In re Muhammad

536 B.R. 469, 2015 Bankr. LEXIS 1828, 2015 WL 5010847
CourtUnited States Bankruptcy Court, M.D. Alabama
DecidedJune 3, 2015
DocketCase No. 15-80266-WRS
StatusPublished
Cited by12 cases

This text of 536 B.R. 469 (In re Muhammad) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Muhammad, 536 B.R. 469, 2015 Bankr. LEXIS 1828, 2015 WL 5010847 (Ala. 2015).

Opinion

[471]*471 MEMORANDUM DECISION

William R. Sawyer, United States Bankruptcy Judge

I. FACTS

This Chapter 13 case came before the Court for an evidentiary hearing on the Debtor’s Motion to Alter and Amend on May 13, 2015. (Doc. 21). The Debtor was present in person and by counsel Charles M. Ingram, Jr. The Chapter 13 Trustee was present by counsel Sabrina McKinney. Tuskegee Federal Credit Union was present by counsel Kristen Abbott. For the reasons set forth below, the motion is DENIED.

The Debtor is Lateefah Muhammad, a practicing lawyer with an office in Tuskegee, Alabama. This case began when Muhammad filed a petition under Chapter 13 of the Bankruptcy Code on February 27, 2015. (Doc. 1). Muhammad has two prior cases. Her first case, also a Chapter 13, was filed on January 17, 2001. (Case No. 01-332). The first case was dismissed, without a plan having been confirmed, on June 27, 2001. (01-332, Doc. 28). The Court dismissed the first case with a 180-day injunction against refiling. (01-332, Doc. 28). Muhammad moved to reinstate the first case, and that motion was denied. (01-332, Docs. 29, 38).

Muhammad filed a second Chapter 13 petition on January 11, 2012. (12-80028, Doc. 1). In her Chapter 13 Plan, Muhammad admitted that she was $10,000 in arrears on her mortgage to Tuskegee Federal. Her plan was to cure the delinquency over the life of the plan and maintain current monthly payments. (12-80028, Doc. 2). The monthly cure payment was $352.00 and her regular monthly maintenance payment was $694.00. On May 16, 2012, the Court confirmed Muhammad’s Plan. (12-80028, Doc. 24).

On November 6, 2012, the Trustee filed his first motion to dismiss, in the second case, alleging that Muhammad had defaulted on her obligations to make plan payments. (12-80028, Doc. 26). Muhammad filed a response admitting the default and noted that some recent payments had been made. (12-80028, Doc. 27). Based upon Muhammad’s promise to make payments in the future, the Trustee withdrew his motion to dismiss. (12-80028, Doc. 29).

On June 16, 2013, the Trustee filed a second motion to dismiss in the second case. (1280028, Doc. 42). The Trustee’s second motion recites that Muhammad had made only three monthly payments in the preceding six months. Muhammad responded, admitting the default, tendering two delinquent payments and promising to do better in the future. (12-80028, Doc. 43). The Trustee again withdrew his motion. (12-80028, Doc. 53).

On October 16, 2014, Tuskegee Federal filed a Motion for Relief from the Automatic Stay alleging that Muhammad had defaulted on her obligation to make the regular monthly mortgage payments, or “maintenance” payments during the pen-dency of the second case. (Doc. 59). Tuskegee Federal settled its motion with a consent order which was entered on November 26, 2014. (12-80028, Doc. 66). This consent order — known locally as a Hoggle1 Order — is notable in that the [472]*472mortgage delinquency had grown to almost $15,000.

On December 5, 2014, the Trustee filed his third motion to dismiss in the second case. (12-80028, Doc. 68). The Trustee’s motion indicates that Muhammad had made only half of the payments coming due in the preceding six months. On January 20, 2015, the Court granted the Trustee’s motion to dismiss. (12-80028, Doc. 74). Also of interest, on January 7, 2015, Tuskegee Federal gave notice that Muhammad had not made either her November or December 2014, mortgage payments. (12-80028, Doc. 72).

On February 27, 2015, Muhammad filed her third Chapter 13 petition, initiating this case. (Doc. 1). On March 11, 2015, twelve days later, Muhammad filed a motion to extend the automatic stay pursuant to 11 U.S.C. § 362(c)(3).2 (Doe. 16). The Court immediately set Muhammad’s motion for hearing on March 19, 2015. (Doc. 17). Muhammad ran for District Judge in Macon County in 2014. She argues that her unsuccessful run for office distracted her from practicing law, resulting in lower income and an inability to fund her Chapter 13 Plan. The Court notes that Muhammad’s inability to meet her financial obligations both antedated and postdated her run for office. Therefore, it does not appear that Muhammad’s run for office was a significant factor in her financial difficulties. After a hearing, the Court denied Muhammad’s motion to extend the automatic stay, finding that she had failed to carry her burden of proof. (Doc. 20).

Muhammad promptly moved to alter and amend the Court’s March 13, 2015 order denying her motion to extend the automatic stay. (Doc. 21). An evidentiary hearing was held on May 13, 2015, in Opelika, Alabama. The Court heard testimony from the President of Tuskegee Federal advising the Court that Muhammad’s mortgage delinquency had grown to more than $18,000. Muhammad testified, disputing almost everything. She had no evidence showing the what she believed was the true status of her mortgage. She stated that Tuskegee Federal had given inconsistent answers on previous occasions regarding her mortgage balance. Muhammad did not provide the Court with proof of payments nor did she provide an analysis as to what she contends her mortgage balance or delinquency to be. The May 13, 2015 hearing was nothing more than a rehash of what had been presented to the Court in past: excuses, blanket denials, and promises of future performance.

II. LAW

A. Jurisdiction

This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334. [473]*473This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(A). This is a final order.

B. Motions to Extend the Stay— Burden of Proof

Muhammad’s motion to extend the automatic stay is governed by 11 U.S.C. § 362(c)(3)(B). In general, when a petition in bankruptcy is filed, a stay is entered by operation of law, which prevents creditors from taking action to collect debts. § 362(a). There is an exception in the case where a debtor has had a prior bankruptcy case pending within the preceding one year; in those eases, the automatic stay terminates 30 days after the date of the petition in the latter case. § 362(c)(3)(A); In re Berry, 340 B.R. 636, 637 (Bankr.M.D.Ala.2006). The debtor may move the court to extend the automatic stay:

[o]n 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 case as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period 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.

§ 362(c)(3)(B). Thus, the motion must be filed, notice given, and the hearing completed before the expiration of the 30-day period. § 362(c)(3)(B); In re Montoya, 333 B.R. 449, 452 (Bankr.D.Utah 2005).

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Cite This Page — Counsel Stack

Bluebook (online)
536 B.R. 469, 2015 Bankr. LEXIS 1828, 2015 WL 5010847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-muhammad-almb-2015.