Opinion
Case No.: 3:10-bk-00724-BAJ
2023-01-20
IN RE: Vladimir MOROZOV, Lyudmila Morozov, Debtors.
Brett A. Mearkle, The Law Offices of Brett A. Mearkle, P.A, Atlantic Beach, FL, Bryan K. Mickler, Mickler & Mickler, Jacksonville, FL, for Debtors Lyudmila Morozov, Vladimir Morozov. Scott E. Bomkamp, United States Trustee, Orlando, FL, for U.S. Trustee.
Brett A. Mearkle, The Law Offices of Brett A. Mearkle, P.A, Atlantic Beach, FL, Bryan K. Mickler, Mickler & Mickler, Jacksonville, FL, for Debtors Lyudmila Morozov, Vladimir Morozov.
Scott E. Bomkamp, United States Trustee, Orlando, FL, for U.S. Trustee.
ORDER GRANTING MOTION TO ANNUL THE AUTOMATIC STAY
Jason A. Burgess, United States Bankruptcy Judge
This Case came before the Court for trial on December 9, 2022 (the "Trial"), on the Motion to Annul the Automatic Stay (the "Motion") (Doc. 286) filed by Hancock Whitney Bank (the "Creditor") and the Response (the "Response") (Doc. 288) filed by Vladimir Morozov (the "Debtor"). By the Motion, the Creditor requests that the Court annul the automatic stay. Absent such retroactive relief, the stay would void years of litigation, including two 2016 judgments, and potentially disrupt third-party settlements. In support of the Motion, the Creditor argues that the debts are nondischargeable under 11 U.S.C. § 523(a)(3) based on the Debtor's failure to schedule the debts or otherwise notify the Creditor of the bankruptcy filing. The Creditor further argues that the "limited circumstances" necessary to justify annulment, including bad faith conduct by the Debtor, are present in this case. The Debtor responds that the debts were discharged because the Creditor's name was not known to the Debtor when he filed the bankruptcy. The Debtor further contends that the Creditor obtained the 2016 judgments in contravention of stay relief orders in an affiliated bankruptcy case.
The Court finds both parties are guilty of missteps, making this a difficult case to resolve. Nevertheless, a hard case does not justify the production of bad law. See In re Alton, 837 F.2d 457, 459 (11th Cir. 1988) (quoting FCC v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 91 L.Ed. 204 (1946) ). After a thorough review of the relevant factors, the Court finds that the particular facts in this case support annulling the stay.
Background
The Loans and Chapter 11 Filing
In 2007 and 2008, Peoples First Community Bank ("Peoples Bank") issued two secured loans to Southpoint Development Group, LLC ("Southpoint"), an affiliate of the Debtor. The loans, which the Debtor personally guaranteed, were in the amounts of $1,079,000 (the "Pasco County Debt") and $357,000 (the "Orange County Debt") (collectively the "Loans"). (Creditor's Exs. 17, 13). In 2009, the Federal Deposit Insurance Corporation as receiver of Peoples Bank assigned the Loans to the Creditor. (Creditor's Exs. 15, 19). On February 2, 2010 (the "Petition Date"), the Debtor and his wife filed their voluntary petition under Chapter 11 of the United States Bankruptcy Code. (Doc. 1). Neither the Creditor nor Peoples Bank were named as a creditor on the Debtor's bankruptcy schedules. Id. However, the Debtor did explicitly reference Peoples Bank on Schedule B, line 13:
25% Membership Interest in Southpoint Development Group, LLC (LLC consists of one piece of commercial [sic] property 11.48 Acres in Southpoint Business Park -- Encumbered by People's First Bank : amount outstanding est. $800,000.00)
Id. at p. 13 (emphasis added). The Notice of Chapter 11 Bankruptcy Case established June 15, 2010 (the "Claims Deadline"), as the deadline for creditors to file claims. (Doc. 13).
Due to omission of the Loans from Schedule F, neither Peoples Bank nor the Creditor were notified of the bankruptcy filing or served with any pre-confirmation filings in the case, including the initial Chapter 11 Plan of Reorganization (the "Plan") (Doc. 8) and the Amended Chapter 11 Plan (the "Amended Plan") (Doc. 69). On December 28, 2010, the Court confirmed the Amended Plan (the Confirmation Order") (Doc. 184). The Confirmation Order includes an attachment that delineates general unsecured creditors by name and payment amount. (Doc. 184, pp. 42-45). Neither Peoples Bank nor the Creditor were referenced in this unsecured payment table. Accordingly, neither received a distribution under the Confirmed Plan.
Notably, the Creditor's representative testified that the Creditor did not obtain actual knowledge of the Debtor's bankruptcy filing until early 2011, after confirmation and well after the Claims Deadline expired.
Lawsuits in Orange County, Florida, and Pasco County, Florida
In August of 2011, the Creditor filed complaints in the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, and in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, to foreclose on real property owned by Southpoint and to pursue Debtor's personal liability for the Loans. (Case No.: 2011-CA-003645) (the "Pasco County Case"), (Case No.: 2011-CA-10227) (the "Orange County Case") (collectively the "Lawsuits") (Creditor's Exs. 7, 9). Upon learning of the Lawsuits, the Debtor filed answers to the complaints and inexplicably did not file suggestions of bankruptcy. (Creditor's Exs. 8, 10). Compounding the error, the Debtor contemporaneously filed a motion to administratively close his Chapter 11 case, which the Court granted. (Docs. 228, 248).
At that time, Brett Mearkle represented the Debtor in the bankruptcy case and the Lawsuits.
On June 8, 2012, Southpoint filed Chapter 11, which temporarily halted the Lawsuits as to Southpoint . (Case No.: 3:12-bk-03864-JAF, Doc. 1). On October 26, 2012, the Creditor obtained relief from the automatic stay in the Southpoint bankruptcy case. Each of the stay relief orders prohibited entry of an in personam judgment against the debtor, meaning Southpoint. (Debtor's Exs. 5, 6). Thereafter, the Creditor proceeded with the Lawsuits and obtained title to the Southpoint real estate in 2013 via the foreclosure. (Orange County Case, Jan. 9, 2013), (Pasco County Case, May 8, 2013). In 2014, the Court dismissed the Southpoint bankruptcy case. (Case No.: 3:12-bk-03864-JAF, Doc. 140). In early 2016, the Creditor obtained deficiency judgments in state court against the Debtor, Southpoint and various other individuals and businesses. (the "Deficiency Judgments") (Creditor's Exs. 2, 3). Subsequently, the Creditor reached a settlement agreement with certain individuals that resolved their respective liability for the Deficiency Judgments. (Debtor's Ex. 1). On November 1, 2016, the Creditor recorded the Pasco County Judgment in the Official Records of St. Johns County, Florida, and in the Official Records of Duval County, Florida, thereby encumbering the Debtor’ real property located in those counties (the "Judgment Lien").
The properties include: 10765 Candle Bark Dr., Jacksonville, Florida, 32225; 445 Johns Creek Parkway, St. Augustine, Florida, 32092; 1176 Garrison Drive, St. Augustine, Florida, 32092; 1181 Garrison Drive, St. Augustine, Florida, 32092; and 1801 E. Willow Branch Lane, St. Augustine, Florida 32092.
Chapter 11 Discharge
On December 13, 2019, the Debtor filed a Motion to Administratively Reopen Individual Chapter 11 Case to Obtain Discharge and Final Decree. (the "Discharge Motion") (Doc. 275). As with all filings in the case, the Debtor did not serve the Discharge Motion on the Creditor. Id. at pp. 3-8. On January 8, 2020, absent objection and pursuant to the Court's negative notice procedures, the Court granted the Discharge Motion and entered a discharge pursuant to 11 U.S.C. § 1141(d)(5). (Docs. 276, 277).
Post-Discharge Lawsuits
In 2021, the Creditor initiated three foreclosure actions against third parties who had purchased real property subject to the Judgment Lien. (Doc. 286, p. 6 n.2). On October 22, 2021, the Creditor initiated a lawsuit against the Debtor to foreclose on his real property subject to the Judgment Lien (Case No.: CA21-1209, Circuit Court, St. Johns County) (the "Foreclosure Action"). (Creditor's Ex. 4). On April 4, 2022, the Debtor raised the automatic stay as a defense for the first time. (Foreclosure Action, Doc. 32). The state court granted the Creditor's motion for summary judgment without addressing the automatic stay because the Debtor filed his response on the same day as the hearing. (Doc. 286, p. 6) (Foreclosure Action, Docs. 30, 32, 40). Subsequently, the Creditor unilaterally elected to cancel the foreclosure sale scheduled for May 22, 2022, moved to reopen this case, and filed the Motion.
The Debtor's appeal of the summary judgment ruling remains pending. (Florida Fifth District Court of Appeal Case No.: 5D22-1073).
Analysis
By the Motion, the Creditor requests that the Court annul the automatic stay. (Doc. 286). Absent such relief, the stay ostensibly voids every collection action taken by the Creditor against the Debtor between the Petition Date and the date of discharge. Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982) ("Actions taken in violation of the automatic stay are void and without effect."). Although retroactive relief should only be granted in limited circumstances, "[w]hether to annul the automatic stay falls within the Court's sound discretion." In re Schumann, 546 B.R. 223, 228 (Bankr. D.N.M. 2016).
The Creditor did not have actual knowledge of the bankruptcy case until 2011, after confirmation and after the Claims Deadline passed. Furthermore, the Creditor was not afforded the opportunity to review and vote on the Debtor's Amended Plan, which the Court confirmed in 2010. Based on the absence of timely notice, which effectively disenfranchised the Creditor, the Loans were nondischargeable under 11 U.S.C. § 523(a)(3). See Spring Valley Farms, Inc. v. Crow (In re Spring Valley Farms, Inc.), 863 F.2d 832, 834-35 (11th Cir. 1989) (finding creditor's claim nondischargeable due to lack of official notice of the claims bar date, despite actual knowledge of general existence of the bankruptcy proceeding); see also Fravala v. E. Holdings Ltd. (In re Fravala), 2017 WL 3447936, at *3, 2017 Bankr. LEXIS 2249, at *7 (M.D. Fla. Aug. 10, 2017) (finding claim nondischargeable because the creditor only received notice after the claims bar date). Furthermore, upon learning of the Lawsuits in 2011, the Debtor not only failed to raise the automatic stay as a defense, but instead immediately moved to close the bankruptcy case. The Debtor never proactively raised the automatic stay in the bankruptcy court and waited over a decade to raise that defense in state court. The Court finds these to be atypical facts that warrant granting the Motion.
The Creditor's vote, based on the deficiency claims, would have controlled the general unsecured class, potentially rendering the Debtor's plan unconfirmable because of the absolute priority rule under 11 U.S.C. § 1129(b)(2)(B). (Doc. 139).
A. Nondischargeability under 11 U.S.C. § 523(a)(3)(A)
Under 11 U.S.C. § 523(a)(3)(A) any known debt, "not of the kind specified in paragraph (2), (4), or (6) of this subsection," that is not listed nor scheduled by a debtor is excepted from discharge "unless such creditor had notice or actual knowledge of the case in time" to timely file a proof of claim. Importantly, "[i]n chapter 11 and chapter 13 cases, this filing deadline is necessary to establish a time line in order to get a plan confirmed, get creditors paid, and get a case closed." In re Horlacher, 389 B.R. 257, 263 (Bankr. N.D. Fla. 2008).
The Debtor did not list or schedule the Loans in his initial schedules, nor did he file amended schedules. (Doc. 1). Therefore, the Creditor had no opportunity to file a proof of claim before the Claims Deadline. (Doc. 13). As there is no dispute that the Debtor failed to schedule the Loans, the burden of proof is on the Debtor to establish that the Creditor had timely notice or knowledge of the bankruptcy under § 523(a)(3). In re Rediker, 25 B.R. 71, 1982 Bankr. LEXIS 3228 (Bankr. M.D. Tenn. 1982).
The Debtor argues that he did not schedules the Loans because: (i) there was no communication between the Debtor and the Creditor prepetition; (ii) the Loans were not listed on his credit report at the time of filing; and (iii) the Loans encumbered real property that was not part of the Debtor's plan. (Doc. 288, pp. 3-4).
The Court finds these arguments unpersuasive because they do not demonstrate the debts were nonexistent or unknowable as of the Petition Date. See, e.g. Manzanares v. State Farm Fire & Cas. Co. (In re Manzanares), 345 B.R. 773, 790 (Bankr. S.D. Fla. 2006) (explaining it is "inappropriate to demand that the debtor schedule a debt which he does not realize exists"). The Debtor undoubtedly knew of the Loans because he signed the guarantees for the Loans a relatively short time prior to the Petition Date. See supra p. 2. Even if the Debtor was unaware of the assignment to the Creditor, that does not excuse the Debtor's failure to schedule the Loans, which were for significant amounts. Furthermore, the Debtor was not absolved of his obligation to schedule the Loans simply because the Creditor had not yet initiated the Lawsuits or established liability. Notwithstanding the contingent nature of the Loans as of the Petition Date, the Loans were "prepetition claim[s] for purposes of filing the schedule of [the Debtor's] liabilities under § 521 of the Bankruptcy Code." Fravala, 2017 WL 3447936, at *2, 2017 Bankr. LEXIS 2249, at *5 (citing In re Estes, 415 B.R. 568 (Bankr. N.D. Ala. 2009) ).
The Court also finds that the Debtor's sole reliance on his credit report for compiling his prepetition debts was not reasonable because "[b]anks do not typically report... commercial guaranty liabilities" on an individual's credit report. In re McCarthy, 421 B.R. 550, 563 (Bankr. D. Colo. 2009).
The Debtor's third assertion is that his omission of the Loans from his schedules was excused because the Loans were secured by real property owned by Southpoint. (Doc. 288, p. 2). As a matter of law, this assertion is plainly incorrect. As a matter of equity, to the extent the Debtor is implying that he lacked the requisite awareness to schedule the loans, this assertion is contradicted by the Debtor's schedules. The Debtor indirectly referenced the Loans on Schedule B, possibly to substantiate the value of his ownership interest in Southpoint at $0. (Doc. 1, p. 13). The inclusion of the Loans on Schedule B indicates his awareness of the Loans as of the Petition Date. This clear awareness makes his omission inexplicable.
As a result of the omission, the Creditor did not receive various notices required by Federal Rule of Bankruptcy Procedure 2002. In re Ditech Holding Corp., 2021 WL 28072, at *4–5, 2021 Bankr. LEXIS 1, at *14 (Bankr. S.D.N.Y. Jan. 2, 2021). Absent official notices from the Court, particularly notice of the claims bar date, the Creditor did not receive sufficient due process to render its claim dischargeable under 11 U.S.C. § 1141. See Spring Valley Farms, Inc. v. Crow (In re Spring Valley Farms, Inc.), 863 F.2d 832, 834-35 (11th Cir. 1989). By the time the Creditor became aware of the bankruptcy filing in 2011, not only had the claims deadline passed, but the Debtor had filed and confirmed a Chapter 11 Plan. The confirmed plan "binds the debtor and all creditors, regardless of whether the creditor accepted the plan, provided that the creditor has ‘been given notice sufficient to satisfy due process.’ " Ditech, 2021 WL 28072, at *5, 2021 Bankr. LEXIS 1, at *14. Here, the disenfranchised Creditor did not receive notice sufficient to satisfy due process because it did not have the opportunity to file a claim, object to confirmation, or cast a ballot.
These notices include: Notice of bankruptcy filing. Fed. R. Bankr. P. 2002(f) ; Notice of the deadline for filing proofs of claim. Fed. R. Bankr. P. 2002(a) ; Notice of the deadline for filing objections and to consider approval of a disclosure statement and the confirmation of a chapter 11 plan; Fed. R. Bankr. P. 2002(b) ; Notice of the hearing on confirmation of a chapter 11 plan. Fed. R. Bankr. P. 3017(d) ; Notice of the order confirming a chapter 11 plan. Fed. R. Bankr. P. 2002(f).
In conclusion, the Debtor knew of the Loans, yet failed to list or schedule the Loans. The Creditor did not have actual knowledge of the bankruptcy case in time to file a timely proof of claim. The Creditor did not receive any official notices throughout the case and was deprived of the opportunity to meaningfully participate in the bankruptcy case. Therefore, the Loans were nondischargeable under 11 U.S.C. § 523(a)(3). See Spring Valley Farms, 863 F.2d at 834-35 ; Fravala, 2017 WL 3447936, at *3, 2017 Bankr. LEXIS 2249, at *7.
B. Annulling the Stay
The Creditor argues that annulling the stay is justified because, among other reasons, the Debtor remained silent on the issue of the automatic stay for nearly a decade. The Creditor also argues that this silence, absent annulment, would cause undue prejudice and expense to the Creditor because the automatic stay ostensibly voids every collection action taken by the Creditor against the Debtor from the Petition Date to the entry of discharge. Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982) ("Actions taken in violation of the automatic stay are void and without effect."). In response, the Debtor focuses on the Creditor's continued collection actions despite its knowledge of the bankruptcy case. The Debtor also mistakenly argues that the stay relief orders entered in the Southpoint Chapter 11 case prohibited in personam action against him.
The Eleventh Circuit Court of Appeals has acknowledged a bankruptcy court's statutory authority to annul the stay to validate an act that would otherwise be void. In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984) (finding that the express language of § 362(d) gives bankruptcy courts the power to grant retroactive relief from the stay because a contrary interpretation would render the word "annulling" superfluous.). In Albany Partners, the formative case on retroactive relief, the Eleventh Circuit found the bankruptcy court did not abuse its discretion when it annulled the stay "particularly in light of the finding that the petition was not filed in good faith." Id. Although the Debtor did not file his petition in bad faith, Albany Partners nevertheless clearly affirms the bankruptcy court's power to grant retroactive relief from the stay. Id. Annulling the stay requires serious consideration, however, "bankruptcy courts have wide discretion in weighing the factors and determining what constitutes cause to annul the stay." Shaw v. Ehrlich, 294 B.R. 260, 272 (W.D. Va. 2003) (affirmed by Wiencko v. Ehrlich (In re Wiencko), 2004 U.S. App. LEXIS 10174, 2004 WL 1146490, 99 Fed. Appx. 466 (4th Cir. 2004) ); see also In re McCrimmon, 536 B.R. 374, 381 (Bankr. D. Md. 2015). When ruling on a motion to annul the stay, courts typically consider whether:
(1) the creditor had actual or constructive knowledge of the bankruptcy filing, (2) the debtor acted in bad faith, (3) grounds would have existed for modification of the stay if a motion had been filed before the violation, (4) the denial of retroactive relief would result in unnecessary expense to the creditor, and (5) the creditor has detrimentally changed its position on the basis of the action taken.
In re Barr, 318 B.R. 592, 598 (Bankr. M.D. Fla. 2004). See also In re Potchen, 2022 WL 4690322, at *4, 2022 Bankr. LEXIS 2775, at *11 (Bankr. M.D. Fla. Sept. 30, 2022) (annulling the stay after thorough consideration of each factor). The Court discusses each factor below.
(i) Creditor's Knowledge
The Creditor's representative testified at trial that the Creditor knew of the bankruptcy in early 2011. Therefore, the relevant state court litigation occurred after the Creditor had knowledge of the bankruptcy. This factor weighs against annulling the automatic stay.
(ii) Debtor's bad faith conduct
Although, the Court finds that the petition was not necessarily filed in bad faith, the Debtor's conduct is problematic. Not only did the Debtor fail to initially list the Creditor on his schedules, he also abdicated his continuing duty to amend his schedules even after the Lawsuits were initiated. See United States v. Nunez, 419 F. Supp. 2d 1258, 1264 (S.D. Cal. 2005). Moreover, the Debtor chose not to file a suggestion of bankruptcy in the Lawsuits, which would have immediately halted the Lawsuits.
Federal Rule of Bankruptcy Procedure 1009 permits a debtor to amend his "voluntary petition, list, schedule, or statement ... at any time before the case is closed."
The Court finds it particularly troubling that, upon learning of the Lawsuits, the Debtor elected not to inform the state court of the bankruptcy proceeding and elected not to inform the bankruptcy court of the Lawsuits. Instead, the Debtor filed answers that made no mention of the pending bankruptcy case and contemporaneously moved to administratively close the bankruptcy case. (Doc. 228). These actions demonstrate at best gross negligence and at worst a calculated attempt to surreptitiously hide the pending legal proceedings from the Creditor and the courts. Thereafter, whether through extreme incompetence or in furtherance of some ill-advised scheme, the Debtor remained "stealthily silent" for over a decade. In re Barr, 318 B.R. at 604 (quoting In re Stockwell, 262 B.R. 275, 281 (Bankr. D. Vt. 2001) ). The Debtor's actions and inactions indicate bad faith and his failure to mitigate reflects a lack of respect for the judicial process. The Debtor's conduct weighs heavily in favor of annulling the stay.
(iii) Hypothetical Motion for Relief
The Creditor learned of the bankruptcy in 2011 after the claims deadline had expired and after confirmation occurred. In the Debtor's Motion to Administratively Close, the Debtor stated that "the Confirmed Plan has been substantially consummated." (Doc. 228). Pursuant to 11 U.S.C. § 1127, after substantial consummation the Debtor could no longer modify the Confirmed Plan to address the loans. Airadigm Communs., Inc. v. FCC (In re Airadigm Communs., Inc.), 547 F.3d 763, 769 (7th Cir. 2008) ("a plan cannot be modified for any reason after substantial consummation"). Based upon the nondischargeability of the loans and the Debtor's inability to modify the Confirmed Plan, grounds existed for the Court to grant the Creditor relief from stay. Thus, this factor weighs in favor of annulling the stay.
(iv) Unnecessary Expense to the Creditor
The Creditor's representative cursorily testified at trial that denial of the Motion would subject the Creditor to unnecessary expense, but neither party offered any substantive evidence on this point. Nonetheless, after reviewing the dockets in the Lawsuits and the Foreclosure Action, of which the Court takes judicial notice, the Court readily surmises that the Creditor would bear significant legal fees should the Court deny the Motion. Years of litigation, as well as third-party settlements, would be undone. Accordingly, this factor weighs in favor of annulling the stay.
Pursuant to Federal Rule of Evidence 201 a court is permitted to "judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Therefore, courts may take judicial notice of public documents filed in state court litigation. United States ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 n.4 (11th Cir. 2015).
(v) Detrimental Change in Creditor's Position
Neither party offered argument or evidence regarding the Creditor detrimentally altering its position. Therefore, the Court considers this factor neutral.
(vi) Relief from Stay Orders in Southpoint Chapter 11
Although not an additional factor, the Court will address the Debtor's argument that the Creditor's collection actions violated the stay relief orders in the Southpoint Chapter 11. (Doc. 288, p. 2, 10). Although the Debtor relied on these orders to support his Response and offered them into evidence at trial, his argument is clearly erroneous. Id.; (Debtor's Exs. 5, 6). First, the Southpoint case did not stay any action against the Debtor. Second, the orders clearly provided that the Creditor would not seek an in personam judgment against Southpoint , without mentioning the Debtor. (Debtor's Exs. 5, 6). Third, the Southpoint case was dismissed in 2014, terminating any stay that remained. 11 U.S.C. § 362(c) ; (Case No.: 3:12-bk-03864-JAF, Doc. 140). Therefore, these orders clearly did not prohibit in personam action against the Debtor.
(vii) Weighing the Totality of the Circumstances
The Creditor never received any official notices from the Court and by the time it became aware of the general existence of the bankruptcy the claims deadline had passed, and the Amended Plan was confirmed. Therefore, as discussed above, the Loans were nondischargeable. Furthermore, the Debtor's questionable actions upon learning of the Lawsuits combined with his prolonged silence strongly indicate a lack of good faith. The nondischargeability of the loans, the hypothetical grounds for stay relief, the potential for unnecessary expense to the Creditor, and the Debtor's lack of good faith, which courts generally consider the most important factor, support annulling the stay. In re Barr, 318 B.R. 592, 598 (Bankr. M.D. Fla. 2004).
Conclusion
The Court finds this case presents unique circumstances that warrant annulling the stay, particularly given the nondischargeability of the Loans and the Debtor's bad faith conduct. Denying the Motion would be highly prejudicial to the Creditor and would also waste judicial resources. Absent annulment, forcing the Creditor to repeat years of litigation as a result of the Debtor's silence would be inequitable and would almost certainly lead to the same results, but with unnecessary delay and substantial expense.
Based on the foregoing, the Court finds that annulling the stay is appropriate.
Accordingly, it is
ORDERED:
1. The Motion is GRANTED .
2. The automatic stay as to the Creditor is lifted retroactively to the Petition Date.