SMITH v. STATE OF MAINE BUREAU OF REVENUE SERVICES
ORDER ON BANKRUPTCY APPEAL re: 1 Bankruptcy Appeal By JUDGE JOHN A. WOODCOCK, JR. (CCS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LELAND S. SMITH, JR.,
STATE OF MAINE BUREAU
OF REVENUE SERVICES,
Civil No. 1:17-cv-00340-JAW
Bankruptcy No. 16-10744-MAF
ORDER ON BANKRUPTCY APPEAL
A Chapter 13 debtor appeals the Bankruptcy Judge’s order confirming that the
automatic stay has terminated pursuant to 11 U.S.C. § 362(c)(3)(A) and, therefore,
does not prohibit creditors from taking actions against property of the estate. This
appeal raises a question that has divided courts concerning the proper statutory
interpretation of the inelegant language of that provision. Under the majority view,
subsection (c)(3)(A) terminates the automatic stay provisions blocking actions against
the debtor or property of the debtor, but property of the estate remains protected by
the automatic stay; under the minority view, subsection (c)(3)(A) terminates the
automatic stay in its entirety.
Although neither interpretation is entirely
satisfactory, the Court affirms the decision of the Bankruptcy Court because the
minority view is more convincing.
There are no factual disputes. In December 2014, the Debtor, Leland S. Smith,
Jr., filed a petition under Chapter 13, but that petition was dismissed in November
2016 because he failed to make payments required by the confirmed Chapter 13 plan.
On December 28, 2016, Mr. Smith filed a second Chapter 13 voluntary petition and a
proposed plan. Voluntary Pet. for Individuals Filing for Bankr. (Bankr. ECF No. 1);
Chapter 13 Plan (Bankr. ECF No. 3). On February 15, 2017, the state of Maine
Bureau of Revenue Services (MRS) filed a claim for roughly $52,000. Proof of Claim
(Bankr. Claim No. 3-1). On March 22, 2017, the Bankruptcy Court confirmed Mr.
Smith’s Chapter 13 Plan. Order Confirming Chapter 13 Plan and Setting Deadlines
for Certain Actions (Bankr. ECF No. 35).
Meanwhile, at a hearing on February 16, 2017, MRS sought clarification under
11 U.S.C. § 362(j) of the extent to which the automatic stay had terminated. Min.
Order (Bankr. ECF No. 19). In cases under Chapters 7, 11, and 13, § 362(c)(3)(A)
terminates the automatic stay “with respect to the debtor” after thirty days if that
debtor had a prior case pending within the preceding one-year period, which was then
dismissed. Under § 362(c)(3)(B), any party in interest may move for a continuation
of the automatic stay before the expiration of the thirty-day window, but no one did
After briefing and oral arguments, the Bankruptcy Court ruled in a thoughtful
and thorough opinion on August 18, 2017, that the automatic stay had terminated
and the phrase “with respect to the debtor” in 11 U.S.C. § 362(c)(3)(A) does not limit
the scope of the termination by preserving the automatic stay for actions against
property of the estate. Order Regarding Stay Termination Under 11 U.S.C. § 362(c)
(Bankr. ECF No. 48); Notice of Appeal Attach. 2 (ECF No. 1) (Bankr. Ct. Order). This
appeal followed on August 31, 2017. Notice of Appeal (Bankr. ECF No. 55); Notice of
Appeal Attach. 4 Appellee Statement of Election to Proceed in District Court (ECF No.
Mr. Smith filed a brief on November 15, 2017. Br. for Appellant (ECF No. 6)
(Smith Br.). On December 15, 2017, MRS filed its response. Br. for Appellee (ECF
No. 8) (MRS Br.). On December 29, 2017, Mr. Smith filed his reply. Reply Br. for
Appellant (ECF No. 9) (Smith Reply).
“On intermediate appeal to a district court, a final order of the bankruptcy
court is subject to the same familiar standards of review normally employed in direct
appeals to the courts of appeals in civil cases generally.” In re LaRoche, 969 F.2d
1299, 1301 (1st Cir. 1992). “The district court accepts all bankruptcy court findings
of fact unless ‘clearly erroneous,’ . . . but reviews rulings of law de novo.” Id. (citing
FED. R. BANKR. P. 8013, Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1543 (10th
Cir.1988)); see also In re DN Assocs., 3 F.3d 512, 515 (1st Cir. 1993).
THE PARTIES’ POSITIONS
Leland S. Smith, Jr.’s Brief
Mr. Smith advocates for the interpretation adopted by the majority of courts
to consider the scope of § 362(c)(3)(A)’s termination of the automatic stay, including
the First Circuit Bankruptcy Appellate Panel (BAP). Smith Br. at 3 (citing In re
Jumpp, 356 B.R. 789 (B.A.P. 1st Cir. 2006), In re Witkowski, 523 B.R. 291 (B.A.P. 1st
Cir. 2014) (reaffirming Jumpp)). The majority view is that the words “with respect
to the debtor” distinguish between the debtor and the debtor’s non-estate property on
the one hand, and the property of the estate on the other, such that the automatic
stay only terminates with respect to the former, not the latter. Id. at 6. Mr. Smith
argues against the minority view, which is that the words “with respect to the debtor”
do not create a distinction between the debtor and the debtor’s property on the one
hand, and the property of the estate on the other, such that the automatic stay
terminates with respect to all three categories. Id. at 7. Rather, many minority view
courts interpret the phrase “with respect to the debtor” as drawing a distinction
between the repeat-filing debtor and any non-repeat-filing spouse in a joint case. Id.
Mr. Smith argues that the meaning of § 362(c)(3)(A) is plain, and thus any
resort to legislative history is improper. Id. at 8-10. He points out that the numerous
automatic stay provisions of § 362(a) draw distinctions between actions or acts
against the debtor, property of the debtor, and property of the debtor’s estate,
invoking the principle that Congress knew how to refer to these different categories.
Id. at 11-12. Mr. Smith contends that the minority view improperly adds the words
“property of the estate” into the provision when they do not appear there, id. at 12,
or else improperly reads the phrase “with respect to the debtor” out of the statute. Id.
at 15-16. He also claims that the words “with respect to the debtor” only have
meaning in joint cases under the minority view, but § 362(c)(3)(A) is written to apply
to “a single or joint case.” Id. at 19.
MRS advocates for the minority view, which does not except actions against
“property of the estate” from the termination of the automatic stay. MRS Br. at 6-7
(citing St. Anne’s Credit Union v. Ackell, 490 B.R. 141 (D. Mass. 2013); In re Reswick,
446 B.R. 362 (9th Cir. BAP 2011)). The minority view does not interpret the text as
drawing a distinction between the debtor and the debtor’s property on the one hand
and property of the estate on the other, rather MRS interprets the words “with
respect to the debtor” as drawing a distinction between the serial-filer debtor and the
non-serial-filer spouse. Id. MRS suggests that textual distinctions between jointlyfiling spouses are common in the Bankruptcy Code. Id. at 16.
MRS argues that it is the majority view, and not the minority, that reads extra
words into the statute because it reads the phrase “with respect to the debtor” to also
include the “debtor’s non-estate property.” Id. at 8. MRS suggests that the majority
view’s conclusion that the phrase “with respect to the debtor” is meant to exclude
certain property cannot be reconciled with § 362(c)(3)(A)’s reference to actions against
“property securing [a] debt.” Id. at 11. MRS criticizes attempts by some majority
view courts to use the definition of a “claim” under § 102(2) to import a property
distinction to words only referring to the “debtor.” Id. at 13-14. MRS suggests that
any textual differences between § 362(c)(3) and § 362(c)(4) are insignificant. Id. at
MRS places considerable weight on § 362(c)(3)(B) and § 362(c)(3)(C), which
discuss the standard for establishing that a second petition is in good faith and thus
eligible for an extension of the stay. Id. at 9-10. MRS argues that the majority view
renders these lengthy provisions meaningless, because there will rarely be any need
to file for an extension of the stay if property of the estate is exempted from
termination, as most, if not all, of the important assets are property of the estate in
most, if not all, cases Id. at 9-10, 15. MRS emphasizes that the majority view renders
§ 362(c)(3)(A) “devoid of practical effect” because everything of value to creditors
constitutes property of the estate, and thus would remain protected after the thirtyday window.
Id. at 17-18.
MRS argues that the majority view’s “toothless”
interpretation violates the purpose of the statute, which is to curb abuse of the
automatic stay by repeat-filers, and MRS presents a legislative history it believes
supports its view of the statutory purposes. Id. at 18-22.
Leland S. Smith, Jr.’s Reply Brief
Mr. Smith highlights the facts that the phrase “with respect to the debtor”
appears in § 362(c)(3)(A) but not in §362(c)(4)(A)(i), which negates the automatic stay
entirely for debtors who had two prior pending cases in the preceding year. Smith
Reply at 1-3. Mr. Smith also asserts that the minority view renders the phrase “with
respect to the debtor” meaningless in cases like this one, where the debtor is a single
filer in both the instant and prior case, because there is no non-repeat-filer-spouse for
the phrase to distinguish. Id. at 4.
Mr. Smith claims the minority view’s interpretation is inconsistent with other
provisions in the Bankruptcy Code which refer to the debtor’s spouse because they
show that Congress knew how to draw that distinction by using the word “spouse”
and it chose not to do so in § 362(c)(3)(A). Id. at 8. Mr. Smith also chides the minority
view for frequently relying on legislative history, because it is inappropriate to rely
on legislative history when the plain meaning of the text is clear. Id. at 9-10.
THE DECISION OF THE BANKRUPTCY JUDGE
The Bankruptcy Judge framed the question of statutory interpretation:
Section 362(c)(3) sits between two ends of a spectrum. At one end of this
spectrum, the stay is automatic. The stay springs into effect upon the
filing of a petition, and the Court has no role in its creation. See 11
U.S.C. § 362(a). This occurs when an individual files her first petition
under title 11. At the other end of the spectrum, the stay is not created
automatically and does not go into effect on the filing of a petition. This
occurs when an individual becomes a debtor in any type of title 11 case
if that individual had two or more “single or joint cases” dismissed
within the previous year. See 11 U.S.C. § 362(c)(4)(A). When section
362(c)(4) is triggered, the Court can impose a stay, see 11 U.S.C. §
362(c)(4)(B), but the stay does not arise automatically. The dispute in
this contested matter arises out of the need to determine exactly where,
on this spectrum, section 362(c)(3) resides.
Bankr. Ct. Order at 9. The Bankruptcy Judge reviewed the competing interpretations
of §362(c)(3)(A), id. at 4-5, and concluded that, after the thirty-day window, the
automatic stay “ceases to protect the repeat-filing debtor and all of that debtor’s
property, including property of the debtor’s estate.” Id. at 1.
The Bankruptcy Judge thought that the words “the stay under subsection (a)”
indicated that the stay extended to all of the types of acts covered by the stay,
meaning that termination of the stay “would seem to leave no part of the stay in
place.” Id. at 6. The Bankruptcy Judge also said the minority view, which creates a
distinction between the debtor and the debtor’s spouse, was consistent with the
opening phrase of § 362(c)(3)(A), which refers to single or joint cases. Id. at 6-7.
The Bankruptcy Judge also looked to the legislative history. Id. at 7-8. The
disputed language traces back to the National Bankruptcy Review Commission in the
mid-1990’s. Id. The Bankruptcy Judge concluded that the legislative history showed
that Congress was concerned about the problem of successive bankruptcy filings
interfering with foreclosures and sought to remedy that problem by terminating the
stay after thirty days for repeat-filers. Id. The Bankruptcy Judge critiqued the
majority view for ignoring “the statute’s manifest purpose.” Id. According to the
Bankruptcy Judge, it is unlikely that Congress intended to insulate the property of
the estate after thirty days “given that the practical effect of terminating the stay on
day thirty only as to the debtor and the debtor’s property would be negligible at best.”
Id. at 10-11.
The Bankruptcy Judge also cited the statutory presumption that a repeatpetition was not filed in good faith but gives parties in interest the opportunity to
rebut that presumption by clear and convincing evidence. Id. at 12-13. Under the
majority view, the automatic stay would continue to insulate property of the estate
after thirty days, even in those cases where the debtor moved to extend the stay and
a bankruptcy court determined that the debtor failed to rebut the presumption that
the filing was in bad faith. Id. “It makes little sense to conclude that Congress meant
to protect most, if not all, of a debtor’s property – by virtue of its status as property of
the estate – in a case that was, at least presumptively, not filed in good faith.” Id. at
For those reasons, the Bankruptcy Judge concluded that the automatic stay
terminated in its entirety, meaning that MRS was “no longer stayed, under section
362(a), from continuing the exercise of its rights and remedies against Mr. Smith or
his property, even if such property is part of his bankruptcy estate.” Id. at 14.
The Automatic Stay Provisions
Section 362 of the Bankruptcy Code contains what is known as the automatic
stay. 11 U.S.C. § 362(a). However, the automatic stay is affected in cases where a
debtor has filed one or more cases within the year of the latest filing that were
Except as provided in subsections (d), (e), (f) and (h) of this section—
(3) if a single or joint case is filed by or against a debtor who is an
individual in a case under chapter 7, 11, or 13, and if a single or joint
case of the debtor was pending within the preceding 1-year period but
was dismissed, other than a case refiled under a chapter other than
chapter 7 after dismissal under section 707(b)—
(A) the stay under subsection (a) with respect to any action taken
with respect to a debt or property securing such debt or with
respect to any lease shall terminate with respect to the debtor on
the 30th day after the filing of the later case[.]
11 U.S.C. § 362(c)(3)(A). It is the meaning of this rather inelegant language that is
the focal point of this appeal.
Once a debtor or creditor files a bankruptcy petition, subsection (a) contains
provisions that automatically prohibit anyone from starting or advancing three types
of acts or actions: (1) those against the debtor personally, id. § 362(a)(1), (2), (6); (2)
those against the property of the debtor, id. § 362(a)(5); and (3) those against the
property of the estate. Id. § 362(a)(2), (3), (4). Subsection (b) contains a number of
exceptions for certain acts or actions that would otherwise be stayed under subsection
(a). Id. § 362(b). Subsection (c) specifies the duration of the automatic stay provisions
of subsection (a) and the circumstances when the automatic stay terminates. Id. §
362(c). Subsection (d) allows parties in interest to request relief from the automatic
stay provisions of subsection (a) from the bankruptcy court. Id. 362(d). The other
subsections clarify procedures, remedies, standards, and add specificity to certain
parts of these first few subsections. Id. § 362(e)-(o).
Congress enacted § 362(c)(3)(A) as part of the Bankruptcy Abuse Prevention
and Consumer Protections Act of 2005, Pub. L. 109-8, 119 Stat. 23 (BAPCPA). This
case involves a dispute over the meaning of the words “with respect to the debtor”.
The Majority View 1
A leading case representing the majority view is In re Jumpp, 356 B.R. 789
(B.A.P. 1st Cir. 2006). 2 In Jumpp, the BAP concluded that the phrase “with respect
to the debtor” meant that the only automatic stay provisions to terminate after thirty
By one count, as of November 2016, there are forty-five cases adopting the majority
interpretation. Dale Joseph Gilsinger, Annotation, Construction and Application of Phrase "With
Respect to the Debtor" of Bankruptcy Code, 11 U.S.C A. § 362(c)(3)(A), Terminating Automatic Stay of
Execution for Debtors Commencing Second Bankruptcy, 3 A.L.R. Fed. 3d Art. 7 (2016). The Court did
not locate any additional cases analyzing the question and adopting the majority view since November
Even though the First Circuit BAP adopted the majority view, this Court is not bound by its
decision. The manifest weight of authority indicates that decisions of bankruptcy appellate panels are
not binding and are simply persuasive authority for district courts. See Bank of Maui v. Estate
Analysis, Inc., 904 F.2d 470, 472 (9th Cir. 1990) (“[I]t must be conceded that BAP decisions cannot
bind the district courts themselves. As article III courts, the district courts must always be free to
decline to follow BAP decisions and to formulate their own rules within their jurisdiction”); Weber v.
United States, 484 F.3d 154, 158 (2d Cir. 2007) (nothing that “[t]he House Report that accompanied
the BAPCPA emphasized that ‘decisions rendered by a district court as well as a bankruptcy appellate
panel are generally not binding and lack stare decisis value’”); LBM Fin. LLC v. Shamus Holdings,
Inc., No. CIV. 09-11668-FDS, 2010 U.S. Dist. LEXIS 113184, *6 n.2, 2010 WL 4181137, at *2 n.2 (D.
Mass. Sept. 28, 2010) (“This Court is not bound by the decisions of a BAP, although such decisions may
have persuasive authority”); In re Carrozzella & Richardson, 255 B.R. 267, 273 (Bankr. D. Conn. 2000)
(“Simply put, if Congress had intended the decisions of an Article I court to have the same binding
precedential effect as decisions of a circuit court of appeals, it needed to say so in unequivocal
language”). The Court also notes that it would present separation of powers problems if Congress
created Article I courts whose legal interpretations controlled Article III courts, since “[i]t is
emphatically the province and duty of the judicial department to say what the law is.” Marbury v.
Madison, 5 U.S. 137, 177 (1803).
As the Bankruptcy Judge pointed out, the same principles apply to bankruptcy courts, even
those within the same circuit as the BAP that handed down the relevant decision. Bankr. Ct. Order
at 5 (“The BAP’s decisions must be given consideration as significant and persuasive authority, but
there is no law definitively establishing that the decisions of the BAP are binding on bankruptcy courts
within the First Circuit”).
days are those covering actions against the debtor personally and the debtor’s
property, not the automatic stay provisions covering actions against property of the
estate. Id. at 797. The Jumpp Court concluded that the meaning of “with respect to
the debtor” was plain.
Id. at 793 (“Viewed in isolation, the language itself is
unambiguous”). The panel reasoned that the context of the other provisions of § 362
confirmed that meaning, because each paragraph of subsection (a) “differentiat[es]
between the debtor, property of the debtor, and property of the estate[.]” Id. at 794.
The Jumpp Court also pointed to other provisions of the code as confirming the
majority interpretation. For example, it cited § 521(a)(6), which terminates the stay
under other circumstances “with respect to the personal property of the estate or of
the debtor” as confirming that Congress knew how to distinguish between the debtor’s
property and property of the estate. Id. at 794-95. The Jumpp Court highlighted
§362(c)(4)(A)(i), which provides that the automatic stay provisions never go into effect
at all when a debtor had two prior cases pending in the previous year. Id. at 795-796.
The panel, noting that § 362(c)(4)(A)(i) does not contain the phrase “with respect to
the debtor,” concluded that Congress intended to “differentially penalize previous
filers based on the number of previous cases.” Id. at 796. Under this majority view,
for repeat-filers with one prior case in the previous year, § 362(c)(3)(A) terminates
protection after thirty days for actions against the debtor personally and property of
the debtor but retains the protection of the automatic stay for property of the estate;
for repeat-filers with two or more prior cases pending in the previous year, §
362(c)(4)(A)(i) removes the protection of the automatic stay immediately for actions
against the debtor personally, the property of the debtor, and property of the estate.
Id. at 795-96.
Finally, “[h]aving found the plain language [of § 362(c)(3)(A)] to be
unambiguous,” the Jumpp Court determined that it “need not consider the statute’s
legislative history,” and the plain meaning controls because a “literal application of
section 362(c)(3)(A)” would not produce an absurd result or one that is demonstrably
at odds with the intention of the drafters. Id. at 796-97.
The Minority View 3
A leading case representing the minority view is In re Reswick, 446 B.R. 362,
366 (B.A.P. 9th Cir. 2011). In Reswick, the BAP concluded that the phrase “with
respect to the debtor” does not preserve the automatic stay provisions protecting
property of the estate, rather after thirty days the automatic stay terminates in its
entirety and actions against the debtor, the debtor’s non-estate property, and the
property of the estate may proceed. Id. at 373. Instead of carving out the stay
provisions blocking actions against property of the estate, the minority view suggests
that the better reading of the phrase “with respect to the debtor” is that it simply
distinguishes between the serial-filing debtor and the non-serial-filing spouse in a
joint case. Id. at 369-70. According to the Reswick Court, the phrase specifies “to
whom” the automatic stay terminates in a joint case—the debtor but not the debtor’s
By one count, there were sixteen cases adopting the minority interpretation as of November
2016. Gilsinger, 3 A.L.R. Fed. 3d Art. 7. The Court located an additional case decided after November
2016, which adopted a view far closer to the minority approach than the majority. In re Bender, 562
B.R. 578, 580 (Bankr. E.D.N.Y. 2016). Including this decision in the instant case, that brings the total
spouse—and does not, as the majority view suggests, specify “to which property” the
protection terminates—the debtor’s non-estate property but not the property of the
estate. Id. at 370.
The Reswick Court did not think the meaning of the phrase “with respect to
the debtor” is plain, rather it found the phrase ambiguous when considering the
context of the whole statute. Id. at 367. The BAP pointed out that the majority view
courts do not adequately explain why the phrase “with respect to the debtor,” which
refers only to a person and not any property, limits the termination of the stay and
extends protection for property of the estate but not property of the debtor. Id. at
In light of perceived ambiguity, many minority view courts examine the
legislative history of BAPCPA, which suggests that Congress did not intend to
preserve protection for property of the estate after the thirty-day window. See In re
Daniel, 404 B.R. 318, 328 (Bankr. N.D. Ill. 2009) (quoting a committee report for
BAPCPA’s predecessor bill with virtually identical language: “Section 302 of the Act
amends section 362(c) of the Bankruptcy Code to terminate the automatic stay within
30 days in a chapter 7, 11, or 13 case filed by or against an individual if such
individual was a debtor in a previously dismissed case pending within the preceding
The minority view courts conclude that the majority view
frustrates the purpose of the statute, which is to prevent abuse of the automatic stay
by repeat filers, particularly in Chapter 13 cases where nearly everything of value to
creditors is part of the estate:
There is ample legislative history, and subsequent case law interpreting
that history, to support our interpretation in conjunction with the intent
to curb the problem of repeat bankruptcy filings: the more times a debtor
files, the more difficult it becomes for that debtor to take advantage of
the automatic stay. On a debtor’s first filing, the debtor has full
advantage of the automatic stay. On the debtor’s second filing within a
year, the stay terminates in its entirety 30 days after the second case is
filed, unless a motion to continue the stay is made and a hearing held
within the 30–day period—but if the debtor’s spouse is not a repeat filer,
the spouse is not penalized. And on the debtor’s third filing within a
year, there is no automatic stay at all. The alternative reading of section
362(c)(3)(A) would leave no meaningful consequence for a debtor filing a
second case within a year and would not advance the goal of deterring a
debtor’s second filing, because there are very few practical situations in
which a creditor would take action against a debtor or non-estate
Reswick, 446 B.R. at 373.
The “first step in interpreting a statute is to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular dispute
in the case.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
“It is well
established that when the statute’s language is plain, the sole function of the courts—
at least where the disposition required by the text is not absurd—is to enforce it
according to its terms.”
Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal
quotations omitted). “The plainness or ambiguity of statutory language is determined
by reference to the language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.” Robinson, 519 U.S. at 341.
When Congress has chosen words with “sufficient precision” that there is only
one reasonable interpretation with respect to the dispute at issue in the case,
“reference to legislative history . . . is hardly necessary.” United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 241 (1989); United States v. Godin, 534 F.3d 51, 56
(1st Cir. 2008). If the meaning is not plain from the words of the statute, then sources
outside the text of the statute, like headings, titles, and legislative history are “’tools
available for the resolution of a doubt’ about the meaning of a statute.” AlmendarezTorres v. United States, 523 U.S. 224, 234 (1998) (quoting Trainmen v. Baltimore &
Ohio R. Co., 331 U.S. 519, 528-529 (1947)); Greebel v. FTP Software, Inc., 194 F.3d
185, 192 (1st Cir. 1999).
The Ordinary Meaning of “with respect to the debtor”
“When a statute does not define a term,” courts “begin by analyzing the
statutory language, assuming that the ordinary meaning of that language accurately
expresses the legislative purpose.” FCC v. AT&T Inc., 562 U.S. 397, 403 (2011);
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010) (internal
quotations and modifications omitted). “In conducting this analysis, [courts] begin
with the ordinary meaning of the terms as of the time when the statutory provision
was enacted.” Hernandez-Miranda v. Empresas Diaz Masso, Inc., 651 F.3d 167, 171
(1st Cir. 2011). Courts prefer ordinary meanings over extraordinary ones because:
[I]t is a distinct disadvantage of a body of law that it can be understood
only by those who are expert in its terminology. Moreover, needless
risks of misunderstanding and confusion arise, not only among members
of the public but also among professionals who must interpret and apply
a statute in their day-to-day work, when a word is given an
extraordinary meaning that is contrary to its everyday usage.
Hantzis v. C. I. R., 638 F.2d 248, 257 (1st Cir. 1981) (Keeton, J. concurring).
The phrase “with respect to the debtor” is not defined in the Bankruptcy Code.
The word “debtor” is defined, and it means a “person or municipality concerning
which a case under this title has been commenced.” 11 U.S.C. § 101(13). In ordinary
usage, the phrase “with respect to” simply signals relation or reference to something
Respect, Merriam-Webster, www.merriam-webster.com/dictionary/respect;
Respect, Dictionary.com, www.dictionary.com/browse/respect.
The Court finds no support for the distinction the majority view reads into the
phrase “with respect to the debtor” from statutory definitions or ordinary usage alone.
A sentence specifying that some protection “shall terminate with respect to the
debtor” would not ordinarily signal any distinction between certain kinds of property.
There is no mention of property, only the person of the debtor. Courts that unearth
an important distinction—between the debtor’s property which becomes a part of the
bankruptcy estate and the debtor’s property that does not—rely on additional tools of
The Context of § 362(a) and the Expressio Unius Canon
The separate paragraphs of subsection (a) provide relevant context to
subsection (c)(3)(A). Each automatic stay provision refers to one of three targets.
Each paragraph of subsection (a) “differentiates between acts against the debtor,
against property of the debtor and against property of the estate.” In re Jones, 339
B.R. 360, 363 (Bankr. E.D.N.C. 2006).
Section 362(a)(1) stays actions or proceedings “against the debtor;” §
362(a)(2) stays enforcement of a judgment “against the debtor or against
property of the estate;” § 362(a)(3) stays “any act to obtain possession of
property of the estate or of property from the estate;” § 362(a)(4) stays
“any act to create, perfect, or enforce any lien against property of the
estate;” § 362(a)(5) stays “any act to create, perfect, or enforce against
property of the debtor any lien” to the extent it secures a prepetition
claim; and § 362(a)(6) stays “any act to collect, assess, or recover a claim
against the debtor . . .”
Id. at 363-64.
“The maxim ‘expressio unius est exclusio alterius’—which translates roughly as
‘the expression of one thing is the exclusion of other things’—is a venerable canon of
statutory construction . . . .” United States v. Hernandez-Ferrer, 599 F.3d 63, 67 (1st
Cir. 2010). This canon suggests that the inclusion of the phrase “with the respect to
the debtor” should be read to exclude the other targets of the automatic stay
provisions from termination after thirty days, namely the non-estate property of the
debtor and the property of the estate. Some courts have pointed to the closely related
canon that “Congress generally acts intentionally when it uses particular language
in one section of a statute but omits it in another.”
Dep’t of Homeland Sec. v.
MacLean, 574 U.S. ___, 135 S. Ct. 913, 919 (2015). Considering the context of the
automatic stay provisions that “shall terminate” after thirty days, and applying only
statutory definitions, ordinary meanings, and the expressio unius canon, the most
natural reading of the phrase “with respect to the debtor” in § 362(c)(3)(A) is that the
only automatic stay provisions which terminate after thirty days are those
prohibiting actions against the debtor personally, with those provisions prohibiting
actions against the debtor’s non-estate property or the property of the estate
remaining in place.
Yet, “[n]o reported decision has adopted th[is] all-property
exclusion” interpretation. Daniel, 404 B.R. at 322.
Instead, courts adopting the majority view bring the debtor’s property within
the scope of the subsection (c)(3)(A) termination while excluding the property of the
estate from the termination’s scope. “[I]t is difficult to see how a possible reference
to only one of the applications—actions with respect to ‘the debtor’—can be read to
apply to two of them, actions both against the debtor and against the debtor’s nonestate property.” Id. at 323.
One way to uncover a distinction between the two types of property is to look
to other provisions of the Bankruptcy Code, like § 102(2), which specifies that the
phrase “claim against the debtor” also “includes claim against property of the debtor.”
See e.g., Jones, 339 B.R. at 365. The problem with this source for the majority view’s
distinction between the debtor’s non-estate property and the property of the estate is
that § 102(2) does not actually represent such a distinction. The coverage of “claim[s]”
referred to in § 102(2), which includes “property of the debtor,” actually includes all
of the debtor’s property, including that which then becomes “property of the estate”
upon filing a bankruptcy petition.
Daniel, 404 B.R. at 324 (the majority view
“depends on § 102(2) to distinguish between a debtor’s estate property and non-estate
property. . . . This distinction is then imported into § 362(c)(3)(A) . . . . But § 102(2)[’s]
. . . coverage extends to claims against any property in which the debtor has an
interest, regardless of whether the property becomes part of the debtor’s bankruptcy
estate”) (citing Johnson v. Home State Bank, 501 U.S. 78, 85-87 (1991)).
Another source of the property distinction is the phrase “or property securing
such debt” within § 362(c)(3)(A). Most courts have ignored that phrase entirely, and
this Court is unable to read that phrase as specifying a distinction between non-estate
property and estate property. The text of § 362(c)(3)(A) contemplates actions against
some type of property, not merely actions against the debtor’s person. Many courts
adopting the majority view discern an “absolutely clear[ ] [and] unambiguous”
distinction between the debtor and the estate from the phrase “with respect to the
debtor,” see In re Dowden, 429 B.R. 894, 903 (Bankr. S.D. Ohio 2010), coupled with
the fact that subsection (a) repeatedly distinguishes among the debtor, the debtor’s
non-estate property, and the property of the estate. But that same “absolutely clear”
and literal interpretation of the reference to the person of the debtor creates an
internal inconsistency with the nearby reference to “property securing such debt . . .
.” See Reswick, 446 B.R. at 368.
Section 521(a), which includes a provision that terminates the stay under other
circumstances “with respect to the personal property of the estate or of the debtor,”
is also of no assistance. See Jumpp, 356 B.R. at 794-95. In that subsection, also
added to the Bankruptcy Code in BAPCPA, Congress made an explicit property
distinction—that is, between the debtor’s property and the property of the estate. It
did not make any such distinction in §362(c)(3)(a). Instead of supporting the majority
view, the fact that Congress did not make a property distinction at all when it used
the phrase “with respect to the debtor,” but did make such a distinction in another
BAPCPA amendment, suggests Congress did not intend that phrase to distinguish
between the debtor’s non-estate property and the property of the estate. See Russello
v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion”) (internal quotations and modifications omitted).
The Court concludes that the majority interpretation, which retains protection
for property of the estate based on the phrase “with respect to the debtor,” actually
requires two implied distinctions: one between the debtor’s person and property, and
one between the debtor’s non-estate property and estate property. While the phrase
“with respect to the debtor” may plausibly be read to create the first distinction based
on subsection (a)’s three separate targets coupled with expressio unius logic, that
same context and logic leaves the second distinction unsupported.
The Drafting Quality of BAPCPA
The Court is cognizant that “[t]he force of any negative implication” from the
reasoning of the expressio unius canon “depends on context.” N.L.R.B. v. SW Gen.,
Inc., 580 U.S. ___, 137 S. Ct. 929, 940 (2017).
The canon only applies “in
circumstances supporting a sensible inference that the term left out must have been
meant to be excluded.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002).
Sometimes “the expressio unius maxim is not particularly helpful” and the
presumption that “Congress acts intentionally and purposely in the disparate
inclusion or exclusion” of particular words or phrases “may be rebutted.” United
States v. Councilman, 418 F.3d 67, 74-75 (1st Cir. 2005). “[W]here the history of the
two provisions is complex, the canon may be a less reliable guide to Congressional
intent. For example, if the first provision was already part of the law, whereas the
second is entirely new, Congress may have paid less attention to subtle differences
between the two.” Id.
The enactment timing and drafting quality of BAPCPA are consistent with the
First Circuit’s instruction that courts should hesitate to infer an outsized meaning
based on expressio unius logic in some circumstances. Congress enacted BAPCPA in
2005, decades after the terms in subsection (a) became part of the Bankruptcy Code.
See Bankruptcy Reform Act of 1978, Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2570.
Courts and commentators on both sides of the interpretive divide are in
virtually unanimous agreement that BAPCPA was imprecisely drafted, which
indicates that Congress may have “paid less attention to subtle differences” among
the three targets of actions in subsection (a) when it employed the phrase “with
respect to the debtor.” See e.g., In re Grydzuk, 353 B.R. 564, 566-67 (Bankr. N.D. Ind.
2006) (“[W]hile a debate rages over whether William Shakespeare or someone else
wrote the plays and sonnets attributed to the Bard of Avon, there will never be a
similar debate over the authorship of the BAPCPA because no one wants to be
associated with that body of work”); Jones, 339 B.R. at 363 (“Once again, warily, and
with pruning shears in hand, the court re-enters the briar patch that is §
362(c)(3)(A)”); In re Charles, 332 B.R. 538, 541 (Bankr. S.D. Tex. 2005) (“The Court
notes that the relevant provisions in the Act are, at best, particularly difficult to parse
and, at worst, virtually incoherent”); Laura B. Bartell, Staying the Serial Filer Interpreting the New Exploding Stay Provisions of § 362(c)(3) of the Bankruptcy Code,
82 AM. BANKR . L. J. 201, 227 (2008) (“Sometimes sloppy drafting is just sloppy
drafting”); The Honorable Thomas F. Waldron, Neil M. Berman, Principled Principles
of Statutory Interpretation: A Judicial Perspective After Two Years of BAPCPA, 81
AM. BANKR. L. J. 195, 197 (2007) (“It is mere under-statement to acknowledge that
BAPCPA has been repeatedly recognized by the bankruptcy community as, what in
common parlance would be called, a mess”).
Two examples suffice to illustrate that Congress may have simply been
awkward in its drafting of § 362(c)(3)(A). First, the language contains no fewer than
four instances of the “amorphous phrase” “with respect to” in rapid nested succession
without any ambiguity-removing punctuation. See In re Paschal, 337 B.R. 274, 277
(Bankr. E.D.N.C. 2006). Second, read literally, the triggering events for the provision
occur far less frequently than any courts are willing to endorse:
[Section] 362(c)(3)(A) begins by referencing “[i]f a single or joint case is
filed by or against a debtor . . . .” The fact is that a “case” does not get
“filed” at all; a “petition” gets filed. Indeed, § 362(a) itself creates an
automatic stay as to “petitions” filed under §§ 301, 302 or 303.
Therefore, since no “case” gets filed, one could argue that [§ 362(c)(3(A)]
is never applicable. Of course, we may concede that this leads to an
absurd result. The point however is to show that, when dealing with a
statute which is obviously inartfully worded from the get-go, it may not
be wise to attribute exalted importance and meaning to each and every
word. Right at the outset, we know for example that “case” does not
Parsing the wording of § 362(c)(3)(A) further, we see even more clearly
how its exact words yield a result which almost surely was not intended
by Congress, albeit not literally an absurd result. First, the statute
requires a case (by which the drafters meant “petition” as we just saw)
filed by or against the debtor. Second, the statute requires that the case
must be filed by “[a] debtor who is an individual in a case . . . .” For a
debtor to be an individual in a case in the present tense, a case must
still be pending. Thus, this section literally applies only to a debtor who
has a case open when a new petition is filed by or against that
individual. Finally, a single or joint case of the debtor had to be pending
within the preceding one-year period but was then dismissed.
Taken together, as noted by Judge Small, technically speaking “the
section only applies to individuals who have had three cases pending in
one calendar year: one case that has been dismissed, one case that is
still pending when the petition at issue is filed, and the new case that is
before the court for determination.” As wryly stated by Judge Small,
such a circumstance is “unlikely to occur.”
Peter E. Meltzer, Won’t You Stay A Little Longer? Rejecting the Majority
Interpretation of Bankruptcy Code § 362(c)(3)(a), 86 AM. BANKR. L. J. 407, 422-23
(2012) (internal citations omitted).
The inartful wording and the other factors discussed below, such as the
abundant superfluous language within BAPCPA, see infra subpart 4, counsel against
inferring based on expressio unius logic that the phrase “with respect to the debtor”
works to exclude termination of the automatic stay provisions protecting property of
the estate. See King v. Burwell, 576 U.S. ___, 135 S. Ct. 2480, 2492 (2015) (“[R]igorous
application of the canon does not seem a particularly useful guide to a f air
construction of the statute” because “[t]he Affordable Care Act contains more than a
few examples of inartful drafting” thanks to its hurried legislative process, known as
Reconciliation, which means it “does not reflect the type of care and deliberation that
one might expect of such significant legislation”).
The Surplusage Canon
“A reading that renders a statutory provision surplusage is disfavored.”
Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 202 (1st Cir. 2000).
This “canon of interpretation urges courts to give each word meaning . . . .” Ardente
v. Standard Fire Ins. Co., 744 F.3d 815, 819 (1st Cir. 2014). However, “[t]he canon
against surplusage is not an absolute rule.” Marx v. Gen. Revenue Corp., 568 U.S.
371, 385 (2013). “The canon requiring a court to give effect to each word ‘if possible’
is sometimes offset by the canon that permits a court to reject words ‘as surplusage’
if ‘inadvertently inserted or if repugnant to the rest of the statute . . . .’” Chickasaw
Nation v. United States, 534 U.S. 84, 94 (2001) (quoting Karl Llewellyn, The Common
Law Tradition 525 (1960)).
“[C]anons are not mandatory . . . . They are guides that need not be conclusive
. . . . And other circumstances evidencing congressional intent can overcome their
force.” Id. at 94 (internal quotations and citations omitted). “[T]he canon against
surplusage is strongest when an interpretation would render superfluous another
part of the same statutory scheme,” Marx, 568 U.S. at 386, but is less helpful in
contexts “where redundancies abound.” Ardente, 744 F.3d at 819 (quoting TMW
Enterprises, Inc. v. Fed. Ins. Co., 619 F.3d 574, 577 (6th Cir. 2010)).
No interpretation of § 362(c)(3)(a) would score well on a superfluity metric. For
example, courts have not grappled with the meaning of the words “with respect to a
debt or property securing such debt or with respect to any lease . . . .” It is not clear
that courts would interpret any other act or action as stayed under subsection (a) and
also find that it falls outside all of those three buckets that are terminated after thirty
days. If that is true, all those words are surplusage, and the relevant portion of §
362(c)(3)(A) might as well read, “the stay under subsection (a) with respect to any
action taken . . . shall terminate with respect to the debtor on the 30th day after the
filing of the later case[.]”
The majority view does not gain much persuasive power because “the canon
against superfluity assists only where a competing interpretation gives effect to every
clause and word of a statute . . . . Here, no interpretation . . . —including the two
alternatives advanced by [the majority and the minority views]—avoids excess
language.” Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 106 (2011). Since it is
doubtful whether any interpretation of § 362(c)(3)(A) avoids superfluity, the canon
does not represent a convincing reason to adopt the majority view.
Furthermore, there is good reason to suspect that BAPCPA represents a
context “where redundancies abound,” which makes it ill-suited for reliance on the
surplusage canon. In BAPCPA, the phrase “with respect to the debtor” or “with
respect to a debtor” is used ten times as a stand-alone phrase, as it is in § 362(c)(3)(A),
and zero times in the Bankruptcy Code as it existed before BAPCPA. One scholar
presents a convincing case that in all ten instances, the BAPCPA drafters used the
phrase redundantly, or as subconscious filler.
“[I]n tallying the score between
superfluous and nonsuperfluous appearances of the phrase, the score is 10-0, not 9-1
or 8-2.” Meltzer, 86 AM. BANKR . L. J. at 432. For example:
Section 308(a) discusses debtor reporting requirements. It states: “For
purposes of this section, the term ‘profitability’ means, with respect to a
debtor, the amount of money that the debtor has earned or lost during
current and recent fiscal periods.” The only time the word “profitability”
is used in § 308 is in § 308(b)(1) which provides that a debtor in a small
business case shall file periodic financial and other reports containing
information including--(1) the debtor’s profitability. In other words,
since we know from § 308(b)(1) that “profitability” necessarily refers
specifically to the debtor’s profitability, then what possible purpose can
there be for the use of the phrase “with respect to the debtor” in § 308(a)?
There is no possible purpose.
Id. at 432-33 (emphasis added).
The Court finds the canon against surplusage to be an unconvincing
justification for reading the phrase “with respect to the debtor” as preserving the
protection of the automatic stay for property of the estate beyond the termination
date, especially given the decisive blow the majority interpretation deals to the
importance of §362(c)(3) within the rest of the statutory structure.
The Structure of the Statute
“In determining whether Congress has specifically addressed the question at
issue, a reviewing court should not confine itself to examining a particular statutory
provision in isolation. The meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context.” Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). “[The Court’s] inquiry must
cease if the statutory language is unambiguous and the statutory scheme is coherent
and consistent.” Robinson, 519 U.S. at 340 (internal quotations omitted). “So when
deciding whether the language is plain, we must read the words in their context and
with a view to their place in the overall statutory scheme.” Burwell, 135 S. Ct. at
2489 (internal quotations omitted). “[Courts’] duty, after all, is ‘to construe statutes,
not isolated provisions.’” Id. (quoting Graham County Soil and Water Conservation
Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010)).
Since the purpose of the phrase “with respect to the debtor” is still unclear after
looking to ordinary meaning and the canons of construction, the Court “must turn to
the broader structure of the Act to determine the meaning of Section [362(c)(3)A)].”
Id. at 2492. Before BAPCPA, the automatic stay provisions applied even when the
debtor had one or more prior petitions in the preceding year. The text of the two
relevant BAPCPA changes to the automatic stay, subsection (c)(3) and (c)(4) makes
BAPCPA’s purpose plain: It sought to prevent debtors from repeatedly using the
automatic stay of the bankruptcy process in bad faith to stymie creditors’ collection
Subsection (c)(3) effects a termination (of some scope) of the stay after a thirtyday grace period for debtors with one prior case dismissed in the previous year, and
for debtors with two prior cases dismissed in the previous year, subsection (c)(4)
prevents the stay from automatically taking effect at all—there is no grace period.4
BAPCPA adopted a new assumption about repeat-filers in both provisions: their cases
are “presumptively filed not in good faith . . . .” 11 U.S.C. § 362(c)(3)(C), (c)(4)(D).
BAPCPA allowed “a party in interest” to overcome this presumption about a firsttime repeat-filer and retain the protection of the stay beyond the thirty-day grace
period by filing a motion for a hearing and establishing good-faith by clear and
Id. § 362(c)(3)(B)-(C).
BAPCPA also allowed “a party in
interest” to overcome this presumption about a second-time repeat-filer by filing a
motion for a hearing and establishing good faith by clear and convincing evidence, id.
§ 362(c)(4)(B),(D), but the stay only commences upon the order of the bankruptcy
court and is not “automatic” for any period of time. Id. § 362(c)(4)(C).
Under the majority view, the practical significance of subsection (c)(3)(A) is
difficult to divine. The courts adopting the majority view suggest that their more
limited interpretation of the stay termination still has practical value:
[S]uits against the debtor can commence or continue postpetition
because section 362(a)(1) is no longer applicable; judgments may be
Section 362(c)(4)(A)(i) provides: if a single or joint case is filed by or against a debtor who is
an individual under this title, and if 2 or more single or joint cases of the debtor were pending within
the previous year but were dismissed . . . the stay under subsection (a) shall not go into effect upon the
filing of the later case . . . .”
enforced against the debtor, in spite of section 362(a)(2); collection
actions may proceed against the debtor despite section 362(a)(6); and
liens against the debtor’s property may be created, perfected and
enforced regardless of section 362(a)(5).
In re Williams, 346 B.R. 361, 367 (Bankr. E.D. Pa. 2006). Even so, these asserted
impacts appear to have little or no practical value:
Very few creditors would seek to pursue only the debtor personally, or
only property of the debtor. Indeed, this interpretation would provide
no meaningful relief to creditors in chapter 13 cases, where repeat filings
are most prevalent. Creditors in a chapter 13 case could take no action
against property that the debtor owned at the time the case was
commenced, because it is property of the estate under section 541(a)(1),
and they could take no action against property that the debtor acquired
post-petition because it would also constitute property of the estate
under section 1306(a). As a result, a party such as [Smith] in this case
would have any efforts to collect a judgment thwarted by a repeat filing.
Reswick, 446 B.R. at 368.
The majority view also renders most of subsection (c)(3)’s text—subsections
(c)(3)(B) and (C), which allows parties in interest to move for an extension beyond
thirty days and outlines the movant’s evidentiary burden and the effects on various
creditors of a ruling in the movant’s favor—to be of questionable practical value.
Subsection (c)(3) contains 472 words, 364 of which address the process and effects of
filing motions for continuation of the automatic stay beyond the thirty-day
It seems illogical that Congress would enact a provision which both
requires moving parties to meet a high burden of proof and which
requires the courts to hear these matters on an expedited basis, only to
have both the process and the end result meaningless and of no utility
if property of the estate remains protected by the automatic stay,
notwithstanding a termination of the automatic stay under §
In re Jupiter, 344 B.R. 754, 760 (Bankr. D.S.C. 2006).
One scholar reported that no case adopted the majority interpretation and also
denied a motion to extend the stay following the lengthy test set forth in subsection
(c)(3)(B) and (C). Meltzer, 86 AM. BANKR . L. J. at 443.
What this means is obviously not that the latest bankruptcy filing of
every repeat filer was actually filed in good faith, but rather that, when
creditors know that the court is going to abide by the majority approach,
they have no practical incentive to oppose a motion under § 362(c)(3)(B)
because the types of § 362(a) stays which would be terminated are of no
interest to them.
This is a remarkable thing. It means that notwithstanding all of the
academic assessments made by [the majority view] courts as to the areas
in which the stay could be terminated . . . in the real world, it never
actually happens. The only cases which have actually terminated the
automatic stay under this section are those in which this issue was not
even raised . . . or where courts adopted the minority approach.
Id. at 443.
The Court agrees with the other district court in this circuit to have considered
the question, in determining that:
The evident purpose of § 362(c)(3) is to discourage serial filings that are
made simply to obtain the benefit of the automatic stay, and it
accomplishes that purpose by denying a serial filer the benefit of the
stay for any more than thirty days unless the court finds special
circumstances to continue it.
St. Anne’s, 490 B.R. at 145. Inferring a distinction among classes of property based
on the phrase “with respect to the debtor” does violence to this evident purpose of
subsection (c)(3). “The practical effect of such a narrow reading of the provision is
likely to be so small Congress might as well have saved the ink.” Id. “It is implausible
that Congress meant the Act to operate in this manner.” Burwell, 135 S. Ct. at 2494.
Courts presume that “Congress ‘does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions.’” Id. at 2495 (quoting
Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001)).
Congress meant to limit [the stay termination], it likely would have done so in some
. . . prominent manner. It would not have used such a winding path of connect-thedots provisions . . . .” Id. This Court does not read the vague phrase “with respect to
the debtor” as negating the fundamental consequences of BAPCPA’s change to the
Bankruptcy Code in subsection (c)(3). “Here, the statutory scheme compels [the
Court] to reject [the majority view’s] interpretation because it” would create, rather
than close, a loophole for first-time repeat-filers to stymie collection efforts using the
automatic stay, precisely what “Congress designed the Act to avoid.” See id. 2492-93;
Reswick, 446 B.R. at 373.
The Spousal Distinction
The Court declines to interpret the phrase “with respect to the debtor” as
protecting the property of the estate after termination of the automatic stay, but it
need not reach the affirmative conclusion of minority view courts that the phrase
creates “a distinction regarding persons in the context of multiple bankruptcy filings.”
Reswick, 446 B.R. at 369. Interpreting the phrase as distinguishing between repeatfiling debtors and non-repeat-filing spouses in joint cases may be “the least
troublesome reading” because subsection (c)(3) begins by stating its applicability in
“single or joint case[s],” and that interpretation avoids some tension with the
surplusage canon. Id. But the Court need not pronounce whether an intentional
spousal distinction is the “most plausible” reading of § 362(c)(3)(A). Id. In light of
the other evidence, discussed above, it is just as plausible that this may be one of
those statutes that contains a few superfluous words. See Arlington Cent. Sch. Dist.
Bd. of Educ. v. Murphy, 548 U.S. 291, 299, n.1 (2006) (“While it is generally presumed
that statutes do not contain surplusage, instances of surplusage are not unknown”).
Regardless whether the phrase “with respect to the debtor” was intended to
provide additional clarity that the stay does not terminate “with respect to the
debtor[’s]” spouse, or whether the phrase represents minor redundancy or
superfluity, it is enough for purposes of this appeal to conclude that the phrase does
not create a distinction between the debtor’s person and the debtor’s non-estate
property on the one hand, and the property of the estate on the other.
The Court concludes that § 362(c)(3)(A) terminates the automatic stay in its
entirety, meaning the protection of the automatic stay for property of the estate does
not endure beyond thirty days as a result of the phrase “with respect to the debtor.”
Accordingly, the Court AFFIRMS the decision of the Bankruptcy Judge.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 16th day of May, 2018
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