James Earl Burnette and Maxine Nixon Burnette

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILSON DIVISION
IN RE:
JAMES EARL BURNETTE and
MAXINE NIXON BURNETTE,
Debtors. Case No. 06-00152-8-JRL
Chapter 13
____________________________________________________________________________
ORDER
This matter is before the court on the request for an order confirming that the stay is terminated filed
by Capital One Auto Finance (“Capital One”). On April 12, 2006, the court conducted a hearing in
Wilson, North Carolina.
Capitol One is a creditor in the debtors’ case, secured by a 2001 Toyota Camry. The debtors filed
a previous Chapter 13 case, which was dismissed on November 2, 2005. Their current case was filed on
January 19, 2006. Capital One asserts that, pursuant to 11 U.S.C. § 362(c)(3)(A), the automatic stay
terminated on the thirtieth day after the petition was filed, as the debtors never filed a motion to extend the
SO ORDERED.
SIGNED this 25 day of April, 2006.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
Case 06-00152-8-JRL Doc 21 Filed 04/25/06 Entered 04/25/06 12:55:37 Page 1 of 2

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stay. It seeks an order confirming that the stay is no longer in place.
Under 11 U.S.C. § 362(c)(3)(A), if a debtor has a previous bankruptcy case dismissed within the
year preceding the current bankruptcy case, the stay “with respect to any action taken with respect to a debt
or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the
30th day after the filing of the later case.” In In re Paschal, Judge Small found that the use of the word
“action” in this provision “means a formal action, such as a judicial, administrative, governmental, quasi-
judicial, or other essentially formal activity or proceeding.” 337 B.R. 274, *15 (Bankr. E.D.N.C. 2006).
If no “action” was taken by the creditor prior to the current bankruptcy filing, the stay does not automatically
terminate as to that creditor. Id. at *17-18.
At the hearing, Capital One acknowledged that it had taken no formal action against the debtors in
the prior bankruptcy case or in the interim before the current case was filed. This court has previously
indicated it will adhere to Judge Small’s decision in Paschal. See In re Parker, Case No. 06-00350-8-JRL
(Bankr. E.D.N.C. Mar. 10, 2006). As there was no showing that Capital One has taken action to collect
its debt or reclaim its collateral, the stay has not automatically terminated pursuant to § 362(c)(3)(A).
Accordingly, the request filed by Capital One is denied.
“End of Document”
Case 06-00152-8-JRL Doc 21 Filed 04/25/06 Entered 04/25/06 12:55:37 Page 2 of 2