Court Holds New Code Section 362(h) Not Applicable in Chapter 13
The U.S. Bankruptcy Court for the Western District of New York recently held that a debtor's failure to file a statement of intention in his Chapter 13 case did not result in the termination of the automatic stay under new Code section 362(h). In re Schlitzer, No. 05-80001 (Nov. 17, 2005).
In the case, a pro se debtor filed a Chapter 13 case but failed to file the Schedules and Statements required by Section 521 and Rule 1007, his Chapter 13 Monthly and Disposable Income Form or a Chapter 13 Plan.
Out of concern that under 11 U.S.C. § 362(h), a new Code provision under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)--which provides that if an individual debtor's statement of intention is not filed as required by 11 U.S.C. § 521(a)(2), then the automatic stay with respect to personal
property that secures a claim will be terminated and such property will no longer constitute property of the estate--the Trustee filed a motion requesting that the Court enter an order extending the automatic stay and determining that all property of the Debtor continued to be property of the estate.
Analyzing the plain language of section 521(a)(2), which specifically refers only to "the date of filing of a petition under Chapter 7 of this title" (emphasis added), the court concluded that the Trustee's concern was unnecessary and denied the motion. The court held that the requirement that a debtor file a statement of intention under Section 521 (a)(2) applies only in cases filed under Chapter 7, and thus new Section 362(h) has no applicability in a Chapter 13 case.
