John Stewart Davidson

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
JOHN STEWART DAVIDSON,
Debtor.
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Case No. 11-30629 SFC
Chapter 13
MEMORANDUM RE DEBTOR’S MOTION TO REINSTATE CHAPTER 13 CASE
On September 2, 2011, the court held a hearing on Debtor’s
motion to reinstate his chapter 13 case, after the court had
dismissed the case by order entered on August 15, 2011. 	Debtor
appeared in pro per. 	Badma Gutchinov appeared for lessor Claire
Carroll (Landlord). 	Upon due consideration, Debtor’s motion is
granted upon the conditions set forth below.
FACTS
Debtor filed a chapter 13 case in pro per on February 18,
2011. 	Debtor’s initial chapter 13 plan provided for Debtor to make
a monthly payment to the trustee of $550 per month for 24 months,
then $250 for 36 months. 	This plan was impractical, because
Landlord had filed a motion for relief from stay, and the court
entered an adequate protection order requiring Debtor to pay $500
directly to Landlord each month to cure the prepetition arrearage
on the lease. 	On the motion of the chapter 13 trustee, the court
-1-	MEMO RE DEBTOR’S MOTION TO REINSTATE
Signed and Filed: September 06, 2011
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
September 07, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 11-30629 Doc# 67 Filed: 09/06/11 Entered: 09/07/11 08:33:01 Page 1 of 4

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ordered Debtor to file an amended chapter 13 plan under which
Debtor would pay postpetition rent directly to Landlord and Debtor
would pay the prepetition default through the trustee.
The court ordered Debtor to file the amended plan, and make
the payment to trustee required under that plan, by August 1, 2011.
Debtor submitted the plan and the required payment to trustee by
August 1, 2011, but did not actually file the plan with the court
until August 4, 2011. 	The court entered an order dismissing the
case on August 15, 2011, because of Debtor’s failure timely to file
the amended chapter 13 plan.
Debtor’s lease required him to pay rent of $1,400 per month,
and the court’s Order Modifying May 4, 2011 Order re Claire
Carroll’s Motion for Relief from Stay (the Adequate Protection
Order), entered July 27, 2011, required Debtor to pay that amount
to Landlord as a condition to maintaining the automatic stay.
Sometime before September 1st, Landlord gave notice to Debtor that
the rent was raised by ten percent to $1,540 per month. 	Debtor had
not paid that rent as of the September 2nd hearing, stating that he
was not sure he was required to do so in light of the terms of the
Adequate Protection Order. 	Debtor acknowledged at the hearing that
the rent had not been raised for more than five years.
Debtor did not make a payment to the trustee by September 1st,
as required by this court’s Order re Chapter 13 Trustee’s Motion to
Dismiss, entered on July 22, 2011. 	Debtor stated at the hearing
that he did not make the payment, because his case had been
dismissed, but that he was prepared to make the payment promptly.
DISCUSSION
Debtor’s motion to vacate dismissal should be granted, because
Debtor substantially complied with the court’s July 22, 2011 order,
-2-	MEMO RE DEBTOR’S MOTION TO REINSTATE
Case: 11-30629 Doc# 67 Filed: 09/06/11 Entered: 09/07/11 08:33:01 Page 2 of 4

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and because the principal purpose of that order was to coordinate
Debtor’s chapter 13 plan with the Adequate Protection Order,
because the chapter 13 trustee did not oppose the motion to vacate
dismissal, and because Debtor timely made the payment to Landlord
required under the court’s July 22, 2011 order. 	Relief from
dismissal is conditioned upon Debtor delivering the September plan
payment to trustee by September 12, 2011.
Whether Debtor has complied with the Adequate Protection Order
is a more complex question. 	Debtor did not pay the September rent
by September 1st, but Landlord demanded rent in excess of that
specified in the Adequate Protection Order. 	In light of the fact
that Landlord has not increased the rent in five years, the ten
percent increase is reasonable and should be effective September 1,
2011. 	In light of the fact that Landlord demanded rent in excess
of that specified in the Adequate Protection Order, Debtor should
not be required to make the payment before this court clarified
whether the rent increase was permissible. 	The stay will remain in
effect if, and only if, Debtor pays $1,540 to Landlord by September
12, 2011 and Debtor pays the September plan payment to the chapter
13 trustee by the same date. 	The court will amend the Adequate
Protection Order in accordance with the above.
**END OF MEMORANDUM**
-3-	MEMO RE DEBTOR’S MOTION TO REINSTATE
Case: 11-30629 Doc# 67 Filed: 09/06/11 Entered: 09/07/11 08:33:01 Page 3 of 4

Court Service List
John Stewart Davidson
331B N. Delaware Street
San Mateo, CA 94401
Wlliam E. Gilg, Esq.
Law Offices of William E. Gilg
305 San Bruno Avenue West
San Bruno, CA 94066
Case: 11-30629 Doc# 67 Filed: 09/06/11 Entered: 09/07/11 08:33:01 Page 4 of 4