United States District Court, M.D. Alabama, Northern Division
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. etc., Plaintiff,
PRECISION ROOFING AND CONSULTING, LLC etc., and MICHAEL S. DUNN, Defendants.
MEMORANDUM OPINON AND ORDER
HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE
FACTS AND PROCEDURAL HISTORY
cause is before the court on a Notice of Bankruptcy Automatic
Stay (Doc. #14), filed by the Defendants, based on the
bankruptcy of Defendant Michael S. Dunn.
Plaintiff, American Builders & Contractors Supply Co.,
Inc. (“ABS Supply”) filed this case bringing
numerous claims against Precision Roofing and Consulting, LLC
and Michael S. Dunn, including claims for declaratory
judgment and claims damages for damages under several causes
of action, based on conduct arising from a 2016 roofing
project. The Defendants filed the Notice of Bankruptcy and
have taken the position that the present case is subject to
stay pursuant to 11 U.S.C. §362.
362(a)(1)-(4) of Title 11 of the United States Code provides
(a) Except as provided in subsection (b) of this section, a
petition filed under section 301, 302, or 303 of this title,
or an application filed under section 5(a)(3) of the
Securities Investor Protection Act of 1970, operates as a
stay, applicable to all entities, of--
(1) the commencement or continuation, including the issuance
or employment of process, of a judicial, administrative, or
other action or proceeding against the debtor that was or
could have been commenced before the commencement of the case
under this title, or to recover a claim against the debtor
that arose before the commencement of the case under this
(2) the enforcement, against the debtor or against property
of the estate, of a judgment obtained before the commencement
of the case under this title;
(3) any act to obtain possession of property of the estate or
of property from the estate or to exercise control over
property of the estate;
(4) any act to create, perfect, or enforce any lien against
property of the estate.
S. Dunn filed a petition for bankruptcy under Chapter 13 in
2013. An Order Confirming the Plan of the Debtor was entered
on May 1, 2014.
parties have briefed the issues of the appropriateness of the
stay. For reasons to be discussed, the court concludes that
this case is not due to be stayed at this time.
Supply argues that this case ought not be stayed pursuant to
11 U.S.C. §362 because under the plain language of
§362(a)(1), the automatic stay does not apply to acts
and litigation which occur after the filing of the bankruptcy
petition, citing cases such as United States of America
v. Gumbaytay, No. 2:08cv573, 2009 WL 605275 (M.D. Ala.
March 9, 2009). ABC Supply argues that in post-petition
conduct cases, the automatic ...