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American Builders & Contractors Supply Co., Inc. v. Precision Roofing and Consulting, LLC

United States District Court, M.D. Alabama, Northern Division

May 22, 2017

AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. etc., Plaintiff,
v.
PRECISION ROOFING AND CONSULTING, LLC etc., and MICHAEL S. DUNN, Defendants.

          MEMORANDUM OPINON AND ORDER

          W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE

         I. FACTS AND PROCEDURAL HISTORY

         This 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.

         The 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.

         Section 362(a)(1)-(4) of Title 11 of the United States Code provides as follows:

(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 title;
(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.

         Michael 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.

         The 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.

         II. DISCUSSION

         ABC 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 ...


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