bargaining agreement as a process required for the enforcement of the terms of the collective bargaining agreement. The Circuit explained that it would“ give effect to the automatic stay to the extent that its application is not in irreconcilable conflict with § 1113.” Ionosphere Clubs, 922 F. 2d at 991. However, because the arbitration was part of the collective bargaining agreement and a failure to enforce it would alter the terms of the agreement, the Circuit concluded“ an arbitration brought pursuant to a provision in a collective bargaining agreement is not subject to the automatic stay since its application would allow a debtor unilaterally to avoid its obligation to arbitrate.” Id. at 993. Turning, however, to the suit brought by the union seeking judicial enforcement of the collective bargaining agreement, the Circuit did find this suit stayed by the automatic stay pursuant to Section 362 and required relief from the stay to move forward. Id. at 996.
In Inslaw, a dispute developed over the continued use by the Department of Justice of a software program developed by the debtor. The debtor alleged such continued use was a violation of the automatic stay. The D. C. Circuit, in finding no violation of the automatic stay, concluded that the purpose of the stay“ cannot require that every party who acts in resistance to the debtor’ s view of its rights violates § 362( a)” and further held that the language of Section 362 does not create an“ affirmative duty to remedy past acts of fraud or bias or harassment as soon as a debtor files a bankruptcy petition.” Inslaw, 932 F. 2d at 1473-74. Rather, the“ statutory language makes clear that the stay applies only to acts taken after the petition is filed.” Id. at 1474( emphasis in original). As no new acts were taken, the D. C. Circuit found no violation of the automatic stay and no need for the party to seek relief from stay before proceeding.
In N. Coast Vill., a creditor brought an adversary proceeding in the debtor’ s home bankruptcy court seeking specific performance and declaratory relief. The Ninth Circuit B. A. P. concluded that“ the automatic stay does not apply to proceedings against the debtor in the home bankruptcy court....” N. Coast Vill., 135 B. R. at 644. As the court noted,“[ a ] lthough the statutory language does not differentiate between proceedings in bankruptcy courts and proceedings in other courts, the application of the stay to proceedings against the debtor in the home bankruptcy court would be illogical and would not serve the purposes underlying the automatic stay.” Id. at 643. In so finding, the court refused to distinguish between allowing certain proceedings in the home bankruptcy court to proceed while finding others violative of the stay, relying instead on the normal reasons for dismissing adversary proceedings to provide sufficient protection for debtors. The Ninth Circuit itself later clarified in In re Roxford Foods, Inc., 12 F. 3d 875, 878( 9th Cir. 1993) that“[ t ] he stay does not operate against the court with jurisdiction over the bankrupt.”
In Uni-Marts, a buyer of one of the debtor’ s stores brought an adversary proceeding for rescission. Refusing to dismiss the adversary proceeding because of an alleged violation of the stay, the Bankruptcy Court for the District of Delaware held that it“ agrees with the reasoning of the majority of courts addressing the issue that the filing of an adversary proceeding against a debtor in the home bankruptcy court is equivalent to the filing of a proof of claim in the Debtor’ s bankruptcy case and, therefore, does not violate the automatic stay.” Uni-Marts, 404 B. R. at 783. continued on page 26
19