StayViolation.Com

Lead Them Not Into Temptation

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

You May Now Challenge Ad Valorem Tax Assessments ... The Right Is Just Not As Endless As Some Thought

The problem with BAPCPA sometimes is that it finally clears up some rights of the debtor in dispute, only to limit or take away those rights now understood.

This was illustrated well in Steve Sather's Texas Bankrutpcy Lawyer's Blog.

It was none too clear under the old Bankruptcy Code whether a debtor could get a bankruptcy court to redetermine the appraised values used to compute ad valorem taxes so long as the values had not been previously contested.  Under the old Code debtor's attorneys did this if for not other reason than to try to get some negotiation over tax claims that taxing authorities otherwise want to believe are not negotiable.

In Texas, property tax values must be protested in by a date certain or they become final. Tax rates are then set based on the final valuations. The way some read the old 11 U.S.C. § 505, the debtor was allowed to come in after the appraisal rolls had been finalized and taxes set and complain that the valuations were not correct.  Some argued that a debtor could go back indefinitely as long as the valuations had not previously been contested.  You can read this a leverage.

But, as pointed out by Steve Sather, redetermination of tax values was a controversial. Some courts abstained from redetermining property tax values, In re New Haven Projects Ltd. Liability Co., 225 F.3d 383 (2nd Cir. 2000), while others allowed it, In re Hospitality Ventures/La Vista, 314 B.R. 843 (Bankr. N.D. Ga. 2004); In re Fairchild Aircraft Corp., 124 B.R. 488 (Bankr. W.D. Tex. 1991). The cases declining to exercise jurisdiction relied on language in the legislative history to the code stating that abstention was appropriate "where uniformity of assessment is of significant importance." S. Rep. No. 989, 95th Cong., 2d Sess. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5853.

BAPCPA clears up this right with the addition of 11 U.S.C. § 505(a)(2)(C), which states that the court may not redetermine "the amount or legality of any amount arising in connection with an ad valorem tax on real or personal property of the estate, if the applicable period for contesting or redetermining that amount under any law (other than bankruptcy law) has expired."

Congress by limiting the practice, obviously understood that the practice pre-BAPCPA of redetermining those property taxes constituted a legitimate reading of the law at that time.  Now, unfortunately, you cannot retroactively challenge valuations going back prior to the filing of the bankruptcy, but you can still contest valuations which could have been challenged on the petition date and 11 U.S.C. § 108(a) would appear to give the debtor two years in which to file the motion.  The trustee may commence the action within the longer of the original period or two year.

This amendment also seems to quiet the controversy over redetermination is proper. By limiting redetermination to situations where the protest period has not expired on the petition date, Congress appears to have implicitly endorsed it in that one case.

In my way of thinking, this provision is still useful for the reason that house prices are stagnant or falling in most places.  Yet, taxing authorities are continuing to raise values for tax collection reasons.  When I have attended property tax challenges in the past, I can tell you that the process seems so very arbitrary.  To say that it is based on any exact science would be wrong.  It would also seem to be able to apply leverage in the sense this process will take the taxing authority out of the state court and administrative process they now enjoy, and place then in an environment in which they are not familiar.

(Stephen Sather pictured).

Damned If You Do, Damned If You Do Not

You have really got to feel for Tenny Zahn, whether you agree or not with the outcome of her confirmed plan.

Essentially, Ms. Zahn found herself in the strange situation where she was aggrieved by her own proposed plan.  This is so because she was left with the Hopson's choice of proposing a Chapter 13 plan that she herself did not want, or risk having her Chapter 13 case dismissed.  So she chose to file the plan required of her and then file an objection to her own plan.  Neither the Bankruptcy Court of the BAP seemed to appreciate such ingenuity, but the Court of Appeals did.

In Tenny Shikaro Zahn vs. Richard Fink the Eighth Circuit Court of Appeals found that Tenny Zahn was an aggrieved party allowing the appeal of the confirmation of her proposed Chapter 13 plan to go forward.

Initially the Bankruptcy Court denied confirmation of Ms. Zahn's Chapter 13 plan because she had failed to include distributions from her non-filing husband's individual retirement account (IRA).  She then appealed that denial of confirmation to the Bankruptcy Appellate Panel (BAP).  The BAP dismissed her appeal as being interlocutory.  Having little choice, Ms. Zahn then proposed a new plan that included the IRA distributions, but filed an objection to her own plan.  The Bankruptcy Court approved this plan over Ms. Zahn's objection.  So, then she appealed the confirmation of that plan in that the decision was not now interlocutory.  The BAP dismissed this appeal as well stating Ms. Zahn lacked standing to appeal the order granting confirmation of her own amended plan because she was not an aggrieved party.  The BAP stated, "a party cannot prosecute an appeal from a judgment in its favor", reasoning that "[w]hen the court confirmed her plan, [Zahn] got all of the relief for which she asked".

The Eighth Circuit stated simply "there is a flaw in the BAP's reasoning".

The Circuit court stated that Ms. Zahn "was forced, over her express objection, to propose an amended plan" and "amended her plan with provisions she believed were erroneous and not required by the Bankruptcy Code, in order to avoid dismissal".  As a result Ms. Zahn can appeal a judgment that was not in her favor and which was prejudicial toward her.  Given these facts, Ms. Zahn was an aggrieved party.  "Not to allow a debtor to appeal confirmation of her own plan would require a debtor to comply with a plan that contains provisions the debtor does not believe are required by the Bankruptcy Code, while losing her right to appeal those provisions".

To me this is much like coercing a confession out of some criminal defendant, and then telling him he cannot appeal his conviction because of the confession.

Wizard Of OZ

Someone recently compared what we attorneys do as being something similar to the Wizard of Oz, in  that what is behind our organizations might be a little smaller than and less intimidating than as we try to make it appear.

Maybe so, but behind everything what we are trying to do is pin a conscience on corporations, banks, finance companies and creditors that pretend to tear their clothes and gnash their teeth over having to pay a little recompense to a financially vulnerable person to whom they have treated badly.  At the same time, most of the multi billion dollar corporations do not think twice of paying their badly performing management hundred million dollar compensation packages or in spending, like Citibank, hundreds of millions to change their logo from one side of their name to another side of their name on all of their signs and print material.

I had a major national bank recently tell me in an email that it would not be "bullied" by my debtor who was in bankruptcy.  Really?  Bullied by a debtor who was just minding his own business and wanted to be left alone from the constant harassment he was receiving despite the fact the lender knew it had been enjoined from this behavior and the fact that the bankruptcy attorney had warned the bank that it was violating the automatic stay.  And, what did the lender find as being bullied.  The Debtor asking them to stop, pay him $500.00 for his time in this matter, and to pay his attorneys' fees of a few thousand dollars that he had not wanted to spend but for the fact that the lender would not stop its activities when politely asked to obey the Court's order.

The last refuge is bankruptcy court, and in this the debtor is suppose to be safe for unilateral action without the knowledge and concern of the bankruptcy court.  And, when big business and big lenders do not obey the law we are increasingly fighting a war of hyperbole.

Not only bankruptcy, but predatory lending, junk fees, the inability to solve any problem or concern of a customer without litigation shows how the essential problem of big lenders and big business and big law firms that they have ceased to serve their customers.  We all feel it.  We are not now trusted customers as we feel more like targets.

Government offers few protections with the exception of the bankruptcy courts.  As a result, the Bankruptcy Code has become the de facto Code of Conduct that should be imposed on all corporations and all lenders.  Should it be so?  Maybe not, but that is what our government has left us, and they have left it to the debtors to enforce this Code of Conduct themselves.

Everybody needs a conscience.  Only it either does not come naturally to big business and those in finance or it is lost in the hierarchy.  It is necessary to ensure that individual actions do not violate a group's moral norms. Conscience consists in the internalization or acceptance of a group's moral norms as correct and overriding one's self-interest when they conflict.  These big lenders and big business do not do override, and these corporations desperately need a conscience to monitor and control their behavior.

William Langewiesche wrote in The Atlantic in November 2001: "The greatest pyramids ... are made not of stone but of people: they are the vast bureaucracies that constitute society's core, and they function not necessarily to get the "job" done but to reward the personal loyalty of those at the bottom to those at the top."  I tend to think he is right.

Adam Smith’s first major work was the Theory of Moral Sentiments. He understood, as an ethicist, that the mechanism of the “invisible hand” would be most efficient if self-interest was restrained by conscience. With remarkable prescience Smith warned that corporations would slip the restraints of human conscience.  These big companies and lenders have taken on a life of their own.  These are entities without a conscience with the potential to wreak havoc on the societies that have created them.

So, what is our job?  It is, I think, to try as best we can in individual cases to demand the respect of these big institutions and try to pin to them a little conscience -- a little concern -- as to what they do.

Should You Sue The Creditor's Lawyer Who Had Notice Of The Bankruptcy And Participated In The Violation Of The Automatic Stay

Man o' man, I can tell you right now that I do not like it.  I do not want to do it.  I will do most anything to keep from doing it.  However, lately I have to admit that the arrogance of some of these lawyers, and the tactics which they elect to employ, make it very difficult to avoid.

I use to take the position that the creditor or collector violating the stay will deal with its own attorney should it feel it got bad advice or representation.  Besides, what I had learned was that if you sue the attorney this Sicilian thing kind of erupts where the attorney's client no longer matters and the attorney  feels that he or she must win the argument at all costs.  The case consumes too much time and too much money, and then much explanation has to be developed at trial as to why this happened to support the damages known as legal fees.  You typically see an attorney that might be a little bit of an ass anyway turn into some kind of kamikaze jerk.  You have to think, who needs that?

The problem is, however, that I am finding that these attorneys (and they are pretty limited in number) whether or not you include them the litigation as a party they become annihilative in any event, they refuse to remove themselves from the litigation in violation of the lawyer-witness rule, and they become venomous and wrackful.  So, maybe you should consider carefully who these attorney might be, and then do what you can to remove them from the litigation.  It might be fine to simply file a motion to disqualify them because they and their firm represent a witnesses in the case.  But, if you are dealing with these Rambo lawyers that would advise their clients and participate in the willful violation of the automatic stay or discharge injunction -- if you know them to be pernicious and malevolent individuals anyway -- to just include them in the litigation as a party.

My Dad use to say about physicians that bedside manners matter.  I can tell you now that the same is true for attorneys.  And, whether by accident or intent, if these attorneys lack ethical and moral temperament, they leave you little choice but to include them when the facts suggest they had notice and were involved in the violation.

All of this presupposes that the lawyer and law firm actually had notice of the bankruptcy, and with this notice took or allowed prohibitive action against your client.  This point does not need to be stretched or exaggerated.  You should not sue the lawyer unless you are spot on in this regard.

Then, of course, you need to consider what Jonathan Alper of Florida Bankruptcy Law Blog wrote a few years ago:

"Overheard an interesting case in bankruptcy court concerning a debtor’s petition to sanction a creditor for pursuing a state court case against the debtor after he filed bankruptcy. The debtor’s attorney explained to the judge that he had repeatedly told the creditor’s collection agent and their attorney about the debtor’s bankruptcy and suggested they drop their action against the debtor. Nevertheless, the creditor’s attorney pursued discovery from the debtor and went as far as filing in state court a motion to show cause why the debtor should not be held in contempt of court. The debtor had to appear in state court with his attorney to personally explain to the judge that his bankruptcy stayed further discovery or any other activity in the state proceeding. The debtor appeared in bankruptcy court in a wheelchair breathing through an oxygen mask and unable to speak directly to the judge. His attorney showed that the debtor’s disability made it unusually difficult for him to go to state court because the creditor would not abide by the bankruptcy stay.

The debtor’s attorney stated that the debtor sought sanctions against the creditor company but not against the creditor’s attorneys. The judge denied sanctions. The judge reasoned that while the creditor’s attorney clearly knew that collection and discovery was going on after the bankruptcy there was no evidence that officers of the company knew their attorney was violating the stay. Since the debtor’s attorney had dropped demand against the creditor attorney the judge had insufficient evidence of intentional wrongdoing on behalf of the creditor company even though, as the debtor argued, the creditor’s attorney was acting as an agent of the client.

In this case a debtor’s attorney extended some professional courtesy to a fellow attorney to relieve them of personal liability and by doing so lost a recovery for the debtor at this hearing. It seemed clear that the bankruptcy judge would have entered a sanction against the creditor’s attorney in favor of the debtor. Before an attorney lets a fellow attorney off the hook he should make sure the client consents after the client understands what may be the loss of a potential source of monetary recovery."

Judge Stacy Jernigan's Fight Against The New Bottom Feeders

In In re White Stacy Jernigan, the United States Bankruptcy Judge for the Northern District of Texas in Dallas took steps to expose and reel in those that she called "A New Cottage Industry of Bottom Feeders" who try to make a buck off down and out debtors who are about to lose their home after they seek bankruptcy relief.

Earlier in the Debtor's bankruptcy, Judge Jernigan believed she had to lift the automatic stay protecting the Debtor's home.  Given that a bankruptcy already existed it was unlikely that the Debtors could stop the foreclosure from taking place.  The Debtor's bankruptcy attorney insisted that there was little they could do to stop the foreclosure given that the automatic stay had been lifted.

But, with foreclosure comes lots of mail solicitations promising help.  Of the approximately 40 mailings that the Debtors received based on the posting of their home for foreclosure, the Debtors chose a company that represented itself as North American Foreclosure.  It what that company and its representatives called "a completely legal procedure" they convinced the Debtors to transfer a 1% ownership of their home to an individual who would file bankruptcy to stop the foreclosure.  The the Debtors would pay North American $650 per month until the 1% was paid back (whenever that would happen).

The paperwork selling the 1% of the house to an individual in California was apparently backdated.  Then the mortgage company, which was in the process of foreclosing the home, receive notification from the representatives of American Foreclosure that the property was included in the bankruptcy of a Debtor who had then filed bankruptcy in California.  The problem, as it turns out, is that the property was not listed on the California Debtor's bankruptcy case, and the Debtor claims she knew nothing of the transaction.  She was apparently duped as well.

The Debtors paid a gentleman by the name of David Curtis, North American Foreclosure's local representative, $650.00 for the first payment to begin the process.  The Debtors eventually made one payment to the company before their bankruptcy counsel contacted the Debtor's about Judge Jernigan's show cause order.

The Bankruptcy Court, upon learning of the fraud, took immediate action, finding that those associated with North American Foreclosure likely violated various bankruptcy laws, she found that the Debtors were likely innocent parties which were duped, and she order North American Foreclosure, and its representatives, David Curtis and his company, Jireh Capital Services, to appear and show cause why they did not violate the automatic stay provisions of 11 U.S.C. § 362 and are not liable pursuant to § 362(k).  The Court confirmed in its Order pursuant to 11 U.S.C. § 362(j) that the automatic stay was terminated in the Debtors' bankruptcy and, in case it was not, she annulled the stay retroactively pursuant to 11 U.S.C. § 362(d).  The Court voided the transfer of the 1% to the California bankruptcy filer.  The Court reported the actions as possible bankruptcy crimes pursuant to 18 U.S.C. §§ 3057, 152 and 157.  The Court provided a courtesy copy of her decision to the Chief Bankruptcy Judge in California and the Texas Attorney General, and the Judge issued a plea to the consumer debtors bankruptcy bar to be mindful of these actions and to warn their client's accordingly.

To date nobody has appeared before Judge Jernigan to show cause as ordered.

Undisclosed Fees Charged By A Mortgage Company Both Before And After Confirmation Can Constitute Compensable Violations

The scenario is that debtors file bankruptcy, typically a Chapter 13 bankruptcy.  They might pay an arrearage on the home through the plan.  They pay their mortgage payment direct through the plan, meaning the ongoing mortgage payment is included in the plan, but either by the debtors or through the trustee in some jurisdictions the current house payment is being made directly.  The mortgage company continues to add charges while the bankruptcy is pending for drive by inspections, attorneys' fees, certain late penalties, and the like.  However, the company does little to disclose these to the court.  The result is the mortgage company is laying in wait -- hiding -- while these fees build (sometimes called "escrow arrearages") until the bankruptcy is discharged.  Then the mortgage servicing company (which is often not the same one as when the bankruptcy was originally filed) makes a demand for these fees, and the accrued interest from the fees.  Sometimes the mortgage company makes a demand for back house payments when the past mortgage payments were first applied to paying these fees, costs and expenses.  In any event, if not paid after discharge the mortgage company threatens foreclosure.

For years bankruptcy attorneys have been trying to figure out how to effectively deal with this matter, because the situation exists to some extent in nearly every Chapter 13 bankruptcy in which a mortgage is involved.  What complicates the matter for both the attorney and the client is deciphering the long -- often erratic -- payment history since the filing of the bankruptcy.  It takes an untold number of attorney time to get this accomplished, and there is a question of how to get paid, and how to get the matter resolved.  In this, there might now be hope.

Two Houston bankruptcy courts have tackled this issue with different opinions of which laws are violated, but essentially reaching the same conclusion -- these fees must be disclosed by the filing of a 2016(a) fee application with the court or they are likely (1) per se unreasonable, and (2) constitute violations of the Bankruptcy Code, the orders of the Court, and possibly the injunctions of the Court.

Basketball Star Or No, You Cannot Throw Parents In Jail For Back Child Support When Seeking Reorganization Through Bankruptcy

There is a terrible tendency among family or domestic relation lawyers who have a child support collection matter pending before a Chapter 11, 12 or 13 bankruptcy is filed to allow the momentum of the state court collection process to continue, acting like it is out of their control.  Also, family law attorneys want to believe they are not labile in these situations, and that bankruptcy judges are loath to punish the ex-spouse just trying to collect the child support they are rightfully owed.

I am not completely sure why this dynamic continues to take place. But, too often family law attorneys who wear binders and some arrogant state law judges who think they can find creative ways to ignore the bankruptcy process.  All the while some debtor is being improperly punished, the bankruptcy estate is being harmed, and everyone involved is blaming the other and waving their hands up in the air say, "we didn't know".  It is right to say that most or many bankruptcy judges do not buy this argument.  They are not likely to punish the judges involved and they do not have to do so.  They can punish the ex-spouse and the ex-spouses lawyer, and they often do so.  Spouses owed child support and their collection attorneys should not rely on a bankruptcy judge to ignore the clear meaning of the law as a potential defense. 

Adversary Filed Against TMZ For Publishing The O.J. Book Online Claiming It Was A Violation Of The Automatic Stay

Lorraine Brooke Associates was or is the corporation established to hold the rights to O. J. Simpson's notorious book, If I Did It.  As you will recall, Judith Regan got canned from HarperCollins, the book publishing arm of News Corporation, by Rupert Murdoch, partly for going forward with the book.  Murdoch and News Corp. then attempted to destroy all copies of the book already published.  Lorraine Brooke Associates later filed or was forced into bankruptcy, and a trustee was appointed.  The United States Bankruptcy Court for the Southern District of Florida, Miami Division, at some point ordered all copies of the manuscript turned over to the trustee.  The Court had also ruled previously that the claim against Loraine Brooke Associates by the Goldman family, whose son was murdered along with O. J. Simpson's ex-wife, had a claim against the bankruptcy estate for any money collected.  After this order, it is alleged that TMZ.Com, a division or company of Time-Warner and AOL, published the complete manuscript online, in PDF, for approximately a two hour period.  This has led the Trustee, Drew M. Dillworth, to file a Motion for Contempt against TMZ.Com, claiming among other things by not turning over the manuscript and by publishing the manuscript online, that it willfully violated the automatic stay provisions of 11 U.S.C. § 362(a) by exercising control over property of the bankruptcy estate.  The Motion seeks damages under 11 U.S.C. § 105, presumably because § 362(k) is not available to a Trustee or a non-individual debtor.  The Motion can be read by clicking here.

My Wish: Quit Modifying The Stay

I have to admit that when I represented consumers in bankruptcy years ago that I was guilty of too often allowing my consumers to modify the automatic stay to resolve a matter.  But, my wish today would be that bankruptcy attorneys would stop this practice, at least past the time the debtor has curred the arrearage or whatever problem that existed has been curred.

When this practice began in the 80s that is what we debtor attorneys initially agreed to do.  The client would get behind on their mortgage payments, we would agree to an order allowing then to catch up by making additional payments, and if they did not make those payments the automatic stay would lift after providing a 10 day notice.  The famous drop dead provision.  Then as we bankruptcy attorneys and the bankruptcy courts got acclimated to it, we began to agree to allow those drop dead provisions to extend throughout the remaining term of the bankruptcy regardless of the whether the original default had been curred.

I remember the creditor attorneys going to seminars and explaining how they tell their clients not to fight over an arrearage, and that all the creditor needs to do is get a drop dead provision and they will eventually get the collateral back.  In other words, set the trap and wait.  And, we are not necessarily speaking of waiting for there to be another major default as much as just a misunderstanding, a glitch, as the creditor looks to issue its notice that the stay no longer exists.

For some reason we allowed ourselves to be buffaloed into allowing this to go on.  I remember one particular creditor always asking the question, "Why should my client have to come back in with another motion if this happens in the future?"  Well, there are many reasons why they should do this that I will not go into here.  But, with debtor attorneys handling too many cases in order to make a living and bankruptcy courts trying to cut back on their 362 motion dockets, these question have become all too convenient.

From my standpoint, the drop dead provision makes little sense.  First, it is the point of too many stay litigation matters in  which there is a dispute as to whether or not the stay lifted per the terms of the order modifying the stay.  Designed to save time, these provisions are actually causing the attorneys' staff to spend more time counseling the debtor or trying to reconcile the lift stay notice when it comes in than the time it was intended to save.  Large creditors, matched with their mass practice law firms, simply handle too many cases to understand, or appreciate, or to properly reinforce the nuisances of these orders.  If these organizations have trouble guarding against the simple task of not violating the stay after notice, it is difficult to understand how they navigate thousands of different order, with thousands of different provisions and terms effectively.  The truth is they cannot, they do not, and their inability is increasing leading to litigation.  So, it is not in the creditor's best interest to do this, but that is what their law firms have convinced them to do over time.

Second, I did not understand then, and I do not understand now, the argument that a creditor should not have to file a second motion in the future if their is an unrelated default of some kind.  Why not?  Why should the bankruptcy attorney and possibly the court not review what particular problem the debtor faces at some time in the future?  No process is perfect.  After all, if the debtor has curred the past default (and presumably paid the attorneys' fees for the default), it is truly hard to see the harm in having the court review a future presumably unrelated matter or alleged default.  It presents no greater loss than what the creditor would have had to incur if the stay had lifted on the first motion filed.

Third, it makes little sense to issue an order, except under the most limited circumstances, that allows the very creditor that has professed that it wants the automatic stay to lift so it can take its collateral, to be placed in a position of determining in the future if the automatic stay has lifted.  Is that not like putting Orson Wells in charge of the Twinkies? 

Give the creditor this, if the debtor and the court agrees, that the debtor will make four catch up payments and become current, and does not fulfill this obligation, then the stay ought to lift, with some minor provision to insure there is not a mistake.  Why should the creditor have to come back on the exact same violation if the agreement to cure is not fulfilled?  It needs to end there, however.  If the cure is met, there should be no ongoing drop dead provision.  After that an independent third party should decide these issues.  Who could this independent third party be?  I know, the bankruptcy court.