Opinion
Case No. 02-13533 (AJG), Jointly Administered.
October 29, 2002
Before the Court is a motion by Duane G. West ("Movant") seeking relief from the automatic stay for the purpose of allowing the Superior Court of the District of Columbia to rule on a class-certification motion in a prepetition lawsuit pending against MCI Communications Corp., MCI WORLDCOM Network Services, Inc. and WorldCom, Inc. (the "Debtors" or "WorldCom"). Movant requests an order modifying the automatic stay pursuant to 11 U.S.C. § 362(d)(1), to permit Movant to proceed in an action entitled West v. MCI Communications Corp., et al., C.A. No. 98-9912 (the "Superior Court Action").
I. Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding as that term is defined by 28 U.S.C. § 157(b)(2)(G).
II. Case Background
On July 21, 2002, Debtors and substantially all of its direct and indirect domestic subsidiaries commenced cases under chapter 11 of the Bankruptcy Code. The Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to 11 U.S.C. § 1107(a) and 1108 of the Bankruptcy Code.
III. The Superior Court Action
A. Background
The Superior Court Action is a putative class action. Movant is the named plaintiff seeking a declaratory judgment and punitive damages for WorldCom's alleged trespass, slander of title and unjust enrichment. Movant's claims arise out of WorldCom's nationwide installation of fiber-optic cable on railroad right-of-way land for the purpose of building a nationwide telecommunications network.
The complaint in the Superior Court Action alleges that WorldCom installed its cables on existing railroad corridors because railroad corridors constitute a large system of continuous rights-of-way throughout the country. The complaint in the Superior Court Action further alleges that prior to installation, WorldCom did not identify or negotiate with the individual owners of the segments making up the railroad corridors opting instead for negotiating with railroad companies that use, but often do not own, the railroad corridors. According to Movant, WorldCom entered into licensing agreements with several of these railroad companies whereby the railroad companies granted WorldCom a license to install and operate its fiber-optic cables in exchange for fees based on a flat, per-mile rate. Movant, and alleged others similarly situated, did not receive any compensation for WorldCom's licensing agreements with the railroads. WorldCom's version of the underlying controversy does not materially differ from Movant's recitation. WorldCom argues that Movant claims ownership of a fee interest in the right-of-way land and contends that the railroad only holds an easement for railroad purposes. According to WorldCom, Movant contends that the scope of the railroad's easement does not include the right to install telecommunications facilities, and WorldCom therefore should have obtained his consent for the installation and operation of the fiber optic cable. Because WorldCom did not obtain his consent, Movant alleges that WorldCom's fiber optic cable is trespassing on his property.
B. Procedural Background
The Superior Court Action was commenced on December 31, 1998. On March 31, 1999, Movant requested certification of a nationwide class under the District of Columbia Superior Court Rules of Civil Procedure. Movant alleges that in all material respects, Superior Court Civil Rule 23 is identical to Rule 23 of the Federal Rules of Civil Procedure. Movant asked the Superior Court to certify a class consisting of:
All owners, other than the United States Government or the government of any state, of land in the United States underlying or adjacent to a railroad corridor on which [WorldCom] have entered to install, maintain, or operate a fiber-optic or other telecommunications cable without obtaining the consent of the owner of the land.
From March 1999 through early 2002, the parties engaged in both discovery and briefing Movant's class-certification motion. On February 27, 2002, the Superior Court held oral argument.
C. Other Relevant Information
If the stay is modified, Movant intends to ask the Superior Court to rule only on the request for certification of a class. According to Movant, that class would seek declaratory relief and not money damages in order to establish the nature and scope of WorldCom's interests in the railroad rights-of-way on which it installed its fiber-optic cables. In so doing, Movant intends to seek narrower declaratory relief than originally requested. Specifically, Movant would request a declaration that WorldCom acquired no right, title, privilege, license, easement, or other legally cognizable interest in the right-of-way land greater than that possessed by the railroad companies with which it entered into licensing agreements.
Movant does anticipate some supplemental briefing on the class-certification motion. The supplemental briefing would explain to the Superior Court the change in circumstances regarding WorldCom's bankruptcy and would involve the substantially narrower class-certification order that Movant seeks. According to Movant, any response from WorldCom to that briefing would require minimal effort.
IV. Discussion
A. Applicable Legal Standard
The filing of a bankruptcy petition operates as a stay applicable to all entities regarding the commencement or continuation of judicial proceedings against the debtor or against property of the estate. See 11 U.S.C. § 362(a).
The automatic stay . . . promote[s] two principal purposes of the Bankruptcy Code. First, the automatic stay provides the debtor with a breathing spell from . . . creditors. [Second,] the automatic stay allows the bankruptcy court to centralize all disputes concerning property of the debtor's estate in the bankruptcy court so that reorganization can proceed efficiently, unimpeded by uncoordinated proceedings in other arenas.
Shugrue v. Air Line Pilots Ass'n, Int'l (In re Ionosphere Clubs, Inc.), 922 F.2d 984, 989 (2d Cir. 1990) (internal citations and quotation marks omitted). Stated another way, the automatic stay reflects a Congressional concern for alleviating a debtor's financial pressures to promote rational choices and for facilitating the equitable distribution of a debtor's assets. See H.R. REP. NO. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97; cf. S. REP. NO. 95-989, at 54-55 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5840-41.
The House Report provides, in relevant part, that:
The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from . . . creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove [the debtor] into bankruptcy.
The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor's property. Those who acted first would obtain payment of [their] claims in preference to and to the detriment of other creditors. Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally. A race of diligence by creditors for the debtor's assets prevents that.
In chapter 11 reorganization cases, the:
[automatic] stay is particularly important in maintaining the status quo and permitting the debtor in possession or trustee to attempt to formulate a plan of reorganization. Without the stay, the debtor's assets might well be dismembered, and its business destroyed, before the debtor has an opportunity to put forward a plan for future operations. Secured creditors and judgment creditors might race to seize and sell the debtor's assets in order to obtain satisfaction of their claims, without regard to the interests of other creditors or the value of keeping assets together in an operating business. The stay prevents this piecemeal liquidation, offering the chance to maximize the value of the business.
3 ALAN N. RESNICK FRANK J. SOMMER, COLLIER ON BANKRUPTCY ¶ 362.03[2] (15th ed. rev. 2002) (hereafter "COLLIER ON BANKRUPTCY"); see also In re Johns-Manville Corp., 57 B.R. 680, 685 (Bankr.S.D.N.Y. 1986) ("[T]he automatic stay is a crucial Congressionally-mandated tool necessary to the larger goal of rendering a total disposition of all claims in a reorganization proceeding.").
Notwithstanding these concerns, 11 U.S.C. § 362(d)(1) of the Bankruptcy Code empowers the bankruptcy court to modify the automatic stay for cause. See In re Touloumis, 170 B.R. 825, 828 (Bankr.S.D.N.Y. 1994) ("[A] motion to continue a pre-petition litigation implicates Section 362(d)(1)."). The Bankruptcy Code does not define cause. E.g., Schneiderman v. Bogdanovich (In re Bogdanovich), 292 F.3d 104, 110 (2d Cir. 2002). As stated in the House Report:
[A] desire to permit an action to proceed to completion in another tribunal may provide . . . cause. Other causes might include the lack of any connection with or interference with the pending bankruptcy case. For example, a divorce or child custody proceeding involving the debtor may bear no relation to the bankruptcy case. In that case, it should not be stayed. A probate proceeding in which the debtor is the executor or administrator of another's estate usually will not be related to the bankruptcy case, and should not be stayed. Generally, proceedings in which the debtor is a fiduciary, or involving postpetition activities of the debtor, need not be stayed because they bear no relationship to the purpose of the automatic stay, which is debtor protection from . . . creditors.
H.R. REP. NO. 95-595, at 343-44 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6300.
The Second Circuit has endorsed certain factors for determining whether there is cause to modify the automatic stay in order to allow litigation to proceed in another forum. Sonnax Indus., Inc. v. Tri Component Products Corp. (In re Sonnax Indus., Inc.), 907 F.2d 1280, 1286 (2d Cir. 1990). Specifically,
(1) whether relief would result in a partial or complete resolution of the issues;
(2) lack of any connection with or interference with the bankruptcy case;
(3) whether the other proceeding involves the debtor as a fiduciary;
(4) whether a specialized tribunal with the necessary expertise has been established to hear the cause of action;
(5) whether the debtor's insurer has assumed full responsibility for defending it;
(6) whether the action primarily involves third parties;
(7) whether litigation in another forum would prejudice the interests of other creditors;
(8) whether the judgment claim arising from the other action is subject to equitable subordination;
(9) whether movant's success in the other proceeding would result in a judicial lien avoidable by the debtor;
(10) the interests of judicial economy and the expeditious and economical resolution of litigation;
(11) whether the parties are ready for trial in the other proceeding; and
(12) impact of the stay on the parties and the balance of harms.
Id. (citing In re Curtis, 40 B.R. 795, 799-800 (Bankr.D.Utah 1984) (hereafter "Sonnax Factor(s)")). All twelve Sonnax Factors will not be relevant in every case, Mazzeo v. Lenhart (In re Mazzeo), 167 F.3d 139, 143 (2d Cir. 1999), nor will the court accord equal weight to each element. Burger Boys, Inc. v. South St. Seaport Ltd. P'Ship (In re Burger Boys, Inc.), 183 B.R. 682, 688 (S.D.N.Y. 1994); In re New York Medical Group, P.C., 265 B.R. 408, 413 (Bankr.S.D.N.Y. 2001).
The burden of proof on a motion to modify the automatic stay is a shifting one. Sonnax, 907 F.2d at 1285. The initial burden rests on the movant to show cause to modify the stay. Bogdanovich, 292 F.3d at 110; Mazzeo, 167 F.3d at 142; Sonnax, 907 F.2d at 1285. Only if the movant makes an initial showing of cause does the burden then shift to the party opposing the relief. Mazzeo, 167 F.3d at 142. Once a legally sufficient basis, or cause, is demonstrated by the movant, the party opposing the relief must prove that it is entitled to the continuing protections of the automatic stay. In re M.J. K. Co., Inc., 161 B.R. 586, 590 (Bankr.S.D.N.Y. 1993). If the movant fails to meet its initial burden of demonstrating cause, relief from the automatic stay should be denied. Bogdanovich, 292 F.3d at 110; Mazzeo, 167 F.3d at 142; Sonnax, 907 F.2d at 1285. The determination whether to modify the automatic stay depends upon the facts of each motion. Bogdanovich, 292 F.3d at 110.
Here, the issue before the Court is whether there is cause to modify the automatic stay for the purpose of permitting the Superior Court Action to proceed. Movant attempts to distinguish the instant motion by emphasizing that Movant seeks only to permit a motion to proceed to a ruling on the issue of class certification and not an entire action to proceed to completion.
In their papers, WorldCom references prior decisions by this Court regarding a movant's burden in determining whether the automatic stay should be modified at the early stages of a bankruptcy case. Specifically, the Court has relied on the general rule that during the early stages of a case, unsecured claimants should not be granted relief from the automatic stay unless extraordinary circumstances are established to justify such relief. See, e.g., In re Pioneer Commercial Funding Corp., 114 B.R. 45, 48 (Bankr.S.D.N.Y. 1990) ("[D]uring the first four months in a Chapter 11 case in which the debtor is given the exclusive right to put together a plan . . . an unsecured, unliquidated claimholder should not be permitted to pursue litigation against the debtor in another court unless extraordinary circumstances are shown."). Upon further review of the applicable case law, the Court finds that the necessity of demonstrating extraordinary circumstances to establish cause is largely a distinction without a difference under Sonnax. It will be unusual for an unsecured creditor to establish cause in the early stages of a chapter 11 case in order to proceed with prepetition litigation because the debtor is generally focusing all its efforts on stabilizing its business and formulating a plan of reorganization (implicating Sonnax Factor two) and the equities of this process typically favor allowing the debtor to continue that focus (implicating Sonnax Factor twelve). Therefore, for the sake of clarity this Court will confine its analysis regarding a request by an unsecured creditor to lift the automatic stay to proceed with prepetition litigation to the Sonnax analytical framework.
B. Application of the Facts to the Applicable Legal Standard
To establish cause to modify the automatic stay, Movant relies on Sonnax Factors one, two, seven, ten and twelve. The Court makes the following findings on the arguments presented considering those Sonnax Factors that the Court deems outcome determinative of the motion.
Sonnax Factors One, Two, Seven and Ten — Movant contends that permitting the Superior Court to rule on the motion seeking class certification will result in a complete resolution of the issues and will not interfere with the reorganization. In addition, Movant argues that the interests of other creditors will not be prejudiced, but enhanced, by the resolution of the class certification motion. The Court disagrees for the following reasons.
The Court finds that allowing the Superior Court to rule on the motion for class certification will not resolve any substantive issue because this Court will still have to address the permissibility of class proofs of claim in a bankruptcy case.
A class proof of claim is a claim filing procedure whereby a claimant files a representative proof of claim on behalf of a group of claimants other than themselves. See Certified Class in the Charter Securities Litigation v. Charter Co. (In re Charter Co.), 876 F.2d 866, 868 n. 2 (11th Cir. 1989) (citing In re Allegheny International, Inc., 94 B.R. 877 (Bankr.W.D.Penn. 1988)). The circuit courts are split on whether class proofs of claim are permissible in bankruptcy proceedings. Compare Reid v. White Motor Corp., 886 F.2d 1462, 1470 (6th Cir. 1989) (permissible); In re Charter Co., 876 F.2d at 873 (permissible); In re American Reserve Corp., 840 F.2d 487, 493 (7th Cir. 1988) (permissible); Birting Fisheries, Inc. v. Lane (In re Birting Fisheries, Inc.), 92 F.3d 939, 939-40 (9th Cir. 1996) (per curiam) (permissible), with In re Standard Metals Corp., 817 F.2d 625, 632 (10th Cir. 1987) (impermissible). The current trend is to find that class proofs of claim are permissible in bankruptcy. See, e.g., In re Kaiser Group Intern., Inc., 278 B.R. 58, 62 (Bankr.D.Del. 2002) ("The vast majority of courts conclude that class proofs of claim are permissible in a bankruptcy proceeding"). But see Kahler v. FIRSTPLUS Fin., Inc. (In re FIRSTPLUS Fin., Inc.), 248 B.R. 60, 72 (Bankr.N.D.Tex. 2000) (class proof of claim is improper in bankruptcy).
The Bankruptcy Code does not contain an express provision permitting or prohibiting the filing of a class proof of claim. Rule 3001(b) of the Federal Rules of Bankruptcy Procedure provides, in relevant part, that "[a] proof of claim shall be executed by the creditor or the creditor's authorized agent." The Second Circuit has not yet settled the issue but the majority rule in this district is that class proofs of claim are permissible, In re Thomson McKinnon Securities, Inc., 141 B.R. 31, 32 (S.D.N.Y. 1992); In re Chateaugay Corp., 104 B.R. 626, 634 (S.D.N.Y. 1989); In re Woodward Lothrop Holdings, Inc., 205 B.R. 365, 369 (Bankr.S.D.N.Y. 1997), although at least one published opinion supports the minority view. Dade County School District v. Johns-Mansville Corp. (In re Johns-Mansville Corp.), 53 B.R. 346, 350 (Bankr.S.D.N.Y. 1985); see also Pan Am. World Airways, Inc. v. Shulman Transport Enters., Inc. (In re Shulman Transport Enters., Inc.), 21 B.R. 548, 551 (Bankr.S.D.N.Y. 1982) ("in most instances class action principles are antithetical to those of bankruptcy") (Act case), aff'd on other grounds sub nom. Pan Am. World Airways, Inc. v. Continental Bank, 33 B.R. 383 (S.D.N.Y. 1983), aff'd, 744 F.2d 293 (2d Cir 1984).
Section 501 of the Bankruptcy Code governing the filing of proofs of claim provides, in relevant part:
(a) A creditor or an indenture trustee may file a proof of claim. An equity security holder may file a proof of interest.
(b) If a creditor does not timely file a proof of such creditor's claim, an entity that is liable to such creditor with the debtor, or that has secured such creditor, may file a proof of such claim.
(c) If a creditor does not timely file a proof of such creditor's claim, the debtor or the trustee may file a proof of such claim.
This Court does not need to resolve this issue at the present time. However, two considerations concerning the minority approach are worth noting here. First, the minority approach relies upon the rationale that the Bankruptcy Code and Rules require that each creditor file their own claim. See 10 COLLIER ON BANKRUPTCY ¶ 7023.01. This is considered to be a stringent standard, otherwise, class members would be able to share in a distribution without fulfilling any of the statutory or procedural requirements. See In re Shulman Transport Enters., Inc., 21 B.R. at 551; see also Standard Metals Corp., 817 F.2d at 631. Under the minority view "class action procedures generally can only be employed in a bankruptcy proceeding to consolidate claims which have already been properly filed." Lazard v. Texaco Inc. (In re Texaco Inc.), 81 B.R. 820, 826 (Bankr.S.D.N.Y. 1988) (citing Standard Metals Corp., 817 F.2d at 632).
Second, a certified class representative is not the equivalent of being an authorized agent for purposes of filing a proof of claim. See, e.g., In re Electronic Theatre Restaurants Corp., 57 B.R. 147, 148-49 (Bankr.N.D.Ohio 1986); In re Baldwin-United Corp., 52 B.R. 146, 148-49 (Bankr. S.D. Ohio 1985). These cases interpret the Bankruptcy Code and Rules to provide that only certain exclusive parties are permitted to file proofs of claim. An expressly authorized agent is permitted to file proofs of claim. In order for a class proof of claim to be appropriate under the minority view, each class member must expressly authorize the class representative to act as their authorized agent for proof of claim purposes. As the tenth circuit reasoned in Standard Metals:
Under the majority rule, a certified class representative is not necessarily the authorized agent for class proof of claim purposes. Compare White Motor Corp., 886 F.2d at 1463, 1471-72 (affirming the bankruptcy court's refusal to certify class previously certified in a state-court class action) with In re Livaditis, 122 B.R. 330, 334-35 (Bankr.N.D.Ill. 1990) (applying collateral estoppel doctrine to certify a class of creditors for class proof of claim purposes based on a district court's prior certification of class plaintiffs).
[A] class representative cannot be considered the authorized agent of all of the creditors in a putative class. [The class representative here] emphasizes that the bond purchasers were certified as a class in a civil proceeding in New Jersey after the bankruptcy court reached its decision [dismissing the class proof of claim]. But consent to being a member of a class in one piece of litigation is not tantamount to a blanket consent to any litigation the class counsel may wish to pursue. An agent may file a proof of claim only for those individuals who have expressly authorized the agent to do so. Attempts to file proofs of claim on behalf of a class have been rejected where there was no showing that each member of the class had authorized the "agent" to file on his or her behalf. Rule 3001(b) allows a creditor to decide to file a proof of claim and to instruct an agent to do so; it does not allow an "agent" to decide to file a proof of claim and then inform a creditor after the fact.
Standard Metals Corp., 817 F.2d at 631 (internal quotation marks and citations omitted).
The purpose of this discussion is not to decide the permissibility of class proofs of claim. The purpose of this discussion is to deconstruct Movant's arguments regarding purported efficiency gains should this Court modify the automatic stay. Because the Superior Court's ruling regarding class certification would not obviate the necessity of this Court having to rule on the appropriateness of a class proof of claim — whether this Court were to adopt the majority or the minority view on the issue — the Court does not find that it would be more efficient under the present circumstances to modify the automatic stay.
The Court's conclusion is supported by Movant's stated intention to commence a further round of briefing before the Superior Court. Movant argues that the supplemental briefing would explain (i) WorldCom's change in circumstances upon filing bankruptcy and (ii) Movant's intention to request a substantially narrower class-certification order consistent with WorldCom's change in circumstances. The Court is of the opinion, therefore, that soliciting the Superior Court's ruling at this time would be wasteful, and not resolve any particular issue. As stated above, because the issue of class certification may be re-litigated for purposes of the bankruptcy proceeding under either the majority or minority approach to class proofs of claim in bankruptcy regardless of how the Superior Court decided the issue, lifting the stay would neither promote judicial economy (Sonnax Factor ten), nor achieve "complete resolution" of even that limited issue (Sonnax Factor one).
Movant alleges that any response from WorldCom to any supplemental briefing would require minimal effort. Movant's argument presumes that the burden on WorldCom will be de minimis, and that de minimis burdens are not inconsistent with the automatic stay. As stated in a similar context regarding interference with a pending bankruptcy case and a request for relief from the automatic stay to conduct limited discovery in a pending litigation:
[R]equir[ing] the Debtor to comply with the [discovery] request will necessitate a deviation from the Debtor's duties and responsibilities in this reorganization, (not to mention the costs of compliance). That consideration cannot be shrugged off as de minimis. Interference by creditors in the administration of the estate, no matter how small, through the continuance of a preliminary skirmish in a suit outside the Bankruptcy Court is prohibited. In short, the Debtor should not be required to devote energy to collateral matter[s] at this juncture.
In re Penn-Dixie Indus., Inc., 6 B.R. 832, 833, 836 (Bankr.S.D.N.Y. 1980) (parenthetical material in original).
The Court finds the rationale used in Penn-Dixie equally applicable here. Allowing the Superior Court Action to proceed will require WorldCom to devote human and financial resources to monitoring and participating in that litigation thereby detracting from this reorganization effort. Movant has offered no viable justification, nor can the Court find any, for forcing WorldCom to participate in the Superior Court Action. Any such distraction will prejudice the rights of other WorldCom creditors, who have an interest in an efficient reorganization process and the preservation of the Debtors' financial resources. Movant has not convinced this Court of anything to the contrary.
For the foregoing reasons, the Court resolves Sonnax Factors two and seven in favor of WorldCom.
Sonnax Factor Twelve — At the hearing Movant argued, among other things, that the nature of the Movant's harm (trespass) is continuous and therefore not a claims matter subject to a class proof of claim. The Court does not express a view as to the immediacy of an any alleged injury currently being suffered by the Movant but the Court does note that the Superior Court Action has been pending since December 31, 1998. During the pendency of the automatic stay, Movant can assert his rights against WorldCom in this bankruptcy case by filing an appropriate motion. Movant has not convinced this Court that Movant's alleged harm could not be remedied before this Court.
In any event, numerous considerations weigh heavily in favor of continuing the automatic stay. One of the purposes of the automatic stay is to provide the debtor a breathing space in order to assess its business and formulate an exit strategy from bankruptcy. See H.R. REP. NO. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97. "Absent a plenary respite, including relief from even minor harassments . . . debtors are unable fully to concentrate upon the task before them, namely, regenerating the necessary capacity to address bankruptcy in a responsible and effective manner." In re Colin, Hochstin Co., 41 B.R. 322, 325 (Bankr.S.D.N.Y. 1984).
Applied here, allowing the Superior Court Action to proceed at this stage of the case would unduly abridge WorldCom's contemplated breathing spell. The size and scale of WorldCom's operations coupled with the fact that WorldCom's case is approximately three months old only serves to underscore these considerations. WorldCom's efforts should be fixed at this time on the myriad requirements attendant to WorldCom's obligations as a debtor in possession like formulating a plan, reviewing executory contracts, and negotiating with its various creditor constituencies. In contrast to WorldCom's likely harm, it appears that Movant will, at the very least, be able to protect its interests before this Court by having the Court rule on class-certification and, if appropriate, have this Court estimate such class proof of claim pursuant to 11 U.S.C. § 502(c). In addition, the Court notes that a bar date has recently been set in this case, however, such bar date had not yet been noticed to WorldCom's creditors. Movant, and alleged others similarly situated, still have a sufficient opportunity to file individual proofs of claim.
In sum, upon balancing the equities here and based upon the available record, the Court concludes that this Sonnax Factor weighs heavily in favor of WorldCom.
V. Conclusion
Upon consideration of all relevant Sonnax Factors, Movant has failed to demonstrate cause for relief from the automatic stay at this stage of WorldCom's bankruptcy case. Thus, Movant's request for a modification of the automatic stay is DENIED.
SO ORDERED.