United States District Court, W.D. Washington, Seattle
In re MARAT TIMURSHIN Debtor.
NATALIA SMAGINA, Appellee MARAT TIMURSHIN, Appellant,
ORDER ON APPEAL
C. Coughenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Appellant's opening
brief (Dkt. No. 7), Appellee's response brief (Dkt. No.
9), and Appellant's reply brief (Dkt. No. 12). After
review of the briefs, and the designated record on appeal
(Dkt. No. 10), the Court finds oral argument unnecessary
and hereby AFFIRMS the Bankruptcy Court's order denying
Appellant's motion for extension of the automatic stay
and order denying Appellant's motion for reconsideration.
Marat Timurshin appeals Bankruptcy Judge Christopher
Alston's orders denying his motion to extend the
automatic stay and denying his motion for reconsideration on
the same issue. (Dkt. No. 7 at 3.) Appellant filed his first
Chapter 13 bankruptcy case (“Case I”) in August
2016. (Id. at 4.) On May 4, 2017, Bankruptcy Judge
Timothy Dore dismissed Appellant's case. (Dkt. No. 16 at
10-12.) Appellant filed this Chapter 13 case (“Case
II”) 49 days later. (Dkt. No. 7 at 5.) Appellant
simultaneously filed a motion to extend the automatic stay,
which would otherwise lapse 30 days from the filing date of
Case II. (Id.) Appellee, Natalia Smagina, objected
to Appellant's motion to extend the automatic stay. (Dkt.
hearing, Judge Alston denied Appellant's motion to extend
the automatic stay. (Dkt. No. 10-8.) Judge Alston applied a
statutory presumption that Case II was not filed in good
faith, and concluded Appellant failed to meet his burden to
overcome the presumption. (Id.) Appellant
subsequently filed a motion for reconsideration, which Judge
Alston denied. (Dkt. No. 10-10.) Appellant timely appealed
both of Judge Alston's orders to this Court.
Standard of Review
Court may review the Bankruptcy Court's decision. 28
U.S.C. § 158(a)(1). The Bankruptcy Court's findings
of fact are reviewed for clear error and its conclusions of
law are reviewed de novo. In re EPD Inv. Co.,
LLC, 821 F.3d 1146, 1150 (9th Cir. 2016). The Bankruptcy
Court's denial of a motion for reconsideration is
reviewed for abuse of discretion. In re Weiner, 161
F.3d 1216, 1217 (9th Cir. 1998) (citation omitted).
presents five issues on appeal (Dkt. No. 7 at 3); however,
the Court perceives two overarching questions. First, whether
Judge Alston erred by concluding Appellant failed to
demonstrate Case II was filed in good faith. Second, whether
Judge Alston erred by denying Appellant's motion for
reconsideration. The Court addresses these issues in turn.
Order Denying Motion to Extend Automatic Stay
general, when a debtor files a bankruptcy petition it
“operates as a stay, applicable to all entities”
for the enforcement, collection, or other disposition of the
debtor's assets during the pendency of the bankruptcy
case. See 11 U.S.C. § 362(a)-(c). But when a
debtor commences a second bankruptcy case within a year of a
prior case being dismissed, the automatic stay “shall
terminate with respect to the debtor on the 30th day after
the filing of the later case . . . .” §
362(c)(3)(A). The Bankruptcy Court can extend the stay
“after notice and a hearing completed before the
expiration of the 30-day period [and] only if the party in
interest demonstrates that the filing of the later case is in
good faith as to the creditors to be stayed.” §
362(c)(3)(B). A debtor ordinarily has the burden to prove by
a preponderance of the evidence that the second case was
filed in good faith. In re Montoya, 342 B.R. 312,
316 (Bankr. S.D.Cal. 2006).
said, the statute establishes three situations in which a
bankruptcy case is presumptively filed not in good faith.
§ 362(c)(3)(C)(i)(I)-(III). At issue in this case is the
third situation, which dictates that a case is presumptively
filed not in good faith as to all creditors if:
(III) there has not been a substantial change in the
financial or personal affairs of the debtor since the
dismissal of the next most previous case under chapter 7, 11,
or 13 or any other reason to ...