- 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.]Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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