Cathey v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). · Go Syfert
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). Cases Citing This Book View Copy Cite
172 citation events (57 in the last 25 years) across 62 distinct courts.
Strongest positive: Putman v. Tuscola, County of (mied, 2025-03-17)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Putman v. Tuscola, County of
E.D. Mich. · 2025 · quote attribution · 1 verbatim quote · confidence high
the legislative history of 362(d) unambiguously identifies the bankruptcy court as the exclusive authority to grant relief from the stay.
discussed Cited as authority (verbatim quote) Genton v. Technology Credit Union
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) Riley v. Technology Credit Union
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) Bowe v. Cross River Bank
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) Chamberlin v. Technology Credit Union
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) Stenger v. Technology Credit Union
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) Salazar v. Cross River Bank
S.D. Ohio · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
this court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.
discussed Cited as authority (verbatim quote) In re Lawrence Wohleber, Jr.
6th Cir. BAP · 2019 · quote attribution · 1 verbatim quote · confidence high
the legislative history of 362(d) unambiguously identifies the bankruptcy court as the exclusive authority to grant relief from the stay.
discussed Cited as authority (verbatim quote) FLORIDA EASTERN DEV v. Len-Hal Realty
Fla. Dist. Ct. App. · 1994 · quote attribution · 1 verbatim quote · confidence high
it is beyond peradventure that the instant appeals are continuations of judicial proceedings.
discussed Cited as authority (verbatim quote) Don Farley Robert Mendenhall v. William R. Henson, Jr. Paul M. Henson Bowes Lyon Resources Ltd. National Transport Services, Inc., Westark Specialties, Inc., Don Farley Robert Mendenhall v. William R. Henson, Jr., Paul M. Henson, Bowes Lyon Resources Ltd. National Transport Services, Inc. Westark Specialties, Inc.
8th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence high
it is beyond peradventure that the instant appeals are continuations of judicial proceedings.
discussed Cited as authority (verbatim quote) Farley v. Henson
8th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence high
it is beyond peradventure that the instant appeals are continuations of judicial proceedings.
discussed Cited as authority (quoted) Wohleber v. Skurko (In re Wohleber)
6th Cir. BAP · 2019 · quote attribution · 1 verbatim quote · confidence low
the legislative history of 362(d) unambiguously identifies the bankruptcy court as the exclusive authority to grant relief from the stay.
discussed Cited as authority (rule) Vickie M. Stringer v. Baker & Taylor, LLC
N.D. Ohio · 2026 · confidence medium
Analysis The Court denies Plaintiff’s Motion for a simple reason—it lacks jurisdiction. 11 U.S.C. § 362 (d)(1) provides that “the court shall grant relief from the [automatic] stay . . . for cause, including the lack of adequate protection of an interest in property of such party in interest.” Although Section 362(d)(1) uses the word “court” generally, the Sixth Circuit has held that “[t]he legislative history of § 362(d) unambiguously identifies the bankruptcy court as the exclusive authority to grant relief from the stay.” Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, …
discussed Cited as authority (rule) McLemore v. County of Mahoning
N.D. Ohio · 2024 · confidence medium
See 11 U.S.C. § 362 (d); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983) (identifying the bankruptcy court as the “exclusive authority” to grant relief from a stay).
discussed Cited as authority (rule) NATIONAL MEDICAL IMAGING, LLC v. LYON FINANCIAL SERVICES, INC., etc.
Fla. Dist. Ct. App. · 2021 · confidence medium
Corp., 797 F.2d 227 , 230 n.4 (5th Cir. 1986); Cathey v. Johns–Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983); Sheldon v. Munford, Inc., 902 F.2d 7 (7th Cir. 1990); Farley v. Henson, 2 F.3d 273, 275 (8th 4 Crowe Grp., Inc. v. Garner, 691 So. 2d 1089, 1089 (Fla. 2d DCA 1993) (recognizing the decision “expressly and directly conflicts with” Shop in the Grove”). 5 Taylor v. Barnett Bank of N. Cent.
discussed Cited as authority (rule) Kenneth Schwartz and Valerie Schwartz
Bankr. S.D. Florida · 2020 · confidence medium
This is because, “when the stay would otherwise apply, bankruptcy courts have the exclusive jurisdiction to grant relief from the stay.” Wohleber v. Skurko (In re Wohleber), 596 B.R. 554, 571-72 (6th Cir. BAP 2019) (holding that an ex-spouse and her attorney violated the stay by proceeding with a sentencing hearing for contempt against the debtor when he failed to pay a dischargeable money judgment”) (citing Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983)).
discussed Cited as authority (rule) BIOCONVERGENCE LLC v. ATTARIWALA
S.D. Ind. · 2020 · confidence medium
Co. v United Jersey Bank, 959 F.2d 1194, 1204 (3rd Cir 1992); Matter of Barbier v Shearson Lehman Hutton Inc., 943 F.2d 249 , 250 (2nd Cir 1991); Cathey v Johns-Manville Sales Corp., 711 F.2d 60, 63 (6th Cir. 1983); In re Dominquez, 312 B.R. 499, 505 (Bankr.
discussed Cited as authority (rule) Cianci v. Chaput
virginislands · 2016 · confidence medium
Co., 959 F.2d at 1204 (“Only the bankruptcy court with jurisdiction over a debtor’s case has the authority to grant relief from the stay of judicial proceedings against the debtor.” (citing Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62-63 (6th Cir. 1983))); 11 U.S.C. § 362 (d) (authorizing the bankruptcy court to grant relief from an automatic stay upon the request of a party in interest and after notice and a hearing).
discussed Cited as authority (rule) Brouillard v. DLJ Mortgage Capital, Inc.
virginislands · 2014 · confidence medium
In its response, DLJ Mortgage Capital agreed that section 362(a) applied to this matter, notwithstanding the fact that this appeal had been initiated by the Brouillards, since courts have universally held that an appeal from a case filed against a debtor is a “continuation ... of a judicial, administrative, or other action or proceeding against the debtor.” See, e.g., Teachers Ins. & Annuity Ass’n of Am. v. Butler, 803 F.2d 61, 64-65 (2d Cir. 1986); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983); Ellison v. Northwest Eng’g Co., 707 F.2d 1310, 1311 (11th Cir. 1983…
cited Cited as authority (rule) McDonough Associates, Incorpor v. Ann Schneider
7th Cir. · 2013 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61-62 (6th Cir.1983); Ass’n of St.
discussed Cited as authority (rule) Fifth Third Bank v. Dial Properties, LLC
6th Cir. · 2012 · confidence medium
We have held that “section 362 should be read to stay all appeals in proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee.” Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983).
discussed Cited as authority (rule) Evelyn Nye v. Bayer Cropscience, Inc. - Concurring/Dissenting
Tenn. · 2011 · signal: cf. · confidence medium
Cf. Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983) (holding that the bankruptcy court has exclusive authority to grant relief from a stay).
examined Cited as authority (rule) Evelyn Nye v. Bayer Cropscience, Inc. (3×)
Tenn. · 2011 · signal: cf. · confidence medium
Cf Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 63 (6th Cir.1983) (holding that the bankruptcy court has exclusive authority to grant relief from stay).
discussed Cited as authority (rule) American Prairie, etc. v. Tri-State Financial (2×)
8th Cir. · 2009 · confidence medium
Whether a proceeding is deemed to be against the debtor is ascertained “from an examination of the debtor’s status at the initial proceeding.” Farley v. Henson, 2 F.3d 273, 275 (8th Cir. 1993) (quoting Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983)).
discussed Cited as authority (rule) American Prairie Construction Co. v. Hoich
8th Cir. · 2009 · confidence medium
Whether a proceeding is deemed to be against the debtor is ascertained “from an examination of the debt- or’s status at the initial proceeding.” Farley v. Henson, 2 F.3d 273, 275 (8th Cir.1993) (quoting Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)).
discussed Cited as authority (rule) In Re Porter
Bankr. E.D. Pa. · 2007 · confidence medium
See, e.g., Constitution Bank v. Tubbs, 68 F.3d 685 (3d Cir.1995); Raymark Industries, Inc. v. Lai, 973 F.2d 1125, 1129 (3d Cir.1992) (“[T]he automatic stay applies to all appeals in pre-petition actions against Chapter 11 debtors.”); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61 (6th Cir.1983) (“[T]he automatic stay of proceeding is applicable at both the trial and appellate levels.”), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986).
examined Cited as authority (rule) In Re Mid-City Parking, Inc. (3×) also: Cited "see", Cited "see, e.g."
Bankr. N.D. Ill. · 2005 · confidence medium
Corp. v. Byrd (In re Byrd), 357 F.3d 433, 439 (4th Cir.2004); Farley v. Henson, 2 F.3d 273, 275 (8th Cir.1993); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61-62 (6th Cir.1983); Maritime Electric Co. v. United Jersey Bank, 959 F.2d 1194, 1204, 1206-07 (3d Cir.1991); In re Arbitration Between Barbier & Shearson Lehman Hutton, 943 F.2d 249 , 250 (2d Cir.1991); Ingersoll-Rand Financial Corp. v. Miller Mining Co., 817 F.2d 1424, 1426-27 (9th Cir.1987); Delpit v. Commissioner, 18 F.3d 768, 770, 773 (9th Cir.1994); Simon v. Navon, 116 F.3d 1, 3-4 (1st Cir.1997); Ass’n of St.
discussed Cited as authority (rule) In Re: Ralph T. Byrd, Debtor, Platinum Financial Services Corporation, Roger Schlossberg, Chapter 7 Trustee, Trustee-Appellant v. Ralph T. Byrd
4th Cir. · 2004 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir.1986); Cathey v. Johns-Manville Sales Corp. 711 F.2d 60, 62 (6th Cir.1983); but see Chaussee v. Lyngholm (In re Lyngholm), 24 F.3d 89 , 91-92 & n. 4 (10th Cir.1994).
cited Cited as authority (rule) In Re Enron Corp.
Bankr. S.D.N.Y. · 2003 · confidence medium
Inc. (In re Elder-Beerman Stores Corp.), 195 B.R. 1019, 1023 (Bankr.S.D.Ohio 1996) (citing Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)).
discussed Cited as authority (rule) Oakwood Acceptance Corp. v. Tsinigini
navajo · 2003 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir. 1986), Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983), Sheldon v. Munford Inc., 902 F.2d 7, 8 (7th Cir. 1990), Farley v. Henson, 2 F.3d 273, 274 (8th Cir. 1993), Ingersoll-Rand Fin.
cited Cited as authority (rule) In re Delta Air Lines
6th Cir. · 2002 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983) (holding that the initial status of the debt- or as a defendant triggers the stay under § 362(a)).
cited Cited as authority (rule) In Re Delta Air Lines Northwest Airlines Corp. Northwest Airlines, Inc. Us Airways Group, Inc. Us Airways, Inc.
6th Cir. · 2002 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983) (holding that the initial status of the debt- or as a defendant triggers the stay under § 362(a)).
cited Cited as authority (rule) Davis v. Baker
Tex. App. · 2000 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61 (6th Cir.1983).
cited Cited as authority (rule) Cramer v. Wade
Alaska · 1999 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir.1986) (same); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61-63 (6th Cir.1983) (same); Association of St.
discussed Cited as authority (rule) Taylor v. BARNETT BANK OF NORTH CENT. FL.
Fla. Dist. Ct. App. · 1998 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir.1986); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986); Association of St.
cited Cited as authority (rule) Wills v. Heritage Bank (In Re Wills)
Bankr. E.D. Va. · 1998 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62-63 (6th Cir.1983); see 11 U.S.C. § 362 (d). 8 .
cited Cited as authority (rule) Rothery v. Marshack (In Re Rothery)
9th Cir. BAP · 1996 · confidence medium
Corp. v. Miller Mining Co., Inc., 817 F.2d 1424, 1426 (9th Cir.1987) (quoting Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983).
discussed Cited as authority (rule) Matter of United Imports Corp.
Bankr. D. Neb. · 1996 · confidence medium
Corp., 894 F.2d 371 (10th Cir.1990) (summary judgment order violated stay where it was issued by federal district court before stay was lifted); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61 (6th Cir.1983) (“the automatic stay of proceeding is applicable at both the [federal] trial and appellate levels”), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986); Kommanditselskab Supertrans v. O.C.C.
cited Cited as authority (rule) Elder-Beerman Stores Corp. v. Thomasville Furniture Indus. Inc. (In Re Elder-Beerman Stores Corp.)
Bankr. S.D. Ohio · 1996 · confidence medium
Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983).
discussed Cited as authority (rule) Parker v. Bain (2×)
9th Cir. · 1995 · confidence medium
Corp. v. Miller Mining Co., 817 F.2d 1424, 1426 (9th Cir.1987) (quoting Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)); see also Delpit v. Commissioner Internal Revenue Serv., 18 F.3d 768, 770-71 (9th Cir.1994).
discussed Cited as authority (rule) Parker v. Bain (2×)
9th Cir. · 1995 · confidence medium
Corp. v. Miller Mining Co., 817 F.2d 1424, 1426 (9th Cir.1987) (quoting Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)); see also Delpit v. Commissioner Internal Revenue Serv., 18 F.3d 768, 770-71 (9th Cir.1994).
cited Cited as authority (rule) White v. City of Santee (In Re White)
9th Cir. BAP · 1995 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir.1986); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir. 1983); Ass’n of St.
discussed Cited as authority (rule) In Re Everett
Bankr. N.D. Ohio · 1994 · confidence medium
See Fleet Consumer Discount Co. v. Graves (In re Graves), 33 F.3d 242 , 247—48 (3rd Cir.1994) (finding that state court judgment entered in violation of automatic stay was void); In re Capgro Leasing Associates, 169 B.R. 305, 313-14 (Bankr.E.D.N.Y.1994) (state court judicial acts in violation of automatic stay are void) (citations omitted); see also NLT Computer Services Corp. v. Capital Computer Systems, Inc., 755 F.2d 1253 (6th Cir.1985) (vacating and remanding federal district court order entered in violation of the automatic stay after filing of involuntary petition); Cathey v. Johns-Man…
examined Cited as authority (rule) In Re Capgro Leasing Associates (4×)
Bankr. E.D.N.Y. · 1994 · confidence medium
Id.; Balaber-Strauss v. Reichard (In re Tampa Chain Co.), 836 F.2d 54 , 55 (2d Cir.1987); Commer-zanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207 (2d Cir.1986) (“The stay is automatic and mandatory with the filing of the peti-tion_”) (citing Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983)); Maritime Elec.
discussed Cited as authority (rule) In Re Odd Lyngholm, Debtor. Michael Dean Chaussee v. Odd Lyngholm
10th Cir. · 1994 · confidence medium
Corp., 797 F.2d 227 , 230 n. 4 (5th Cir.1986) (same); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983) (same), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986); Association of St.
discussed Cited as authority (rule) Keene Corp. v. Acstar Insurance (In Re Keene Corp.)
Bankr. S.D.N.Y. · 1994 · confidence medium
Commerzanstalt v. Telewide Systems, Inc., 790 F.2d 206, 207 (2d Cir.1986); accord Borman v. Raymark Industries, Inc., 946 F.2d 1031, 1035 (3d Cir.1991); Sheldon v. Munford, Inc., 902 F.2d 7, 8-9 (7th Cir.1990); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61-62 (6th Cir.1983).
discussed Cited as authority (rule) Bezanson v. First National Bank of Boston
Me. · 1993 · confidence medium
Compare Independent Union of Flight Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir.1992); and Seattle-First National Bank v. Westwood Lumber, Inc., 59 Wash.App. 344 , 796 P.2d 790, 794-95 (1990); with Pope v. Manville Forest Products Corp., 778 F.2d 238, 239 (5th Cir.1985); 4 see also Commerzanstalt v. Telewide Systems, Inc., 790 F.2d 206, 207 (2d Cir.1986) (whether action is “against the debtor” is determined by the debtor’s status at the initiation of the proceedings); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983), cert. denied, 478 U.…
discussed Cited as authority (rule) Justus v. Financial News Network Inc. (In Re Financial News Network Inc.)
S.D.N.Y. · 1993 · confidence medium
Co. v. United Jersey Bank, 959 F.2d 1194 , 1204 (3d Cir.1991) (citing Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62-63 (6th Cir.1983), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986)).
discussed Cited as authority (rule) Autoskill Inc., a Canadian Corporation v. National Educational Support Systems, Inc., a New Mexico Corporation, National Educational Support Systems, Inc., a New Mexico Corporation v. Autoskill Inc., a Canadian Corporation
10th Cir. · 1993 · confidence medium
Corp. v. Miller Mining Co., 817 F.2d 1424, 1426-27 (9th Cir.1987) (staying appeal); Commerzanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207-08 (2d Cir.1986) (same); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983) (same). 32 St.
discussed Cited as authority (rule) Autoskill Inc. v. National Educational Support Systems, Inc.
10th Cir. · 1993 · confidence medium
Corp. v. Miller Mining Co., 817 F.2d 1424, 1426-27 (9th Cir.1987) (staying appeal); Commerzanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207-08 (2d Cir.1986) (same); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983) (same).
Retrieving the full opinion text from the archive…
Elmer Lee Cathey, (82-5393), (82-5425), Robert H. Bunch, (82-5433), James O. Cavett, (82-5580), (82-5580)
v.
Johns-Manville Sales Corporation, (82-5425/5433/5580), (82-5393)
82-5393.
Court of Appeals for the Sixth Circuit.
Jul 1, 1983.
711 F.2d 60

711 F.2d 60

8 Collier Bankr.Cas.2d 1179, 11 Bankr.Ct.Dec. 128,
Bankr. L. Rep. P 69,308

Elmer Lee CATHEY, et al., Plaintiffs-Appellants (82-5393),
Plaintiffs-Appellees (82-5425), Robert H. Bunch, et al.,
Plaintiffs-Appellees (82-5433), James O. Cavett, (82-5580),
Plaintiff-Appellee (82-5580),
v.
JOHNS-MANVILLE SALES CORPORATION, et al.,
Defendant-Appellant (82-5425/5433/5580),
Defendant-Appellee (82-5393).

Nos. 82-5393, 82-5425, 82-5433 and 82-5580.

United States Court of Appeals,
Sixth Circuit.

Argued May 24, 1983.
Decided July 1, 1983.

H. Douglas Nichol (argued), Paul Gillenwater, Gillenwater, Whelchel & Nichol, Knoxville, Tenn., for Elmer Lee Cathey, et al. Elmer Lee and Martha Jo Cathey and James O. Cavett.

Robert G. McDowell, Nashville, Tenn., for Owens, Ill.

William A. Young, Taylor & Grover, Knoxville, Tenn., for Fibreboard Corp.

Donald F. Paine, Dwight E. Tarwater, Gwendolyn K. Rogers, Egerton, McAfee, Armistead & Davis, Knoxville, Tenn., for RayMark Industries.

Darrell G. Townsend, Howell & Fisher, Nashville, Tenn., for Owen Corning.

Gayle I. Malone, Jr., Charles C. Trabue, III, Trabue, Sturdivant & DeWitt, Nashville, Tenn., for Pittsburgh-Corning.

F. Graham Bartlett, Knoxville, Tenn., for Nicolet Inc.

George B. McGugin, Nashville, Tenn., for Celotex Corp.

M. Anderson Cobb, Jr., Harris, Shelton, Dunlap & Cobb, Memphis, Tenn., for Fred H. Cagle, Jr.

W. Kyle Carpenter, Frantz, McConnell & Seymour, Knoxville, Tenn., H. Keith Jarvis (argued), Denver, Colo., for Johns-Manville Sales Corp.

Michael Y. Rowland (argued), Knoxville, Tenn., for Robert H. and Edna O. Bunch.

Before ENGEL and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

[*~60]1

These consolidated asbestos actions join inquiry into the application of the automatic stay of proceeding imposed by 11 U.S.C. § 362(a) to appellate proceedings wherein Johns-Manville Sales Corporation (J-M) appears as a party in interest. Each underlying action asserts a claim for damages against J-M and others for an injury allegedly sustained from exposure to asbestos fibers contained in products manufactured or sold by the defendants. Each action was pending in this Court on August 26, 1982 on which date J-M filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq., in the United States Bankruptcy Court for the Northern District of New York. Presently before the Court is J-M's motion in each action to stay further appellate proceedings.

2

Section 362(a) automatically stays all proceedings against the debtor:

3

§ 362. Automatic stay

4

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of--

5

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.

[*61]6

11 U.S.C. § 362(a). Accordingly, the filing of J-M's petition for reorganization served to automatically stay the "continuation" of all "judicial" "proceeding[s]" "against the debtor". It is beyond peradventure that the instant appeals are continuations of judicial proceedings. Indeed, the bankruptcy court presiding over J-M's petition has acknowledged that the automatic stay of proceeding is applicable at both the trial and appellate levels. See: In re Johns-Manville Corporation, et al., 26 B.R. 405, adversary proceeding No. 82-6221A, Decision No. 1, and adversary proceeding 26 B.R. 420 (Bkrtcy.S.D.N.Y.1983). Similarly, the bankruptcy court presiding over a petition for reorganization filed by Unarco Industries, Inc. (Unarco), a defendant in thousands of asbestos actions pending nationwide, has proclaimed that the stay of proceedings against Unarco operates at the appellate level. See: In re UNR Industries, Inc., 23 B.R. 144 (Bkrtcy.N.D.Ill.1982).

7

Since the instant appeals are continuations of judicial proceedings, the only pertinent inquiry is whether such proceedings are "against the debtor." 11 U.S.C. § 362(a). In at least one of the present consolidated appeals, Bunch, et al. v. Johns-Manville Sales Corporation, et al., the district court awarded damages against J-M who subsequently perfected an appeal.[1] The Bunch plaintiffs contend that J-M's voluntary perfection of the instant appeal can only adhere to the benefit of J-M's estate and that, accordingly, said proceeding is not "against the debtor". Confronting the construction of the term "against the debtor" within the meaning of 11 U.S.C. § 362(a), this Court concludes that satisfaction of that criteria must be ascertained from an examination of the debtor's status at the initial proceeding. The Third Circuit has cogently provided the following unassailable rationale:

8

In our view, section 362 should be read to stay all appeals in proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee. Thus, whether a case is subject to the automatic stay must be determined at its inception. That determination should not change depending on the particular stage of the litigation at which the filing of the petition in bankruptcy occurs.

9

* * *

10

* * *

11

2. Difficulties with the "appellant-appellee" approach to section 362 would arise even if only one party appealed. We can hypothesize an appeal by a debtor from an adverse judgment rendered in an action brought against it by one of its creditors. If the appeal is permitted because it is an appeal "by" the debtor, and the debtor prevails on the appeal, we question the effect of such an interpretation if the creditor decides to bring the case to a higher court. Is this second level of appeal then stayed because the appeal is not one "against" the debtor? The unfairness of such an approach is obvious.

12

Association of St. Croix Condominium Owners v. St. Croix Hotel, 682 F.2d 446, 449 (3d Cir.1982). It would be anomalous for this Court to adjudge that the instant appeal is not "against the debtor" and therefore not subject to the automatic stay when it is undisputed that, should the merits of the appeal be reached and the action remanded for a new trial, the stay of proceeding would then attach since J-M would have been returned to its initial status of defendant. It is inconceivable that Congress intended or envisioned construction of the phrase "against the debtor" to oscillate in any given judicial proceeding depending upon which stage of trial the action had progressed on the date of the filing of the bankruptcy petition. In the actions at bar J-M's initial status as defendant satisfies the "against the debtor" criteria of § 362(a).

[*~62]13

All criteria of § 362(a)(1) have been satisfied. The automatic stay of proceedings imposed by § 362(a) is inapplicable only when one of the eight criteria enumerated in § 362(b) is demonstrated. It has not been contended in these appeals, nor does it appear, that any category of § 362(b) applies. Therefore the automatic and mandatory stay of § 362(a) attaches to the instant appellate proceedings. Accord: Austin v. Unarco Industries, Inc., No. 82-116B (1st Cir. Aug. 5, 1982) (order). Contra: Hendrix v. Raybestos-Manhattan, Inc., No. 82-8538 (11th Cir. Dec. 22, 1982) (order), reh. denied, Jan. 28, 1982; Jackson v. Johns-Manville Sales Corporation, No. 82-4288 (5th Cir. Feb. 7, 1983) (order); Shop in the Grove, Ltd. v. Union Fed. Savings & Loan Association, 425 So.2d 1138 (Fla.App.1982).

14

A party in interest may seek relief from the automatic stay of § 362(a):

15

(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay--

16

(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or

17

(2) with respect to a stay of an act against property, if--

18

(A) the debtor does not have an equity in such property; and

19

(B) such property is not necessary to an effective reorganization.

20

11 U.S.C. § 362(d). The legislative history of § 362(d) unambiguously identifies the bankruptcy court as the exclusive authority to grant relief from the stay:

21

Section 362(d) of the House amendment represents a compromise between comparable provisions in the House bill and Senate amendment. Under section 362(d)(1) of the House amendment, the court may terminate, annul, modify, or condition the automatic stay for cause, including lack of adequate protection of an interest in property of a secured party. It is anticipated that the Rules of Bankruptcy Procedure will provide that those hearings will receive priority on the calendar. Under section 362(d)(2) the court may alternatively terminate, annul, modify, or condition the automatic stay for the cause including inadequate protection for the creditor. The court shall grant relief from the stay if there is no equity and it is not necessary to an effective reorganization of the debtor.

[*63]22

House Report No. 95-595, U.S.Code Cong. & Admin.News 1978, p. 5787, Notes of Committee on the Judiciary. Accord: In re Holtkamp, 669 F.2d 505, 507 (7th Cir.1982) (§ 362(d) "commits the decision of whether to lift the stay to the discretion of the bankruptcy judge"); In re Related Asbestos Cases, 23 B.R. 523, 526 (N.D.Cal.1982) ("the original bankruptcy courts alone should have exclusive power to lift an actual stay under section § 362"); Elliott v. Hardison, 25 B.R. 305, 308 (E.D.Va.1982); In re Frigitemp Corp., 8 B.R. 284 (S.D.N.Y.1981); 1A Collier on Bankruptcy, p 11.06 at 1164 (4th ed.). Because this Court possesses no authority to grant relief from the automatic stay of proceedings, the equitable considerations advanced on appeal by J-M's adversaries, while compelling, are directed to the improper forum.[2] Relief from the stay may only be achieved in accordance with the statutory mechanism established by Congress. Other asbestos plaintiffs have recognized the exclusive authority of the bankruptcy court presiding over J-M's petition to annul the stay of proceedings and have successfully petitioned for that precise relief. See: Beatrice Hansen v. Johns-Manville Sales Corp., No. 82-6450A (Bkrtcy.S.D.N.Y.1982); Johns-Manville Sales Corp. v. Edward Janssens, et al., (Bkrtcy.S.D.N.Y.1982). This Court must comport to the congressional mandate and honor the automatic stay until such time as the instant proceedings may proceed in a manner consistent with the statutory framework.[3]

[*~62]23

Accordingly, further proceedings in the instant actions are hereby STAYED until such time as they may be ordered to continue in a manner consistent with the Code.

1

In Robert and Edna Bunch v. Johns-Manville Sales Corporation, No. 82-5433, a jury trial resulted in the following awards: (1) $280,000 compensatory damages for Robert Bunch; (2) $140,000 compensatory damages for Edna Bunch; (3) $220,000 punitive damages for Robert Bunch. Entertaining J-M's motion for a new trial or judgment notwithstanding the verdict, the district court sustained the award of compensatory and punitive damages to Robert Bunch, but granted a new trial on Edna Bunch's consortium claim conditioned on her refusal to accept a remittitur of $90,000. From this judgment J-M appealed. Plaintiffs Robert and Edna Bunch filed, and then dismissed, a notice of cross-appeal

2

It is submitted, inter alia, that plaintiffs may die without receiving compensation long overdue, that J-M will be unfairly benefited by receiving additional time in which to tender compensation, and that, in Bunch, J-M's estate can only be appreciated by a continuation of appellate proceedings and that, therefore, there is no justification for delay

3

For example, the automatic stay of § 362(a) may expire by its own terms under 11 U.S.C. § 362(c) (case is closed, dismissed, or discharge is granted), or relief from the stay may be granted by the bankruptcy court under 11 U.S.C. § 362(d)