by Lucas Knoll*


The auto­mat­ic stay in the Bank­rupt­cy Code is per­haps its most impor­tant pro­vi­sion. In 2005, as part of the Bank­rupt­cy Abuse Pre­ven­tion and Cred­it Pro­tec­tion Act, or BAPCPA, Con­gress cre­at­ed § 362(c)(3)(A). Sec­tion 362(c)(3)(A) ter­mi­nates the auto­mat­ic stay “with respect to the debtor” when cer­tain con­di­tions are met.1 There are two dif­fer­ing inter­pre­ta­tions of § 362(c)(3)(A)’s “with respect to the debtor” lan­guage. The first inter­pre­ta­tion, the so-called major­i­ty view,2 reads “with respect to the debtor” to refer to only the bank­rupt­cy debtor them­selves, and not the bank­rupt­cy estate.3 The minor­i­ty view reads “with respect to the debtor” to include both the bank­rupt­cy estate and the debtor them­self.4

The major­i­ty view, at first glance, seems to be more in line with the text; how­ev­er, this view ren­ders the statute almost use­less con­sid­er­ing that prac­ti­cal­ly all of the debtor’s prop­er­ty becomes part of the estate.5 The minor­i­ty view seems to run against the text of the statute, but it makes the statute func­tion in a coher­ent way, and in line with leg­isla­tive intent.6 There are a num­ber of tex­tu­al argu­ments to sup­port adopt­ing the minor­i­ty view. Leg­isla­tive his­to­ry and pol­i­cy argu­ments like­wise favor the minor­i­ty view over the major­i­ty view.

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Sec­tion 362(c)(3)(A) pro­vides that, when a debtor has had a case dis­missed with­in the past year, the auto­mat­ic stay ter­mi­nates “with respect to the debtor” thir­ty days post­pe­ti­tion.7 The text of the statute sup­ports both the minor­i­ty and the major­i­ty view, but the minor­i­ty view makes more sense when look­ing at the statute and bank­rupt­cy code as a whole and when apply­ing var­i­ous inter­pre­tive canons. “With respect to the debtor” is not the only part of § 362(c)(3)(A) that presents inter­pre­tive issues. To illus­trate how inart­ful­ly draft­ed this pro­vi­sion is, anoth­er line of cas­es grap­ples with whether “acts” and “actions” men­tioned in § 362(a) refer to dif­fer­ent things.8 One judge called § 362(c)(3)(A) “a puz­zler.”9 Anoth­er called it, “vir­tu­al­ly inco­her­ent.”10 Through­out the 2005 amend­ments, of which § 362(c)(3)(A) is part, the text is full of con­fus­ing lan­guage and inter­pre­tive issues.11

But nei­ther the major­i­ty nor minor­i­ty con­sis­tent­ly applies its inter­pre­ta­tions of this phrase to oth­er pro­vi­sions in the code. Sec­tion 362(c)(3)(A) states that the auto­mat­ic stay ter­mi­nates for a debtor who had a “sin­gle or joint case” that was dis­missed, and then was a debtor in a sub­se­quent “sin­gle or joint case” with­in one year.12 This cre­ates a dis­tinc­tion between the debtor and oth­er debtors in a sub­se­quent fil­ing to which only one debtor is a repeat-fil­er.13 This allows the repeat debtor a brief peri­od to estab­lish that this sec­ondary bank­rupt­cy fil­ing is in good faith. The minor­i­ty view there­fore only requires one distinction—between a repeat debtor and oth­er debtors—which is plau­si­ble on its face.

The major­i­ty view, on the oth­er hand, requires dif­fer­ent dis­tinc­tions. The first dis­tinc­tion is between the debtor’s per­son and prop­er­ty based on the “with respect to the debtor” lan­guage.14  The sec­ond dis­tinc­tion rests on the same lan­guage to dis­tin­guish between non-estate prop­er­ty and estate prop­er­ty. This is inco­her­ent because it relies on one set of rea­son­ing to dis­tin­guish between the debtor’s per­son and prop­er­ty, and rejects that rea­son­ing to dis­tin­guish between non-estate prop­er­ty and estate prop­er­ty.15 Courts should adopt the minor­i­ty view because it is inter­nal­ly con­sis­tent where the major­i­ty view is not.

Addi­tion­al­ly, the lan­guage “with respect to” actu­al­ly broad­ens, rather than nar­rows, a statute. In Lamar Archer & Cofrin v. Appling, the Supreme Court ruled in 2018 that a sin­gle state­ment about finances is a “state­ment respect­ing the debtor’s finan­cial con­di­tion.”16 Because the Court ruled that sim­i­lar lan­guage to the lan­guage in § 362(c)(3)(A) broad­ens that statute, courts in the future are like­ly to read “with respect to” the debtor broad­ly, to include the estate. The debtor, by fil­ing a peti­tion cre­ates the estate.17 The debtor’s prop­er­ty becomes part of the estate. In Chap­ter 11 cas­es, the debtor con­trols the estate.18 Because of how tight­ly bound the debtor is with the estate, “with respect to the debtor” should include the estate. Includ­ing the estate in the “debtor” lan­guage of § 362(c)(3)(A) nat­u­ral­ly leads to a total ter­mi­na­tion of the auto­mat­ic stay.

Sup­port for adopt­ing the minor­i­ty view can also be found in the statute’s inter­nal cross-ref­er­ences. Sec­tion 362(c)(3)(A) ref­er­ences the stay under sub­sec­tion (a).19 Each pro­vi­sion with­in sub­sec­tion (a) refers either to the estate or the debtor, not both.20 Con­gress, if it want­ed to adopt the major­i­ty view’s inter­pre­ta­tion, could have ref­er­enced the spe­cif­ic pro­vi­sions that ref­er­ence only the debtor.21 But the lan­guage of the statute states that the stay ter­mi­nates full stop, not only to spe­cif­ic pro­vi­sions.22 More­over, § 362(c)(3)(A) states “with respect to a debt” and “any lease”; the pro­vi­sion does not spec­i­fy that it must belong to the debtor and not the debtor’s estate. Courts should not lim­it § 362(c)(3)(A)’s lan­guage to only apply to the debtor’s prop­er­ty because Con­gress did not do so.

Read­ing § 362(c)(3)(A) in con­text with oth­er pro­vi­sions in § 362 clar­i­fies that the auto­mat­ic stay ter­mi­nates in its entire­ty. Statutes are “to be read as a whole” because statu­to­ry lan­guage “depends on con­text.”23  Sec­tion 362(c)(4)(A) pre­vents the stay from com­ing into effect at all, rather than just not apply­ing to the debtor, which favors the minor­i­ty view.24 Sec­tions 362(c)(3) and (4) are incred­i­bly sim­i­lar. They each have sub­sec­tions relat­ing to good faith, and are both struc­tured sim­i­lar­ly.25  Sec­tion 362(c)(3) should be read in light of (c)(4). It makes much more sense that § 362(c)(3)(A) should be read to achieve the same thing as (c)(4), which is to ter­mi­nate the stay entire­ly. Sec­tion 362(c)(4) should not be read as a much harsh­er penal­ty than sec­tion 362(c)(3)(A) because that would be incon­gru­ous: one pro­vi­sion would do essen­tial­ly noth­ing and the oth­er would deprive the debtor from the most impor­tant pro­tec­tions of the Bank­rupt­cy Code.

Sec­tion 362(j) like­wise sug­gests that the stay is ter­mi­nat­ed in its entire­ty. The text states that a court may issue an order to con­firm that, under § 362(c), “the auto­mat­ic stay has been ter­mi­nat­ed.”26 It does not include the lan­guage “with respect to the debtor.”27 Nor does it men­tion only the debtor’s prop­er­ty.28 Giv­en this sub­sec­tion, it seems unlike­ly that the statute lifts the auto­mat­ic stay against only the debtor, and not the estate as a whole. It is “very dif­fi­cult” to jus­ti­fy the major­i­ty view when one reviews the sur­round­ing pro­vi­sions of the statute.29 Because oth­er pro­vi­sions with­in § 362(c)(3)(A) sup­port the minor­i­ty view, courts should adopt it.

There is only one Bank­rupt­cy Code pro­vi­sion that does not sup­port the minor­i­ty view: § 521(a)(7). While “with respect to” accom­pa­nies both the debtor and the estate in § 521(a)(7), this should not mean that the revo­ca­tion of the auto­mat­ic stay only applies to the debtor. Through­out the Bank­rupt­cy Code, § 521(a)(7) is the only pro­vi­sion that men­tions both the debtor and the estate fol­low­ing a “with respect to.”30 More­over, Con­gress was clear­er in § 551 when it said “any trans­fer avoid­ed . . . is pre­served for . . . the estate but only with respect to prop­er­ty of the estate.”31 This shows a greater speci­fici­ty than was con­tained in oth­er pro­vi­sions.32 If Con­gress want­ed to be more spe­cif­ic, they could have been. More­over, Con­gress intend­ed the stay to ter­mi­nate entire­ly, not just against the debtor.33 The lack of speci­fici­ty in § 362(c)(3)(A), when con­trast­ed with the speci­fici­ty in oth­er statutes, favors the minor­i­ty view.

Addi­tion­al­ly, courts should read § 362(c)(3)(A) as ter­mi­nat­ing with respect to both debtor and estate because there is no clear lim­i­ta­tion on the statute that it only applies to the debtor. Of the oth­er sec­tions of the Bank­rupt­cy Code, there are lim­i­ta­tions that are plain.34 The Bank­rupt­cy Code is pre­cise when Con­gress desired to be clear­er.35 Because the Bank­rupt­cy Code is not pre­cise in defin­ing § 362(c)(3)(A) as sup­port­ing the major­i­ty view, courts should not read it as pre­cise and there­fore should adopt the minor­i­ty view.

Alter­na­tive­ly, “with respect to the debtor” should be read to refer to the non-debtor spouse. This is a dif­fi­cult argu­ment that has been reject­ed by some courts that adopt­ed the minor­i­ty view.36 How­ev­er, it gives effect to every word in the statute, which some courts may favor. The Bank­rupt­cy Code allows for debtors to file joint­ly with their spouse.37 Sec­tion 362(c)(3) refers to “a sin­gle or joint case filed by or against a debtor” and that the stay ter­mi­nates “with respect to the debtor.”38 The obvi­ous infer­ence here is that it would not ter­mi­nate with respect to the joint debtor when that debtor did not have a pre­vi­ous­ly pend­ing case.39 It would only ter­mi­nate with respect to the repeat-filer.

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Leg­isla­tive his­to­ry con­firms that Con­gress intend­ed BAPCPA to lim­it abu­sive fil­ings. First, its name is the “Bank­rupt­cy Abuse Pre­ven­tion and Con­sumer Pro­tec­tion Act.”40 While there is no pur­pose sec­tion in BAPCPA, the name should speak for itself: Con­gress was try­ing to pre­vent per­ceived bank­rupt­cy abus­es. The Supreme Court has acknowl­edged that the pur­pose of BAPCPA is “to ensure that [debtors] repay cred­i­tors the max­i­mum they can afford.”41 Leg­isla­tive state­ments also con­firm this.42 The leg­isla­tive his­to­ry favors the minor­i­ty view.

In 1994, Con­gress cre­at­ed a com­mis­sion to eval­u­ate and pro­pose new laws to resolve “issues and prob­lems” in the Bank­rupt­cy Code.43 This com­mis­sion men­tioned the con­duct con­tem­plat­ed in § 362(c)(3)(A)—repeated fil­ing to delay process—as a prob­lem.44 Under the minor­i­ty view, repeat­ed abu­sive fil­ings are deterred. Under the major­i­ty view, they are not. Thus, the minor­i­ty view is more in line with Con­gress’ intent.

Ear­ly pro­posed leg­is­la­tion in the House stat­ed essen­tial­ly what the minor­i­ty view pro­pos­es.45 Like­wise, the Sen­ate Judi­cia­ry Com­mit­tee pro­posed a sim­i­lar pro­vi­sion under the title “Dis­cour­age­ment of Bad Faith Repeat Fil­ings.”46 Sim­i­lar­ly, the Bank­rupt­cy Review Com­mis­sion, a body cre­at­ed by Con­gress to reform bank­rupt­cy law, crit­i­cized peo­ple that repeat­ed­ly file, say­ing that “many of the worst abus­es of the bank­rupt­cy sys­tem involve indi­vid­u­als who repeat­ed­ly file . . . with the sole inten­tion of using the auto­mat­ic stay.”47 These pro­vi­sions even­tu­al­ly mor­phed into the slight­ly less art­ful § 362(c)(3)(A), but are clear­ly intend­ed to do the same thing.48 A slight alter­ation in the lan­guage should not be read to com­plete­ly turn the mean­ing on its head. Con­gress’ leg­isla­tive intent from its ear­li­er pro­posed bills and state­ments clear­ly favors the minor­i­ty view. More­over, noth­ing in the leg­isla­tive his­to­ry sug­gests that Con­gress desired the major­i­ty view’s read­ing.49 There would have to have been a large shift in intent, from wish­ing to pre­vent this spe­cif­ic con­duct to endors­ing it, in a short time frame.50

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The major­i­ty view con­tains sig­nif­i­cant prob­lems. It cre­ates sur­plusage where the minor­i­ty view elim­i­nates it, and Courts are “reluc­tant to treat statu­to­ry terms as sur­plusage.”51 In oth­er words, courts are unwill­ing to make statu­to­ry lan­guage redun­dant. One set of words the major­i­ty view ren­ders use­less is “prop­er­ty secur­ing such debt.”52 Because the only prop­er­ty that the debtor can have is not some­thing any cred­i­tor can pur­sue,53 is use­less to the estate,54 or exempt­ed for pol­i­cy rea­sons,55 this pro­vi­sion would become mean­ing­less. In essence, a cred­i­tor may not pur­sue any “prop­er­ty secur­ing such debt” because it is estate prop­er­ty and not some­thing the debtor pos­sess­es. Any prop­er­ty secur­ing debt must be estate prop­er­ty, too, because almost any­thing that has enough val­ue to secure a debt will be in the estate.56

In its pur­suit to lim­it sur­plusage, the major­i­ty view makes this part of the statute sur­plusage. This is because any prop­er­ty that secures a debt will not be in the debtor’s pos­ses­sion after the bank­rupt­cy peti­tion is filed.57 In short, if a debtor has any prop­er­ty of val­ue that secures a debt, that becomes part of the estate. If the stay ter­mi­nates only for the debtor, then a cred­i­tor can­not pur­sue the estate prop­er­ty secur­ing such a debt, which ren­ders those words useless.

In read­ing § 362(c)(3)(A) to include only the debtor, and not the estate, the Court must ignore the effort Con­gress took in defin­ing “bad faith” in § 362(c)(3)(C), which pro­vides bad faith fac­tors. This is a com­pli­cat­ed sec­tion, as there are six lev­els of nest­ed sub­sec­tions.58 Con­gress like­ly would not go through the effort of cre­at­ing this many sub­sec­tions if it had no use at all. Addi­tion­al­ly, § 362(c)(3)(C) pro­vides a detailed process for deter­min­ing whether the auto­mat­ic stay should apply to the debtor. More­over, leg­isla­tive his­to­ry refers to ter­mi­nat­ing the stay in total.59 Thus, if the major­i­ty view holds, this pro­vi­sion becomes prac­ti­cal­ly useless.

Not only would cred­i­tors like­ly not take advan­tage of the stay expir­ing, but debtors would be even more unlike­ly to take advan­tage of § 362(c)(3)(B) to allow them to extend the stay. Again, if the stay applies only to the debtor, and not the debtor’s prop­er­ty, there would be very lit­tle rea­son for the debtor to extend the stay.  The only rea­son a debtor would ask to extend the stay is if they obtained sig­nif­i­cant prop­er­ty post­pe­ti­tion in a Chap­ter 7 bankruptcy.

A court may decide that the “with respect to the debtor” lan­guage is itself sur­plusage.60 This is not a prob­lem for the minor­i­ty view for two rea­sons. First, sur­plusage is not fatal to a read­ing of a statute.61 Sec­ond­ly, the major­i­ty view has more sur­plusage.  Sev­er­al oth­er pro­vi­sions in BAPCPA refer to “with respect to the debtor” or “with respect to a debtor.”62 In these cas­es, remov­ing either phrase would not change the mean­ing.63 Sec­tion 109(h)(3)(B) is one such exam­ple. The text reads “[w]ith respect to a debtor, an exemp­tion under sub­para­graph (A) shall cease to apply to that debtor on the date on which the debtor meets the require­ments for para­graph (1) . . .”64 This is the case in sev­er­al oth­er pro­vi­sions.65 This lends cred­i­bil­i­ty to the idea that “with respect to the debtor” is sur­plusage. But even if a court finds that this is sur­plusage, the major­i­ty view cre­ates more sur­plusage. Lan­guage like “with respect to a debt or prop­er­ty secur­ing such debt” and “with respect to any lease” is made sur­plusage by the major­i­ty view because every­thing becomes part of the estate, beyond the reach of the major­i­ty view’s ter­mi­na­tion.66 Because the minor­i­ty view elim­i­nates sur­plusage, and to any extent that there is sur­plusage it is less than the major­i­ty view, the minor­i­ty view is a more coher­ent read­ing of the statute.

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The canon against sur­plusages does not advise against inter­pret­ing “with respect to the debtor” to keep the auto­mat­ic stay applic­a­ble to the estate. Bet­ter applied, it would make “with respect to the debtor” sur­plusage because oth­er­wise the whole statute becomes essen­tial­ly use­less. Exempt­ing prop­er­ty would still be viable for a debtor because it is unreach­able by cred­i­tors regard­less of the auto­mat­ic stay.67 Because almost all a debtor’s prop­er­ty becomes part of the bank­rupt­cy estate under § 541(a) and var­i­ous oth­er pro­vi­sions,68 § 362(c)(3)(A) would effec­tive­ly do noth­ing under the major­i­ty view. Under the major­i­ty view, a cred­i­tor may pur­sue expired leas­es and with­held wages, but not much else.69 This would net the cred­i­tor very lit­tle, if anything.

There is an under­stand­ing that Con­gress does not cre­ate “use­less laws.” 70 The minor­i­ty view does not make this law use­less, while the major­i­ty view does. One caveat to this is that, in a Chap­ter 7 bank­rupt­cy, a debtor’s after-acquired prop­er­ty does not become prop­er­ty of the estate. So, in the­o­ry, one could obtain after-acquired prop­er­ty from a debtor; how­ev­er, notwith­stand­ing that, the statute will still be inef­fec­tive. Most Chap­ter 7 bank­rupt­cies are no-asset cas­es, mean­ing that the debtor is so poor they have essen­tial­ly noth­ing to begin with.71 More­over, most Chap­ter 7 cas­es last six months, so there will be lit­tle time—five months—for a debtor to acquire sig­nif­i­cant prop­er­ty post­pe­ti­tion. While the­o­ret­i­cal­ly a cred­i­tor could pur­sue a Chap­ter 7 debtor in some cas­es, most cred­i­tors will be unable to mean­ing­ful­ly pur­sue their debts. This ren­ders the statute essen­tial­ly use­less and it will not deter bad faith repeat filings.

Chap­ter 7 was not the only Chap­ter Con­gress want­ed to make harsh. Chap­ter 13 is less for­giv­ing post-BAPC­PA as well. If a Chap­ter 13 debtor fails the Chap­ter 7 means test, their plan must last five years.72 A Chap­ter 13 dis­charge is no longer as strong as it once was.73 In Chap­ter 11, Con­gress exempt­ed fraud­u­lent tax returns from dis­charge.74 These show an under­ly­ing intent to make bank­rupt­cy hard­er on the debtor, regard­less of which Chap­ter they are in. Mak­ing a dis­pro­por­tion­ate­ly hard­er bur­den on Chap­ter 7 debtors is out of line with the rest of BAPCPA, which is not intent on pun­ish­ing Chap­ter 7 debtors exclusively.

Under the majority’s inter­pre­ta­tion, the pro­vi­sion is harsh only in a Chap­ter 7 bank­rupt­cy, while it has lit­tle to no effect on a Chap­ter 11 or 13 bank­rupt­cy. Fur­ther, Chap­ter 7 pro­vides explic­it meth­ods for a judge to pre­vent abu­sive fil­ing75 where reor­ga­ni­za­tions do not car­ry the same strin­gency, so it is less like­ly that a debtor could abuse a fil­ing in a Chap­ter 7 than a reor­ga­ni­za­tion. Sec­tion 707(b) calls a judge’s atten­tion to abuse, where in oth­er pro­vi­sions a judge must rely on their equi­table pow­ers under sec­tion 105, which are more free-flow­ing.76 If Con­gress want­ed to pre­vent a debtor from fil­ing a Chap­ter 7 bank­rupt­cy with­in one year of a pre­vi­ous case being dis­missed, they sure­ly could have done so. Con­gress cre­at­ed sev­er­al oth­er pro­vi­sions mak­ing it harsh­er to file Chap­ter 7 bank­rupt­cies, so Con­gress could make it harsh­er if they want­ed to.77 Fur­ther, if this pro­vi­sion was meant to only affect Chap­ter 7, which it would under the major­i­ty view, Con­gress would like­ly have placed it in Chap­ter 7, and not put it in § 362.

Statutes are incred­i­bly hard for Con­gress to pass, so it is unlike­ly they would cre­ate an almost inap­plic­a­ble statute. There­fore it is a bet­ter read­ing of the statute to apply it to both the debtor and the estate.78 And because the plain text, leg­isla­tive his­to­ry, and con­text of the statute sup­port the minor­i­ty view, courts should adopt the minor­i­ty view when inter­pret­ing § 362(c)(3)(A).

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Courts may find § 362(c)(3)(A) to be ambigu­ous. The 2005 amend­ments to the Bank­rupt­cy Act are gen­er­al­ly seen as clum­si­ly writ­ten, 79 but the plain text of § 362(c)(3)(A) still sup­ports the minor­i­ty view. Con­gress is very like­ly aware of the Bank­rupt­cy Code’s inart­ful draft­ing, because of pro­vi­sions such as the “hang­ing para­graph,” which is clear­ly erro­neous and dis­cussed fre­quent­ly.80 Even with this knowl­edge, they have not fixed the hang­ing para­graph despite a num­ber of minor changes to the bank­rupt­cy code.81 Courts should take the some­times ambigu­ous nature of the 2005 amend­ments into con­sid­er­a­tion when inter­pret­ing § 362(c)(3)(A).

The minor­i­ty view’s read­ing is good pub­lic pol­i­cy. If the point of § 362(c)(3)(A) is to pre­vent repeat­ed abu­sive fil­ing, it makes lit­tle sense to pun­ish some­one who is not an abu­sive fil­er. While a spouse may know of abu­sive fil­ing, and the joint case may fur­ther the abuse, there are oth­er mech­a­nisms through which a court can resolve abuse.82 And, in light of § 362(c)(3)(A), a court is more like­ly to find a repeat fil­ing hid­den behind a joint bank­rupt­cy to be abu­sive. It is also unlike­ly that Con­gress desired to pun­ish some­one for the actions of their spouse, espe­cial­ly in the mar­i­tal con­text. Spousal abuse can be eas­i­ly con­cealed, and Con­gress, as well as many state leg­is­la­tures, has tak­en action against finan­cial abuse in sim­i­lar sit­u­a­tions, such as elder abuse.83 Because Con­gress gen­er­al­ly does not desire to pun­ish one for another’s acts, and read­ing this pro­vi­sion oth­er­wise would allow for spousal abuse, it is prefer­able to read this pro­vi­sion as dif­fer­en­ti­at­ing between spouses.

Pro­po­nents of the major­i­ty view can rely upon two main argu­ments: the sub­ver­sion of the gen­er­al pur­pose of the Bank­rupt­cy Code, and the harsh­ness on debtors. How­ev­er, nei­ther should be a major con­cern when look­ing at the back­ground and pol­i­cy of the statute.

First, the pur­pose of the Bank­rupt­cy Code gen­er­al­ly is to ensure an even dis­tri­b­u­tion of estate resources to the cred­i­tors and pre­vent races to the cour­t­house.84 The major­i­ty view finds that this statute under­mines those poli­cies.85 And it does under­mine these poli­cies. But the rejoin­der to this argu­ment is that this statute pro­vides a spe­cif­ic excep­tion to these poli­cies. Sev­er­al oth­er pro­vi­sions in the bank­rupt­cy code also ter­mi­nate the auto­mat­ic stay for cer­tain rea­sons, allow the stay to be lift­ed, or do not pro­vide for a dis­charge in cer­tain cir­cum­stances.86 In fact, bank­rupt­cy itself is not a guar­an­teed right.87 The num­ber of pro­vi­sions lim­it­ing the core rights under the bank­rupt­cy code shows that they are not inviolable.

Sec­ond, pro­po­nents of the major­i­ty view may argue that the minor­i­ty view is par­tic­u­lar­ly harsh on debtors. One can imag­ine quite eas­i­ly how some­one might file their case in error and have it dis­missed. The minor­i­ty view would pre­vent the pro­tec­tion of the auto­mat­ic stay from apply­ing to some­one like that. But there are two rea­sons why this should not be a major con­cern. First, attor­ney mis­takes are not imput­ed onto the client in this cir­cum­stance.88 And sec­ond, if some­one does not have an attor­ney, they like­ly have no assets for cred­i­tors to pur­sue any­ways.89 Even if these con­cerns are to con­vince a par­tic­u­lar judge, the pur­pose of the 2005 BAPCPA amend­ments was to be harsh on nat­ur­al per­sons as debtors.90 While a sym­pa­thet­ic client can tug on a judge’s heart­strings, the cir­cum­stances of the stat­ue sup­port the minor­i­ty view.

* * * * *

Sec­tion 362(c)(3)(A), and all of the oth­er 2005 BAPCPA amend­ments, are draft­ed impre­cise­ly. In read­ing the statutes, courts should try to make a coher­ent body of law from these impre­cise statutes.91 This sup­ports adopt­ing the minor­i­ty view’s inter­pre­ta­tion of § 362(c)(3)(A). The moti­va­tion behind the 2005 Amend­ments was to crack down on per­ceived bank­rupt­cy abusers. The sur­round­ing statutes, such as § 362(c)(4), show a sim­i­lar intent to pre­vent abu­sive fil­ings by cut­ting down the rights afford­ed under the Bank­rupt­cy Code. The text of the statute can be read to sup­port the minor­i­ty view. Ulti­mate­ly, Con­gress should clar­i­fy what it meant by this law. Until then, the minor­i­ty view is the most coher­ent read­ing of § 362(c)(3)(A).


* Lucas Knoll is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem pre­sent­ed at the Duber­stein Bank­rupt­cy Moot Court Com­pe­ti­tion in Feb­ru­ary 2021. The views expressed in this con­tri­bu­tion do not nec­es­sar­i­ly rep­re­sent the views of the author.

1. 11 U.S.C. § 362(c)(3)(A).

2. The major­i­ty view has been steadi­ly los­ing ground in the courts, with a sim­i­lar num­ber of courts falling on either side in recent years. Brief of Appellee at 8–9 n.3, Smith v. Maine Rev­enue Servs., 910 F.3d 576 (1st Cir. 2018) (no. 18–1573).

3. E.g., Rose v. Select Port­fo­lio Ser­vic­ing, Inc., 945 F.3d 226 (5th Cir. 2019).

4. E.g., In re Smith, 910 F.3d 576 (1st Cir. 2018).

5. See 11 U.S.C.§ 541(a).

6. See H.R. Rep. No. 109–31 at 69 (2005) (refer­ring to end­ing the entire­ty of the stay).

7. 11 U.S.C. § 362(c)(3)(A).

8. E.g., In re Paschal, 337 B.R. 274, 281 (Bankr. E.D.N.C. 2006).

9. Id. at 277 (“In an Act in which head-scratch­ing oppor­tu­ni­ties abound for both attor­neys and judges alike, § 362(c)(3)(A) stands out. It uses the amor­phous phrase “with respect to” a total of four times in short order and rais­es ques­tions about the mean­ing of the words ‘action tak­en,’ and ‘to the debtor.’ The lan­guage of the statute is sus­cep­ti­ble to con­flict­ing inter­pre­ta­tions, and if read lit­er­al­ly, would apply to vir­tu­al­ly no cas­es at all. In sum, it’s a puzzler.”).

10. In re Charles, 332 B.R. 538, 541 (Bankr. S.D. Tex. 2005).

11. In re Gry­dzuk, 353 B.R. 564, 566–67 (Bankr. N.D. Ind. 2006) (“Although cer­tain­ly par­tic­i­pants in its draft­ing know who they are, no one has come for­ward to claim author­ship of the new­ly-mint­ed pro­vi­sions of the BAPCPA. This is under­stand­able, for unlike the rap­ture which aris­es from read­ing the most elo­quent prose and poet­ry ever writ­ten in the Eng­lish lan­guage, no such ele­vat­ed state of con­scious­ness derives from read­ing the BAPCPA. Thus, while 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.”).

12. 11 U.S.C. § 362(c)(3).

13. See In re Smith, 573 B.R. 298, 302 (Bankr. D. Me. 2017).

14. See § 362(c)(3)(A).

15. See Smith v. Maine Bureau of Rev­enue Ser­vices, 590 B.R. 1, 12 (Bankr. D. Me. 2018) (“[I]t is dif­fi­cult to see how a pos­si­ble ref­er­ence to only one of the appli­ca­tions . . . can be read to apply to two of them”).

16. Lamar, Archer, and Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760, 1764 (inter­pret­ing § 523(a)(2)(B) of the Bank­rupt­cy Code).

17. See 11 U.S.C. § 541(a).

18. 11 U.S.C. § 1107(a).

19. 11 U.S.C. § 362(c)(3)(A).

20. 11 U.S.C. § 362(a).

21. 11 U.S.C. § 362(a)(1), (5)–(8).

22. 11 U.S.C. § 362(c)(3)(A).

23. King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991).

24. 11 U.S.C. § 362(c)(4)(A)

25. See 11 U.S.C. § 362(c)(3)(C), (4)(D).

26. 11 U.S.C. § 362(j).

27. Id.

28. Id.

29. 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, 429 (2012).

30. 11 U.S.C. § 521(a)(7).

31. 11 U.S.C. § 551.

32. E.g., 11  U.S.C. § 362(c)(3)(A).

33. Paschal, 337 B.R. at 278 (Bankr. E.D.N.C. 2006) (quot­ing E‑2 Col­lier on Bank­rupt­cy App. Pt. 10(b) at App. Pt. 10–333 (15th ed. Rev. 2005) (quot­ing report of the Com­mit­tee on the Judi­cia­ry, House of Rep­re­sen­ta­tives, to Accom­pa­ny S. 256 (Apr. 8, 2005))).

34. E.g., 11 U.S.C. § 551 (“any trans­fer avoid­ed . . . is pre­served for the ben­e­fit of the estate but only with respect to prop­er­ty of the estate”) (empha­sis added).

35. See e.g., 11 U.S.C. § 101(5) (defin­ing “claim” with precision).

36. Eg., Smith v. Maine Rev­enue Servs., 910 F.3d 576, 581 (1st Cir. 2018).

37. 11 U.S.C. § 302.

38. 11 U.S.C. § 362(c)(3) (empha­sis added).

39. See In re Daniel, 404 B.R. 318, 326 (Bankr. N.D. Ill. 2009) (dis­cussing how this inter­pre­ta­tion is con­sis­tent with “the Bank­rupt­cy Code as a whole”).

40. Pub. L. No. 109–8, 119 Stat. 23 (2005).

41. Ran­som v. FIA Card Ser­vices, N.A., 562 U.S. 61, 71 (2011) (cit­ing H.R. Rep. No. 109–31 pt.1, p 2 (2005)).

42. H.R. Rep. No. 109–31(I) at 69 (2005) (“[BAPCPA] amends sec­tion 362(c) of the Bank­rupt­cy Code to ter­mi­nate the auto­mat­ic stay with­in 30 days . . . if such indi­vid­ual was a debtor in a pre­vi­ous­ly dis­missed case pend­ing with­in the pre­ced­ing one-year period.”).

43. Bank­rupt­cy Reform Act, Pub. L. No. 103–394, 108 Stat. 4106 (1994) (§ 603).

44. Report of the Nat’l Bankr. Rev. Comm’n: The Next Twen­ty Years, at 279 (1997) http://govinfo.library.unt.edu/nbrc/reportcont.html (“Oth­ers file on the eve of a fore­clo­sure . . . for the sole pur­pose of delay­ing the state legal process.”).

45. H.R. Rep. No. 105–540 at 80 (1998).

46. S. Rep. No. 105–253, at 7 (1998).

47. Id. at 27–28.

48. See H.R. Rep. No. 109–31(I) at 69 (2005) (“[BAPCPA] amends § 362(c) of the Bank­rupt­cy Code to ter­mi­nate the auto­mat­ic stay with­in 30 days . . . if such indi­vid­ual was a debtor in a pre­vi­ous­ly dis­missed case pend­ing with­in the pre­ced­ing one-year period.”).

49. In re Daniel, 404 B.R. 318, 329 (Bankr. N.D. Ill. 2009).

50. See H.R. Rep. No. 109–31(I) at 69 (2005).

51. Dun­can v. Walk­er, 533 U.S. 167, 174 (2001).

52. See Reswick v. Reswick (In re Reswick), 446 B.R. 362, 370 (B.A.P. 9th Cir. 2011).

53. See 11 U.S.C.  § 522(c).

54. See 11 U.S.C. § 554(a) (allow­ing for aban­don­ing bur­den­ing property).

55. See 11 U.S.C.  § 541(b) (exclud­ing a vari­ety of things, includ­ing col­lege degrees and expired leas­es, from the estate).

56. See 11 U.S.C. § 541(a)(1).

57. See id.

58. 11 U.S.C. § 362(c)(3)(C)(i)(II)(aa)–(cc).

59. H.R. Rep. No. 109–31, at 69 (2005), reprint­ed in 2005 U.S.C.C.A.N. 88, 138; H.R. Rep. No. 105–540 at 80 (1998).

60. E.g., In re Goodrich, 587 B.R. 829, 842–43 (Bankr. D. Vt. 2018) (explain­ing how a court could reach this con­clu­sion, but not­ing that “there do not appear to be any juris­dic­tions that have adopt­ed this reading”).

61. Chick­a­saw Nation v. Unit­ed States, 534 U.S. 84, 94 (2001).

62. See Meltzer, supra note 29, at 434–35.

63. See id. at 434 (“[T]he phras­es [‘with respect to the debtor’ and ‘with respect to a debtor’] are unnec­es­sary. They can be removed from the sec­tions in ques­tion with no loss or change in meaning.”).

64. 11 U.S.C. § 109(h)(3)(B).

65. See e.g., 11 U.S.C. § 727(a)(11).

66. 11 U.S.C. § 362(c)(3)(A).

67. 11 U.S.C. § 522(c).

68. See 11 U.S.C. §§ 1115, 1207, 1306.

69. 11 U.S.C. § 541(b).

70. Unit­ed States v. Castle­man, 572 U.S. 157, 178 (2014) (Scalia, J., concurring).

71. Jack F. Williams, The Tax Con­se­quences of Aban­don­ment Under the Bank­rupt­cy Code, 67 Temp. L. Rev. 13, 62 (1994).

72. 11 U.S.C. § 1325(a) (hang­ing para­graph), (b)(4)(ii).

73. Debra L. Leahy, The Chap­ter 13 “Super” Dis­charge and Non-Sup­port Mar­i­tal Debt, 32 Vt. B.J. 48, 48 (2006) (“Pri­or to the Bank­rupt­cy Abuse Pre­ven­tion and Con­sumer Pro­tec­tion Act of 2005 (‘BAPCPA’), the fil­ing of a Chap­ter 13 pro­ceed­ing was avail­able to dis­charge cer­tain debts that were not dis­charge­able under Chap­ter 7 of the Bank­rupt­cy Code. For this rea­son a Chap­ter 13 dis­charge was affec­tion­ate­ly know [sic] to some as a ‘super’ discharge.”).

74. 11 U.S.C. § 1141(d)(6)(B)(i).

75. 11 U.S.C. § 707(b).

76. 11 U.S.C. § 105(a).

77. See e.g., 11 U.S.C. § 707(b)(2).

78. Unit­ed States v. Castle­man, 572 U.S. 157, 178 (2014) (Scalia, J., con­cur­ring) (“Con­gress pre­sum­ably does not enact use­less laws.”).

79. See e.g., Gry­dzuk, supra note 11, at 567 (dis­cussing the lack of clar­i­ty of § 1328(f)(1)).

80. 11 U.S.C. § 1325(a) (hang­ing para­graph); See e.g., Miy­ong Mary Kang, Is It Time to Hang the Hang­ing Para­graph, 11 U.S.C. § 1325(a)?, 26 Emory Bankr. Dev. J. 49, 50 (2009).

81. E.g., Coro­n­avirus Aid, Relief, and Eco­nom­ic Secu­ri­ty Act, Pub. L. No. 116–136 134 Stat. 281 (2020).

82. E.g., 11 U.S.C.  §§ 707(b)(3); 1307(c).

83. E.g., 34 U.S.C. § 21741(1)(B) (empow­er­ing the Attor­ney Gen­er­al to assist state and local gov­ern­ments “investigat[e], prosecut[e], pursu[e], pre­vent[], under­stand[], and mitigat[e] the impact of” elder abuse); Cal. Welf. & Inst. Code § 15657.7 (West 2020) (pro­vid­ing civ­il action for finan­cial abuse); Tex. Penal Code Ann. § 32.55 (West) (pro­vid­ing crim­i­nal penal­ties for finan­cial abuse).

84. Union Bank v. Wolas, 502 U.S. 151, 161 (1991).

85. E.g., In re Hol­comb, 380 B.R. 813, 816 (B.A.P. 10th Cir. 2008) (“We find the major­i­ty approach . . . more faith­ful to the . . . poli­cies behind the Bank­rupt­cy Code.”).

86. See, e.g., 11 U.S.C. § 521(a)(7) (ter­mi­nat­ing the auto­mat­ic stay where the debtor does not act when a cred­i­tor has a lien on it); § 362(d)(1) (lift­ing the auto­mat­ic stay for inad­e­quate pro­tec­tion); § 523(a) (enu­mer­at­ing excep­tions to discharge).

87. See 11 U.S.C. § 109 (lim­i­ta­tions on bank­rupt­cy eligibility).

88. 11 U.S.C. § 362(c)(3)(C)(i)(II)(aa).

89. See In re Bee­z­ley, 994 F.2d 1433, 1440 n.5 (9th Cir. 1993) (O’Scannlain con­cur­ring) (“The typ­i­cal Chap­ter 7 bank­rupt­cy is the no-asset, no-bar case.”); Williams, supra note 71, at 62.

90. E.g., In re French, 354 B.R. 258, 264 (Bankr. E.D. Wisc. 2006) (“But BAPCPA con­tains a num­ber of pro­vi­sions which some might con­sid­er harsh . . . .”).

91. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991) (stat­ing that courts should read statutes to “make sense rather than non­sense out of the cor­pus juris”).