Case No. 11-40639.United States Bankruptcy Court, E.D. Michigan, Southern Division.
March 7, 2011
OPINION REGARDING DEBTOR’S ELIGIBILITY TO BE A DEBTOR IN LIGHT OF 11 U.S.C. § 109(g)(2)
THOMAS TUCKER, Bankruptcy Judge
In its February 4, 2011 Order granting Debtor’s motion to extend the automatic stay (Docket # 21), the Court required Debtor to file a written response showing cause why this case should not be dismissed, based on 11 U.S.C. § 109(g)(2). The Debtor filed a timely response (Docket # 25), which the Court has reviewed.
The Court concludes that Debtor is not ineligible to be a bankruptcy debtor under 11 U.S.C. § 109(g)(2). As a result, the Court cannot and should not dismiss this Chapter 13 bankruptcy case based on § 109(g)(2). The Court concludes that there was no “request for relief from the automatic stay” filed in Debtor’s previous bankruptcy case, within the meaning of § 109(g)(2), before Debtor voluntarily dismissed that case. The Court concludes that the statutory phrase “request for relief from the automatic stay” means a motion seeking relief from stay, and that § 109(g)(2) does not apply merely because the Debtor and a creditor filed a stipulation and obtained a stipulated order modifying or terminating the automatic stay, without any motion for stay relief having been filed.
This interpretation of the statutory phrase “request for relief” is supported by the provisions in the national and local bankruptcy rules indicating that as a general rule, a request for relief must be made by written motion, unless made during a hearing. See Fed.R.Bankr.P.
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9013 (“[a] request for an order, except when an application is authorized by these rules, shall be by written motion, unless made during a hearing.”); 9014(a) (“[i]n a contested matter not otherwise governed by these rules, relief shall be requested by motion, . . .”); L.B.R. 9014-1(a) (“[u]nless permitted otherwise by applicable rule, a party seeking relief shall file a motion.”) Although it is a common practice in this district for parties to seek and obtain various types of orders upon stipulation, without filing a motion, and although this Court’s local rules contain numerous provisions expressly authorizing the entry of an order upon the filing of a stipulation, the Court concludes that the phrase “request for relief from the automatic stay” as used in § 109(g)(2) means a motion for relief from stay, and does not include a mere stipulation for such relief.
Before the Debtor voluntarily dismissed her prior case, Case No. 10-43535, on November 2, 2010, no motion for relief from stay had been filed by anyone. Rather, only a stipulation for relief from stay, and the resulting agreed order, had been filed (Docket ## 42, 43), both on July 27, 2010. Thus, no “request for relief from the automatic stay” was filed in Debtor’s prior case before she voluntarily dismissed it. Section 109(g)(2) therefore does not apply to make Debtor ineligible to be a Debtor in the current case. The Court therefore will not dismiss the current case based upon § 109(g)(2).
Signed on March 7, 2011