District Court (Pa.) Confirms Bankruptcy Court’s Finding that Repossession of Vehicle Violated Automatic Stay

Here, the Bankruptcy Court, following the court’s decision in In re Rice concluded that the BAPCPA eliminated the ride-through option. Neither party disputes this determination, nor is it necessary for this Court to decide the issue because regardless of whether the ride-through option remains viable, Toyota violated the automatic stay by not waiting until thirty days after the date set for the creditors’ meeting before repossessing Dunn’s vehicle. . . .Toyota argues that the automatic stay was terminated on July 13, 2017, thirty days after the bankruptcy petition was filed, because Dunn’s statement of intention failed to indicate whether he intended to redeem or to reaffirm the debt as required by § 362(h)(1)(A). The Bankruptcy Court disagreed and found that Dunn complied with this requirement. See Order of Oct. 3, 2017, ¶ 12(c). The court construed Dunn’s statement under the limited options available after the BAPCPA amendments as evidencing no intent to redeem, leaving only reaffirmation.  Regardless of whether this finding was clearly erroneous, because Toyota had to wait until at least thirty days after the date set for the creditors’ meeting, until September 1, 2017, before it could repossess the Land Rover, the Bankruptcy Court correctly concluded that Toyota violated the stay on August 18, 2017.  . . . However, this Court need not decide whether the statute is conjunctive because even if § 362(h)(1) does not require two actions, the stay is not terminated until thirty days after the date set for the creditors’ meeting. In In re Mollison, the court found that the statute was not conjunctive, “agree[ing] with the In re McMullen court’s conclusion that either the failure to properly file the Statement of Intent or to perform according to a properly-filed Statement of Intent will trigger the termination of the Automatic Stay under § 362(h)(1).” Ostrander v. Source One Fin. Corp. (In re Mollison), 463 B.R. 169, 181 (Bankr. D. Mass. 2012) (citing In re McMullen, 443 B.R. 67). Nevertheless, the court believed that subsections (A) and (B) of § 362(h)(1) are ambiguous regarding the time when the automatic stay terminates, and it therefore adopted the later date (30 days after the first date set for the meeting of creditors) as being “most consistent with both the purpose of § 362(h)(1) and the long-standing purposes of and practices under the Bankruptcy Code as a whole.” In re Mollison, 463 B.R. at 180 (“Accordingly, this Court holds that, where a debtor fails to file (or file properly) a Statement of Intent or fails to perform according to his or her stated intent, the Automatic Stay will not terminate and personal property will not be removed from the bankruptcy estate pursuant to § 362(h)(1) until the expiration of 30 days after the first date set for the 341 Meeting.”). In In re Stephens, the court “align[ed] itself with the conclusion reached in Mollison that a debtor’s failure to properly file a statement of intention or to perform according to a properly filed statement of intention will trigger termination of the automatic stay, but that the automatic stay does not terminate by operation of § 362(h) until 30 days after the first meeting of creditors takes place.” In re Stephens, No. 09-62630, 2013 Bankr. LEXIS 1202, at *24-25 (Bankr. N.D.N.Y. Mar. 28, 2013). It clarified, however, that unlike the Mollison court, it did not find § 362(h)(1) to be ambiguous; rather, it concluded that the second deadline in § 362 “is decisive[,] avoids undesired outcomes, gives meaning to the context of the of the statute as a whole rather than particular phrases in isolation, does not render § 362(h)(1)(B) meaningless, and leaves the chapter 7 trustee’s time-honored § 704 duties intact.” Id. After consideration, this Court concludes that the operative date for termination of the stay under § 362(h)(1) is thirty days after the date set for the creditors’ meeting.  Consequently, regardless of whether subsections (A) and (B) of § 362(h)(1) should be read in the conjunctive, the automatic stay did not terminate in the instant action until at least September 1, 2017, thirty days after the first date set for the creditors’ meeting. Toyota repossessed Dunn’s Land Rover on August 18, 2017. The automatic stay had not yet terminated, and Toyota therefore violated the stay. The Bankruptcy Court’s Order dated October 3, 2017, is affirmed.