Kevin Ashley Byrd

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
KEVIN ASHLEY BYRD
DEBTOR
CASE NO.
06-00405-5-ATS
ORDER REGARDING REQUEST FOR CONFIRMATION OF ABSENCE OF STAY
The matter before the court is the motion filed by DaimlerChrysler
Financial Services Americas, LLC to confirm the absence of the
automatic stay in the chapter 7 case of Kevin Ashley Byrd.
Mr. Byrd filed a petition for relief under chapter 7 of the
Bankruptcy Code on March 24, 2006. DaimlerChrysler is a secured
creditor with a lien on the debtor's 2005 Chrysler PT Cruiser.
DaimlerChrysler filed the motion requesting that the court enter an
order "confirming the absence of the automatic stay, and declaring that
DaimlerChrysler is entitled to exercise all rights under state and/or
federal law, which are not inconsistent with Title 11 of the United
States Code." The motion was served on the debtor, counsel for the
debtor and the chapter 7 trustee. The debtor's discharge was entered
on June 27, 2006, before the time expired for filing a response to the
SO ORDERED.
SIGNED this 04 day of August, 2006.
________________________________________
A. Thomas Small
United States Bankruptcy Judge
____________________________________________________________
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1 Section 362(c) begins by excluding several subsections,
including § 362(h).
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motion. Neither the debtor nor the trustee filed a response to the
motion.
DaimlerChrysler contends that the automatic stay has been
terminated pursuant to § 362(h)(1) and § 521(a)(6), but there is no
section of the Bankruptcy Code that specifically authorizes the court
to enter the order requested. Section 362(j) provides that "[o]n
request of a party in interest, the court shall issue an order under
subsection [362] (c) confirming that the automatic stay has been
terminated." 11 U.S.C. § 362(j) (2005). Section 362(c) sets forth
circumstances in which the automatic stay is terminated, but § 362(c)
specifically excludes the circumstances described in § 362(h).1 11
U.S.C. § 362(c) (2005). There also is no section similar to § 362(j)
that provides for an order confirming that the automatic stay has been
terminated pursuant to § 521(a)(6).
Notwithstanding the lack of specific authority authorizing the
order requested, the court has the authority to enter such an order
pursuant to § 105(a). The court exercises its discretion to enter the
type of order requested by DaimlerChrysler on a case-by-case basis. In
this case the automatic stay was terminated, except with respect to an
act against property of the estate, on June 27, 2006, when the debtor's
discharge was entered. 11 U.S.C. § 362(c)(2)(C).
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DaimlerChrysler contends that the stay was terminated pursuant to
§ 521(a)(6). However, DaimlerChrysler has not shown that § 521(a)(6)
is applicable to the facts of this case. Section 521(a)(6) only
applies if the secured creditor has "an allowed claim for the purchase
price." 11 U.S.C. § 521(a)(6) (2005). DaimlerChrysler has not filed a
proof of claim and does not have an allowed claim. Furthermore, the
amount of the indebtedness secured by the automobile is not equal to
the purchase price. Section 521(a)(6) thus does not apply. See In re
Donald, 343 B.R. 524, 536 (Bankr. E.D.N.C. 2006).
DaimlerChrysler also maintains that the automatic stay is
terminated by § 362(h)(1). Section 362(h)(1) generally requires an
individual chapter 7 debtor who intends to keep personal property
subject to a security interest to (1) file a statement of intention
under § 521(a)(2)(A) indicating an intention to redeem or to reaffirm
the debt, and (2) perform that intention, as required by §
521(a)(2)(B), within 30 days after the first date set for the meeting
of creditors. Mr. Byrd filed a statement of intention under §
521(a)(2)(A) in which he indicated his intention to reaffirm the debt.
However, according to DaimlerChrysler, the debtor never signed the
reaffirmation agreement.
No reaffirmation agreement was filed with the court, but that is
not a requirement of either § 362(h)(1) or of § 521(a)(2)(B). The court
has no way of knowing whether or not the debtor signed the
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reaffirmation agreement, but will assume from the debtor's failure to
file a response to the motion that the allegation that he did not sign
the reaffirmation agreement is correct.
Since the debtor did not sign the reaffirmation agreement, he did
not perform his stated intention to reaffirm the debt as required by §
521(a)(2)(B) and § 362(h)(1)(A). The consequence of the debtor's
failure to reaffirm the debt is, according to § 362(h)(1), that "the
stay provided by subsection [362] (a) is terminated with respect to
personal property of the estate or of the debtor securing in whole or
in part a claim . . . and such personal property shall no longer be
property of the estate." 11 U.S.C. § 362(h)(1).
Based on the foregoing, the court CONFIRMS that as to Daimler-
Chrysler, the automatic stay of § 362(a) has been terminated with
respect to its claim secured by the debtor's 2005 Chrysler PT Cruiser,
and the Chrysler PT Cruiser is no longer property of the estate.
DaimlerChrysler also requests the court to enter an order
"declaring that DaimlerChrysler is entitled to exercise all rights
under state and/or federal law, which are not inconsistent with Title
11 of the United States Code." The court does not know what state
and/or federal laws DaimlerChrysler is referring to, or what actions it
intends to pursue, and for that reason, the court is not willing to
provide that declaration.
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As the court stated earlier, the court in entering this type of
order (sometimes referred to colloquially as a "comfort" order) has
exercised its discretion under § 105(a). Entry of this order, in this
case, should not be viewed by DaimlerChrysler or any other creditor as
an indication that the court will continue to enter these orders in the
future.
END OF DOCUMENT
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