In In re Baer, 2011 WL 1832490 (Bkrtcy. E.D. Ky. 2011), the bankruptcy court held that an automobile company’s repossession of a non-reaffirmed vehicle 2 weeks after an Order of Discharge could violate the automatic stay because the Plaintiff’s bankruptcy remained open. Factually, the Plaintiff’s Order of Discharge was entered on October 20, 2010. The Defendant repossessed the Plaintiff’s Vehicle on November 3, 2010. The Trustee filed a Report of No Distribution; however, the Court stated that Plaintiff’s bankruptcy case remained open. Accordingly, the Court found that the automobile finance company was not entitled to summary judgment in the adversary proceeding.
The Defendant does not dispute that the Plaintiff filed a statement of intention to reaffirm the debt owed to the Defendant within the applicable time period. But the Defendant argues that when the Plain-tiff did not execute or file a reaffirmation agreement within thirty days of the date set for the first meeting of creditors, then the Plaintiff failed to comply with § 521(a)(2)(B) and § 362(h)(1)(B) and the automatic stay terminated, allowing the Defendant to repossess the Vehicle without running afoul of § 362. While it is true that the Plaintiff did not file a reaffirmation agreement to reaffirm the debt as stated in his original Statement of Intention, he did move to redeem the Vehicle on April 26, 2010, prior to the date set for the first meeting of creditors, or June 16, 2010, and such motion was ultimately granted by the Court on May 17, 2010. This motion to redeem and subsequent order granting the motion amended his original Statement of Intention within the time period prescribed, an action that is allowed according to the plain language of § 362(h)(1)(B). See 11 U.S.C. § 362(h)(1)(B) (“… as it may be amended before expiration of the period for taking action …”). Moreover, by making a motion to redeem the vehicle, the Plaintiff took steps as to redeem the vehicle sufficient to satisfy the requirements in § 521(a)(2)(B) and § 362(h)(1)(B). See In re Molnar, 2010 WL 5136038, *4–7 (Bankr.N.D .Ill. 2010) (holding a pro se debtor timely performed his stated intent to re-deem a motor vehicle by making honest and repeated attempts to discuss redemption with the creditor and then filing a motion to redeem); In re Price, 370 F.3d 362, 372 (3d Cir.2004) (holding debtors are not required to “entirely consummate their stated intention within” the time frame allowed; rather, all that is required is to “take steps to act on an intention either to retain or surrender” the property); In re Hinson, 352 B.R. 48 (Bankr.E.D.N.C. 2006) (same). Because the Plaintiff timely filed his Statement of Intention to reaffirm the debt, then amended his Statement of Intention by filing a motion to redeem the Vehicle, which was granted, all within the time frame set forth in § 362(h)(1) and § 521(a)(2), the Plaintiff performed his required obligations to prevent the automatic stay from terminating pursuant to § 362(h)(1). According to § 362(c), unless relief is granted earlier by the court, the stay of an act against property of the estate expires when property is no longer property of the estate. See 11 U.S.C. § 362(c). The Defendant never filed a motion to modify the stay. There is no order modifying the stay as to the Vehicle and, as concluded above, the stay did not terminate by operation of § 362(h). The Plaintiff’s bankruptcy case re-mains open. The Trustee has not abandoned the Vehicle as property of the estate pursuant to § 554 and the Trustee’s “Report of No Distribution” does not constitute abandonment. See In re Reed, 940 F.2d 1317 (9th Cir. 1991). Therefore, the automatic stay remains in effect as to the Vehicle and the Defendant is not entitled to summary judgment on the Plaintiff’s claim for violation of the automatic stay.