Getting permission to enforce against a debtor in bankruptcy.
Esshaki Legal Media TeamCurrent as of March 2022
The automatic stay halts enforcement on filing. A creditor seeking to proceed
must obtain relief.
Grounds. Cause, including lack of adequate protection of an interest in
property; or, for an act against property, that the debtor has no equity in the
property and it is not necessary to an effective reorganization.
Not necessary to an effective reorganization requires more than that the
property is important — the debtor must show a reasonable possibility of a
successful reorganization within a reasonable time.
Adequate protection may be provided by periodic payments, replacement liens
or other relief giving the indubitable equivalent. An equity cushion may itself
suffice.
Single asset real estate cases carry an accelerated timetable: relief is
granted unless the debtor files a plan with a reasonable possibility of
confirmation or commences monthly interest payments within a statutory period.
Procedure and timing. The stay terminates automatically if the court does
not rule within thirty days of the request unless it orders continuation after
notice and a hearing, which makes prompt scheduling important.
Stay violations. Acts taken in violation are void or voidable, and wilful
violations expose the creditor to damages and fees. A creditor uncertain whether
the stay applies should seek comfort rather than proceed.