Leonard Alfred Carpenter

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
LEONARD CARPENTER,
Debtor.
)
)
)
)
)
)
Case No. 08-00400
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE MOTION
TO ALTER OR AMEND ORDER VACATING DISMISSAL
Stephen Shames seeks to amend an order that vacated an
earlier order dismissing this case. 	Specifically, Shames seeks
an order clarifying that a foreclosure sale held after the case
was dismissed and before the dismissal order was vacated did not
violate the automatic stay of 11 U.S.C. § 362(a). 	The motion
will be granted.
I
An order entered on August 25, 2008, dismissed the debtor’s
case with prejudice for 180 days. 	On September 15, 2008, the
debtor filed a motion to reconsider the dismissal of the case.
The debtor did not seek a stay of the order of dismissal pending
the outcome of his motion to reconsider. 	The chapter 13 trustee
opposed the motion to reconsider, and the court set a hearing to
The decision below is signed as a decision of
the court.
Signed: December 03, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 08-00400 Doc 73 Filed 12/03/08 Entered 12/03/08 16:42:53 Desc Main
Document Page 1 of 3

2
be held on October 24, 2008, to address the debtor’s motion. 	In
the meantime, on October 21, 2008, a foreclosure sale of the
debtor’s real property known as 909 8 th Street, N.E., Washington,
D.C., was conducted on behalf of Shames, who held a secured claim
against the property. 	An order entered on October 30, 2008,
granted the debtor’s motion to reconsider, and vacated the
dismissal order.
II
The automatic stay terminates upon the dismissal of a case.
See Fish Mkt. Nominee Corp. v. Pelofsky, 72 F.3d 4, 6 (1st Cir.
1995) ("[T]he stay under section 362(a) itself expired as soon as
the judgment dismissing the chapter 11 case was entered . . . ."
(citations omitted)). 	Although the automatic stay is implicitly
reinstated once a dismissal order is vacated, the reinstatement
cannot be retroactive. 	When the foreclosure sale was held, there
was no automatic stay in place, and the sale cannot now become a
sale that was barred by what was then a non-existent automatic
stay. 	Lomagno v. Salomon Bros. Realty Corp. (In re Lomagno), 320
B.R. 473, 480 (1st Cir. BAP 2005). 	The debtor does not suggest
that some due process violation ought to give rise to an
exception to the non-retroactivity of the automatic stay, and, in
any event, cases applying such an exception, as discussed in In
re Lomagno, 320 B.R. at 480-81, appear really to turn on creditor
misconduct that can be addressed without resorting to
Case 08-00400 Doc 73 Filed 12/03/08 Entered 12/03/08 16:42:53 Desc Main
Document Page 2 of 3

3	O:\TEEL\Judge Temp Docs\Carpenter (Leonard) Mem Dec re Shames Mtn to Amend.wpd
retroactively reimposing the automatic stay.
Even disregarding the substantial prejudice that Shames
would suffer if the automatic stay were imposed retroactively,
his foreclosure sale, as a matter of law, must be held not to
have violated the automatic stay. 	The debtor claims that he will
suffer greater prejudice if the automatic stay is not reimposed
retroactively than Shames will suffer if it is reimposed
retroactively, but the issue does not turn on relative prejudice.
III
Shames asks for an award of attorney’s fees, pointing to the
debtor’s silence regarding the concluded foreclosure sale when he
appeared at the hearing on the motion for reconsideration, and
the debtor’s threatening that the sale would be attacked as null
and void based on reinstatement of the case. 	Shames has not
shown an adequate basis for shifting his attorney’s fees pursuant
to any recognized exception to the American rule that each party
is to bear its own attorney’s fees. 	His request for an award of
attorney’s fees will thus be denied.
IV
An order follows.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Joel S.
Aronson, Esq.
Case 08-00400 Doc 73 Filed 12/03/08 Entered 12/03/08 16:42:53 Desc Main
Document Page 3 of 3