Christian H Murray and Helen S Murray

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re: 	CHRISTIAN H. M URRAY
HELEN S. M URRAY,
Debtors
Case No. 	06-31616
Judge Waldron
Chapter 13
DECISION REGARDING MOTION
FOR ORDER CONFIRMING
INAPPLICABILITY OF THE
AUTOMATIC STAY
DATED AT DAYTON, OHIO this 11th Day of September, 2006:
BACKGROUND AND ESTABLISHED EVENTS
Pending before the court are the Creditor’s motion seeking an order that the
automatic stay is not in effect in this case and the Debtor’s response that creditor action
involving the property in question must occur exclusively in the bankruptcy court during
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: September 11, 2006
____________________________________________________________
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the pendency of this case. 	As a result of the competing, applicable bankruptcy
provisions, the position of each party is correct.
The Court’s record in this case establishes the following events. (Federal Rule of
Evidence 201).
On June 23, 2006, counsel for Christian H. Murray and Helen S. Murray, the
Debtors, filed a chapter 13 petition (Doc. 1) and a chapter 13 plan (Doc. 6) (the “Plan”)
together with other required documents (Docs. 2, 3, 4, 5, 7, 8 and 9). The Plan
proposed payments of $1,587 per month for sixty months and provided, inter alia, to
cure a mortgage arrearage and maintain regular monthly payments on a first mortgage
registered with Mortgage Electronic Registration Systems, Inc. (MERS) in connection
with the Debtors’ principal residence at 110 Yale Avenue (the “Property”), to avoid a
junior mortgage (asserted to be wholly unsecured), to pay in full two “910 car claims” 1
and to provide no distribution to unsecured claims.
On June 30, 2006, a complete copy of the Plan and a separate notice listing
various dates, including the 341 meeting (July 25, 2006) and the last day to object to
confirmation (August 4, 2006), were sent to all creditors and parties in interest. (Docs.
12, 13, 14).
On July 7, 2006, MERS, acting solely as nominee for Mortgage Investors
Corporation and its servicing agent, GMAC Mortgage Corporation, filed a Notice of
Appearance (Doc.15); however, MERS did not attend the 341 meeting and did not file
an objection to the Plan.
On August 14, 2006, an Order confirming the Plan was entered. (Doc. 28)
1 A “910 car claim” arises as a result of new text, which lacks any alphanumeric designation, added to §
1325(a). The commentary and case law have often referred to this new text as a “hanging paragraph” in
§ 1325(a). The court expresses no view on the meaning of this “hanging paragraph” in § 1325(a).
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DETERMINATIONS UNDER 28 U.S.C. §§ 1334 AND 157
The Court has jurisdiction pursuant to 28 U.S.C. § 1334 and the Standing Order
of Reference entered in this District. 	This proceeding is a core proceeding pursuant to
28 U.S.C. §157(b)(2)(A), (B), (G), (L) and (O). 	These determinations are the subject of
further explanation in this decision.
ISSUES AND ARGUMENTS PRESENTED FOR DETERMINATION
On August 1, 2006, MERS filed a Motion For Order Confirming Inapplicability Of
The Automatic Stay Pursuant To 11 U.S.C. Section 362(c)(3)(C)(ii) 2 (Doc. 25) arguing
that the plain meaning of § 362(c)(4)(A)(ii) requires the Court to promptly enter an order
confirming the automatic stay did not go into effect in this case. Specifically, the creditor
argued that these individual Debtors, had two prior, joint cases pending within the
previous year and, since both of those cases were dismissed and no other factors
prevent the relief requested, the automatic stay did not go into effect when the petition
in the present case was filed.
On August 21, 2006, the Debtors filed the Debtors’ Response To Motion For
Order Confirming Inapplicability Of The Automatic Stay Pursuant To 11 U.S.C. Section
362(c)(3)(C)(ii) (Doc. 32), in which they concede the prior filings and dismissals;
however, they argue that the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 (the “2005 Act”) does not contain any “[e]xpress language diminishing the
jurisdiction of the Court over the estate property. 	Moreover, [the 2005 Act] made no
change to the pre-2005 Act language of section 1306 (Property of the Estate) and 1327
(effect of Confirmation)”, and conclude the stay must remain “in effect as to property of
the estate.”
2 Despite the citation in the caption, the Creditor’s argument concerns § 362(c)(4)(A)(ii).
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DETERMINATION OF ISSUES PRESENTED
The Court will enter an order confirming that the automatic stay is not in effect in
this case and determining that all actions involving property of the estate must be
commenced in this bankruptcy court during the pendency of this case.
ANALYSIS
When Congress enacted the Bankruptcy Reform Act of 1978, Pub. L. No. 95-
598, 92 Stat. 2549 (the Code), it repealed and completely replaced the prior bankruptcy
legislation (the Bankruptcy Act of 1898, Pub. L. No.55-171, amended by the Chandler
Act of 1938, Pub. L. No. 75-696, 52 Stat. 840). 	When Congress enacted the 2005 Act,
Pub. L. No. 109-8, 119 Stat. 23, it did not repeal or replace the prior bankruptcy
legislation (the Code). 	Instead, Congress merely attached a sidecar (the 2005 Act) to
the existing bankruptcy vehicle (the Code). 	The operation of this oddly constructed
vehicle is frequently difficult, depending on whether it is controlled solely by the
provisions of the Code, solely by the provisions of the 2005 Act, or, as in this case, by
some provisions of the 2005 Act and some provisions of the Code. 3
PRELIMINARY ISSUE – “PROMPTLY”
Section 362(c)(4)(A)(ii) provides that “on request of a party in interest, the court
shall promptly enter an order confirming that no stay is in effect.” (emphasis added)
This section is new language added by the 2005 Act and the word promptly is not
defined within § 101 – Definitions, nor does it appear in § 102 – Rules of Construction,
nor is assistance available from provisions of the Dictionary Act. 1 U.S.C. § 1.
3 As noted by one court: “The [2005 Act] did not replace the entire Code, but merely supplemented the
provisions. Accordingly, the Court may find congressional intent by looking not only at the provisions of
the Code which were changed by the [2005 Act], but also to the provisions which were left untouched.”
(citation omitted) In re Fuger, 	B.R. 	, 2006 WL 2389688, *2 (Bankr. D. Utah 2006).
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As detailed later, the provisions of § 362(c) distinguish between circumstances
where the automatic stay of § 362(a) goes into effect for only a limited period [§
362(c)(3)] and circumstances where the stay does not go into effect at all [§ 362(c)(4)].
It is noteworthy that § 362(j) provides that “[o]n request of a party in interest, the court
shall issue an order under subsection (c) confirming that the automatic stay has been
terminated.” 	Notably absent in this provision, in which the language closely tracks the
language of §362(c)(4)(A)(ii), is the word “promptly.” This would indicate that Congress
intended the court to enter an order “confirming that no stay is in effect” under
§362(c)(4)(A)(ii) in a time period more prompt than an order “confirming that the
automatic stay has been terminated” under other provisions of § 362(c), which has no
indication of the time period when an order should be entered; however, again, neither
of these provisions aid in determining the time period which would constitute “promptly”
under § 362(c)(4)(A)(ii). 	The Court is not aided by a congressionally designated
definition of a specific time period.
In the absence of a definition supplied in existing bankruptcy legislation, the
Supreme Court has turned to familiar dictionaries. See In re Cleaver, 333 B.R. 430, 434,
fn. 5 (Bankr. S.D. Ohio 2005) (“The Supreme Court has routinely resorted to dictionaries
to determine the common meaning of terms not defined in the Bankruptcy Code. See,
e.g., Rousey v. Jacoway, 544 U.S. 320, 125 S.Ct. 1561, 1566-69, 161 L.Ed.2d 563
(2005); Cohen v. de la Cruz, 523 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341
(1998).”) 	Black’s Law Dictionary 1214 (Sixth edition 1990) defines promptly as follows:
“Adverbial form of the word ‘prompt,’ which means ready and quick to act as occasion
demands. The meaning of the word depends largely on the facts in each case, for what
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is ‘prompt’ in one situation may not be considered such under other circumstances or
conditions . . . .” 	Other dictionaries provide similar information. 	The Court is only
generally 	aided, 	but 	not 	specifically 	directed 	to 	any 	determinable 	period, 	by 	an
examination of familiar dictionaries.
The Court notes the Motion (Doc. 25) does not request that the Court enter the
order by any specific date and is accompanied by a Notice (Doc. 26) which provides
the Debtors have twenty days in which to file a response. See Local Bankruptcy Rule
9013-1 (“Except as otherwise provided by Rules 2002 and 9006(f), such notice shall fix
the response and service of response for twenty (20) days from the date of service as
set forth on the certificate of service”) 	The Debtor’s response does not address the
issue of a specific date for any order. The Court is not aided by any suggestions of the
parties in this case.
The use of the amorphous word “promptly” in § 362(c)(4)(A)(ii) stands in stark
contrast to the 2005 Act’s more specific time periods in other provisions of § 362. 	For
example, 	§ 	362(c)(3)(A) 	provides 	that 	the 	stay 	terminates 	“on 	the 	30th 	day”; 	§
362(c)(3)(B) – “hearing completed before the expiration of the 30-day period”; §
362(c)(4)(B) – “if, within 30 days after the filing”; § 362(d)(3) - “or 30 days after the court
determines”; § 362(e)(2) – “on the date that is 60 days after a request is made”; and, §§
362(l)(3)(A) and (m)(2)(B) – “the court shall hold a hearing within 10 days.”
It seems appropriate to conclude that, in the absence of language in the text of §
362(c)(4)(A)(ii) establishing a 30 day period, or some other specific period, when such a
30 day time period, or other specific time periods, are prevalent throughout the other
provisions of § 362, the use of the word “promptly” does not require that the order be
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entered within 30 days of the request and does not otherwise require the entry of the
order in any specific time period.
There are, nevertheless, factors a court may consider in a determination of
promptly under § 362(c)(4)(A)(ii). These factors include the due process requirements
reflected 	in 	the 	service 	and 	notice 	requirements 	of 	applicable 	national 	or 	local
bankruptcy rules; the pled, or established, circumstances supporting a party’s request
that the order be entered by a specific date; separate statutory provisions which provide
for the entry of orders by a specific date; the existence of undetermined, older matters
of the same character, and other time-sensitive demands of the court’s docket following
the filing of the last document in connection with the motion requesting an order
pursuant to §362(c)(4)(A)(ii).
Upon a consideration of these factors in the circumstances of this case, the Court
determines that the order confirming the stay is not in effect in this case, which will be
entered on September 18, 2006, which is 48 days from the filing of the Motion For Order
Confirming Inapplicability Of The Automatic 	Stay 	Pursuant 	To 11 U.S.C. Section
362(c)(3)(C)(ii) (Doc. 25), is entered promptly.
STATUTORY PROVISIONS ALTERED BY THE 2005 ACT
The Text of § 362(c)(4)(A)
Prior to the enactment of the 2005 Act, the Code contained various provisions
listing 	circumstances 	in 	which 	the 	stay 	did 	not 	go 	into 	effect 	[§ 	362(b)] 	and
circumstances where the stay terminated at a certain time [§ 362(c)], although these
provisions were significantly altered by the 2005 Act. 	Particularly relevant in this case
are the following provisions:
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(i) if a single or joint case is filed by or against a debtor who is an
individual under this title, and if 2 or more single or joint cases of the
debtor where pending within the previous year but were dismissed, other
than a case refiled under section 707(b), the stay under subsection (a)
shall not go into effect upon the filing of the later case; and (ii) on request
of a party in interest, the court shall promptly enter an order confirming
that no stay is in effect[.]
§362(c)(4)(A).
The parties do not dispute that all necessary factual predicates have been
established in this case 4 ; rather, the parties’ dispute centers on the proper legal
interpretation of the provision’s text.
It 	must 	be 	recognized 	that 	the 	plain 	meaning 	of 	the 	text 	“the 	stay 	under
subsection (a) shall not go into effect upon the filing of the later case” results in a
determination that the automatic stay is not in effect in this case.
As the United States Supreme Court has instructed courts in examining
the provisions of the Bankruptcy Code, “[w]e have stated time and time
again that courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.” Connecticut Nat'l Bank
v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d
391 (1992) (citation omitted). That statement is consistent with the United
States Supreme Court's principles that statutory interpretation is a holistic
endeavor which must begin with the language of the statute itself. Resort
to an examination of legislative history is appropriate only to resolve
statutory ambiguity, and in the final analysis, such examination must not
produce 	a 	result 	demonstratively 	at 	odds 	with 	the 	purpose 	of 	the
legislation. See Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644,
118 	L.Ed.2d 	280 	(1992); 	Pennsylvania 	Dept. 	of 	Public 	Welfare 	v.
Davenport, 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990); Kelly
v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). The
Sixth 	Circuit 	has 	likewise 	noted 	that 	statutes 	“must 	be 	read 	in 	a
‘straightforward’ and ‘commonsense’ manner,” and that “[w]hen we can
discern an unambiguous and plain meaning from the language of a
[statute], our task is at an end.” Rogers v. Laurain ( In re Laurain ), 113
4 The Debtors had two prior, joint chapter 13 cases dismissed within a year of the petition date of the
present case. Case No. 05-36219 was dismissed on November 10, 2005 and Case No. 05-46603 was
dismissed on June 12, 2006. The court notes that § 362(c)(4)(A) refers to an exception for “a case refiled
under section 707(b)”, but cases can only be dismissed, not refiled, under § 707(b). 	See the text of §
362(c)(3) – “after dismissal under section 707(b).”
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F.3d 595 (6th Cir.1997) (citations omitted); see also Bartlik v. United
States Dep't of Labor, 62 F.3d 163 (6th Cir.1995).
Andersson v. Sec. Fed. Sav. & Loan of Cleveland (In re Andersson), 209 B.R. 76, 78
(B.A.P. 6th Cir. 1997).
As a noted jurist observed:
The prevailing trend is to begin with the text of the statute and to
interrogate its meaning in light of related provisions and the broader
context of the statutory scheme as a whole. Only then do courts proceed
to other sources such as legislative history and policy. (footnotes omitted)
Hon. Marjorie O. Rendell, 2003 – A Year of Discovery: Cybergenics and Plain Meaning
in Bankruptcy Cases, 49 Vill. L. Rev. 887, 887 - 89 (2004).
There is no ambiguity in the relevant text of this provision and the plain meaning
reading does not produce a result demonstrably at odds with the expressed intent of
Congress.
The Text of § 362(c)(3)(A)
Additionally, 	a 	review 	of 	authority 	construing 	the 	related 	provisions 	of
§362(c)(3)(A), which provides for termination of the stay as to the debtor, but not as to
property of the estate, augments the Court’s conclusion.
To summarize, the court holds that § 362(c)(3)(A) terminates the stay with
respect to actions taken against the debtor and against property of the
debtor, but does not terminate the stay with respect to property of the
estate. 	See 	In 	re 	Johnson, 	335 	B.R. 	805, 	806
(Bankr.W.D.Tenn.2006)(“[w]hen read in conjunction with subsection (1), ···
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.’ ”) (335 B.R. at 806).
In re Jones, 339 B.R. 360, 365 (Bankr. E.D.N.C. 2006).
If Congress wanted to terminate the stay of all the protections of the
automatic stay in § 362(c)(3)(A), it could easily have used language
similar to that in § 362(c)(4)(A)(i) ("the stay under subsection (a) shall not
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go into effect upon the filing of the later case"). Congress instead chose to
describe the termination of stay quite differently.
The Court of Appeals for the Fourth Circuit recently observed that the use
of a particular phrase in one statute but not in another "merely highlights
the fact that Congress knew how to include such a limitation when it
wanted to." Coleman, 426 F.3d at 725. The Coleman court also quoted the
Supreme Court's clear directive on this topic: "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." Keene Corp. v. United States, 508 U.S.
200, 	208, 	113 	S.Ct. 	2035, 	2040, 	124 	L.Ed.2d 	118 	(1993) 	(internal
quotation marks and alterations omitted), quoted in Coleman, 426 F.3d at
725-6. Since Congress, in terminating aspects of the automatic stay in §
362(c)(3)(A), 	chose 	language 	that 	is 	so 	vastly 	different 	than 	the
straightforward language it used when it terminated all protections of the
stay in § 362(c)(4)(A)(i), the court concludes that § 362(c)(3)(A) is not as
broad as § 362(c)(4)(A)(i) and that all of the protections of the automatic
stay are not eliminated by § 362(c)(3)(A). (footnotes omitted)
In re Paschal, 337 B.R. 274, 277 – 79 (Bankr. E.D.N.C. 2006). But see In re Jupiter, 334
B.R. 754 (Bankr. D.S.C. 2006) (stay termination of §362(c)(3)(A) applies to the debtor
and to property of the estate), In re Jumpp, 344 B.R. 21 (Bankr. D. Mass. 2006) (same).
The Text of Other Provisions of § 362
It 	is 	noteworthy 	that, 	even 	in 	other 	provisions 	of 	§ 	362(b) 	addressing
circumstances in which the automatic stay is not in effect at the time of filing, the 2005
Act continues the specific recognition of the significance accorded the term of art –
property of the estate. See § 362(b)(2)(A)(iv) – “for the dissolution of a marriage, except
to the extent that such a proceeding 	seeks to determine the division of property that is
property of the estate” and § 362(b)(2)(B) – “of the collection of a domestic support
obligation from property that is not property of the estate[.]” (emphasis added)
Accordingly, as a result of provisions of the 2005 Act, the Court determines that
MERS is entitled to an order confirming that the automatic stay is not in effect in this
case; however, as a result of other applicable provisions of the Code, the Debtor is
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correct 	that 	creditor 	action 	involving 	the 	Property 	must 	occur 	exclusively 	in 	the
bankruptcy court during the pendency of the case.
STATUTORY PROVISIONS NOT ALTERED BY THE 2005 ACT
As noted earlier, there are significant provisions of the Code which were not
altered by the 2005 Act. 	Although the 2005 Act made changes in some alphanumeric
designations or other text in certain sections of these relevant Code provisions, the
2005 Act made no changes in the following relevant, statutory provisions which impact
the issues in this case: 28 U.S.C. § 1334(e)(1) – jurisdiction; 28 U.S.C. § 157 –
procedures; 	11 	U.S.C. 	§ 	541(a) 	– 	property 	of 	the 	estate; 	11 	U.S.C. 	§ 	554 	–
abandonment of property of the estate; 11 U.S.C. § 1306 – 	property of the estate and
11 U.S.C. § 1327 – effect of confirmation.
Statutory Provisions of Title 28
Essential to an appropriate determination of the issues in this case are the
following statutory provisions in Title 28 governing jurisdiction in this case:
The district court in which a case under title 11 is commenced or is
pending shall have exclusive jurisdiction─
(1) of all the property, wherever located, of the debtor as of the
commencement of such case, and of property of the estate[.]
28 U.S.C. § 1334(e)(1).
Core proceedings include, but are not limited to─
(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate . . . ;
* * * * *
(G) motions to terminate, annul, or modify the automatic stay;
* * * * *
(L) confirmation of plans;
* * * * *
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(O) other proceedings affecting the liquidation of the assets of the
estate or the adjustment of the debtor-creditor or the equity
security 	holder 	relationship, 	except 	personal 	injury 	tort 	or
wrongful death claims[.]
28 U.S.C. § 157(b)(2)(A), (B), (K), (L) and (O).
As 	previously 	established 	in 	connection 	with 	changes 	resulting 	from 	the
enactment of the Code:
The court notes that recently the Sixth Circuit abrogated its prior rule
announced in In re Washington, 623 F.2d 1169 (6th Cir.1980), cert.
denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 826 (1981), and
recognized the bankruptcy court's superior jurisdiction over a debtor's
property 	even 	though 	a 	state 	court 	had 	already 	exercised 	in 	rem
jurisdiction over the property. The Sixth Circuit in In re White, 851 F.2d
170, 172-173 (6th Cir.1988) noted,
Our decision to award superior jurisdiction to the state court
was based on “traditional notions of comity, which require
that, as between state and federal courts, jurisdiction must
be yielded to the court that first acquires jurisdiction over the
property.” 623 F.2d at 1172. We traced this holding to a
broader 	doctrine 	which 	advocates 	granting 	exclusive
jurisdiction to the first court asserting in rem jurisdiction,
when both courts base jurisdiction on control of the same
property. See, e.g. Princess Lida of Thurn and Taxis v.
Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed.
285 (1939).
Despite the federalism interests served by such a rule, we
agree 	with 	debtor's 	argument 	that 	the 	1978 	and 	1984
changes to the Bankruptcy Code were primarily aimed at
getting away from the kind of in rem jurisdiction set out in
Princess Lida and In re Washington. The jurisdiction granted
in 	28 	U.S.C. 	§ 	1334(d) 	indicates 	a 	conscious 	effort 	by
Congress to grant the bankruptcy court special jurisdiction
and to preclude the type of jurisdictional disputes evidenced
in those cases. See H.R.Rep. No. 95-595, 95th Cong., 1st
Sess., 445, reprinted in 1978 U.S. Code Cong. & Admin.
News 5787, 5963, 6400; 1 L. King, Collier on Bankruptcy §
3.01 p. 3-30 (15th ed. 1983).
* * * * *
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The rule in In re Washington should therefore no longer
apply to give the state court jurisdiction over property simply
because it may have been the first court to exercise control
over the property.
Air Enters., Inc. v. Ohio Farmers Ins. Co. (In re Hughes-Bechtol, Inc.), 107 B.R. 552,
555 (Bankr. S.D. Ohio 1989).
The Sixth Circuit recently stated:
28 U.S.C. § 1334(b) provides exclusive district court jurisdiction over “all
cases under title 11,” and concurrent jurisdiction over “civil proceedings
arising under title 11, or arising in or related to cases under title 11.” In
turn, 28 U.S.C. § 157(a) permits district courts to refer bankruptcy cases
brought under their 	original jurisdiction to bankruptcy courts. Section
157(b) of the same chapter defines “core proceedings arising under title
11, or arising in a case under title 11” to include “matters concerning the
administration of the estate,” “motions to terminate, annul, or modify the
automatic stay,” and “other proceedings affecting the liquidation of assets
of the estate or the adjustment of the debtor-creditor or the equity security
holder relationship····” 28 U.S.C. § 157(b)(2)(A), (G), (O).
Amedisys, Inc. v. Nat’l Century Fin. Enters, Inc. (In re Nat’l Century Fin. Enters., Inc.,)
423 F.3d 567, 573 – 74 (6th Cir. 2005).
Additionally, 	recent 	Supreme 	Court 	cases 	have 	reaffirmed 	the 	jurisdiction
conferred in 28 U.S.C. § 1334. See Marshall v. Marshall, 	U.S. 	, 	,126 S.Ct. 1735,
1741 (2006) (reversing the Court of Appeals’ recognition of the “probate exception”
limiting federal jurisdiction and stating that “[t]he Ninth Circuit had no warrant from
Congress, or from decisions of this court, for its sweeping assertion of the probate
exception” and, also, reaffirming its prior holding in Ankenbrandt v. Richards, 504 U.S.
689, 112 S. Ct. 2206 (1992) limiting the “domestic relations exception”) and Central
Virginia Community College v. Katz, 	U.S. 	, 	,126 S. Ct. 990, 995-96 (2006)
(affirming the Sixth Circuit determination that the doctrine of sovereign immunity does
not shield a state from the exercise of a bankruptcy court’s jurisdiction and stating that
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“[b]ankruptcy jurisdiction, at its core, is in rem. . . . . 	Then as now, the jurisdiction of
courts 	adjudicating 	rights 	in 	the 	bankruptcy 	estate 	included 	the 	power 	to 	issue
compulsory orders to facilitate the administration and distribution of the res.”)
The combined effect of these statutory provisions is to place exclusive jurisdiction
in the bankruptcy court for all actions involving property of the Debtors’ estate. This was
true under the Code and remains unaltered by the 2005 Act.
Statutory Provisions of Title 11
The 2005 Act made no changes impacting the substance of the applicability of
the following statutory provisions in Title 11 in this case:
11 U.S.C. § 541. 	Property of the estate
(a) The commencement of a case under section 301, 302, or 303 of this
title creates an estate. Such estate is comprised of all the following
property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this
section, 	all 	legal 	or 	equitable 	interests 	of 	the 	debtor 	in
property as of the commencement of the case.
11 U.S.C. § 554. 	Abandonment of property of the estate
(a) After notice and a hearing, the trustee may abandon any property of
the estate that is burdensome to the estate or that is of inconsequential
value and benefit to the estate.
(b) On request of a party in interest and after notice and a hearing, the
court may order the trustee to abandon any property of the estate that is
burdensome to the estate or that is of inconsequential value and benefit to
the estate.
(c) Unless the court orders otherwise, any property scheduled under
section 521(1) of this title not otherwise administered at the time of the
closing 	of 	a 	case 	is 	abandoned 	to 	the 	debtor 	and 	administered 	for
purposes of section 350 of this title.
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(d) Unless the court orders otherwise, property of the estate that is not
abandoned under this section and that is not administered in the case
remains property of the estate.
11 U.S.C. § 1306. 	Property of the estate
(a) Property of the estate includes, in addition to the property specified in
section 541 of this title─
(1) all property of the kind specified in such section that the
debtor acquires after the commencement of the case but
before the case is closed, dismissed, or converted to a case
under chapter 7, 11, or 12 of this title, whichever occurs first;
and
(2) earnings from services performed by the debtor after the
commencement of the case but before the case is closed,
dismissed, or converted to a case under chapter 7, 11, or 12
of this title, whichever occurs first.
(b) Except as provided in a confirmed plan or order confirming a plan, the
debtor shall remain in possession of all property of the estate.
11 U.S.C. § 1327. 	Effect of confirmation
(a) The provisions of a confirmed plan bind the debtor and each creditor,
whether or not the claim of such creditor is provided for by the plan, and
whether or not such creditor has objected to, has accepted, or has
rejected the plan.
(b) Except as otherwise 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.
(c) Except as otherwise provided in the plan or in the order confirming the
plan, the property vesting in the debtor under subsection (b) of this section
is free and clear of any claim or interest of any creditor provided for by the
plan.
As further discussed in this decision, the combined effect of these statutory
provisions, in connection with the Plan in this case, is to vest the Property as property of
this bankruptcy estate and bind MERS to the terms of the Debtors’ confirmed Plan.
Plan Provisions
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A 	central 	element 	in 	the 	determination 	of 	the 	issues 	in 	the 	case 	is 	an
understanding of the Plan’s provision concerning the vesting of property of the estate.
The confirmed Plan provides, in relevant part, “9. Vesting of Property in Debtor – All
property of the estate shall not vest back to the Debtor after confirmation, but shall
remain property of the estate until the case is dismissed, discharged or converted.”
(emphasis added) 	This provision is consistent with chapter 13 plans considered in
other bankruptcy courts. (“Pursuant to orders confirming chapter 13 plans in the
Western District of Tennessee, all property which is defined by §§ 541 and 1306 as
“property of the estate” remains property of the chapter 13 estate until the case is
discharged or dismissed or until the court orders otherwise.” In re Johnson, 335 B.R.
805, 806 (Bankr. W.D. Tenn. 2006)).
Property of the Estate
The absence or termination of the automatic stay does not remove property from
the Debtors’ estate. See 11 U.S.C. § 554. 	The automatic stay is a procedural issue,
which, absent other factors, permits or prohibits proposed actions. 	The most important
other factor in chapter 13 cases is whether the proposed action involves property of the
estate and, if so, where the property of the estate is vested.
In this case, the entry of an order confirming that the automatic stay is not in
effect does not, during the pendency of this case, authorize any action against the
Property, except in this court. As noted:
The filing of a bankruptcy petition creates a bankruptcy estate comprised
of the debtor's legal or equitable interests in property wherever located
and by whomever held. 11 U.S.C. § 541(a); Hong Kong & Shanghai
Banking Corp., Ltd. v. Simon (In re Simon), 153 F.3d 991, 996 (9th
Cir.1998). As a result, “[t]he district court in which the bankruptcy case is
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commenced obtains exclusive in rem jurisdiction over all of the property in
the estate.” Id.
* * * * *
Thus, an order lifting the automatic stay by itself does not release the
estate's interest in the property and “the act of lifting the automatic stay is
not analogous to an abandonment of the property.” Id. at 311 (citing In re
Ridgemont Apartment Assocs., 105 B.R. 738, 741 (Bankr.N.D.Ga.1989)).
Catalano v. C.I.R. 	279 F.3d 682, 686 – 87 (9th 2002); Accord Lange v. Schropp (In re
Brook Valley IV), 	B.R. 	, 2006 WL 2372108 (B.A.P. 8th Cir. 2006).
Effect of Confirmation
As noted earlier, the Plan provisions providing the Property remains property of
the estate has been confirmed. See Doc. 28 – Order Confirming Plan. 	The Bankruptcy
Appellate Panel of the Sixth Circuit has explained the effect of a confirmed plan, noting:
Section 1327 of the Bankruptcy Code states that the “provisions of a
confirmed plan bind the debtor and each creditor, whether or not the claim
of such creditor is provided for by the plan, and whether or not such
creditor has objected to, has accepted, or has rejected the plan.” 11
U.S.C. § 1327(a). This binding effect of confirmation has led courts to
conclude that proceedings inconsistent or incompatible with the confirmed
plan are improper.
Section 1327 is clear. The provisions of a confirmed plan bind
each creditor whether or not such creditor has objected to, has
accepted, or has rejected the plan. The plans in the present
cases 	provided 	for 	the 	curing 	of 	defaults 	and 	for 	the
maintenance of payments to the appellants throughout the life of
the plan. An order confirming a Chapter 13 plan is res judicata
as to all justifiable issues which were or could have been
decided at the confirmation hearing. See, In re Lewis, 8 B.R.
132, 	137 	(Bankr.D.Idaho 	1981). 	Section 	1327 	precludes 	a
creditor from asserting, after confirmation, any other interest
than that provided for it in the confirmed plan. The issues of
adequate 	protection, 	lack 	of 	equity, 	and 	necessity 	for 	a
successful rehabilitation of the Chapter 13 debtor were all res
judicata as of the confirmation of the plan.
Anaheim Sav. & Loan Ass'n v. Evans (In re Evans), 30 B.R. 530, 531 (9th
Cir. BAP 1983). Once a plan is confirmed, it is treated as the exclusive
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and transcendent relationship between the debtor and the creditor. It
follows that
a creditor cannot thereafter assert any other interest than that
provided for him in the confirmed plan and that all of the issues
of adequate protection, lack of equity, the fact that the property
is not necessary for effective reorganization of the debtor's
affairs, etc., could and should have been raised in objections to
confirmation.
Ford 	Motor 	Credit 	Co. 	v. 	Lewis 	(In 	re 	Lewis), 	8 	B.R. 	132, 	137
(Bankr.D.Idaho 1981); accord, Citicorp Homeowners, Inc. v. Willey (In re
Willey), 24 B.R. 369, 375 (Bankr.E.D.Mich.1982) (quoting In re Lewis with
approval). Even where, as here, the motion for relief from stay is filed
before confirmation, bankruptcy courts hold that, unless it pertains to a
post-confirmation failure to make payments, the motion is untimely in view
of the transcendence of the confirmed plan. In re Minzler, 158 B.R. 720,
721 (Bankr.S.D.Ohio 1993); Society Bank v. Botteri (In re Botteri), 108
B.R. 164, 166 (Bankr.S.D.Ohio 1989).
In re Wellman, 322 B.R. 298, 301 (B.A.P. 6th Cir. 2004); Accord In re Wallace, 46 Fed.
Appx. 819, 820-821, 2002 WL 31055985, *1 (6th Cir. Sept. 13, 2002) (“The provisions
of a confirmed plan bind the debtor and each creditor, whether or not the claim of such
creditor is provided for by the plan, and whether or not such creditor has objected to,
has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a); see also Cline v. Welch
(In re Welch), No. 97-5080, 1998 WL 773999, at *2 (6th Cir. Oct.11, 1998).”) See also In
re Murphy, 346 B.R. 79, 83 (Bankr. S.D.N.Y. 2006) (“Because confirmation of a chapter
13 plan will ‘bind each creditor’ it follows that termination of the automatic stay as to all
creditors under Section 362(c) does not automatically relieve all creditors, for all
purposes, from the binding effect of a subsequently confirmed chapter 13 plan.” )
The Text of Other Provisions of § 362
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It 	is 	also 	noteworthy 	that 	in 	the 	2005 	Act’s 	changes 	to 	§ 	362, 	Congress
demonstrated its specific awareness of the significance of both terminating the stay and
also removing property from the estate by providing in § 362(h):
(h)(1) In a case in which the debtor is an individual, the stay provided by
subsection (a) is terminated with respect to personal property of the estate
or of the debtor securing in whole or in part a claim, or subject to an
unexpired lease, and such personal property shall no longer be property of
the estate . . . . (emphasis added)
As previously noted in this decision, the appropriate rule of statutory construction
provides that the specific inclusion of text terminating the stay and removing the property
from the estate in §362(h) and specific exclusion of similar text terminating the stay, but
not removing the property from the estate in §362(c)(4), establishes that Congress
limited §362(c)(4) to issues concerning the stay and not to issues concerning property of
the estate. ("[I]t is generally presumed that Congress acts intentionally and purposely
when it includes particular language in one section of a statute but omits it in another[.]"
BFP v. Resolution Trust Corp, 511 U.S. 531, 537, 114 S.Ct. 1757, 1761 (1994) (citation
omitted)); Cohen v. De La Cruz, 523 U.S. 213, 221, 118 S.Ct. 1212, 1218 (1998) (“We,
however, ‘will not read the Bankruptcy Code to erode past bankruptcy practice absent a
clear indication that Congress intended such a departure[.]’” (citation omitted))
CONCLUSION
Although the Court will enter an order confirming the automatic stay is not in effect
in this case, the court determines that all actions involving the Property must be
commenced exclusively in this bankruptcy court during the pendency of this case.
The Court is cognizant that this decision raises a number of questions, not the
least of which may be what, if any postpetition actions, are, or will be, available in this
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court during the pendency of a case in connection with this Property; however, as has
been noted in connection with issues presented by the 2005 Act – “That is an interesting
question that need not be decided in this case.” Paschal, 337 B.R. at 281 (footnote
omitted).
An order in accordance with this decision has been simultaneously entered.
c:
Christian H. Murray and Helen S. Murray , 110 Yale Avenue, New Lebanon, Ohio 45345
(Debtors)
Scott A. Kramer, Esq., 130 West Second Street, Ste 924, Dayton, Ohio 45402 (Atty. for
the Debtor)
Scott P. Ciupak, Esq., 5601 Hudson Drive, Suite 400, Hudson, Ohio 44236 (Atty. for
Mortgage Electronic Registration Systems, Inc.)
Jeffrey M. Kellner, Esq., (Chapter 13 Trustee), Scott G. Stout, Esq., (Staff Attorney for
the Chapter 13 Office), 131 North Ludlow Street, Suite 900, Dayton, Ohio 45402
Office of the United States Trustee, 170 North High Street, Suite 200, Columbus, Ohio
43215
# # #
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