DEFAULT

Bankruptcy automatic stay definition legal

bankruptcy automatic stay definition legal

A lawsuit arising in or related to a bankruptcy case that is commenced by filing a complaint with the court. A nonexclusive list of adversary proceedings is set forth in Fed. R. Bankr. P. assume. An agreement to continue performing duties under a contract or lease. automatic stay. Stay Law and Legal Definition. In the legal context, a stay is a court order preventing further action until a future event occurs, or the order is lifted. An automatic stay in bankruptcy proceedings immediately stops any lawsuit filed against the debtor and virtually all actions against their property by a creditor, collection agency or. One of the benefits of filing a consumer proposal or personal bankruptcy is something called a “Stay of Proceedings”.. This is a legal term, but what it means is that the people you owe are stopped (stayed) from continuing any legal actions against you.. How A Stay of Proceeding Works. A stay of proceedings is an automatic feature of filing a consumer proposal or bankruptcy. bankruptcy automatic stay definition legal

Related videos

What is the Automatic Stay in Your Personal Bankruptcy Case

For purposes of this publication, references to U. Creditors' committees can play a major role in chapter 11 cases. The committee is appointed by the U. Among other things, the committee: consults with the debtor in possession on administration of the case; investigates the debtor's conduct and operation of the business; and participates in formulating a plan. A creditors' committee may, with the court's approval, hire an attorney or other professionals to assist in the performance of the committee's duties.

A creditors' committee can be an important safeguard to the proper management of the business by the debtor in possession. In some smaller cases the U. The Bankruptcy Code addresses this issue by treating a "small business case" somewhat differently than a regular bankruptcy case.

A small business case is defined as a case with a "small business debtor. Determination of whether a debtor is a "small business debtor" requires application of a two-part test. Second, the debtor's case must be one in which the U. In a small business case, the debtor in possession must, among other things, attach the most recently prepared balance sheet, statement of operations, cash-flow statement and most recently filed tax return to the petition or provide a statement under oath explaining the absence of such documents and must attend court and the U.

The small business debtor must make ongoing filings with the court concerning its profitability and projected cash receipts and disbursements, and must report whether it is in compliance with the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure and whether it has paid its taxes and filed its tax returns. In contrast to other chapter 11 debtors, the small business debtor is subject to additional oversight by the U. Early in the case, the small business debtor must attend an "initial interview" with the U.

Because certain filing deadlines are different and extensions are more difficult to obtain, a case designated as a small business case normally proceeds more quickly than other chapter 11 cases. For example, only the debtor may file a plan during the first days of a small business case.

This "exclusivity period" may be extended by the court, but only to days, and only if the debtor demonstrates by a preponderance of the evidence that the court will confirm a plan within a reasonable period of time. When the case is not a small business case, however, the court may extend the exclusivity period "for cause" up to 18 months. Single asset real estate debtors are subject to special provisions of the Bankruptcy Code. The term "single asset real estate" is defined as "a single property or project, other than residential real property with fewer than four residential units, which generates substantially all of the gross income of a debtor who is not a family farmer and on which no substantial business is being conducted by a debtor other than the business of operating the real property and activities incidental.

The Bankruptcy Code provides circumstances under which creditors of a single asset real estate debtor may obtain relief from the automatic stay which are not available to creditors in ordinary bankruptcy cases. On request of a creditor with a claim secured by the single asset real estate and after notice and a hearing, the court will grant relief from the automatic stay to the creditor unless the debtor files a feasible plan of reorganization or begins making interest payments to the creditor within 90 days from the date of the filing of the case, or within 30 days of the court's determination that the case is a single asset real estate case.

The interest payments must be equal to the non-default contract interest rate on the value of the creditor's interest in the real estate. Although the appointment of a case trustee is a rarity in a chapter 11 case, a party in interest or the U.

The court, on motion by a party in interest or the U. Moreover, the U. The trustee is appointed by the U. Alternatively, a trustee in a case may be elected if a party in interest requests the election of a trustee within 30 days after the court orders the appointment of a trustee. In that instance, the U. The case trustee is responsible for management of the property of the estate, operation of the debtor's business, and, if appropriate, the filing of a plan of reorganization.

Section of the Bankruptcy Code requires the trustee to file a plan "as soon as practicable" or, alternatively, to file a report explaining why a plan will not be filed or to recommend that the case be converted to another chapter or dismissed. Upon the request of a party in interest or the U.

The appointment of an examiner in a chapter 11 case is rare. The role of an examiner is generally more limited than that of a trustee. The examiner is authorized to perform the investigatory functions of the trustee and is required to file a statement of any investigation conducted. If ordered to do so by the court, however, an examiner may carry out any other duties of a trustee that the court orders the debtor in possession not to perform.

Each court has the authority to determine the duties of an examiner in each particular case. In some cases, the examiner may file a plan of reorganization, negotiate or help the parties negotiate, or review the debtor's schedules to determine whether some of the claims are improperly categorized.

Sometimes, the examiner may be directed to determine if objections to any proofs of claim should be filed or whether causes of action have sufficient merit so that further legal action should be taken. The examiner may not subsequently serve as a trustee in the case. The automatic stay provides a period of time in which all judgments, collection activities, foreclosures, and repossessions of property are suspended and may not be pursued by the creditors on any debt or claim that arose before the filing of the bankruptcy petition.

As with cases under other chapters of the Bankruptcy Code, a stay of creditor actions against the chapter 11 debtor automatically goes into effect when the bankruptcy petition is filed. The filing of a petition, however, does not operate as a stay for certain types of actions listed under 11 U. The stay provides a breathing spell for the debtor, during which negotiations can take place to try to resolve the difficulties in the debtor's financial situation.

Under specific circumstances, the secured creditor can obtain an order from the court granting relief from the automatic stay. For example, when the debtor has no equity in the property and the property is not necessary for an effective reorganization, the secured creditor can seek an order of the court lifting the stay to permit the creditor to foreclose on the property, sell it, and apply the proceeds to the debt.

The Bankruptcy Code permits applications for fees to be made by certain professionals during the case. Thus, a trustee, a debtor's attorney, or any professional person appointed by the court may apply to the court at intervals of days for interim compensation and reimbursement payments.

In very large cases with extensive legal work, the court may permit more frequent applications. Although professional fees may be paid if authorized by the court, the debtor cannot make payments to professional creditors on prepetition obligations, i. The ordinary expenses of the ongoing business, however, continue to be paid. The debtor unless a "small business debtor" has a day period during which it has an exclusive right to file a plan. This exclusivity period may be extended or reduced by the court.

But in no event may the exclusivity period, including all extensions, be longer than 18 months. After the exclusivity period has expired, a creditor or the case trustee may file a competing plan. A chapter 11 case may continue for many years unless the court, the U. The creditors' right to file a competing plan provides incentive for the debtor to file a plan within the exclusivity period and acts as a check on excessive delay in the case.

The debtor in possession or the trustee, as the case may be, has what are called "avoiding" powers. These powers may be used to undo a transfer of money or property made during a certain period of time before the filing of the bankruptcy petition.

By avoiding a particular transfer of property, the debtor in possession can cancel the transaction and force the return or "disgorgement" of the payments or property, which then are available to pay all creditors.

Generally, and subject to various defenses, the power to avoid transfers is effective against transfers made by the debtor within 90 days before filing the petition. But transfers to "insiders" i. In addition, under 11 U. Avoiding powers prevent unfair prepetition payments to one creditor at the expense of all other creditors. Although the preparation, confirmation, and implementation of a plan of reorganization is at the heart of a chapter 11 case, other issues may arise that must be addressed by the debtor in possession.

The debtor in possession may use, sell, or lease property of the estate in the ordinary course of its business, without prior approval, unless the court orders otherwise. If the intended sale or use is outside the ordinary course of its business, the debtor must obtain permission from the court. A debtor in possession may not use "cash collateral" without the consent of the secured party or authorization by the court, which must first examine whether the interest of the secured party is adequately protected.

Section defines "cash collateral" as cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents, whenever acquired, in which the estate and an entity other than the estate have an interest. It includes the proceeds, products, offspring, rents, or profits of property and the fees, charges, accounts or payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties subject to a creditor's security interest.

When "cash collateral" is used spent , the secured creditors are entitled to receive additional protection under section of the Bankruptcy Code. The debtor in possession must file a motion requesting an order from the court authorizing the use of the cash collateral.

Pending consent of the secured creditor or court authorization for the debtor in possession's use of cash collateral, the debtor in possession must segregate and account for all cash collateral in its possession. A party with an interest in property being used by the debtor may request that the court prohibit or condition this use to the extent necessary to provide "adequate protection" to the creditor. Adequate protection may be required to protect the value of the creditor's interest in the property being used by the debtor in possession.

This is especially important when there is a decrease in value of the property. The debtor may make periodic or lump sum cash payments, or provide an additional or replacement lien that will result in the creditor's property interest being adequately protected. When a chapter 11 debtor needs operating capital, it may be able to obtain it from a lender by giving the lender a court-approved "superpriority" over other unsecured creditors or a lien on property of the estate.

Before confirmation of a plan, several activities may take place in a chapter 11 case. Continued operation of the debtor's business may lead to the filing of a number of contested motions. The most common are those seeking relief from the automatic stay, the use of cash collateral, or to obtain credit. There may also be litigation over executory i.

Delays in formulating, filing, and obtaining confirmation of a plan often prompt creditors to file motions for relief from stay, to convert the case to chapter 7, or to dismiss the case altogether. Frequently, the debtor in possession will institute a lawsuit, known as an adversary proceeding, to recover money or property for the estate. Adversary proceedings may take the form of lien avoidance actions, actions to avoid preferences, actions to avoid fraudulent transfers, or actions to avoid post-petition transfers.

At times, a creditors' committee may be authorized by the bankruptcy court to pursue these actions against insiders of the debtor if the plan provides for the committee to do so or if the debtor has refused a demand to do so. Creditors may also initiate adversary proceedings by filing complaints to determine the validity or priority of a lien, revoke an order confirming a plan, determine the dischargeability of a debt, obtain an injunction, or subordinate a claim of another creditor.

The Bankruptcy Code defines a claim as: 1 a right to payment; 2 or a right to an equitable remedy for a failure of performance if the breach gives rise to a right to payment. Generally, any creditor whose claim is not scheduled i. But filing a proof of claim is not necessary if the creditor's claim is scheduled but is not listed as disputed, contingent, or unliquidated by the debtor because the debtor's schedules are deemed to constitute evidence of the validity and amount of those claims.

If a scheduled creditor chooses to file a claim, a properly filed proof of claim supersedes any scheduling of that claim. It is the responsibility of the creditor to determine whether the claim is accurately listed on the debtor's schedules. The debtor must provide notification to those creditors whose names are added and whose claims are listed as a result of an amendment to the schedules.

The notification also should advise such creditors of their right to file proofs of claim and that their failure to do so may prevent them from voting upon the debtor's plan of reorganization or participating in any distribution under that plan. When a debtor amends the schedule of liabilities to add a creditor or change the status of any claims to disputed, contingent, or unliquidated, the debtor must provide notice of the amendment to any entity affected.

An equity security holder is a holder of an equity security of the debtor. Examples of an equity security are a share in a corporation, an interest of a limited partner in a limited partnership, or a right to purchase, sell, or subscribe to a share, security, or interest of a share in a corporation or an interest in a limited partnership. An equity security holder may vote on the plan of reorganization and may file a proof of interest, rather than a proof of claim.

A proof of interest is deemed filed for any interest that appears in the debtor's schedules, unless it is scheduled as disputed, contingent, or unliquidated. An equity security holder whose interest is not scheduled or is scheduled as disputed, contingent, or unliquidated must file a proof of interest in order to be treated as a creditor for purposes of voting on the plan and distribution under it. A properly filed proof of interest supersedes any scheduling of that interest. Generally, most of the provisions that apply to proofs of claim, as discussed above, are also applicable to proofs of interest.

A debtor in a case under chapter 11 has a one-time absolute right to convert the chapter 11 case to a case under chapter 7 unless: 1 the debtor is not a debtor in possession; 2 the case originally was commenced as an involuntary case under chapter 11; or 3 the case was converted to a case under chapter 11 other than at the debtor's request.

A debtor in a chapter 11 case does not have an absolute right to have the case dismissed upon request. A party in interest may file a motion to dismiss or convert a chapter 11 case to a chapter 7 case "for cause. Alternatively, the court may decide that appointment of a chapter 11 trustee or an examiner is in the best interests of creditors and the estate. Section b 4 of the Bankruptcy Code sets forth numerous examples of cause that would support dismissal or conversion.

For example, the moving party may establish cause by showing that there is substantial or continuing loss to the estate and the absence of a reasonable likelihood of rehabilitation; gross mismanagement of the estate; failure to maintain insurance that poses a risk to the estate or the public; or unauthorized use of cash collateral that is substantially harmful to a creditor.

Cause for dismissal or conversion also includes an unexcused failure to timely compliance with reporting and filing requirements; failure to attend the meeting of creditors or attend an examination without good cause; failure to timely provide information to the U. Additionally, failure to file a disclosure statement or to file and confirm a plan within the time fixed by the Bankruptcy Code or order of the court; inability to effectuate a plan; denial or revocation of confirmation; inability to consummate a confirmed plan represent "cause" for dismissal under the statute.

In an individual case, failure of the debtor to pay post-petition domestic support obligations constitutes "cause" for dismissal or conversion.

Section c of the Bankruptcy Code provides an important exception to the conversion process in a chapter 11 case. Under this provision, the court is prohibited from converting a case involving a farmer or charitable institution to a liquidation case under chapter 7 unless the debt or requests the conversion.

Generally, the debtor or any plan proponent must file and get court approval of a written disclosure statement before there can be a vote on the plan of reorganization. The disclosure statement must provide "adequate information" concerning the affairs of the debtor to enable the holder of a claim or interest to make an informed judgment about the plan. In a small business case, however, the court may determine that the plan itself contains adequate information and that a separate disclosure statement is unnecessary.

After the disclosure statement is filed, the court must hold a hearing to determine whether the disclosure statement should be approved. Acceptance or rejection of a plan usually cannot be solicited until the court has first approved the written disclosure statement.

An exception to this rule exists if the initial solicitation of the party occurred before the bankruptcy filing, as would be the case in so-called "prepackaged" bankruptcy plans i. Continued post-filing solicitation of such parties is not prohibited.

After the court approves the disclosure statement, the debtor or proponent of a plan can begin to solicit acceptances of the plan, and creditors may also solicit rejections of the plan.

Upon approval of a disclosure statement, the plan proponent must mail the following to the U. In addition, the debtor must mail to the creditors and equity security holders entitled to vote on the plan or plans: 1 notice of the time fixed for filing objections; 2 notice of the date and time for the hearing on confirmation of the plan; and 3 a ballot for accepting or rejecting the plan and, if appropriate, a designation for the creditors to identify their preference among competing plans.

As noted earlier, only the debtor may file a plan of reorganization during the first day period after the petition is filed or after entry of the order for relief, if an involuntary petition was filed. The court may grant extension of this exclusive period up to 18 months after the petition date. In addition, the debtor has days after the petition date or entry of the order for relief to obtain acceptances of its plan.

When an automatic stay is in place, a creditor may be penalized for willfully taking prohibited action toward the debtor. To prove to the court that a creditor has violated the automatic stay, a debtor must provide proof that the creditor was provided notice of the bankruptcy proceedings, and that the creditor took some collection action in spite of its knowledge that a bankruptcy petition had been filed.

Assuming the creditor was listed on the creditor mailing list provided to the court when the petition was filed, this proof may be provided in the form of collection notices from the creditor dated after the date of filing, or records of phone calls attempting collection received after the date of filing.

A creditor must be provided notice that a debtor has filed bankruptcy, and is therefore subject to an automatic stay. The debtor may provide written notice to creditors of his intent to file bankruptcy, a copy of the file-stamped bankruptcy petition, or other written notice of the bankruptcy proceedings. In the event a creditor does not receive notice of the bankruptcy, collection actions may continue, with the excuse that the creditor is not aware of the automatic stay.

For this reason, it is vital for debtors to keep records and proof that the creditor was given adequate notice. Unfortunately for debtors, there are ways of avoiding an automatic stay.

For example, Marge files bankruptcy one day before her house is scheduled to be sold at auction due to a foreclosure. She has no equity in the house and is unable to pay the past due amount due. In fact, Marge has no means to keep the house at all.

The mortgage holder may ask that the court lift the stay, as Marge will lose the house regardless of the bankruptcy proceedings.

2 thoughts on “Bankruptcy automatic stay definition legal

  1. I think, that you are not right. I am assured. I can defend the position. Write to me in PM.

Leave a Reply

Your email address will not be published. Required fields are marked *