In re Acosta

540 B.R. 308, 2015 Bankr. LEXIS 3754, 2015 WL 6690053
CourtUnited States Bankruptcy Court, S.D. Texas
DecidedNovember 2, 2015
DocketCASE NO: 15-70503
StatusPublished
Cited by1 cases

This text of 540 B.R. 308 (In re Acosta) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Acosta, 540 B.R. 308, 2015 Bankr. LEXIS 3754, 2015 WL 6690053 (Tex. 2015).

Opinion

MEMORANDUM OPINION REGARDING DEBTOR’S EMERGENCY MOTION TO IMPOSE THE AUTOMATIC STAY

[.Resolving ECF No. 10]

Eduardo V. Rodriguez, United States Bankruptcy Judge

I. Introduction

In the instant motion, the Court is asked to determine whether to grant Reynaldo Acosta’s (the “Debtor ”) Emergency Motion To Impose the Automatic Stay pursuant to 11 U.S.C. § 362(c)(4)’s required rebuttal of the presumption that a bankruptcy filing is not in good faith where the debtor had two or more cases pending within the prior year.

II. Findings Of Fact

To the extent that any Finding of Fact constitutes a Conclusion of Law, it is adopted as such. To the extent that any Conclusion of Law constitutes a Finding of Fact, it is adopted as such.

A. The Debtor’s First Bankruptcy Case

1. On May 10, 2013, Debtor filed his initial petition for bankruptcy relief under chapter 13 of Title 11 of the United States Code (the “Bankruptcy Code” or “Code”)),1 initiating case number 13-70233-M-13 and thereby invoking the automatic stay pursuant to 11 U.S.C. § 362. [311]*311[ECF No. 1]. Debtor filed his chapter 13 plan on the same date. [ECF No. 2]. The Plan called for monthly payments in the amount of $10,000.00 to the chapter 13 trustee with a 47% dividend to the general unsecured class of creditors.

2. On May 24, 2013, Debtor filed his Motion To Extend The Automatic Stay. [ECF No. 11]. Debtor had filed a prior case at 11-70784-M-13 on November 30, 2011, which was dismissed on April 23, 2015.

3. Debtor listed his occupation as owner/operator of RDB Transport, with income of approximately $12,376.15 per month. [ECF No. 92],

4. On June 27, 2013, the court granted Debtor’s Motion and entered an order extending the automatic stay. [ECF No. 30].

5. On October 17, 2013, the chapter 13 trustee filed her Motion To Dismiss. [ECF No. 46].

6. On January 23, 2014, the court gave Debtor fourteen days to cure the deficiencies stated in the trustee’s Motion To Dismiss, or else the case would be dismissed. [ECF No. 61].

7. On May 16, 2014, the trustee filed her Second Motion To Dismiss in which the trustee alleged that the Debtor, inter alia, had failed to file a feasible plan. [ECF No. 67].

8. On January 22, 2015, the plan was ultimately confirmed by the court. [ECF No. 99].

9. On March 27, 2015, Hidalgo County filed a Motion To Dismiss for failure to pay post-petition ad valorem taxes. [ECF No. 104].

10. On April 20, 2015, the court entered its order dismissing bankruptcy case 13-70233-M-13. [ECF No. 105].

B. The Debtor’s Second Bankruptcy Case

11. On May 7, 2015, Debtor filed another chapter 13 petition, initiating case number 15-70242-M-13 and thereby again invoking the automatic stay. [ECF No. 1].

12. On May 15, 2015, Debtor filed his motion to extend the automatic stay. [ECF No. 14].

13. Debtor again listed his occupation as owner/operator of RDB Transport, this time earning approximately $13,085.09 per month. [ECF No. 36],

14. On May 22, 2015, PACCAR Financial Corp. (“PFC”) filed its Objection to Debtor’s Motion, alleging, inter alia, lack of adequate protection. [ECF No. 15].

15. On June 3, 2015, this Court signed an Agreed Order Extending The Automatic Stay regarding PFC’s objection. [ECF No. 23].

16. On June 4, 2015, this Court entered its order extending the automatic stay as to all creditors. [ECF No. 25].

17. On June 23, 2015, the case was automatically dismissed by this Court for deficiencies. [ECF No. 34].

18. On July 6, 2015, Debtor filed a Motion To Reconsider Dismissal, [ECF No. 39], which was denied by this Court on August 19,2015. [ECF No. 46].

C. The Debtor’s Third Bankruptcy Case (the pending chapter 13 case)

19. On October 5, 2015, Debtor filed the instant chapter .13 petition, case number 15-70503-M-13, thereby again invoking the automatic stay pursuant to 11 U.S.C. § 362. [ECF No. 1].

20. On October 5, 2015, Debtor filed his plan of reorganization (herein “Plan ”). [ECF No. 2]. The Plan calls for monthly payments in the amount of $6,800.00 to the chapter 13 trustee with a 100% dividend to [312]*312the general unsecured class of creditors. Id.

21. Debtor again lists his occupation as an “Owner/Operator” of RDB Transport, this time e'arning approximately $9,085.09 in net monthly income. [ECF No. 1— Schedule I].

22. On October 13, 2015, Debtor filed an Emergency Motion To Impose The Automatic Stay (the “Motion”). [ECF No. 10].

23. On October 14, 2015, PFC filed its Objection to Debtor’s Motion (the “Objection”). [ECF No. 13].

24. On October 27, 2015, PFC and the Debtor filed an Agreed Order on Debtor’s Motion (the “Agreed Order”). [ECF No. 23]. The Agreed Order stipulated-, inter alia, that Debtor will make payments in accordance with the Plan and maintain full insurance coverage on the truck tractors that serve as collateral for PFC’s secured claim. Id. at 2-3.

D. The Hearing on October 28, 2015

25. On October 28, 2015, this Court conducted an evidentiary hearing (the “Hearing”) on the instant motion and PFC’s Objection. At the hearing, Debtor’s Counsel was present to argue the instant motion. Additionally, Debtor was present and testified as to the following:

a. Following the dismissal of Debtor’s Second Bankruptcy, case number 15-70242, Debtor used the funds distributed by the chapter 13 trustee to make a payment to creditor(s). PFC was initially offered a payment against the outstanding debts, but PFC refused to accept the payment. See also [ECF No. 10 ¶ 4]. Ultimately, Debtor made a payment to a different creditor, Mack Financial Services, instead of PFC. Mack Financial Services had secured claims on a 2006 KW Tractor (# 140335) and a 2005 Kenworth Tractor (#110881). [Case No. 15-70242, ECF No. 1 at 16]. The result was that Mack Financial Services released its liens as to the two truck tractors and Debtor thereby eliminated a significant debt, which enabled Debtor to propose the Plan with much lower payments,
b. Debtor testified on the various vehicles that are listed on Schedule B, Item 25, [ECF No. 1]:
i. The 2007 Mustang is currently still in Debtor’s possession, but is being used by one of Debtor’s children. When questioned by the Court, however, Debtor testified that there was no outstanding debt or payments being made on the vehicle, despite the fact that Schedule D listed a debt in the amount of $13,064.16 and the chapter 13 plan proposed that the Debtor was to continue making payments in accordance with the prepetition contract on a supposed non-existing debt.

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540 B.R. 308, 2015 Bankr. LEXIS 3754, 2015 WL 6690053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acosta-txsb-2015.