Elwood Fields

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ELWOOD FIELDS,
Debtor.
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Case No. 06-00441
(Chapter 7)
MEMORANDUM DECISION AND ORDER
REQUIRING LBR 9013-1 NOTICE OF MOTION TO CONFIRM
TERMINATION OF AUTOMATIC STAY AND A NEW PROPOSED ORDER
DaimlerChrysler Financial Services Americas, LLC
(“DaimlerChrysler”) has filed a Motion to Confirm Termination of
the Automatic Stay, contending that the automatic stay of 11
U.S.C. § 362(a) has terminated pursuant to 11 U.S.C. §§ 362(h)
and 521(a)(6) with respect to an automobile.
I
Under § 362(h), the automatic stay is terminated with
respect to personal property of the estate or debtor securing a
claim in certain specified circumstances. 	If, as occurred in
this case, the debtor has timely filed a statement of intention
under 11 U.S.C. § 521(a)(2) specifying the debtor’s intention to
reaffirm the debt on the original contract terms, the stay is not
The Memorandum Decision and Order below is hereby
signed. Dated: February 3, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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terminated if “the creditor refuses to agree to the reaffirmation
on such terms.” 	DaimlerChrysler’s motion represents that it has
not so refused, but the debtor should be allowed to contest that
representation of fact. 	It follows that DaimlerChrysler was
required by Local Bankruptcy Rule (“LBR”) 9013-1 to serve with
its motion a notice of opportunity to oppose the motion to the
extent that the motion is premised on § 362(h).
II
Assuming that DaimlerChrysler is correct that its alleged
security interest was a purchase money security interest,
§ 521(a)(6) required the debtor, within 45 days after the first
meeting of creditors under 11 U.S.C. § 341(a), to either enter
into a reaffirmation agreement of the claim secured by the
automobile or to redeem the automobile. 	DaimlerChrysler’s
contention that its security interest was a purchase money
security interest is an assertion of fact that the debtor and the
chapter 7 trustee are entitled to challenge. 	It follows that
DaimlerChrysler was required by LBR 9013-1 to serve with its
motion a notice of opportunity to oppose the motion to the extent
that the motion is premised on § 521(a)(6).
III
The proposed order submitted with the motion decrees “that
the automatic stay . . . be and hereby is terminated as to
DaimlerChrysler.” 	The order should decree instead that it is
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confirmed that the automatic stay has terminated with respect to
DaimlerChrysler’s enforcement of its security interest in the
automobile, including any acts permitted by applicable
nonbankruptcy law with respect to such enforcement of that
security interest. 	First, an order granting a motion such as
DaimlerChrysler’s does not terminate the stay as the motion is
not one for relief from the automatic stay (which requires a
filing fee) but instead confirms that the automatic stay has
terminated. 	Second, such an order ought not recognize any
termination of the automatic stay beyond that provided by
statute. 	When applicable, §§ 362(h) and 521(a)(6) terminate the
automatic stay with respect to enforcement of a security
interest. 	However, when read in context, it is apparent that §§
362(h) and 521(a)(6) are not intended to permit the creditor to
pursue the debtor personally for any deficiency claim that may
arise after the creditor disposes of the collateral.
The order contains additional provisions that go beyond
confirmation of the termination of the automatic stay (e.g.,
directing to whom DaimlerChrysler should pay any excess proceeds
of a sale, and decreeing that the order survives if the case is
converted to a case under another chapter of the Bankruptcy
Code). 	Those provisions are unnecessary and inappropriate. 	The
debtor may not be entitled to the excess proceeds if his interest
has been assigned (or is seized by a postpetition creditor).
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4	O:\Judge Temp Docs\Fields (Elwood) Order Directing Creditor to Give 9013-1 Notice re Mtn to Confirm Auto Stay Terminated.wpd
Similarly, once the automatic stay terminates, no provision of
the Bankruptcy Code provides that, unless the court orders
otherwise, the automatic stay is brought back to life by
conversion of the case to another chapter, so it is wholly
unnecessary to include such language in the order.
IV
In accordance with the foregoing, it is
ORDERED that DaimlerChrysler shall give notice under LBR
9013-1 of the opportunity to oppose its motion. 	It is further
ORDERED that DaimlerChrysler shall provide a revised
proposed order in accordance with the foregoing.
[Signed and dated above.]
Copies to: H. Tucker Dewey, Esq.; Debtor; Debtor’s attorney;
Chapter 7 Trustee; Office of United States Trustee.
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