2009 Consumer Law Recent Developments (Part I)

the funds. "It would be illogical to interpret § 362(b)(11) to mean that the holder of a check can hand the check to a bank teller but cannot take the cash the teller hands over the counter without violating the stay, or that the holder of a check may accept the funds but must immediately return them to the drawer. Such an interpretation would render the exception essentially meaningless, because the purpose of presenting a check is to receive payment." Buckeye Check Cashing, Inc. v. Meadows (In re Meadows), 396 B.R. 485, 495 (B.A.P. 6th Cir. 2008). The panel then points out that Buckeye had resisted the turnover simply because of its fight over stay violation and resistance to paying the debtor's attorney fees, all the time willing to return the funds since they were obviously subject to recovery under § 549. The concurring judge points out that while the parties were willing for the money to be turned over to the debtor, had that result been contested, it would have been necessary for the debtor to show that the original giving of the check was an involuntary act, in order to satisfy the debtor's standing to pursue avoidance under § 522(h). Buckeye Check Cashing, Inc. v. Meadows (In re Meadows), 396 B.R. 485 (B.A.P. 6th Cir. 2008).

Motion to extend stay not necessary for debtor who received prior Chapter 7 discharge. Section 363(c)(3)'s limitation on the stay applies only to debtors with cases pending with the prior 1-year period and whose cases were dismissed; for a Chapter 13 debtor who received a discharge in a prior Chapter 7 case within the 1-year of filing the Chapter 13, no motion to extend the stay under § 363(c)(3)(B) is needed. In re Forletta, 397 B.R. 242 (Bankr. E.D. N.Y. 2008).

Stay doesn't arise under § 362(c)(4). Distinguishing § 363(c)(3) and (4), no stay comes into effect in third case filed within one year; creditor's actions postpetition could not violate stay. Nelson v. Wong Pension Trust (In re Nelson), 319 B.R. 437 (B.A.P. 9th Cir. 2008).