Carmen L Wright

ORDER DENYING EMERGENCY EX PARTE MOTION TO LIFT
AUTOMATIC STAY FOR TAX COURT PROCEEDING - 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
In re: 	)
) 	Case No. 05-21542-TLM
CARMEN L. WRIGHT, 	)
) 	ORDER DENYING
Debtor. 	) 	EMERGENCY EX PARTE
) 	MOTION TO LIFT
) 	AUTOMATIC STAY FOR TAX
) 	COURT PROCEEDING
________________________________ 	)
The United States is a creditor in the above chapter 13 case which was filed
on September 29, 2005, by pro se debtor Carmen Wright (“Debtor”). The United
States filed an Emergency Ex Parte Motion for Relief From Automatic Stay for
Tax Court Proceeding. See Doc. No. 6 (the “Motion”). In the Motion, the United
States alleges that the filing is not made in good faith, that it follows several
earlier, unsuccessful bankruptcy cases by Debtor including one only recently
dismissed, and that the petition’s filing was intended and designed to prevent a
long delayed Tax Court hearing now scheduled for September 30 from occurring.
The United States believes that the record in this case (which consists of the
petition and Motion only) and in prior cases establishes sufficient cause for
“emergency” relief from the § 362(a) automatic stay. Moreover, the Motion seeks
such relief on an ex parte basis, without effective notice to Debtor or an
opportunity for her to be heard. (The Motion was served on Debtor by regular
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ORDER DENYING EMERGENCY EX PARTE MOTION TO LIFT
AUTOMATIC STAY FOR TAX COURT PROCEEDING - 2
mail according to the certificate of service, and nothing in the United States’
submissions indicates any other notice to Debtor, though the United States Trustee
and chapter 13 trustee were served electronically.)
Under § 362(f), the Court may grant such extraordinary relief if “necessary
to prevent irreparable damage to the interest of an entity in property, if such
interest will suffer damage before there is an opportunity for notice and a hearing”
under § 362 (d) and (e). The United States has pleaded no such interest nor any
impending “irreparable” damage. Instead, it alleges that, if the September 30 Tax
Court hearing is stayed, it might be 6 months before another hearing can be
scheduled. Delay, particularly of this magnitude, does not rise to the level
necessary to obviate notice and hearing.
Federal Rule of Bankruptcy Procedure 4001(a)(2) also addresses ex parte
relief from the automatic stay. It provides that relief “may be granted without
prior notice only if (A) it clearly appears from specific facts shown by affidavit or
by a verified motion that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party . . . can be heard in opposition, and
(B) the movant’s attorney certifies to the court in writing the efforts, if any, which
have been made to give notice and the reasons why notice should not be required.”
The Motion is not supported by affidavit or verification. More importantly, it
lacks the required showing, and instead simply alleges abusive serial bankruptcy
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ORDER DENYING EMERGENCY EX PARTE MOTION TO LIFT
AUTOMATIC STAY FOR TAX COURT PROCEEDING - 3
filings, and the prospect of additional delay before the long-awaited Tax Court
hearing can be held.
Finally, the Court has briefly reviewed the record in the last of Debtor’s
several bankruptcy filings. In Case No. 05-20112-TLM, the United States brought
a motion for relief from stay in order to proceed with the Tax Court hearing. It
also filed a motion to dismiss the case under § 1307(c) and specifically asked
therein for a prohibition on any future bankruptcy filing, alleging Debtor’s
propensity to file and dismiss cases in order to frustrate the conclusion of the Tax
Court process. See Case No. 05-20112-TLM at Doc. No. 17. Thereafter, on April
26, 2005, the United States and Debtor, through their respective counsel, appeared
before the Court and stipulated to the withdrawal of the motion to dismiss and the
granting of the stay relief motion. Id. at Doc. No. 25.
While the fears of the United States may have been realized through the
later dismissal of Case No. 05-20112-TLM and the filing of the instant case on the
eve of the Tax Court hearing, it was within the power of the United States to
address and avoid that result. Instead, it withdrew its motion to dismiss which
sought a bar on a successive filing. This election made by the United States in
April in Case No. 05-20112-TLM weighs against ex parte relief here.
The Court concludes, under the above authorities and upon the record, that
the Motion is not well taken. It shall be, and is hereby, DENIED. Denial is
without prejudice to the filing and prosecution of a stay relief motion in accord
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ORDER DENYING EMERGENCY EX PARTE MOTION TO LIFT
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with § 362(d) and (e), Fed. R. Bankr. P. 4001, and LBR 4001.2. It is further
without prejudice to other motions or applications the United States or other
parties in interest may wish to make.
DATED: September 30, 2005
TERRY L. MYERS
CHIEF U. S. BANKRUPTCY JUDGE
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ORDER DENYING EMERGENCY EX PARTE MOTION TO LIFT
AUTOMATIC STAY FOR TAX COURT PROCEEDING - 5
CERTIFICATE RE: SERVICE
A “notice of entry” of this Decision, Order and/or Judgment has been
served on Registered Participants as reflected by the Notice of Electronic Filing.
A copy of the Decision, Order and/or Judgment has also been provided to non-
registered participants by first class mail addressed to:
Carmen L. Wright
3025 W. Summer Ave.
Athol, ID 83801
Case No. 05-21542-TLM (Carmen L. Wright)
Dated: September 30, 2005
/s/ Jo Ann B. Canderan
Judicial Assistant to Chief Judge Myers
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