H&H Construction & Investment Inc

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
H&H CONSTRUCTION &
INVESTMENT INC.,
Debtor.
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Case No. 09-00083
(Chapter 11)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DISMISSING AND DENYING MOTION TO
ENFORCE FED. R. BANKR. P. 4001(a)(3) AND AMENDING ORDER GRANTING
FINANCIAL FEDERAL CREDIT, INC.’S MOTION FOR RELIEF FROM STAY
On March 10, 2009, Financial Federal Credit (“FFC”) filed a
motion for relief from stay, and on April 16, 2009, the court
held a hearing on that motion. 	On May 4, 2009, the court signed
and entered an order granting FFC’s motion (Docket Entry (“DE”)
No. 38). 	The order granting FFC’s motion, which was prepared and
submitted as a proposed order by FFC on April 22, 2009, provides,
inter alia, that it is
ORDERED, the debtor, H&H Construction & Investment,
Inc. (the “Debtor”), shall disclose to FFC the location
of the John Deeres, Attachments and other Collateral,
and shall cooperate with FFC in [FFC’s] retrieval of
such John Deeres, Attachments and other Collateral,
with such retrieval occurring no later than 5:00 p.m.
on the second business day after entry of this Order
unless otherwise agreed to in writing by FFC . . . .
The document below is hereby signed.
Signed: May 08, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	The debtor has not sought to hold FFC in contempt, even
though it characterizes the position FFC took as a “demand” for
surrender, and given the ambiguity that I perceive of whether
Rule 4001(a)(3) applied, a finding of contempt would likely not
be appropriate.
2
On May 6, 2009, the debtor filed a Motion to Enforce the
Stay Under Fed. R. Bankr. Pro. 4001(a)(3) (DE No. 39). 	In its
motion, the debtor contends that FFC took the position that the
debtor was required to surrender its collateral by May 6, 2009,
and the debtor contends that the requirement of surrender did not
apply in light of the 10-day stay of Rule 4001(a)(3), which the
debtor contends applies to the order granting relief from stay.
FFC has filed a response, urging that Rule 4001(a)(3) is
inapplicable to the order lifting the stay because the order
expressly contemplated performance within two business days after
entry of the order, a deadline that would be rendered meaningless
if the court intended a 10-day stay under Rule 4001(a)(3) to
apply.
Both parties have offered reasonable interpretations of Rule
4001(a)(3) and its applicability to the court’s order granting
FFC’s motion for relief from stay. 	The court, however, believes
that the stay of Rule 4001(a)(3) ought not apply to the order,
and if the stay did apply, it should be deemed to be lifted upon
entry of this order. 	FFC has not retrieved the collateral at
this juncture, and that moots the necessity of determining
whether Rule 4001(a)(3) applied before entry of this order. 1
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3
The purpose of the stay under Rule 4001(a)(3) would have
been to allow the debtor adequate time to obtain a stay of longer
duration pending an appeal of the court’s ruling, yet the debtor
was highly unlikely to prevail on any appeal. 	Likewise, the
delay in the court’s entry of the order granting relief from stay
gave the debtor more than adequate time to file a motion for
reconsideration (and to seek a stay pending determination of that
motion) if the debtor believed the court’s ruling in favor of FFC
was in error. 	It is thus
ORDERED that the debtor’s Motion to Enforce the Stay Under
Fed. R. Bankr. Pro. 4001(a)(3) (DE No. 39) is DISMISSED as moot
(without adjudicating the merits) with respect to whether the
stay of Rule 4001(a)(3) applied prior to entry of this order and
is otherwise DENIED. 	It is further
ORDERED that the order granting relief from stay (DE No. 38)
is hereby amended, such that the paragraph recited earlier in
this order shall now provide as follows:
ORDERED, the debtor, H&H Construction & Investment,
Inc. (the “Debtor”), shall disclose to FFC the location
of the John Deeres, Attachments and other Collateral
and shall cooperate with FFC in FFC’s retrieval of such
John Deeres, Attachments and other Collateral, with the
debtor to permit such retrieval to occur no later than
5:00 p.m. on May 12, 2009, unless FFC gives notice in
writing that the retrieval will be made at a later date
or time.
It is further
ORDERED that neither this order nor the court’s prior order
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4	O:\TEEL\Laura\ORDERS\Stay Pending Appeal\Order denying motion to enforce stay under 4001(a)(3)_H&H Construction_v2.wpd
granting FFC’s motion for relief from stay (DE No. 38) shall be
subject to the stay provided for under Rule 4001(a)(3) as of the
date of entry of this order.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Office of United States
Trustee;
Mary Fran Ebersole, Esq.
Tydings & Rosenberg LLP
100 E. Pratt Street, 26 th Fl
Baltimore, MD 21202
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