Judge: Martha K. Gooding, Case: 21-01205045, Date: 2023-07-31 Tentative Ruling
Motion for Judgment on the Pleadings – COUNSEL ORDERED TO APPEAR
Defendant’s Motion initially was set for hearing in this Court on 6/5/2023. At that hearing, Plaintiff’s counsel informed the Court that Defendant had recently filed for bankruptcy and that it was Defendant’s second such filing. Plaintiff’s counsel further represented that because Defendant’s second bankruptcy filing was less that one year after his first bankruptcy filing, the automatic stay occasioned by the second filing would last only 30 days beyond the filing date, absent a contrary order from the Bankruptcy Court.
Because the prior hearing date of June 5 was within the 30-day post-filing period, this Court continued the hearing on Defendant’s Motion to July 28, 2023, to give the parties time to determine whether this case is stayed by Defendant’s 5/21/2023 Bankruptcy filing and to address the matter further with this Court.
The Court notes that, according to the Notices of Stays in this Court’s records, Defendants first bankruptcy was filed on 7/15/22 under Ch. 13 (ROA 127) and the second was filed on 5/21/23 under Ch. 11 (ROA 195). Generally, in a case filed by or against an individual Chapter 7, 11 or 13 debtor who had a bankruptcy case pending within one year of the current case that was dismissed, the § 362(a) stay prohibiting actions against debt or property securing such debt or with respect to any lease terminates with respect to the debtor on the 30th day after filing of the current case. (11 USC § 362(c)(3)(A).)
Defendant has not, to the Court’s knowledge, filed any papers addressing whether the stay remains in place beyond 30 days following his second filing on 5/21/2023. Defendant has not presented the Court any argument that the 30-day limitation does not apply to his second filing; nor has Defendant presented to this Court any order by the Bankruptcy Court extending the stay beyond the 30 days or otherwise indicating that a stay of proceedings in this action is or should be in effect as a result of his second bankruptcy filing.
The Court notes that Defendant has recently obtained counsel. Accordingly, in lieu of posting a tentative ruling on this Motion (the Court notes that it previously posted a substantive tentative ruling on the Motion), the Court ORDERS counsel for all parties to appear at the hearing to address the status of the Bankruptcy proceeding, the existence (or not) of a stay, and the disposition of the pending Motion in this Court.