Shibisha Buxton

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 06-41555 TG
Chapter 13
SHIBISHA M. BUXTON,
Debtor.
___________________________/
MEMORANDUM AND ORDER RE DEBTOR’S REQUEST
FOR RECONSIDERATION OF ORDER GRANTING RELIEF FROM
THE AUTOMATIC STAY AND/OR FOR STAY PENDING APPEAL
The 	above-captioned 	chapter 	13 	case 	was 	filed 	on 	September 	6,
2006 	as 	a 	skeletal 	filing: 	e.g., 	no 	Schedules 	of 	Assets 	and
Liabilities 	or 	Statement 	of 	Financial 	Affairs 	were 	filed 	with 	the
petition. 	On May 14, an entity named California F.I., LLC (“Buyer”)
filed a motion for relief from the automatic stay. 	A hearing on the
motion was conducted on September 29, 2006. 	The debtor appeared at
the hearing. 	Buyer appeared through counsel.
In the motion, Buyer presented evidence that a foreclosure sale
had taken place on May 3, 2006 on its deed of trust encumbering real
property owned by the debtor (the “Property”), and that Buyer, as the
highest 	bidder, 	had 	purchased 	the 	Property 	at 	the 	Sale. 	The
trustee’s deed upon sale was recorded on May 16, 2006.
Signed: October 24, 2006
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
October 24, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-41555 Doc# 25 Filed: 10/24/06 Entered: 10/24/06 14:08:41 Page 1 of 5

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1In the motion, Buyer presented evidence that the debtor had
also filed a third bankruptcy case during 2006: i.e., a chapter 13
case filed on March 3, 2006 which was dismissed on April 27, 2006
for failure to file the required documents. 	Since the instant case
is the debtor’s third within one year, under BAPCPA, no automatic
stay arose in this case. 	Therefore, the request presumably related
to annulment of the stay in the prior case: i.e., the chapter 7
case.
2
Buyer presented evidence that the debtor filed a chapter 7 case
on May 4, 2006 which delayed Buyer’s efforts to evict the debtor from
the Property. 	However, the chapter 7 case was dismissed on June 1,
2006. 	On 	June 	8, 	2006, 	Buyer 	filed 	an 	unlawful 	detainer 	action 	in
state 	court. 	On 	August 	7, 	2006, 	Buyer 	obtained 	a 	judgment 	for
possession, 	and 	an 	eviction 	was 	scheduled 	for 	August 	16, 	2006. 	On
August 15, 2006, the debtor obtained a stay of the eviction from the
state court, and the eviction was rescheduled for September 7, 2006.
As noted above, this case was filed on September 6, 2006.
Buyer 	asked 	the 	Court 	to 	annul 	the 	automatic 	stay 	to 	permit
Buyer to complete the eviction and to bar the debtor from filing any
further bankruptcy cases for a period of 180 days. 	At the conclusion
of 	the 	hearing, 	the 	Court 	granted 	the 	motion. 	A 	written 	order 	was
entered in the docket on October 10, 2006. 1
On October 20, 2006, the debtor filed a document entitled Appeal
of Eviction and Emergency Request Stay of Execution Pending Appeal.
She 	also 	tendered 	the 	fee 	for 	filing 	an 	appeal 	from 	the 	Court’s
order. 	The debtor’s appeal, if she prosecutes it, will be heard by
an appellate court. 	However, it is appropriate for the Court to rule
on the debtor’s request for a stay pending appeal. 	The document also
asks the Court to reconsider its order granting Buyer’s motion. 	Both
Case: 06-41555 Doc# 25 Filed: 10/24/06 Entered: 10/24/06 14:08:41 Page 2 of 5

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requests 	will 	be 	denied. 	The 	debtor 	may 	reapply 	to 	the 	appellate
court for a stay pending appeal.
Having reviewed the dates set forth above, it is not clear that
Buyer 	needed 	the 	stay 	to 	be 	annulled. 	The 	foreclosure 	sale 	took
place the day before the debtor’s second bankruptcy case was filed.
The 	deed 	was 	recorded 	within 	15 	days 	before 	the 	sale 	and 	therefore
related 	back 	to 	the 	date 	of 	the 	sale 	and 	did 	not 	violate 	the
automatic 	stay. 	See 	In 	re 	Garner, 	208 	B.R. 	698 	(Bankr. 	N.D. 	Cal.
1997). 	The 	unlawful 	detainer 	action 	was 	filed, 	and 	the 	judgment
obtained after the second case was dismissed.
The 	debtor’s 	second 	case, 	a 	chapter 	7 	case, 	was 	dismissed 	for
failure to pay the filing fee. 	The debtor has now tendered the fee
and 	applied 	to 	have 	the 	dismissal 	order 	vacated. 	She 	did 	not 	file
certain 	required 	documents 	in 	that 	case. 	The 	Court 	has 	indicated
that it would grant the debtor’s request that the dismissal order be
vacated if she filed the required documents by November 3, 2006.
However, even if the debtor complies with this directive and the
chapter 	7 	case 	is 	reinstated, 	this 	would 	not 	retroactively 	cause
Buyer’s 	actions 	to 	constitute 	a 	violation 	of 	the 	automatic 	stay:
i.e., the automatic stay would not be deemed to have been in effect
while 	the 	case 	was 	dismissed. 	As 	a 	result, 	the 	Court’s 	order
granting Buyer’s motion for relief from the automatic stay may have
been 	unnecessary. 	However, 	its 	issuance 	has 	not 	prejudiced 	the
debtor 	in 	any 	way. 	Therefore, 	the 	Court 	sees 	no 	point 	in 	granting
the debtor’s request to reconsider it. 	The Court also believes that
Case: 06-41555 Doc# 25 Filed: 10/24/06 Entered: 10/24/06 14:08:41 Page 3 of 5

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the debtor is unlikely to prevail on appeal and that the equities do
no favor granting her request for a stay.
Good 	cause 	appearing 	therefor, 	the 	debtor’s 	request 	for
reconsideration of the Court’s order granting Buyer relief from the
automatic stay and/or for a stay pending appeal are hereby
DENIED.
END OF DOCUMENT
Case: 06-41555 Doc# 25 Filed: 10/24/06 Entered: 10/24/06 14:08:41 Page 4 of 5

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COURT SERVICE LIST
Shibisha M. Buxton
2525 Civic Ave.
Hayward, CA 94544
John Kendall
2411 Santa Clara Ave., Ste. 12
Alameda, CA 94501
Case: 06-41555 Doc# 25 Filed: 10/24/06 Entered: 10/24/06 14:08:41 Page 5 of 5