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Having determined that the bankruptcy court's order entered November 1,
1994, had the effect of terminating the automatic stay, we are left with the
question whether that court's order entered January 23, 1995, vacating its
order entered November 1, 1994, reinstated that stay. The order entered
January 23, 1995, contains no mention of the stay.
Initially we note that we, as do the parties, reject the approach that
the stay is deemed still to have been in effect. There is no support for this
approach in the statute and the case law. Indeed, such a result would only
lead to confusion and uncertainty. See In re De Jesus Saez, supra; In re
Weston, 110 Bankr. at 456.
In Allison v. Commissioner, 97 T.C. 544 (1991), we were confronted with
the question whether the reopening of a bankruptcy case had the effect of
reinstating the automatic stay under 11 U.S.C. section 362(a) (1988). We find
that much of what we said in that case (in support of our conclusion that the
automatic stay was not reinstated) to be pertinent here.
Like the Tax Court, a bankruptcy court "possesses only the
jurisdiction and powers expressly or by necessary implication
conferred by Congress." Johnson v. First National Bank of
Montevideo, Minn., 719 F.2d 270, 273 (8th Cir. 1983). 11 U.S.C.
section 362(a) provides that the automatic stay is imposed when a
petition is filed under sections 301, 302, or 303 of title 11.
Sections 301, 302, and 303 of title 11 relate to voluntary cases
in bankruptcy, joint cases, and involuntary cases, respectively.
In the absence of an indication of congressional intent to
the contrary, we must assume that Congress meant what it said and
that the automatic stay should be imposed only upon the filing of
a petition in bankruptcy. In re State Airlines, Inc., 873 F.2d
264, 268 (11th Cir. 1989). There is nothing in the language of 11
U.S.C. sections 350(b) or 362(a) which equates the reopening of a
case with the filing of a bankruptcy petition. Thus, there is "no
statutory provision in which Congress has authorized a Bankruptcy
Court once it has terminated the automatic stay pursuant to
�362(c)(2) to continue imposition of the automatic stay." In re
Trevino, 78 Bankr. 29, 37 (Bankr. M.D. Pa. 1987). [Allison v.
Commissioner, supra at 546.]
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