Antal

Filing 8

OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re ZOLTAN M. ANTAL,
Debtor.
_____________________________/
Civil Case No. 20-12212
Honorable Linda V. Parker

ZOLTAN M. ANTAL,
Appellant,

Bankruptcy Case No. 20-47857
Honorable Mark A. Randon

v.
KRISPEN S. CARROLL,
Chapter 13 Trustee/Appellee,
WILMINGTON TRUST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely AS TRUSTEE FOR
MFRA TRUST 2014-2,
Creditor/Appellee.
______________________________/
OPINION AND ORDER
This matter is before the Court on Debtor/Appellant Zoltan M. Antal’s
motions to stay, pending appeal in this Court, a bankruptcy court’s decision
denying Antal’s motion to extend an automatic stay of his bankruptcy case. (ECF
Nos. 3, 6.) Appellees did not respond to the motions. For the reasons that follow,
the Court denies Antal’s motions.

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FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2016, Debtor filed for bankruptcy under Chapter 13 (“2016
Bankruptcy”). (ECF No. 5 at Pg. ID 104.) Pursuant to 11 U.S.C. § 362(a), the
filing of this voluntary bankruptcy petition triggered an automatic stay of virtually
any action lodged by virtually any creditor against Antal. Creditor Wilmington
Trust, National Association (“Wilmington”) is the holder of a mortgage on Antal’s
personal residence located in Dearborn Heights, MI (“Property”) and the Property
was treated as a secured claim in the 2016 Bankruptcy. (ECF No. 5 at Pg. ID 178.)
Wilmington objected to the confirmation of Antal’s Chapter 13 plan. Antal and
Wilmington subsequently entered into an Agreement Resolving Creditor’s
Objections to Confirmation & Modifying the Automatic Stay (“Agreement” and
“Order” “Resolving Objections & Modifying Automatic Stay”). (Id. at Pg. ID
252.) Pursuant to the Agreement Resolving Objections & Modifying Automatic
Stay, Antal would keep current on the property taxes and insurance, and any failure
to maintain these obligations would result in Wilmington filing a Notice of
Default. (Id. at Pg. ID 253.) If Antal did not timely cure the delinquency detailed
in the Notice of Default, “[Wilmington] [could] submit an order vacating the

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Automatic Stay to the Court for entry with no further notice or hearing required.”
(Id.)
Wilmington filed a Notice of Default on May 11, 2020, stating that Antal
was delinquent in the payment of various taxes. (Id. at Pg. ID 261.) Antal did not
timely cure the delinquency and, as a result, Wilmington filed a “Notice That
Default Has Not Been Cured,”1 along with a proposed order titled, “Order Granting
Relief from the Automatic Stay and Co-Debtor Stay and Waiving the Provision of
FRBP 4001(a)(3).” (See id. at Pg. ID 267, 274-75.) The bankruptcy court, the
Honorable Mark A. Randon presiding, issued the order. (Id. at Pg. ID 275.) Antal
then filed a Motion for Voluntary Dismissal of his case, which was granted on July
2, 2020. (Id. at Pg. ID 276-78.)
Two weeks later, on July 17, 2020, Antal again filed for Chapter 13
bankruptcy (“2020 Bankruptcy”). (See id. at Pg. ID 107.) In the instant motion,
Antal states that, even though the 2016 Bankruptcy was still pending within the
year proceeding the 2020 Bankruptcy, the filing of the 2020 Bankruptcy was done
in “good faith” and, accordingly, he filed a Motion to Extend the Automatic Stay

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The “Notice That Default Has Not Been Cured” stated in relevant part: “(1)
[Wilmington] . . . filed an Notice of Default with this Court on May 18, 2020,
pursuant to the terms of the [Order] entered with this Court on August 31, 2016 . .
.; (2) The Notice of Default was served on May 18, 2020 . . .; (3) Pursuant to
Creditor’s records, the Debtor has failed to cure the default within the 30 days
allowed.” (ECF No. 5 at Pg. ID 267.)
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(“Motion to Extend Automatic Stay”) pursuant to § 362(c)(3).2 (ECF No. 6 at Pg.
ID 300.) Wilmington filed an Objection to the Motion for an Extension of the
Automatic Stay (“Objection to Motion to Extend Automatic Stay”) (ECF No. 5 at
Pg. ID 178-81), arguing that—pursuant to 11 U.S.C. § 109(g)(2)3—Antal could not
extend the automatic stay. The bankruptcy court held a hearing on the Motion to
Extend Automatic Stay on August 5, 2020, and found that § 109(g)(2) applied and,
thus, Antal was barred from filing for bankruptcy relief for 180 days following the
dismissal of the 2016 Bankruptcy. (Id. at Pg. ID 183-84, 280-88.) Accordingly,
the Motion to Extend Automatic Stay was denied and Antal’s case was dismissed.
(Id. at Pg. ID 183-84.)

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11 USC § 362(c)(3)(B) and (C) states: “(B) on the motion of a party in interest
for continuation of the automatic stay and upon notice and a hearing, the court may
extend the stay in particular cases as to any or all creditors . . . only if the party in
interest demonstrates that the filing of the later case is in good faith as to the
creditors to be stayed; and (C) for purposes of subparagraph (B), a case is
presumptively filed not in good faith . . . (i) as to all creditors, if . . . (II) a
previous case under any of chapters 7, 11, and 13 in which the individual was a
debtor was dismissed within such 1-year period, after the debtor failed to . . .
(cc) perform the terms of a plan confirmed by the court . . . .”
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11 U.S.C. § 109(g)(2) states: “(g) [N]o individual or family farmer may be a
debtor under this title who has been a debtor in a case pending under this title at
any time in the preceding 180 days if . . . (2) the debtor requested and obtained the
voluntary dismissal of the case following the filing of a request for relief from the
automatic stay provided by [S]ection 362 of this title.”
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At that hearing, Antal’s counsel orally motioned for a stay of the bankruptcy
court’s order pending appeal in this Court. (Id. at Pg. ID 286.) The bankruptcy
court denied the request. (Id. at Pg. ID 287.)
Antal now asks this Court to stay the bankruptcy court’s denial of the
Motion to Extend Automatic Stay and impose a stay pending the outcome of
Antal’s appeal in this Court. (ECF No. 3, 6.)
STANDARD OF REVIEW
Under Federal Rule of Bankruptcy Procedure 8007(b), a party may request a
stay from the district court. Before doing so, the party must seek relief in the
bankruptcy court, and if denied, the party may then petition for review in the
district court. Fed. R. Bankr. P. 8007(a)(1). A stay pending an appeal is similar to
a preliminary injunction, so the factors that govern a decision to issue an injunction
likewise govern a decision to issue a stay. See Nken v. Holder, 556 U.S. 418, 434
(2009). Those factors are: “(1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; (2) the likelihood that the moving party will be
irreparably harmed absent a stay; (3) the prospect that others will be harmed if the
court grants the stay; and (4) the public interest in granting the stay.” Mich.
Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991).

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In analyzing the four factors, the Court engages in an individualized
balancing act. Six Clinics Holding Corp., II v. Cafcomp Sys., 119 F.3d 393, 400
(6th Cir. 1997) (holding that the factors are not “prerequisites that must be met”
but rather “considerations . . . to be balanced”). The Court balances the four
factors within the abuse of discretion framework, giving fresh review to legal
conclusions and reviewing factual findings for clear error. In re Isaacman, 26 F.3d
629, 631 (6th Cir. 1994); see also In re H.J. Scheirich Co., 982 F.2d 945, 949 (6th
Cir. 1993). In doing so, the Court must ask “whether a reasonable person could
agree with the bankruptcy court’s decision; if reasonable persons could differ as to
the issue, then there is no abuse of discretion.” In re M.J. Waterman & Assocs.,
227 F.3d 604, 608 (6th Cir. 2000) (citing Washington v. Sherwin Real Estate, Inc.,
694 F.2d 1081, 1087 (7th Cir. 1982)). “Although no one factor is controlling, a
finding that there is simply no likelihood of success on the merits is usually fatal.”
Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
APPLICABLE LAW AND ANALYSIS
The Court begins with the first factor: “likelihood of success on the merits.”
11 U.S.C. § 109(g)(2) prohibits a debtor from seeking relief a second time within
180 days of an earlier bankruptcy case if the debtor “requested and obtained the
voluntary dismissal of the [earlier] case following the filing of a request for relief
from the automatic stay provided by [S]ection 362.” 11 U.S.C. § 109(g)(2). Under
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§ 362(a), the filing of a Chapter 13 bankruptcy petition operates as an automatic
stay of actions lodged by creditors against debtors.
Per § 362(d)(1), a creditor may move the bankruptcy court to lift the
automatic stay “for cause.” Antal does not dispute that his failure to cure the
Notice of Default would satisfy the “for cause” provision of § 362(d)(1). In fact, in
his Motion to Extend Automatic Stay, Antal concedes that he “voluntarily
dismissed [the 2016 Bankruptcy] because he fell behind on his post-petition
property tax obligation and was unable to bring the taxes current in the short period
of time allowed to cure his Notice of Default.” (ECF No. 5 at Pg. ID 173, 177.)
Antal instead argues that Wilmington never invoked the “for cause” provision of
§ 362(d)(1). Specifically, Antal contends that “Wilmington never filed for relief
from stay pursuant to § 362(d) . . . which would trigger the applicability of
§ 109(g)(2)” and instead filed for relief pursuant to the Agreement Resolving
Objections & Modifying Automatic Stay. (ECF No. 3 at Pg. ID 25-26.) The Court
agrees with the bankruptcy court: Antal’s argument amounts to “dancing on the
head of a needle.” (ECF No. 5 at Pg. ID 283.) But the Court need not entertain
this dance because Antal’s motion fails for a different reason.
Under Federal Rule of Bankruptcy Procedure 4001(d)(1)(A), a debtor and
creditor may come to an “agreement relating to relief from the automatic stay,”
including “an agreement to modify or terminate the stay provided by § 362.” “A
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motion for approval of [such an agreement] . . . shall be accompanied by a copy of
the agreement and a proposed form order.” Fed. R. Bankr. P. 4001(d)(1)(A).
Here, the parties agreed that following Antal’s failure to timely cure the
delinquency detailed in a Notice of Default, “[Wilmington] [could] submit an order
vacating the Automatic Stay to the Court for entry with no further notice or hearing
required.” (ECF No. 5 at Pg. ID 253.) The parties submitted a motion to approve
the agreement, along with a copy of the agreement and the proposed Order
Resolving Objections & Modifying Automatic Stay, which the bankruptcy court
subsequently entered. (See id. at Pg. ID 252-57.) Antal eventually failed to meet
the provisions of the agreement and Wilmington sought and received relief from
the automatic stay after filing the Notice That Default Has Not Been Cured. (Id. at
Pg. ID 267-75.) Antal has not established that a reasonable person could disagree
with the bankruptcy court’s conclusion that § 109(g)(2) applies because
Wilmington requested relief from § 362’s automatic stay, as modified by the
Agreement Resolving Objections & Modifying Automatic Stay, and Antal
thereafter voluntarily dismissed the 2016 Bankruptcy. (Id. at Pg. ID 285-86.)
To the extent that Antal contends that the Agreement Resolving Objections
& Modifying Automatic Stay could be approved by the bankruptcy court only after
a motion for relief from the automatic stay was filed (ECF No. 7 at Pg. ID 324-25),
this argument is unavailing. Federal Rule of Bankruptcy Procedure
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4001(d)(1)(A)(iii) permits a court to approve “an agreement to modify or terminate
the stay provided for in § 362” upon a motion to approve such an agreement.
Antal points to no case suggesting that Rule 4001(d)(1)(A) requires that a motion
for relief from an automatic stay be filed prior to parties making an agreement
modifying the automatic stay and prior to the bankruptcy court approving it. Fed.
R. Bankr. P. 4001(d)(1)(A). Moreover, Rule 4001(d)(4) specifically and separately
contemplates an “agreement in settlement of [a] motion,” including “[a] motion for
relief from an automatic stay.” Fed. R. Bankr. P. 4001(d)(4) (citing Fed. R. Bankr.
P. 4001(a)). If Part 4 of Rule 4001(d) specifically contemplates agreements
following motions for relief from an automatic stay, it follows that Parts 1, 2, and 3
of Rule 4001(d) concern agreements that are unrelated to a pending motion for
relief from an automatic stay.
Because Wilmington requested relief from § 362’s automatic stay as
modified by the Order Resolving Objections & Modifying Automatic Stay, the
Court need not address Antal’s argument that § 109(g)(2) does not apply because
Wilmington did not cite to § 362(d)(1) in its Notice That Default Has Not Been
Cured, or explicitly state that it was seeking relief from the automatic stay “for
cause.”
For the same reason, the Court need not reach Antal’s contention that the
Federal Rule of Bankruptcy Procedure 4001, 9013, and 9014 required Wilmington
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to file a motion in order to request relief from the automatic stay and that
Wilmington did not do so (ECF No. 7 at Pg. ID 324): again, the Agreement
Resolving Objections & Modifying Automatic Stay did not require a motion.
Instead, it required only that Wilmington submit an order vacating the automatic
stay for entry by the bankruptcy court. Thus, Antal is unlikely to succeed on the
merits of his argument that the bankruptcy court abused its discretion in
concluding that § 109(g)(2) applies.
As to the second factor, the Court holds that Antal has shown a likelihood of
irreparable harm. Antal points out that, absent a stay of the bankruptcy court’s
order, Wilmington and the taxing authority will proceed with foreclosure on the
Property. (ECF No. 6 at Pg. ID 306.) Once the real property is sold, Antal claims,
he will be required to vacate what has been his and his family’s long-time home.
(Id.)
The third factor to be considered by the Court in determining whether a
debtor is entitled to a stay pending appeal is the prospect that others will be harmed
if the Court grants the stay. Here, the 2016 and 2020 Bankruptcies have, together,
spanned the course of approximately four years. Issuing a stay would force
Defendants back into the very proceedings from which the bankruptcy court

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ordered them relieved and delay the exercise of the foreclosure remedy Defendants
bargained for in the relevant contract(s).4
Lastly, the Court must consider whether there is a public interest in granting
the stay. As Chief Judge Hood explained in Sayo v. Zions First Nat. 7 Bank, “there
are public policy arguments in favor of both sides of the dispute. Public policy
disfavors the sale of real property through foreclosure auctions, but also favors
parties [honoring] contractual agreements,” such as those requiring payment of
various taxes on properties. See No. 06–14963, 2006 WL 3392072, at *6 (E.D.
Mich. Nov. 22, 2006).
CONCLUSION
For the foregoing reasons, the Court holds that Antal’s argument that the
bankruptcy court abused its discretion in concluding that § 109(g)(2) applies,
barring Antal from filing for bankruptcy relief for 180 days, is not likely to succeed
on the merits. The Court finds that Antal’s failure to show a likelihood of success
on the merits is—when balanced with the other factors—significant enough to
make a stay pending appeal in this Court unwarranted.

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In support of his argument that a stay that would effectively bar Wilmington from
pursuing foreclosure remedies would cause “minimal” harm to Wilmington, Antal
notes that he paid the amount owed on Property’s mortgage in full prior to the
voluntary dismissal of the 2016 Bankruptcy. (ECF No. 3 at Pg. ID 28-29.)
Notably, however, Antal concedes that unpaid accrued interest and miscellaneous
fees remain due and owing. (Id.)
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Accordingly,
IT IS ORDERED that Debtor/Appellant, Zoltan M. Antal’s, Motion to Stay
U.S. Bankruptcy Court Order Denying Zoltan M. Antal’s Motion to Extend the
Automatic Stay and Dismissing the Case Pursuant to Fed. R. Bankr. Proc. 8007
(b)(1) (ECF No. 3) is DENIED.
IT IS FURTHER ORDERED that Antal’s Emergency Amended Motion to
Stay U.S. Bankruptcy Court Order Denying Zoltan M. Antal’s Motion to Extend
the Automatic Stay and Dismissing the Case Pursuant to Fed. R. Bankr. Proc. 8007
(b)(1) (ECF No. 6) is DENIED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 17, 2020

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