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NOT FOR PUBLICATION [Dkt. Ent. 1]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

IN RE: OBEDIAH MORTIMORE, :

:

: Civil Action No. 

U.S. BANK NATIONAL ASSOCIATION, : 11-955 (RMB)

:

Appellant, : On Appeal from 

: Bankruptcy Case

v. : 10-21021 (JHW)

:

OBEDIAH MORTIMORE, : OPINION 

:

Appellee. :

 :

Appearances:

Joel Ackerman, Esq.

Zucker, Goldberg, & Ackerman, Esqs.

200 Sheffield Street, Suite 301

P.O. Box 1024

Mountainside, NJ 07092

Attorney for Appellant,

David A. Huber, Esq.

Nicholas S. Herron, Esq.

Wasserstrum Law Office

205 West Landis Avenue

Vineland, New Jersey 08360

Attorneys for Appellees

BUMB, UNITED STATES DISTRICT JUDGE:

The appellant, U.S. Bank National Association, seeks

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reversal of the Bankruptcy Court’s decision that the appellee, 

Obediah Mortimore, did not need to file an adversary proceeding 

in order to continue an automatic stay as to the property of his 

estate pursuant to 11 U.S.C. § 362(c)(3). This appeal requires

the Court to determine whether the Bankruptcy Court properly 

interpreted § 362(c)(3)(A) to provide that the stay automatically

terminates only with respect to “the debtor” and not to the 

“property of the estate”. For the reasons set forth below, the 

Court finds that the plain language of the statute supports the 

Bankruptcy Court’s interpretation, and its decision is therefore 

affirmed.

FACTUAL BACKGROUND1

On April 28, 2006, New Century Mortgage Corporation loaned 

$78,184.00 to Obediah Mortimore (the “Debtor”). The loan was 

secured by a mortgage on real property owned by the Debtor 

located at 74 Bank Street, Bridgeton, New Jersey (the 

“Property”). The loan was assigned to the appellant, U.S. Bank 

National Association as Trustee (the “Appellant”), who remains 

the holder of the note and mortgage. The Debtor went into 

default on the loan in March 2007. The Appellant commenced a 

foreclosure proceeding against the Debtor’s Property.

On January 21, 2008, the Debtor filed for Chapter 13 

bankruptcy protection thereby staying the foreclosure proceeding 

 1 The facts are taken from the Appendix submitted by the Appellant, and are 

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(the Debtor’s “Initial Filing”). The Debtor proposed a chapter 

13 plan that was confirmed by the Bankruptcy Court on August 14, 

2008. When the Debtor thereafter became delinquent in his 

payments to Appellant, the Appellant sought relief from the 

automatic stay provisions of 11 U.S.C. § 362, to continue the 

foreclosure proceedings. The Bankruptcy Court vacated the stay 

as to Appellant, and the Debtor’s Initial Filing was dismissed 

shortly thereafter, on June 26, 2009. 

On April 13, 2010, the Debtor filed a second Chapter 13 

bankruptcy petition (the Debtor’s “Second Filing”). The 

Bankruptcy Court dismissed the Debtor’s Second Filing on June 24,

2010, due to the Debtor’s failure to: (1) file tax returns, (2) 

file required documents, (3) file a feasible plan, income and/or 

budget statement, (4) make all required pre-confirmation payments

to the Trustee, and (5) provide all required documents to the 

Trustee. 

On July 13, 2010, the Debtor moved to reinstate his Second 

Filing (the “Motion”). That Motion was heard on shortened time, 

and the Bankruptcy Court issued an order reinstating the case on 

July 21, 2010. On that same date, the Court held a conference 

call relating to the Motion and ruled that the automatic stay 

provisions of 11 U.S.C. § 362 shall continue for thirty days and 

that the Debtor would have to file an adversary proceeding to 

 

not disputed by the Debtor.

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reimpose the automatic stay beyond those thirty days. 

On July 30, 2010, the Debtor filed a motion to reconsider 

the Court’s ruling that an adversary proceeding would be required

to continue the stay beyond thirty days. In a hearing on 

December 13, 2010, the Bankruptcy Court reconsidered its prior 

ruling and held that an adversary proceeding would not be 

required to continue the automatic stay. Specifically, the 

Bankruptcy Court ruled that the automatic stay expired as to only

the “debtor” and not “property of the estate.” As a result, the 

automatic stay provisions of 18 U.S.C. § 362 delayed Appellant’s 

foreclosure proceeding. Further, the Court, sua sponte, 

continued the automatic stay indefinitely. The Bankruptcy Court 

entered an Order reflecting its December 13th ruling on January 

14, 2011. This appeal followed.

LEGAL STANDARD

A United States district court has jurisdiction to hear 

appeals of the Bankruptcy Court’s final orders pursuant to 28 

U.S.C. § 158(a)(1). This Court reviews the Bankruptcy Court’s 

“legal determinations de novo, its factual findings for clear 

error, and its exercise of discretion for abuse thereof.” In re 

American Pad & Paper Co., 478 F.3d 546, 551 (3d Cir. 2007)

(citations omitted); see also Fed. R. Bankr. P. 8013. As this 

appeal presents only a pure question of law, the Court will 

exercise plenary review. In re Montgomery Ward Holding Corp., 

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268 F.3d 205, 208 (3d Cir. 2001).

ANALYSIS

On February 22, 2011, Appellant filed an appeal of the 

Bankruptcy Court’s order granting the Debtor’s Motion for 

Reconsideration. The issue presented in this appeal is whether 

the Bankruptcy Court properly interpreted 11 U.S.C. § 

362(c)(3)(A) in finding that the automatic stay, pursuant to § 

362(a), expired only as to “the debtor” and not “property of the 

estate” on the thirtieth day after the Second Filing.2

The Bankruptcy Court correctly adhered to the basic canons 

of statutory interpretation by following the plain language of § 

362(c)(3)(A). “The starting point in interpreting a statute is 

its language, for if the intent of Congress is clear, that is the

end of the matter.” Good Samaritan Hosp. v. Shalala, 508 U.S. 

402, 409 (1993) (internal citations omitted). “Courts must 

presume that a legislature says in a statute what it means and 

means in a statute what it says there. When the words of a 

 2 The Court notes that upon its receipt of the Appellant’s brief, it conducted 

a telephone conference for the sole purpose of clarifying the issue on appeal. 

[See Minutes of Telephone Conference Call, Mar. 16, 2011, Dkt. Ent. 5.] Just 

as it did at the trial level, Appellant argued that the Bankruptcy Court erred

by not engaging in a good faith analysis under § 362(c)(3)(B) before 

reinstating the case. Appellant failed to confront the real issue presented:

whether 11 U.S.C. § 362(c)(3)(A) applied to the Property at issue and thus 

automatically terminated the stay after 30 days. As discussed infra, if the 

stay did not automatically terminate, then there was no need for a motion to 

reinstate the stay and the court would not have reached the good faith

analysis. Here, the Bankruptcy Court properly found that no motion was 

necessary because the automatic stay only terminated after 30 days with 

respect to “the debtor”, not the “property of the estate”. Since the 

Bankruptcy Court found that the Property at issue was “property of the 

estate”, it did not reach the good faith analysis. Appellant initially 

glossed over these threshold issues, and the Court required supplemental 

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statute are unambiguous, then, this first canon is also the last:

‘judicial inquiry is complete.’” Connecticut Nat’l Bank v. 

Germain, 503 U.S. 249, 253-54 (1992) (internal citations 

omitted); SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 

358 (3d Cir. 2011). Thus, “when the statute’s language is plain, 

the sole function of the courts - at least where the disposition 

required by the text is not absurd - is to enforce it according 

to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) 

(quoting Hartford Underwriters Insurance Co. v. Union Planters 

Bank, N.A., 530 U.S. 1, 6 (2000) and United States v. Ron Pair 

Enters., Inc., 489 U.S. 235, 241 (1989)); see also Jiminez v. 

Quarterman, 555 U.S. 113, 118 (2009) (“It is well established 

that, when the statutory language is plain, we must enforce it 

according to its terms.”). If the statute is ambiguous, however,

courts must rely upon the legislative intent and supplementary 

canons of interpretation. Fla. Power & Light Co. v. Lorion, 470 

U.S. 729, 737 (1985); United States v. Gilchrist, 215 F.3d 333, 

336 (3d Cir. 2000); In re Goody’s Family Clothing, 401 B.R. 656, 

665 (D. Del. 2009), aff’d, 610 F.3d 812 (3d Cir. 2010), cert. 

den’d, 131 S. Ct. 662 (2010). “The plainness or ambiguity of 

statutory language is determined by reference to the language 

itself, the specific context in which that language is used, and 

the broader context of the statute as a whole.” Robinson v. 

 

briefing accordingly. 

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Shell Oil Co., 519 U.S. 337, 341 (1997) (internal citations 

omitted).

Accordingly, the Court begins by looking to the language of 

the statute itself. The Bankruptcy Abuse and Consumer Protection

Act of 2005 (“BAPCPA”) added § 362(c)(3) to the Bankruptcy Code 

(chapter 11 of the United States Code). It limits the 

availability of the automatic stay for certain debtors who have 

filed bankruptcy a second time within one year of the first 

filing. The provision reads:

[I]f a single or joint case is filed by or against

a debtor who is an individual in a case under 

chapter . . . 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

. . . shall terminate with respect to 

the debtor on the 30th day after the 

filing of the later case; 

18 U.S.C. § 362(c)(3)(A)(emphasis added). Section 

362(c)(3) continues: 

(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[.] 

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Clearly, a motion to continue the stay pursuant to § 362(c)(3)(B)

need not be filed if the automatic stay does not terminate by 

operation of the statute. The issue, then, is whether the stay 

on the Property was subject to automatic termination under § 

362(c)(3)(A). The parties do not dispute that if, as the 

Bankruptcy Court held, the stay automatically terminated with 

respect to the debtor, but not with respect to “property of the 

estate”, the Debtor was not required to file a motion to extend

the stay, and the Court had no duty to conduct a good faith 

analysis. 

As the plain language of § 362(c)(3)(A) demonstrates, the 

stay terminates only with respect to the debtor on the thirtieth 

day after a petition is filed, if the debtor filed one previous 

petition in the prior year and did not move to extend the stay. 

The court in In re Williams, 346 B.R. 361, 367 (Bankr. E.D. Pa.

2006), adopted a plain reading of the provision and explained its

import within the context of the statute: 

The language Congress used in section 362(c)(3)(A) 

provides for the expiration upon thirty days of the 

stay concerning “debt or property securing such debt” 

but only “with respect to the debtor.” Given the 

wording and categorization found in section 362(a), 

termination of the stay with respect to the debtor 

means that: suits against the debtor can commence or 

continue postpetition because section 362(a)(1) is no 

longer applicable; judgments may be enforced against 

the debtor, in spite of section 362(a)(2); collection 

actions may proceed against the debtor despite section 

362(a)(6); and liens against the debtor's property may 

be created, perfected and enforced regardless of 

section 362(a)(5). However, since section 362(c)(3)(A) 

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does not purport to terminate the stay as to estate 

property — a concept defined by section 541(a), and 

which property is distinct from the debtor or the 

debtor's property — the stay provisions imposed by 

sections 362(a)(3), (a)(4), and part of (a)(2), 

expressly protecting property of the estate, do not 

expire after thirty days.

The Williams decision has been followed by the majority of courts

and is commonly referred to as the majority view. See, e.g., In 

re Jumpp, 356 B.R. 789 (1st Cir. BAP 2006); In re Pope, 351 B.R. 

14 (Bankr. D. R.I. 2006); In re Murray, 350 B.R. 408 (Bankr. S.D.

Ohio 2006); In re Brandon, 349 B.R. 130 (Bankr. M.D.N.C. 2006); 

In re Gillcrese, 346 B.R. 373 (Bankr. W.D. Pa. 2006); Williams, 

346 B.R. 361; In re Harris, 342 B.R. 274 (Bankr. N.D. Ohio 2006);

In re Jones, 339 B.R. 360; In re Moon, 339 B.R. 668 (Bankr. N.D. 

Ohio 2006); In re Johnson, 335 B.R. 805 (Bankr. W.D. Tenn. 2006).

Courts have noted that a plain reading of the words, “with 

respect to the debtor”, makes sense and is “entirely consistent 

with other provisions of § 362 and other sections of the 

Bankruptcy Code.” Jumpp, 356 B.R. at 793 (citing Jones, 339 B.R.

at 793). As several courts have noted, if Congress sought to 

have the entire automatic stay terminate after thirty days, it 

could have easily deleted the phrase, “with respect to the 

debtor”, or used the same language found in other sections of § 

362. See, e.g., Jumpp, 356 B.R. at 795 (citing Brandon, 349 B.R.

at 132; Harris, 342 B.R. at 279-80; and Jones, 339 B.R. at 364). 

Section 362(c)(4), for example, which was promulgated at the same

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time as § 362(c)(3), terminates all protections of the automatic 

stay with respect to debtors who have filed two or more prior 

cases in the previous year. That provision states: “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). Like the majority

of courts to have considered the matter, this Court is 

“unconvinced that the significant difference in language between 

the two sections reveals a Congressional intent to say the very 

same thing. Rather, the language indicates an intent to 

differentially penalize previous filers based on the number of 

previous cases.” Jumpp, 356 B.R. at 796 (citing In re Harris, 

342 B.R. at 279).

Moreover, Congress has clearly shown its ability to 

differentiate between the debtor, the debtor’s property, and the 

property of the estate:

Upon the filing of a bankruptcy petition, section 

362(a)(1) stays pre-bankruptcy actions “against the 

debtor.” Subparagraph (a)(2) stays enforcement of 

judgments “against the debtor or against property of 

the estate.” Subparagraph (a)(3) stays actions to 

obtain possession of “property of the estate.” 

Subparagraph (a)(4) enjoins actions to create or 

perfect liens “against property of the estate.” 

Subparagraph (a)(5) enjoins actions involving 

prepetition liens “against property of the debtor.” 

Subparagraph (a)(6) stays collection actions “against 

the debtor.” Subparagraph (a)(7) enjoins setoff 

involving “any claim against the debtor.” And 

subparagraph (a)(8) stays Tax Court litigation 

involving prepetition “tax liability of a debtor.”

Williams, 346 B.R. at 367 (emphasis added). Thus, if Congress 

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desired for the automatic termination provision to apply to 

“property of the estate”, it would have explicitly said so, as it

did in other sections of § 362. It did not, signaling a 

legislative intent to limit the automatic termination of stays to

the debtor and his property. See, e.g., Keene Corp. v. United 

States, 508 U.S. 200, 208 (1993) (“Where 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.”). Given 

the plain language of this provision and its context within the 

statute, the Court finds its meaning unambiguous. 

Furthermore, such a literal interpretation of § 362(c)(3)(A)

does not lead to an absurd result. See, e.g., Jumpp, 356 B.R. at

796-97; Williams, 346 B.R. at 368-69. “In permitting creditors 

to proceed after thirty days . . . against the debtor’s property,

but not against property of the estate, Congress has balanced 

competing interests.” Williams, 346 B.R. at 369 (describing 

circumstances in which § 362(c)(3)(A)’s partial stay has 

“meaningful consequences”). “[A]lthough a lesser penalty than 

complete termination, [§ 362(c)(3)(A)] nonetheless discourages 

abusive filings and, therefore, is a result that is neither 

absurd nor demonstrably at odds with the intention of the

drafters.” Jumpp, 356 B.R. at 797.

Appellant urges this Court to follow the “minority view” 

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that this provision is ambiguous and provides for the termination

of the stay as to the debtor, his property, and property of the 

estate. See, e.g., In re Reswick, 446 B.R. 362 (9th Cir. 2011).3

 3 According to the minority view, the language “with respect to the debtor” 

distinguishes between the debtor with a prior filing and a co-filing spouse 

with no prior filings. The Bankruptcy Court properly considered and rejected 

this argument:

The Court declines. For the foregoing reasons, the language is 

plain and its meaning unambiguous. The Court’s “task is to apply

the text, not to improve upon it.” Pavelic & LeFlore v. Marvel 

Enter. Group, 493 U.S. 120, 126 (1989). “If Congress enacted 

into law something different from what it intended, then it 

should amend the statute to conform to its intent. It is beyond 

[this Court’s] province to rescue Congress from its drafting 

errors, and to provide for what [it] might think is the preferred

result.” Lamie v. U.S. Trustee, 540 U.S. 526, 542 (2004) 

(internal quotations omitted) (quoting United States v. 

Granderson, 511 U.S. 39, 68 (1994) (concurring opinion)) 

(internal quotations omitted); see also Smith v. United States, 

508 U.S. 223, 247 n.4 (1993) (Scalia, J., dissenting) 

(“Stretching language in order to write a more effective statute 

The spousal [exclusion] . . . is out of thin air, frankly. There’s no 

reference anywhere in this section that would cause one to be directed 

to the impact on a spouse who did not file. And that the conclusion 

that such a spousal exclusion is not what “with respect to the debtor” 

is meant to cover is corroborated by the lack of that language in [§ 

362](c)(4)(A) which is the next step, the multiple filers. It truly 

doesn’t make any sense for that phrase to be incorporated in (c)(3)(A) 

but not in (c)(4)(A) if it was meant to protect the innocent spouse nonfiler. And the argument that it should be implied in the statute is 

without merit. If it wasn’t provided for, that absence has 

significance.

(Bankruptcy Court Ruling, Hearing Tr. 28:8-20, Dec. 13, 2010 [Dkt. Ent. 3-1].)

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than Congress devised is not an exercise we should indulge in.”).

The “unwillingness [of the courts] to soften the import of 

Congress’ chosen words . . . is longstanding. It results from 

‘deference to the supremacy of the Legislature, as well as 

recognition that Congressmen typically vote on the language of a 

bill.’” Lamie, 540 U.S. at 538 (citations omitted). Moreover,

Congress’ poor draftsmanship does not create ambiguity in the 

statute. See, e.g., In re Pope, 351 B.R. 14, 16 (Bankr. D.R.I. 

2006) (“While the statute in question exhibits the same mediocre 

draftsmanship as the bulk of the BAPCPA of 2005, in this instance

it does accomplish its intended purpose, i.e., to terminate the 

stay for all purposes [with respect to the debtor and debtor’s 

property] . . . .”).

Thus, the Bankruptcy Court properly interpreted the 

automatic termination under § 362(c)(3)(A) to apply only to nonestate property and leases. The Debtor therefore did not need to

move to continue the stay, since it never lapsed, and the 

Bankruptcy Court, correctly, did not reach the good faith 

analysis under § 362(c)(3)(B).

Date: December 21, 2011 s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

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