- 10 -
F.2d 848 (1st Cir. 1983)(applying Bankruptcy rule 762--the
predecessor to Bankruptcy rule 7062);7 see also In re Franklin
Mortgage & Investment Co., 144 Bankr. 194, 194-195 (Bankr. D.C.
1992); In re Barnes, 119 Bankr. 552, 555 (S.D. Ohio 1989); In re
Weston, 101 Bankr. 202, 204-206 (Bankr. E.D. Cal. 1989), affd.
without published opinion 123 Bankr. 466 (B.A.P. 9th Cir. 1991),
affd. without published opinion 967 F.2d 596 (9th Cir. 1992); In
re Bluford, 40 Bankr. 640, 644 (Bankr. W.D. Mo. 1984).
Respondent has failed to reconcile respondent's
interpretation of Bankruptcy rule 9023 with the interpretation of
7 Bankruptcy rule 7062 states in pertinent part: "Rule 62 FR
Civ P applies in adversary proceedings. An order granting relief
from an automatic stay provided by section 362 * * * shall be
[one of the] additional exceptions to Rule 62(a)." Fed. R. Civ.
P. 62 provides (with exceptions) that a judgment generally shall
not be enforced until 10 days after its entry.
3 Norton, Bankruptcy Law and Practice, sec. 78.06 (1992)
discusses the effect of Bankruptcy rule 7062 as follows:
By the terms of [Bankruptcy] Code section 362(c),
the automatic stay terminates at the time a bankruptcy
case is dismissed. A request for dismissal of a
bankruptcy case, filed by a party other than the
debtor, will generally be in the form of a motion and
will constitute a contested matter under Bankruptcy
rule 9014. As provided in that Rule, Bankruptcy rule
7062 applies in contested matters, and thus if an order
of dismissal is "an order granting relief from an
automatic stay" as described in Bankruptcy rule 7062,
then it can be argued that an order for dismissal is
not subject to the 10-day stay of proceedings described
in Rule 62(a) of the Federal Rules of Civil Procedure.
Given that an order of dismissal has the effect of
terminating the automatic stay, it is arguable that a
dismissal order falls within the terms of Bankruptcy
rule 7062 and constitutes immediate relief from the
stay. [Fn. ref. omitted.]
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