481 B.R. at 661.

19

Id. at 664.

20

Id.

21

Id.

22

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 10 of 18
dismissed, or a discharge is granted or denied, whichever occurs first.

Thus, any stay of actions against the [debtors] terminated when their

case was closed . . . . As a result, [the creditor] cannot be sanctioned for

repossession of the [property] as a violation of the automatic stay.

23

The Houlik decision did not address the Raels’ current argument about the

interplay between §§ 362(c)(1), 1141(b), and 1115(a), likely because that court

did not believe it needed to. The Houlik decision applies the plain language of

§ 362(c) and concludes that the automatic stay terminated as to property of the

estate upon plan confirmation, and terminated as to all other property upon case

closing.

24

The Raels attempt to distinguish Houlik by emphasizing that the Chapter 11

plan in Houlik expressly vested property of the estate in the debtors upon plan

confirmation, while their plan is silent as to vesting. But that is a distinction

without a difference, since the plan in Houlik did only what the Bankruptcy Code

dictates for all cases—i.e., vesting property of the estate with all debtors upon

plan confirmation under § 1141(b) (unless the plan provides otherwise). As Wells

Fargo argues, the vesting language in Houlik was essentially redundant because

the Code provides the same result. As a result, the Raels’ argument finds no

support in the Tenth Circuit. Just as in Houlik, the stay of actions against

25

property of the estate terminated upon the Raels’ plan confirmation under

§ 362(c)(1) and § 1141(b). As such, their argument that Wells Fargo violated the

Id. at 669-70 (internal citations omitted).

23

Id.

24

The Raels also contend that the bankruptcy court’s interpretation of

25

§ 362(c)(2), as ending any automatic stay upon closure of the case, renders

subsection (c)(1) “surplusage” because closure is irrelevant to (c)(1). However,

(c)(1) terminates the stay when estate property no longer belongs to the estate.

That happens upon confirmation under § 1141(b), which is prior to termination of

the stay under (c)(2). Moreover, § 1141(b) specifically allows debtors to control

whether or not estate property vests with them upon confirmation by allowing

them to “provide otherwise.” As a result, the Raels could have preserved the

automatic stay for a time by simply including such a provision in their plan.

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 11 of 18
automatic stay when it began its state court enforcement actions is misplaced, as

the property pledged to Wells Fargo was not estate property at that point.

Likewise, the stay that applies to all other acts terminated under § 362(c)(2) when

the Raels voluntarily elected to close their case prior to discharge. Thus, there

was no automatic stay violation at all.

The addition of § 1115(a) by BAPCPA, and the interplay of that section

26

with §§ 362(c)(1) and 1141(b), although not addressed by Houlik, also have no

impact here. The Raels analogize these sections to similar provisions in the

Chapter 13 context, and rely on cases outside the Tenth Circuit that essentially

27

ignore § 1327(b) (which, like § 1141(b), vests estate property with the debtor

upon confirmation unless otherwise provided) on the basis of a perceived

“conflict” between re-vesting estate property with the debtor and § 1306(a)

(which, like § 1115(a), includes an individual debtor’s post-petition assets in the

bankruptcy estate). The “conflict” that some courts have found between

§ 1327(b) and § 1306(a) is that, although estate property “vests” in a debtor upon

plan confirmation under § 1327(b), an individual debtor’s property and wages

acquired post-petition are considered to be “estate property” under § 1306(a) until

“the case is closed, dismissed, or converted.” Thus, in the event that 1) neither

28

the plan nor the confirmation order provides that estate property shall remain

BAPCPA refers to the Bankruptcy Abuse Prevention and Consumer

26

Protection Act, Pub. L. 109-8, 119 Stat. 23, a major statutory revision of the

Bankruptcy Code in 2005.

The Raels cite United States v. Harchar, 371 B.R. 254 (N.D. Ohio 2007)

27

and In re Kolenda, 212 B.R. 851 (W.D. Mich. 1997) as cases finding that, in spite

of § 1327(b), estate property remains estate property (and therefore protected by

the automatic stay) after confirmation.

See, e.g., United States v. Harchar, 371 B.R. 254, 264 (N.D. Ohio 2007)

28

(noting the “contradiction” between § 1306 providing “that earnings and property

are property of the estate until the case is closed, dismissed or converted, while

plan confirmation occurs before any of these events and “vests all of the property

of the estate in the debtor” under [§] 1327”); In re Kollenda, 212 B.R. 851,

852–53 (W.D. Mich. 1997) (describing “conflict” between § 1306 and § 1327).

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 12 of 18
vested in the estate upon confirmation, and 2) the debtor acquires property or

wages between confirmation and the closure, dismissal, or conversion of his case,

what was previously estate property will be vested with the debtor and property

acquired by the debtor after confirmation (that would not have been estate

property except for application of § 1306(a) or § 1115(a)) is estate property by

virtue of those provisions. These courts then conclude that the property is

protected by the automatic stay set forth in § 362(c)(1).

29

But even if there was controlling Tenth Circuit precedent on this issue,

which there is not, § 1115(a) is simply inapplicable to the Raels. Again,

30

§ 1115(a) states that in individual Chapter 11 cases, property of the estate

includes property “acquire[d] after the commencement of the case . . .” and

“earnings from services performed by the debtor after the commencement of the

case . . . ,” as long as that property was acquired or earned “before the case is

closed, dismissed, or converted . . . .” The logical reading of this statute is,

31

then, that it governs only what property enters the estate; it has no effect on the

termination of the automatic stay under § 362(c) in this case. The property that

was the subject of Wells Fargo’s actions was property on which Wells Fargo had

a prepetition lien. Thus, by definition, this was not property the Raels acquired or

earned after they filed their case and before case closure, as required for the

express terms of § 1115(a) to apply.

See, e.g., In re Kollenda, 212 B.R. at 855 (concluding “even if the property

29

in the estate at the time of confirmation is transferred to the debtor under §

1327(b), the estate continues to exist, and property acquired post-confirmation is

added to the estate until the case is ‘closed, dismissed, or converted’) (quoting In

re Fisher, 203 B.R. 958, 962 (N.D. Ill. 1997)).

Obviously, the issue as it arises in Chapter 13 cases is very far afield from

30

what is squarely presented here. We express or imply no opinion on the split in

authority found in the Chapter 13 case law; this is not the proper case to weigh

the differing approaches.

11 U.S.C. § 1115(a)(1)-(2).

31

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BAP Appeal No. 14-35 Docket No. 49 Filed: 02/27/2015 Page: 13 of 18
As a result, the stay of Wells Fargo’s actions against property of the estate

had long since terminated—in January 2010 when the plan was

confirmed—pursuant to the plain language of § 362(c)(1) and § 1141(b). The

Raels could have chosen a different vesting time, as permitted by § 1141(b), but

they elected not to do so. Therefore, the confirmation of their plan vested all

property of the estate in them (under § 1141(b)) and the automatic stay ceased as

to that property at plan confirmation (under § 362(c)(1)). The stay against all

other acts terminated, by the express language of § 362(c)(2), when the Raels

elected to close their case.

32

Once again, the Raels made this choice; they voluntarily sought the closing

of their case after plan confirmation in order to avoid further Chapter 11 fees.

And they used the fact the case was closed as a shield when Wells Fargo

attempted to dismiss or convert the Chapter 11 case after the Raels failed to

perform under the confirmed plan. They will not now be heard to suggest the

closing was something less than is contemplated by the express words of

§ 362(c)(2)(A).

Based on the timeline outlined herein, the Wells Fargo actions about which

Because of this, the Raels’ passing argument about the applicability of

32

§ 362(a)(5) is misplaced. Section 362(c)(2) terminated any stay under § 362(a).

The Raels also argue their Chapter 11 case was closed as a mere

administrative matter so they could avoid paying fees to the United States

Trustee, and that, therefore, § 362(c)(2) is somehow inapplicable. Regardless of

the Raels’ motive for closure, however, the Bankruptcy Code does not distinguish

amongst motives for case closure. The Raels further argue that the automatic stay

was reinstated when they reopened their Chapter 11 case. But, again, the only

actions Wells Fargo took after the case was reopened occurred after entry of the

stay relief order to which the Raels had agreed. The Raels then argue that the

reopening of their case somehow retroactively restored the automatic stay. Even

if the Raels had made this argument more than superficially, which they did not,

we need do no more than mention here that the Code does not provide for such

retroactivity. Cf. In re Singleton, 358 B.R. 253, 261 (D. S.C. 2006) (analyzing

automatic stay in Chapter 13 case, and noting that “[w]hile the Bankruptcy Code

[may grant] a bankruptcy court the power to retroactively grant relief from a

stay . . . ,” there is no authority in the Code “that grants the bankruptcy court

power to retroactively impose a stay. . . .”) (internal citations omitted).

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the Raels complain occurred between November 2011 and February 2013. The

Raels’ Chapter 11 plan was confirmed in January 2010, and their Chapter 11 case

was closed in March 2011. Under § 362(c)(1), the stay of acts against property of

the estate terminated in January 2010 upon confirmation, and “the stay of any

other act . . .” terminated in March 2011 upon case closure. The bankruptcy

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court was correct to conclude there were no automatic stay violations by Wells

Fargo and to deny the Raels’ motions alleging violations.

B. Jurisdiction to Enforce the Terms of the Confirmed Chapter 11

Plan

The Raels also argue on appeal that the bankruptcy court had exclusive

jurisdiction to enforce the provisions of their Chapter 11 plan, and that, therefore,

Wells Fargo’s state court action for breach of the plan provisions was improper.

The bankruptcy court rejected this argument, again based on Houlik. The

majority in Houlik held that when there is no automatic stay or discharge

injunction violation to support jurisdiction, and there is no issue involving

noncompliance with or interpretation of a confirmed plan, a bankruptcy court

does not have jurisdiction to determine a post-confirmation wrongful repossession

action.

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In Houlik, the majority opinion considered whether a bankruptcy court has

authority to sanction a creditor for violating a confirmation order when there is no

violation of the automatic stay or the discharge injunction. The majority

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opinion first noted that jurisdiction retention language in a plan “cannot broaden a

bankruptcy court’s jurisdiction . . . ,” and found any attempt to do so with such

11 U.S.C. § 362(c)(2).

33

Houlik, 481 B.R. at 676.

34

Id. at 672-73.

35

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language to be irrelevant. The majority then analyzed 28 U.S.C. § 157(b), and

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concluded that the debtors’ claim in that case was not a core proceeding, and was,

in fact, a non-core proceeding that could have been brought in state court for

breach of contract or wrongful repossession. As a non-core proceeding, the

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bankruptcy court could only have jurisdiction if the action was “sufficiently

related to the [debtors’] Chapter 11 bankruptcy case.” Based on the Tenth

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Circuit’s definition of “related to” jurisdiction, and cases from outside the Tenth

Circuit applying that definition, the majority opinion in Houlik held that, no

matter how the “related to” definition is interpreted, the post-confirmation

jurisdiction of a case—where assets have re-vested in debtors, the plan is

substantially consummated and administered, and the creditor retains its rights in

the collateral pursuant to the plan—does not extend to the bankruptcy court to

sanction a plan violation. The majority opinion concluded:

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Even though it is brought by the debtors, the action affects neither an

integral aspect of the bankruptcy process, nor the interpretation,

implementation, consummation, execution, or administration of the

confirmed plan. That is, of course, not to say there is no remedy for the

[debtors] in this situation—only that it is a state court remedy and not

a bankruptcy court remedy. . . . [T]he bankruptcy court’s jurisdiction

following confirmation . . . is reserved for matters that impact the

bankruptcy process directly or involve interpretation or execution of the

plan of reorganization.

40

The concurring opinion in Houlik agreed that the creditor’s exercise of its

lien rights retained under the plan did not require either interpretation or

enforcement of the plan, which would have been something over which the

Id. at 672 n.72 (internal citation omitted). Likewise, the jurisdiction

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retention language in the Raels’ plan is irrelevant in the same way.

Id. at 674.

37

Id.

38

Id. at 675-76.

39

Id. at 676-77.

40

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bankruptcy court retained jurisdiction, but it objected to the majority’s failure to

acknowledge the importance of such post-confirmation jurisdiction (whether it be

core or ancillary) by considering it only under a “related to” analysis.

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Regarding state court jurisdiction, the concurrence specifically noted that “[t]he

state court would have concurrent jurisdiction to enforce the Plan as a contract

between the Debtors and [creditor],” but the bankruptcy court would retain

authority to prevent certain collection efforts as part of its enforcement of the

confirmation order.

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The Raels first argue on appeal that Houlik is distinguishable because there

was, in fact, an automatic stay violation, and that, therefore, the action here would

be a core proceeding, not a non-core proceeding. As discussed above, however,

the bankruptcy court was correct in finding there was no automatic stay violation,

and this holding forecloses the Raels’ argument. The Raels then argue that

because their plan provided that the bankruptcy court “shall retain jurisdiction”

over their plan, that the bankruptcy court must have continuing jurisdiction over

the plan—questioning how the bankruptcy court could do anything further in their

Chapter 11 case if it has no jurisdiction at that stage. But the Houlik decision

does not state that bankruptcy courts have no post-confirmation jurisdiction.

Instead, the majority opinion concluded only that bankruptcy courts do not have

“related to” jurisdiction to issue sanctions in non-core post-confirmation actions

alleging a violation of the plan for state court enforcement of the plan. Applying

the concurring opinion from Houlik further reiterates that the bankruptcy court is

not left without jurisdiction entirely. Instead, exclusive bankruptcy court

jurisdiction did not arise based on those particular facts—facts that are nearly

identical to those found here. As a result, the Raels’ arguments also fail as to this

Id. at 678–79.

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Id. at 679.

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portion of the bankruptcy court’s orders.

V. Conclusion

Because we conclude that the bankruptcy court properly found Wells Fargo

did not violate the automatic stay, and that the bankruptcy court did not have

exclusive jurisdiction to enforce the terms of the Raels’ Chapter 11 plan, we

affirm the bankruptcy court’s orders denying relief to the Raels.

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