[CLBS] Ch 11 request for 105 stay as to nondebtor guarantors: motion or AP?

[D. Blair Clark]

I've never had any luck doing something like that in any other manner than
an AP.  Frankly, I've not had much luck with extending the stay to
non-debtors at all unless in the context of a plan. I might think that a
plan filed with the petition might bolster your case.  

D. Blair Clark
LAW OFFICES OF D. BLAIR CLARK PC
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Boise, ID 83706
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-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Holly Roark
Sent: Wednesday, September 21, 2016 7:27 PM
To: clbs at admws.idaho.gov
Subject: [CLBS] Ch 11 request for 105 stay as to nondebtor guarantors:
motion or AP?

Under FRBP 7001(7) a request for an injunction is to be made by AP (unless
the Plan provides for the relief). I want to file either the AP or Motion
with my first day motions on the day the CH 11 is filed. Under Ninth Circuit
case law the court can issue the 105 injunction as to nondebtor parties so
long as we can show the likelihood of a successful reorganization as well as
the hardship to the parties, but the injunction is only in place until
confirmation.  In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007).

 

I have seen the request for such an injunction done via Motion in other
jurisdictions, styled as a "Motion for Section 105 Relief Extending the Stay
to Nondebtor Parties".  

 

My case will be in Pocatello. Do you CH 11 practitioners recommend Motion or
AP for this? 

 

Best regards,

HOLLY ROARK

Attorney at Law 

Certified Bankruptcy Specialist -

By the State Bar of California Board of Legal Specialization

 

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