Thomas Hair and Melba B. Hair

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
IN RE:
THOMAS HAIR and
MELBA B. HAIR,
DEBTORS
CASE NO.
05-04329-8-ATS
ORDER DENYING MOTION FOR RELIEF FROM AUTOMATIC STAY
The matter before the court is the motion for relief from the
automatic stay filed by Mid-State Homes, Inc. A hearing took place in
Raleigh, North Carolina on August 2, 2004. For the reasons that
follow, the motion will be denied.
Thomas and Melba Hair filed a petition for relief under chapter
13 of the Bankruptcy Code on June 1, 2005, the same day that the Hairs
filed a voluntary dismissal of their prior chapter 13 case, which they
filed on June 2, 2004. The dismissal and refiling may have been the
result of a domestic dispute, but the reasons for their actions are
unclear.
Mid-State Homes is a secured creditor, and its claim is secured
by the debtors’ residence. In the first chapter 13 case, Mid-State
filed a motion for relief from the automatic stay that was resolved by
a consent order. In its present motion for relief from the automatic
stay, Mid-State argues that the Hairs’ second filing is improper under
§ 109(g)(2) because the debtors voluntarily dismissed their case after
Mid-State filed a motion for relief from stay under § 362. Section
109(g)(2) of the Bankruptcy Code provides that a person cannot be a
debtor under Title 11 if the person also has been a debtor in another
case under Title 11 within the preceding 180 days, and the debtor
requested and obtained a voluntary dismissal of that case following a
request for relief from the stay.
Furthermore, Mid-State maintains that the consent order provided
that:
[i]n the event Mid-State receives relief from stay pursuant
to the terms of this Consent Order or this case is
dismissed, then the debtors are hereby barred and enjoined
from filing another bankruptcy petition for 180 days from
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the date that Mid-State obtains such relief from stay or the
case is dismissed, whichever is later.
Consent Order Resolving Mid-State’s Motion for Relief From Automatic
Stay p. 2 ¶ 2 (Jan. 27, 2005).
It is not clear whether or not § 109(g) applies in circumstances
where the debtor resolves the motion for relief from stay by consent
order, but the court does not need to consider that issue because it is
not directly before the court. Neither the trustee nor any creditor
has moved for dismissal of this case based on § 109(g).
The debtors appear to be current with their obligations under the
consent order, or more accurately would be current if the creditor had
not refused to accept payments tendered by the debtor. Consequently,
the motion for relief from stay is DENIED, and the debtors shall have
15 days from the date of entry of this order in which to tender
sufficient payment to Mid-State to bring all payments current under the
court order.
SO ORDERED.
DATED: August 12, 2005
Case 05-04329-8-SWH Doc 22 Filed 08/12/05 Entered 08/12/05 17:01:27 Page 2 of 2