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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31172
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Under the bankruptcy code regarding automatic stays, can someone

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Under the bankruptcy code regarding automatic stays, can someone explain 362(c)(4) which states “on request of a party in interest, the court shall promptly enter an order confirming that no stay is in effect.” ?

Kirk Adams :

Hi -

Kirk Adams :

Thanks for the question.

Kirk Adams :

In order to understand this phrase, you have to read the entire text of (c)(4), which says:

Kirk Adams :

(4)(A)(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 were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal 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;

Kirk Adams :

Basically, this means that IF a debtor has filed 2 bankruptcies that have been dismissed, and has now filed another bankruptcy, the automatic automatic stay would not be in effect AND if a creditor, trustee or party in interest files a motion to order that the stay is not in effect, the court will do so.

Customer:

Is there any means of getting a third bankruptcy filing covered by the stay? Can medical situations be used?

Kirk Adams :

No, not that' I'm aware.

Kirk Adams :

Bear in mind that ALL of the filings must be within a year of one another in order for this provision to be relevant.

Customer:

Is there a means of getting a previous filing removed from record?

Customer:

Is it possible to request that a previous filing be reimplemented?

Kirk Adams :

You can't have a previous filing removed.

Kirk Adams :

However, it is possible to file a motion to re-open a previously filed bankruptcy, and there's generally no time limit to doing so.

Customer:

Thanks so much for the tip. How do I go about filing a motion to re-open a previously filed bankruptcy?

Kirk Adams : Hi -
Kirk Adams : You ca file a simple motion to re-open the bankruptcy. RULE 5010. deals with this and says: A case may be reopened on motion of the debtor or other party in interest pursuant to §350(b) of the Code. In a chapter 7, 12, or 13 case a trustee shall not be appointed by the United States trustee unless the court determines that a trustee is necessary to protect the interests of creditors and the debtor or to insure efficient administration of the case.
Customer:

And I would file that with my local bankruptcy court or the trustee's office?

Kirk Adams : There are several sample motions online that you could use as a go-by, like this one: http://www.scribd.com/doc/45123900/USBC-Bankruptcy-Motion-to-Reopen-Bankruptcy-Case
Kirk Adams : You would file the motion with the bankruptcy court clerk's office.
Customer:

Wow! Of all the bankruptcy attorneys I have spoken with, no one ever mentioned this. You may have saved the day. Thanks so much.

Kirk Adams : In the situation you're facing, filing a motion to reopen the bankruptcy is a viable option at this juncture.
Kirk Adams : Please let me know if you have any additional questions. Also, please remember to positively rate our conversation so i may receive credit for my time.
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