Summary:
In In re Lombrano, Judge Kahn confronted the all-too-common BAPCPA problem of repeat filings colliding head-on with the automatic stay provisions. Ms. Lombrano—pro se—had filed three bankruptcy cases in under five months, two Chapter 7s (one dismissed for filing defects and jurisdictional issues, the next for nonpayment of the fee) followed by this Chapter 13.
Facing eviction, she filed an “Urgent Motion to Impose Stay.”
Facing her motion, she did not appear at the hearing.
Facing the statute, the Court had essentially no choice.
Accordingly, the stay was denied.
But the real significance of Lombrano comes from what doesn’t apply: the familiar “narrow reading” of § 362(c)(3) from In re Paschal and In re Jones—a doctrine still followed in the Middle District (even though it originated under Judge Small in the EDNC), but entirely unavailable when two prior dismissals appear on the debtor’s recent record.
Why § 362(c)(3) Doesn’t Help Here: Paschal/Jones Narrow Interpretation Becomes Irrelevant
Had there been only one prior dismissal within the year, Ms. Lombrano might have benefitted from MDNC’s continued adherence to:
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Paschal, 337 B.R. 274 (Bankr. E.D.N.C. 2006)
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Jones, 339 B.R. 360 (Bankr. E.D.N.C. 2006)
Under those decisions, § 362(c)(3) terminates the stay:
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Only as to the debtor,
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Not as to property of the estate, and
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Only as to creditors who acted following the prior dismissal.
This nuanced and debtor-protective interpretation frequently gives repeat filers at least some breathing room, and it remains the prevailing rule in the MDNC (even though the EDNC has occasionally shown signs of wavering from Judge Small’s original view).
But none of that applies when the debtor has two prior dismissals.
With two prior dismissed cases in the past 12 months, this filing falls squarely under § 362(c)(4):
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No automatic stay arises at all.
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The debtor must request that the stay be imposed.
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The debtor must overcome a presumption of bad faith.
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And must do so by clear and convincing evidence.
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The Court is prohibited from granting retroactive relief (§ 362(c)(4)(C)).
Most importantly:
§ 362(c)(4) completely displaces Paschal/Jones.
You don’t get to argue that the stay remains in place as to estate property.
You don’t get to argue that it terminates only as to certain creditors.
There is no stay—period—unless and until the Court decides otherwise.
And here, Ms. Lombrano didn’t appear, didn’t testify, and didn’t rebut the statutory presumption. As Judge Kahn succinctly concluded: the stay cannot and will not be imposed.
Commentary: A Predictable, Avoidable Outcome
Cases like Lombrano should be stapled to the intake materials of every consumer bankruptcy practice. They illustrate three recurring truths:
1. § 362(c)(3) is irritating but manageable.
Especially in the MDNC, the Paschal/Jones narrow reading keeps the practical effect modest—even after one prior dismissal.
2. § 362(c)(4) is a brick wall.
Two prior dismissals transform the stay from automatic to aspirational.
The debtor must earn the stay back.
And pro se litigants almost never clear the “clear and convincing” bar.
3. Showing up matters.
A stay-imposition motion under § 362(c)(4) is an evidentiary hearing, not a formality. Miss it, and the case collapses under its own procedural weight.
4. Timing matters even more.
Had Ms. Lombrano obtained counsel after the first dismissal (or even the second), someone could have course-corrected:
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By addressing the filing-fee issue,
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Or fixing the jurisdictional defect,
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Or ensuring future filings were prosecuted properly.
Instead, three filings in rapid succession triggered the worst possible statutory outcome.
Takeaway:
In the Middle District, debtors with two dismissals in a year cannot look to the friendly shelter of Paschal and Jones—those cases simply do not apply. Once § 362(c)(4) governs, the stay never arises, the evidentiary burden is steep, and as Lombrano shows, failing to attend the hearing makes denial virtually automatic.
In short:
You rarely get a third chance to make a second impression—especially in bankruptcy court.
To read a copy of the transcript, please see:
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