J Thomas Black
Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization

In a case named In re King, 11-40725, in the U.S. Bankruptcy Court for the Southern District of Texas, a lienholder on a mobile home filed a Motion for Relief from Stay to repossess the mobile home, because of the debtor's failure to pay property taxes.

The parties reached an agreement that the chapter 13 plan could be modified to add the delinquent taxes to the plan, and an agreement was announced in open court. The creditor drew up an agreed order, and filed it with a motion to enter it. It was not signed by the debtor or their lawyer for some reason.

The debtor filed a motion to modify plan, but then the creditor withdrew the motion to enter, and argued that the stay had terminated automatically under 11 U.S.C. Sec. 362(e)(2), which provides that the automatic stay terminates 60 days after the request for relief unless a final decision on the motion for relief is rendered within that time period.

The court found that the creditor was bound by their agreement that was announced in open court. The court also found that the 60 day automatic stay termination provision of 11 U.S.C. Sec. 362(e)(2) was waived by the creditor under Bankruptcy Local Rule 4001(a)(5), which provides that the Movant waives 362(e)(2) if they agree to a continuance of the hearing to a date that is more than 30 days after the motion was filed.

Finally, the court found that the creditor could not object to the motion to modify, because the objection raised by the creditor could have been raised on confirmation of the plan but was not. Therefore, the confirmed plan was res judicata as to all such issues.

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