Automatic stay

Automatic stay

In bankruptcy law, an automatic stay is an automatic injunction which halts actions by creditors, with certain exceptions, to collect debts from a debtor who has declared bankruptcy. Under section 362 of the United States Bankruptcy Code, usc|11|362, the stay begins at the moment the bankruptcy petition is filed. Secured creditors may, however, petition the bankruptcy court for relief from the automatic stay upon a showing of good cause (for example, if the creditor is undersecured).

Pursuant to the new provisions of BAPCPA, certain restrictions were added to section 362 as to the automatic stay. If the debtor had a case dismissed in a case pending during the year before the bankruptcy case was filed, the automatic stay will expire to a certain extent unless the debtor obtains an order extending it within one month. If the debtor had two cases pending in the year prior to filing, the automatic stay does not go into effect unless the debtor files a motion.

Automatic Stay Provisions

A bankruptcy petition, once it is filed, immediately operates as an automatic stay, which holds in abeyance various forms of creditor action against the debtor. Automatic stay provisions work to protect the debtor against certain actions from the creditor, including: (1) beginning or continuing judicial proceedings against the debtor, (2) actions to obtain debtor's property, (3) actions to create, perfect or enforce a lien against a debtor's property, and (4) set-off of indebtedness owed to the debtor before commencement of the bankruptcy proceeding.

A court may give a creditor relief from the stay if the creditor can show that the stay does not give the creditor "adequate protection" or if it jeopardizes the creditor's interest in certain property. The court may give relief to the creditor in the form of periodic cash payments or an additional or replacement lien on the property.

Concerns that debtors may exploit some of the advantages of automatic stay provisions, Congress provided some relief to certain creditors, such as those creditors who have a secured interest in a single real estate asset, from the automatic stay in 1994. Congress required such debtors to either file a plan that has a reasonable chance of being accepted within a reasonable amount time or they must be making monthly payments to each such secured creditor that are in the amount equal to interest at a current fair market rate on the value of the creditor's real estate.

Also in 2005, Congress added two additional exceptions to the automatic stay provisions. These exceptions concern landlords seeking to evict tenants. First, any eviction proceedings in which the landlord obtained a judgment of possession "prior" to the filing of the bankruptcy petition may be continued. Second, eviction proceedings filed after bankruptcy proceedings are exempt if it involves evicting the tenant on the basis of using illegal substances or "endangerment" of the property.


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