11 U.S.C. § 362

In litigation over relief from the automatic stay, the debtor bears the burden of proving adequate protection, while the creditor seeking relief bears the burden on valuation issues.

First Trust Union Bank v. Automatic Voting MacHine Corp. (In Re Automatic Voting MacHine Corp.) · filed 1983-02-03

Although the debtor has the burden of proving it can adequately protect the objecting party, the objecting party clearly has the burden on valuation issues in stay litigation.

Section 362(g)(1) puts the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay.

In Re Developers of Caguas, Inc. · filed 1983-02-07(g)(1)

Because the party seeking relief from stay carries the burden of proof on the issue of the equity of the debtor in the property (11 U.S.C. § 362(g)(1)), if the matter remains in this Court, Chase must either sit idly by while the debt to it remains unpaid (as has been the case since 1977), or expend the monies to bring Puerto Rican experts, and perhaps Puerto Rican lawyers, familiar with Puerto Rican property to Brooklyn.

A party seeking relief from the automatic stay for cause must first establish a prima facie case; if the request turns on the debtor’s equity in property, the creditor bears the burden of proving that equity.

Clark Equipment Credit Corp. v. Kane (In Re Kane) · filed 1983-03-03(d)(1)

In summation, a party seeking relief under § 362(d)(1) must first establish a prima facie case for relief since relief can only be afforded “for cause.” Furthermore, when a party seeking relief under § 362(d)(1) predicates his claim on the debtor’s equity or lack of equity in an article of property, the creditor must bear the burden of proof on the issue of that equity due to § 362(g).

Section 362(g)(2) places the burden on the debtor to prove adequate protection when a creditor seeks relief from the automatic stay under § 362(d)(1).

Matter of Schaller · filed 1983-02-16(g)(2)

It is clear from 11 U.S.C. § 362(g)(2) that the burden of proving that Northwestern was “adequately protected” under § 362(d)(1) rested on the appellants. That burden was not met.

The party seeking relief from the automatic stay bears the burden of proving that the debtor lacks equity in the property.

United States ex rel. Internal Revenue Service v. LaSpada (In re LaSpada) · filed 1983-04-19(g)(2)

The burden of proof on the issue of the debtors’ equity in the properties, or lack thereof, must be borne by the party seeking relief from the stay. 11 U.S.C. § 362(g)(2). Because the I.R.S. has not met this burden, the Court must assume that the debtors do have equity in the properties subject to the levy.

Section 362(g)(2) places on the debtor the burden to prove a basis for denying relief from the automatic stay.

Harbour Bay Plaza Associates Ltd. v. Foxfire Inn of Stuart Florida (In Re Foxfire Inn of Stuart Florida) · filed 1983-05-25(g)(2)

The burden is on the debtor to prove that there is a basis to ... deny that relief. § 362(g)(2).

Under § 362(d)(1), once a creditor makes a prima facie case for relief from the automatic stay, the debtor must show that the creditor’s security interest is adequately protected.

Provident Mutual Life Insurance v. Winslow Center Associates (In Re Winslow Center Associates) · filed 1983-09-07(d)(1)

Once a creditor has established a prima facie case for relief under § 362(d)(1), the debtor must bear the burden of establishing that the creditor’s security interest is adequately protected if the debtor wishes to prevail in the action for relief from the automatic stay.

Once a creditor makes a prima facie case for relief from the automatic stay under § 362(d)(1), the debtor bears the burden of showing that the creditor’s security interest is adequately protected.

Continental Bank v. Bobroff (In Re Bobroff) · filed 1983-09-13(d)(1)

Once a creditor has established a prima facie case for relief from the stay under § 362(d)(1), the debtor must bear the burden of establishing that the creditor’s security interest is adequately protected if the debtor wishes to prevail in the action.

Section 362(g)(1) places the burden of proof on the creditor concerning the existence or lack of equity in the debtor’s property.

Aegean Fare, Inc. v. Massachusetts, Department of Revenue (In Re Aegean Fare, Inc.) · filed 1983-10-14(g)(1)

While the debtor has the burden of proof on the issue of adequate protection, the creditor has the burden on the issue of the existence of equity, or lack thereof, in the debtor’s property. 11 U.S.C. § 362(g)(1).

Section 362(g) places the burden on a creditor seeking relief from the automatic stay to show lack of equity, and on the debtor to show adequate protection once that burden is met.

Schick Oil & Gas, Inc. Ex Rel. Mahaffey v. Federal Deposit Insurance Corp. (In Re Schick Oil & Gas, Inc.) · filed 1983-12-09(g)

Further, in light of our decision here we also grant the counterclaim of FDIC for relief from the automatic stay. It has been stipulated that should the Court find the mortgage of FDIC valid that the debtor lacks equity. This burden having been met by the FDIC makes it incumbent upon the debtor to demonstrate and offer some form of adequate protection. See 11 U.S.C. § 362(g). Since no form of adequate protection has been offered it is appropriate that the automatic stay be lifted.

Section 362(g) places the burden of proving equity in the property on the party seeking stay relief and the burden on all other issues on the party opposing relief.

Equitable Life Assurance Society of the United States v. Tinsley & Groom (In Re Tinsley & Groom) · filed 1984-03-14(g)

A hearing was held relative to establishing the value of the property for purposes of determining whether there exists equity, the burden pursuant to 11 U.S.C. § 362(g) being upon the movant and the debtors bearing the burden of proof on all other issues presented.

Section 362(g)(2) places on the debtor the burden of proving that property is necessary to an effective reorganization when opposing relief from the automatic stay.

In Re Petersen · filed 1984-06-07(g)(2)

11 U.S.C. § 362(g)(2) place on Petersen the burden of proving the properties before the court were necessary for an effective reorganization. Petersen presented no evidence to support such a finding. As this burden of proof was not met, this court must assume that for purposes of 11 U.S.C. § 362(d)(2)(B), each property is not necessary to an effective reorganization.

Section 362(g) does not determine the burden of proving an alleged purchase agreement in a motion for relief from the automatic stay.

In Re Ewing · filed 1984-05-04(g)

Even assuming, arguendo, that attorney for the debtor is correct in contending that the burden of proof is determined by the provisions of 11 U.S.C. § 362(g) (a position with which we disagree), the burden remains with Ewing.

Section 362(g) places on the debtor the burden of proving that a creditor’s lien on a car is adequately protected in a stay relief proceeding.

In Re Hinckley · filed 1984-05-17(g)

Under 11 U.S.C. § 362(g), debtors bear the burden of proving that the holder of a lien on a car is adequately protected.

Section 362(g) places the burden of proving the debtor lacks equity in property on the party seeking relief from the automatic stay, while the debtor bears the burden on all other issues.

In Re Corey · filed 1984-11-15(g)

Pursuant to 11 U.S.C. § 362(g), Movants have the burden of proof with respect to the issue of Debtor’s equity in the property, while Debtor has the burden of proof on all other issues.

Section 362(g)(1) places the burden of proof on the party seeking relief from the automatic stay as to the debtor’s equity in the property.

Capistrano National Bank v. a & E Products, Ltd. (In Re a & E Products, Ltd.) · filed 1985-04-02(g)(1)

Since 11 U.S.C. § 362(g)(1) provides that the moving party had the burden of proof as to equity, the court could simply deny the motion for failure of the moving party to sustain its burden of proof on this issue.

Section 362(g) places the burden of proof on the party opposing relief from the automatic stay on all issues except the debtor’s equity in property.

Setzer v. Hot Productions, Inc. (In Re Setzer) · filed 1985-03-21(g)

The Bankruptcy Code expressly provides that the party opposing relief from the automatic stay, i.e. the debtor herein, has the burden of proof on all issues except on the issue of the debtor’s equity in property.

Section 362(g) places on a party opposing relief from the automatic stay the burden of proving defenses to the creditor’s lien.

Palo Verde Management & Financial Services Co. v. Nash (In re Nash) · filed 1985-05-14(g)

Regardless, as one opposing modification of stay, intervenor has failed to carry her burden of establishing the existence of fraud or any other viable defense which could be asserted against assignee Palo Verde. 11 U.S.C. § 362(g).

Section 362(d)(1) places the initial burden on the party seeking relief from the automatic stay to show cause; after that showing, the debtor must justify continuation of the stay.

Close v. UNR Industries, Inc. (In Re UNR Industries, Inc.) · filed 1985-09-13(d)(1)

The proponent of a request for relief from the section 362(a) automatic stay bears the initial burden to establish “cause” warranting entry of such relief. Once such initial showing has been made by the creditor, the burden lies with debtor to demonstrate its entitlement to the continuation of the stay.

A party seeking relief from the automatic stay must first establish cause; after that showing, the debtor bears the burden of justifying continuation of the stay.

Trident Steel Corp. v. UNR, Inc. (In Re UNR Industries, Inc.) · filed 1985-09-13(d)(1)

The proponent of a request for relief from the section 362(a) automatic stay bears the initial burden to establish “cause” warranting entry of such relief. Once such initial showing has been made by the creditor, the burden lies with the debtor to demonstrate its entitlement to the continuation of the stay.

Section 362(g) places the burden on the party opposing stay relief to disprove a movant’s alleged lack of adequate protection once the movant alleges it.

In Re Elsan Transmission Corp. · filed 1985-08-23(g)

Procedurally, a movant must allege lack of adequate protection or other cause for lifting the stay, and then the burden of proof (risk of non persuasion) shifts to the party opposing relief.

Section 362(g) places on the debtor the burden to prove when the secured creditor would realize on its collateral for purposes of timing adequate protection payments.

Paribas v. Landsea Marketing, Inc. (In Re Landsea Marketing, Inc.) · filed 1985-10-10(g)

Also, I’m not aware of anything in the record that would indicate how long the bank might be expected to hold the property before liquidating the collateral. Under 11 U.S.C. § 362(g), the debtor has the burden of proof on this issue.

Section 362(g) places the burden of proving adequate protection on the debtor in a hearing for relief from the automatic stay.

American Guaranty, Inc. v. Miller (In Re Miller) · filed 1985-12-05(g)

The moving party has the burden of proof on the issue of the debtor’s equity in the property while the debtor has the burden of proof on all other issues, including adequate protection.

Section 362(g)(1) places the burden of proof concerning the debtor’s equity in property on the party requesting relief from the automatic stay; relief is denied as to collateral for which that party submits no evidence.

In Re Southern Vermont Supply, Inc. · filed 1986-03-20(g)(1)

Because BWAC did not submit any evidence on this issue, and therefore did not satisfy the burden of 11 U.S.C. Section 362(g)(1), that part of its motion is DENIED.

Section 362(g) places the burden of proof on the party opposing relief from the automatic stay when the debtor’s equity in the property is not at issue.

Norwest Financial Leasing, Inc. v. Wright (In re Wright) · filed 1986-04-23(g)

However, the trustee has the burden of proof in this matter, there being no issue as to the debt- or’s equity in the property. 11 U.S.C. § 362(g). The court finds that the trustee, who barely attempted to controvert Nor-west’s evidence, has failed to meet the burden.

A party seeking relief from the automatic stay must first show cause under § 362(d)(1), even though § 362(g)(2) places the burden of proof on the party opposing relief.

In Re Stranahan Gear Company, Inc. · filed 1986-12-08(d)(1), (g)(2)

Because we believe that the Moving Party has an initial burden to establish cause for relief under § 362(d), irrespective of the presence of 11 U.S.C. § 362(g)(2), and that the Moving Party has failed to meet that initial burden here, we shall deny the Motion.

Section 362(g)(1) places the burden of proving the debtor lacks equity in collateral on the party seeking relief from the automatic stay.

Farmers & Merchants Bank v. Douglas Hereford Ranch, Inc. (In re Douglas Hereford Ranch, Inc.) · filed 1987-01-09(g)(1)

However, no evidence was presented by the Bank as to the Debtors’ lack of equity in the collateral. Accordingly, the Bank’s request for lifting of the automatic stay must fail. § 362(g)(1).

Section 362(g) places the burden of proving that the debtor has no equity in the property on the party seeking relief from the stay, and the burden on other issues on the party opposing relief.

In re Uffmann · filed 1987-02-04(g)

Bancorp has the burden of showing that Debtors have no equity in the Property, and Debtors have the burden of showing that Bancorp is adequately protected, and that the Property is necessary for an effective reorganization.

Section 362(g) places the burden of proving the debtor’s equity in the property on the party seeking stay relief and the burden of proving all other issues on the party opposing relief.

In Re Bryan · filed 1987-01-21(g)

Under Section 362(g), upon a hearing for relief from stay, the party requesting such relief, which is the Bank in this case, has the burden of proof on the issue of the Debtors’ equity in the property and the party opposing such relief, the Debtors here, has the burden of proof on all other issues. ... The Debtors have failed to sustain their burden of proof on any issue required of them under § 362(g), and therefore I am left with no recourse other than to terminate the automatic stay.

Section 362(g)(2) places the burden of proof on the party opposing relief from the automatic stay for every issue except equity in the property.

In re Neutgens · filed 1987-03-10(g)(2)

The Debtors’ attitude toward the Bank notwithstanding, it was incumbent upon the Debtors to satisfy the statutory requirements of Section 362(g)(2), which states the party opposing such relief from stay has the burden of proof on all issues except that of equity in the property.

A party seeking relief from the automatic stay under § 362(d) must first make a prima facie showing of entitlement to relief.

Sudler v. Chester Housing Authority (In Re Sudler) · filed 1987-03-30(d)

We have twice written to point out that the Moving Party in a Motion filed pursuant to 11 U.S.C. § 362(d) bears the initial burden of proving a prima facie case of entitlement to relief from the automatic stay before this relief can be granted.

Section 362(g) allocates the ultimate burden of proof, but a creditor seeking relief from the automatic stay must produce evidence establishing a prima facie case.

FSFG Service Corp. v. Ki Joong Kim (In Re Ki Joong Kim) · filed 1987-04-13(g)

Although section 362(g) allocates the ultimate burden of proof, it is silent as to the burden of producing evidence. A creditor seeking relief from the automatic stay has the burden of producing evidence to make a prima facie case that the creditor is entitled to relief from stay.

Section 362(g)(2) places the burden on the debtor to prove it can adequately protect a creditor’s interest when opposing relief from the automatic stay.

Matter of Lockspur, Inc. · filed 1987-04-09(g)(2)

The Debtor bears the burden of proof on the issue of whether it can provide adequate protection to ARC.

Section 362(g) places the burden of proving the debtor has no equity in property on the party seeking relief from the automatic stay.

In Re Gull Air, Inc. · filed 1987-05-18(g)

Subsection (g) of section 362 allocates the burden of proof on the issues raised by subsection (d). The party requesting the relief from stay has the burden of proof on the issue of the debtor’s equity in property, whereas the opposing party has the burden of proof on all other issues.

In a hearing for relief from the automatic stay, the burden of tracing collateral may be placed on the trustee when the debtor’s breach of cash collateral duties prevents tracing.

Freightliner Market Development Corp. v. Silver Wheel Freightlines · filed 1987-07-29(g)

11 U.S.C. Sec. 362(g) provides: ... (2) The party opposing such relief has the burden of proof on all other issues. ... Second, we find that notions of equity and fairness support the bankruptcy court's shift of the burden of proof on the issue of tracing to the Trustee. ... This is especially true where, as here, the Trustee's predecessor, the debtor's, breach of duty has created the confusion preventing proof of the issue.

Section 362(g) places the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay and the burden on other issues on the opposing party.

In Re Evans · filed 1987-09-30(g)

Under § 362(g) of the Code, the party requesting relief from the automatic stay provision has the burden of proof of the debtor’s equity in the property, and the opponent has the burden of proof on all other issues.

A party seeking relief from the automatic stay bears the burden of proving that the debtor has no equity in the property.

McLean Thomas, Inc. v. FLR Co. (In re FLR Co.) · filed 1987-11-03(g)(1)

This implicit recognition is comparable to a finding that McLean failed to satisfy its burden of proof in demonstrating that FLR has no equity in the Bethlehem funds.

Section 362(g) places the burden of proving issues other than the debtor’s equity on the party opposing relief from the automatic stay; if that party fails to meet its burden after the movant makes a prima facie showing, the stay should be lifted.

Overhead Door Corp. v. Allstar Building Products · filed 1987-12-01(g)

Where a party who opposes the lifting of the automatic stay imposed by Sec. 362(a) fails to meet its burden as allocated by Sec. 362(g), the stay should be lifted. The party opposing the motion cannot merely rest once the party seeking to have the stay lifted makes a prima facie showing he is entitled to relief.

Under § 362(g)(2), the party opposing relief from the automatic stay bears the burden of proof on issues other than the debtor’s equity in property.

In re Propps · filed 1987-12-03(g)(2)

The trustee, who opposes the motion for relief from the stay, has not met his burden of proof. § 362(g)(2).

Section 362(g) places the burden of proving the debtor lacks equity in the property on the party seeking stay relief and the burden on all other issues on the party opposing relief.

Dallas v. S.A.G., Inc., D/B/A the Toy Store, in Re S.A.G., Inc., D/B/A the Toy Store, William N. Owen v. Rufus · filed 1988-02-02(g)

Under 11 U.S.C. § 362(g), the moving party need only prove that the debtor lacks equity in the property in which the movant claims a perfected security interest. The party opposing the relief has the burden of proof on all other issues. Thus, if the trustee wishes to assert that the requirements of section 10-2A-160 were not met, it has the burden of proving its assertion.

Section 362(g) places the burden of proving the debtor’s equity in collateral on the party seeking relief from the automatic stay and the burden on all other issues on the opponent.

Halliburton Co. v. William A. Smith Construction Co. (In Re William A. Smith Construction Co.) · filed 1988-04-29(g)

Under § 362(g) of the Code, the party requesting relief from the automatic stay provision has the burden of proof of the debtor’s equity in the property, and the opponent has the burden of proof on all other issues.

Section 362(d) requires a party seeking relief from the automatic stay to meet an initial burden of producing evidence.

In re Reading Tube Corp. · filed 1988-10-18(d)

Accordingly, consistent with our decision to deny movant’s abstention motion, we deny movant's § 362(d) motion, finding that movant failed to meet his initial burden of evidence production.

Section 362(d)(1) requires a party seeking relief from the automatic stay to produce some evidence that the balance of hardships favors relief.

In Re Causa · filed 1988-12-06(d)(1)

Rather, in order to be entitled to relief from the automatic stay under 11 U.S.C. § 362(d)(1), the moving party has the initial burden of evidence production to establish a prima facie case for relief. To meet this burden, the moving party must introduce some evidence to establish that the “balance of hardships” tips in his favor.

Section 362(g)(1) requires a secured creditor seeking relief from the automatic stay to make an initial showing that it has a valid, perfected security interest in the collateral.

Merchants Bank v. Reddington/Sunstar Ltd. Partnership (In Re Reddington/Sunstar Ltd. Partnership) · filed 1988-12-27(g)(1)

A creditor with a secured claim, requesting to foreclose on its collateral in a motion to vacate the stay, does have an initial burden of going forward to indicate it has a valid, perfected security interest on certain property. 11 U.S.C. § 362(g)(1). The Bankruptcy Court must analyze the applicable State law to determine initially the validity of such a perfected security interest.

Section 362(g)(1) places the burden of proving lack of equity in collateral on the party seeking relief from the automatic stay.

John Fabick Tractor Co. v. Maun (In Re Maun) · filed 1989-01-20(g)(1)

Fabick has failed to meet its burden of proof that debtor lacks equity in the collateral.

In a motion for relief from the automatic stay, the movant bears the burden of proving the validity of its claimed interest in unearned insurance premiums.

In Re Expressco, Inc. · filed 1989-05-17(g)(2)

The movant has the burden to prove the validity of its interest in the unearned premiums. 11 U.S.C. § 362(g)(2) (1982). It has failed to meet that burden. The motion is therefore denied, but without prejudice.

Section 362(g)(1) places the burden of proving the debtor’s equity in property on the party requesting relief from the automatic stay.

In Re Masters · filed 1989-07-21(g)(1)

A party requesting relief from stay has the burden of proof on the issue of the debtor’s equity in the property. 11 U.S.C. section 362(g)(1).

Section 362(g)(1) places the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay, which must offer competent evidence of the property’s value and the claims against it.

In Re Applin · filed 1989-11-21(g)(1)

The party moving for relief from the automatic stay on a theory of lack of equity in the property must make out a prima facie case by way of competent evidence as to the essential elements required for relief, including the value of the property and the claims against it. The Bankruptcy Code spells out the moving party’s burden: “the party requesting such relief has the burden of proof on the issue of the debtor’s equity in property.” 11 U.S.C. § 362(g)(1).

In a motion for relief from the automatic stay, the movant bears the burden on the debtor’s equity and must first produce evidence supporting relief; the party opposing relief bears the burden on other issues.

In Re Shapiro · filed 1990-01-04(g)

The Code, at 11 U.S.C. § 362(g), assigns the burden of proof to the movant “on the issue of the debtor’s equity in property” and to the party opposing relief “on all other issues.” While these Code provisions seem to cast most of the burdens upon the instant Debtor and his advocates, it cannot be forgotten that the initial burden of producing evidence to support a cause of action pursuant to § 362(d) falls upon the movant.

Once the creditor establishes that the debtor has no equity in the property, the debtor must show that the property is necessary to an effective reorganization to avoid relief from the automatic stay under § 362(d)(2).

Sutton v. Bank One, Texas, National Ass'n (In re Sutton) · filed 1990-07-03(d)(2)

Once Bank One established that Sutton retained no equity in his properties it became incumbent upon Sutton to demonstrate that the properties were necessary to an effective reorganization.

Under § 362(d)(2), the creditor must show that the debtor lacks equity in the property; the debtor must then show that the property is necessary for an effective reorganization.

In Re Northgate Terrace Apartments, Ltd. · filed 1991-01-30(d)(2)

To obtain relief from the automatic stay under § 362(d)(2), Goldome must show that Northgate lacks equity in the Property. The Debtor must then show that the Property is necessary for an effective reorganization.

Section 362(g)(1) places the burden of proving that the debtor has no equity in property on the party seeking relief from the automatic stay.

In Re Gee · filed 1991-03-01(g)(1)

In order to put an end to arguments about at most a few hundred dollars, and bearing in mind Riverwest’s burden to show that there is no equity, 11 U.S.C. § 362(g)(1), the Court charges Riverwest to apply the proceeds of the annuity payment due October 1, 1990, to the extent necessary to satisfy the balance due on its claim, up to and including the total annuity payment of $5,555.56; to account to the Trustee therefor; to remit to the Trustee any part of said sum of $5,555.56 which is not applied to satisfaction of the balance due on Riverwest’s claim; and, if any part of Riverwest’s actual debt is still unsatisfied after application of the entire $5,555.56, Riverwest may make a general unsecured claim therefor, but shall have no direct interest in or encumbrance on any portion of any future annuity payments due after October 1, 1990.

On a motion for relief from the automatic stay, the moving party bears the burden of proving the debtor lacks equity in the property, while the opposing party bears the burden on adequate protection and other issues.

Quadrel Leasing De Puerto Rico, Inc. v. Carlos A. Rivera, Inc. (In Re Carlos A. Rivera, Inc.) · filed 1991-08-21(g)

Quadrel, as the party requesting relief from the automatic stay, has met its burden of proof as to debtor’s lack of equity in the attached property, while debtor has submitted nothing more than allegations as to adequate protection of Quadrel’s interest or its equity in the attached property.

Under § 362(g), the party opposing relief from the automatic stay bears the burden of proving adequate protection by a preponderance of the evidence; the debtor’s equity in the property is excepted.

Dent v. Associates Equity Services Co. (In Re Dent) · filed 1991-08-28(g)

Under § 362(g) the party opposing relief, the debtor in this case, bears the burden of proof on all issues, including adequate protection, other than debtor’s equity in property in a hearing under either § 362(d)(1) or (2). In this case, the debtor has met her burden of proof by a preponderance of the evidence establishing that the interest of Associates is presently adequately protected under the proposed plan.

Section 362(g) places the burden on the creditor seeking relief from the automatic stay to prove the debtor’s equity in the property.

In Re Willingham · filed 1991-11-05(g)

If the creditor requests the relief, the creditor “has the burden of proof on the issue of the debtor’s equity in the property.” 11 U.S.C. § 362(g). This proceeding is one under Chapter 7, thus there will be no reorganization. Miles has provided the Court with a worksheet which the Court requires all creditors to complete when filing for Relief from Stay. Based upon that worksheet, the Court is unable to determine whether the Debtors’ have any equity in the property. Therefore, an evidentiary hearing must be held on that issue.

Section 362(g)(1) places the burden of proving the debtor lacks equity in property on the party seeking relief from the automatic stay.

In Re Atlantic Computer Systems Inc. · filed 1992-01-13(g)(1)

Consequently, IBM did not make a concerted effort to prove that the Debtor does not have any equity in the Equipment as was its burden under 11 U.S.C. § 362 of the Bankruptcy Code.

A creditor seeking relief from the automatic stay must prove that the property has no equity, including that the creditor has a valid security interest in it.

In Re McGuinness · filed 1992-03-31(g)(1)

Citibank has the burden of proving that there is no equity in the property. 11 U.S.C. § 362(g)(1). As part of that burden, Citibank must prove that it has a valid security interest in the property.

Section 362(g) shifts the burden of going forward to the debtor after a creditor makes a prima facie showing of cause for relief from the automatic stay.

Matter of Laguna Associates Ltd. Partnership · filed 1992-08-12(g)

Thus, Aetna is correct in its assertion that if a creditor seeking relief from the stay has made a prima facie case of "cause" for lifting the stay, the burden of going forward shifts to the debtor pursuant to § 362(g).

After a creditor makes an initial showing of cause to lift the automatic stay, § 362(g) places the burden of proof on the debtor for all issues except the debtor’s equity in property.

In re Laguna Associates Ltd. · filed 1992-08-12(g)

Section 362(d)(1) in effect requires an initial showing of cause by the movant, and Section 362(g) places the burden of proof on the debtor for all issues other than “the debtor’s equity in property.”

Section 362(g)(2) places the ultimate burden of proving adequate protection on the debtor, after the creditor offers some evidence that its interest is not adequately protected.

General Motors Acceptance Corp. v. Johnson (In Re Johnson) · filed 1992-09-09(g)(2)

Where adequate protection is at issue the ultimate burden of proof lies with the debtor. 11 U.S.C. §§ 362(g)(2), 363(o)(l). Initially, however, the creditor must go forward with some evidence that its interest is not adequately protected.

Section 362(g)(2) places on the debtor the burden of proving adequate protection when a creditor seeks relief from the automatic stay.

In re Bonner Mall Partnership · filed 1992-10-08(g)(2)

The debtor has the burden of proof in showing the existence of adequate protection. 11 U.S.C. § 362(g)(2). The debtor has satisfied this burden as far as the expense issue is concerned.

Once a creditor seeking relief from the automatic stay establishes a prima facie case, the debtor bears the burden of proving adequate protection.

Minn-Kota Farm Agency, Inc. v. Home Federal Savings and Loan Association · filed 1992-11-11(g)

If the creditor establishes a prima facie case, the burden shifts to the debtor to prove adequate protection.

Section 362(g)(2) places the burden on the debtor to show that a mortgagee’s secured interest is adequately protected after evidence of postpetition payment delinquency.

In Re Antell · filed 1992-11-23(g)(2)

Evidence of a postpetition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected. ... That is, the burden then shifts to the debtor, by virtue of section 362(g)(2), to demonstrate that the secured interest of Jefferson Bank is adequately protected.

Section 362(g)(2) places the burden on a debtor opposing relief from the automatic stay to show that cause to modify the stay is absent, including by proving adequate protection of the creditor’s interest.

In Re Peters Millworks, Inc. · filed 1993-02-03(g)(2)

The insurance policy covers liability for injury to person or property but it fails to provide for the full replacement value of the leased machinery pursuant to the terms of paragraph ten (10) of the agreements. Consequently, Debtor has failed to sustain its burden of proof as required by 11 U.S.C. § 362(g)(2).

Section 362(g) places on the debtor the burden of proving that its bankruptcy filing was made in good faith when the automatic stay is challenged.

In Re Washtenaw/Huron Investment Corp. No. 8 · filed 1993-04-12(g)

Under section 362(g) of the Bankruptcy Code, the debtor bears the burden of proving that the bankruptcy filing was made in good faith.

When the debtor’s equity in property is not at issue in a hearing for relief from the automatic stay, the party opposing relief bears the burden of proof on other issues.

Swim Industries Corp. v. Morris (In Re Morris) · filed 1993-04-27(g)(2)

Swim was the party opposing relief in an 11 U.S.C. § 362(d) hearing. There was no question as to the “debtor’s equity in property.” Swim bore the burden of showing why relief shouldn’t have been granted to Morris.

Section 362(g) places the ultimate burden of proof on the debtor after an applicant makes an initial showing of cause to lift the automatic stay.

Hudson Valley Cablevision Corp. v. Route 202 Developers, Inc. · filed 1994-07-20(g)

As likewise indicated in Sonnax, the ultimate burden of proof once an initial showing has been made by the applicant for lifting of the automatic stay, rests on the debtor under 11 U.S.C. § 362(g). The debtor has failed to provide any reason either to the Bankruptcy Court or on this appeal why the stay should continue in effect, and has not met its burden.

Under § 362(d)(2), the party seeking stay relief bears the burden of proving lack of equity, while the debtor bears the burden of showing that the property is necessary for an effective reorganization.

In Re Petit · filed 1995-01-19(d)(2)

The Movant has the burden of establishing lack of equity in the subject property, 11 U.S.C. § 362(d)(2), while the Debtor has the burden to show that the property is necessary for an effective reorganization.

Section 362(h) places on the movant the burden to prove a stay violation, willfulness, resulting harm and damages, and the relief sought.

In Re Dunn · filed 1996-02-13(h)

The movants, the debtors herein, have the burden of proof with regard to showing that there was a violation of the automatic stay, that the violation was willful, that the willful violation caused the movants to suffer harm and incur damages, and then to show what relief is appropriate.

Section 362(g) places the burden of proving the debtor’s lack of equity on the creditor seeking relief from the stay, while the debtor bears the burden on other issues, including adequate protection and the property’s necessity for an effective reorganization.

Borokini Investment Corp. v. Punlabs Quality Products, Ltd. (In re Punlabs Quality Products, Ltd.) · filed 1996-08-14(g)

When a creditor seeks relief from stay in order to foreclose on property, the creditor has the burden of establishing the Debt- or’s lack of equity in the property. The Debtor has the burden of proof on all other issues, including adequate protection, and a necessity of property for an effective reorganization. Absent this evidence, the stay is lifted.

In a motion for relief from the automatic stay, § 362(g) applies a preponderance-of-the-evidence standard rather than a higher state-law standard of proof.

In Re Gant · filed 1996-10-07(g)

Under § 362(g), the standard of proof is a preponderance of the evidence. The federal standards and burdens of proof apply to this stay lift motion. Consequently, the Court will not impose the higher Illinois standard of proof in this contested matter.

Section 362(d)(2)(B) does not extend the lighter sliding scale burden used for debtor plans during the exclusive filing period to a creditor’s proposed plan after that period expires.

American Network Leasing, Inc. v. APEX Pharmaceuticals, Inc. (In Re APEX Pharmaceuticals, Inc.) · filed 1996-12-13(d)(2)(B)

Accordingly, this court does not believe that ANL was entitled to have its plan examined under the “sliding scale” approach which is applied to debtors’ plans during their exclusive filing period.

Under § 362(d)(2) and (g), a party seeking relief from the stay must prove the debtor has no equity in the property, and failure to present evidence of no equity defeats the request.

In Re Simpson · filed 1997-03-06(d)(2), (g)

In order to obtain relief from the stay, Aspect must show that the Debtor does not have any equity in the property and the property is not necessary for an effective reorganization. 11 U.S.C. § 362(d)(2). Section 362(g) provides that the party requesting relief from the stay has the burden of proof on the issue of the debtor’s equity. In this ease, Aspect did not present any evidence that the Debtor has no equity in the property. As a result, Aspect cannot meet the requirements of § 362(d)(2).

A party seeking relief from the automatic stay on the ground that the debtor lacks equity bears the burden of proving the property’s present value when the motion is heard.

Compass Bank for Savings v. Bellingham (In Re Graves) · filed 1997-09-30(g)(1)

As explained above, the Bank had the burden of establishing the lack of equity in the Debtors’ property. We find no error in the bankruptcy court’s conclusion that the Bank did not sustain this burden given the complete lack of sworn testimony by a qualified appraiser as to the present value of the property. The value of property at the time a motion for relief is heard is the issue facing a bankruptcy court in a motion for relief, not the value of the property two years earlier.

A party seeking relief from the automatic stay for cause must first show cause; only then does the burden shift to the debtor, and without that showing the court should deny relief.

Mazzeo v. Lenhart (In re Mazzeo) · filed 1999-02-10(d)(1)

The burden is on the moving party to make an initial showing of “cause” for relief from the stay. ... Only if the movant makes such a showing does any burden shift to the debtor; absent a showing of cause, the court should simply deny relief from the stay.

A party seeking relief from the automatic stay must first show cause; the burden shifts to the debtor only after that showing, and relief should be denied if cause is not shown.

In Re Salvatore J. Mazzeo, Debtor. Salvatore J. Mazzeo v. Peter J. Lenhart and the Estate of Paul Lenhart · filed 1999-02-10(d)(1)

The burden is on the moving party to make an initial showing of "cause" for relief from the stay. ... Only if the movant makes such a showing does any burden shift to the debtor; absent a showing of cause, the court should simply deny relief from the stay.

A party seeking relief from the automatic stay under § 362(d)(1) must initially show cause; the debtor bears the burden on issues other than equity in property.

In Re Telegroup, Inc. · filed 1999-08-11(d)(1)

Initially, on a motion to lift or modify the automatic stay, the burden of proof is a shifting one. That is, section 362(d)(1) requires an initial showing of “cause” by the movant, while section 362(g) places the burden of proof on the debtor for all issues other than “the debtor’s equity in property.”

Section 362(g) places on debtors opposing relief from the automatic stay the burden of proving that their residence is not a fixture on the mortgaged property.

In Re Claxton · filed 1999-09-27(g)

Under § 362(g), Debtors have the burden of proof to establish that the Residence does not constitute a fixture upon the Subject Property.

Section 362(g) places on a debtor opposing relief from the automatic stay the burden of showing why the requested relief should be denied.

Slipped Disc Inc. v. CD Warehouse Inc. (In Re Slipped Disc Inc.) · filed 2000-02-14(g)

Because Debtor opposes lifting the automatic stay in order for arbitration to proceed, it bears the burden of showing why arbitration should not be granted.

Section 362(g) puts the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay and the burden on all other issues on the party opposing relief.

In Re Mr. R's Prepared Foods, Inc.. · filed 2000-07-11(g)

The movants have the burden of proof on the issue of the debtor’s equity in the property and the objectors have the burden of proof on all other issues. 11 U.S.C. § 362(g).

A movant seeking relief from the automatic stay bears the initial burden to show no equity in the property and must be allowed to show that the property is not an administratable asset.

Schwab v. Oster (In Re Oster) · filed 2000-11-09(g)(1)

In order to prevail on a motion for relief from the automatic stay, it is the burden of the movant to first establish that there is no equity in the property at issue. 11 U.S.C. § 362(g)(1). To establish that the debtors have no equity, the movant should be given an opportunity to establish that the property at issue is not an admin-istratable asset.

A secured creditor seeking relief from the automatic stay for lack of adequate protection must first show actual or threatened erosion of its secured position attributable to the stay before the debtor must prove adequate protection.

In Re Anthem Communities/RBG, LLC · filed 2001-09-28(d)(1)

Thus, disposition of this matter hinges on whether the Bank satisfied its initial burden under Section 362(d)(1). This burden required the Bank to demonstrate an erosion or threatened erosion of its secured position in order to shift the burden to the Debtor. ... It did not, however, show how these factors have caused or will cause an erosion of its secured position that is attributable to the automatic stay.

Section 362(g) places the burden of persuasion on the party opposing relief from the automatic stay on all issues except equity.

Circle B Enterprises, Inc. v. Williams (In Re Williams) · filed 2003-12-08(g)

As an initial matter, the party opposing a motion for relief from the stay bears the burden of persuasion on all issues except as to equity.

Under Section 362(g), the movant must first make a prima facie showing of entitlement to stay relief, after which the opposing party bears the burden of persuasion on all issues except equity.

Columbus Bank & Trust Co. v. Caves (In Re Caves) · filed 2004-04-22(g)

As the Court stated in ... the party opposing a motion for relief from the automatic stay bears the burden of persuasion on all issues except as to equity. ... However, implicit in this statement is that Movant must first make a prima facia showing that it is entitled to the relief requested.

A creditor seeking relief from the automatic stay fails to meet its burden under section 362(g) when it presents no evidence supporting relief as to the obligations identified in its motion.

In Re Grammer · filed 2004-06-03(g)

At the hearing on March 30, 2004, DeWitt Bank did not present any evidence in support of its motion for relief from stay with regard to the three notes referenced above. In fact, the parties limited their argument to the one proof of claim that was not referenced in DeWitt Bank’s motion for relief from stay. Accordingly, the Court must deny DeWitt Bank’s motion for relief from stay as pled for failure to meet its burden of proof under 11 U.S.C. § 362(g).

A party seeking relief from the automatic stay for cause must first establish a prima facie factual and legal entitlement to relief, despite section 362(g)'s allocation of the ultimate burden of proof.

In Re RNI Wind Down Corp. · filed 2006-08-23(d)(1), (g)

Nonetheless, the moving party first must establish its prima facie case. ... Failure to prove a prima facie case requires denial of the requested relief. ... Mr. Grimes failed to make a prima facie case by not establishing a factual and legal right to the relief he requests in the Stay Relief Motion and, thus, the motion is denied without prejudice.

Section 362(g) places the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay.

In Re Lemieux · filed 2006-08-16(g)

Pursuant to 11 U.S.C. § 362(g), Davis-Mullen has the burden of proof on the Debtors’ equity in their Walpole property.

On a motion for relief from the automatic stay, the debtor bears the burden of proof on all issues except the debtor’s equity in the property.

In Re Gatlin · filed 2006-12-07(g)

The debtor bears the burden of proof on all issues involving the relief from the stay, except for issues dealing with the debtor’s equity in the property. 11 U.S.C. § 362(g)(2000).

Section 362(g) places the burden of proving lack of equity on the creditor seeking stay relief and the burden on all other issues on the party opposing relief.

In Re Curtis · filed 2007-03-08(g)

Therefore, the banks have the burden of proof to establish a lack of equity and the Trustee has the burden of proof as to all other issues.

Under § 362(g), a debtor opposing relief from the automatic stay bears the burden on issues other than equity and cannot obtain reversal for its own failure to present evidence at the agreed hearing.

In Re Target Graphics, Inc. · filed 2007-06-04(g)

However, Target had the burden of proving relief from the stay was not warranted and it admits to agreeing the hearing on the motion for relief would be conducted at the confirmation hearing (Court File No. 6). Accordingly, Target’s failure to meet its burden of proof is not grounds for reversal on appeal. As Target presented no evidence concerning this issue, the Bankruptcy Court clearly did not abuse its discretion in finding Target failed to raise a “serious question going to the merits” of its appeal concerning this issue.

Section 362 requires a creditor seeking relief from the stay to make a prima facie showing of a valid, perfected lien, after which the debtor bears the burden of showing that the lien is unperfected or invalid.

Mitchell v. Fort Davis State Bank · filed 2007-08-30(d)(1), (d)(2), (g)

To be entitled to rehef, the Bank was required to make a prima facie showing that it held a vahd and perfected hen. Since the burden was placed upon the Bank to establish its perfection and validity in the hen, the Mitchells had the burden to demonstrate that the Bank’s hen was unperfeeted or invalid.

A creditor seeking relief from the automatic stay under Section 362(d)(1) or (2) must make a prima facie showing of a valid, perfected lien, after which the debtor bears the burden of demonstrating that the lien is unperfected or invalid.

Jonathan D. Mitchell and Terry L. Mitchell v. Fort Davis State Bank · filed 2007-08-30(d)(1), (d)(2), (g)

To be entitled to relief, the Bank was required to make a prima facie showing that it held a valid and perfected lien. Since the burden was placed upon the Bank to establish its perfection and validity in the lien, the Mitchells had the burden to demonstrate that the Bank's lien was unperfected or invalid.

A party seeking relief from the automatic stay must first establish a prima facie case of cause under Section 362(d)(1), after which the burden shifts to the debtor to show that relief is unwarranted.

Adelson v. Smith (In Re Smith) · filed 2008-06-24(d)(1), (g)(2)

To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that “cause” exists for relief under § 362(d)(1). ... Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. ... As to the motion to lift the stay, Adelson has not met his burden of showing cause; the same infirmity dooms his motion to stay the adversary proceeding.

A movant seeking stay relief based on a security interest must first make a prima facie showing that the security interest is valid.

First National Bank v. Alba (In Re Alba) · filed 2008-12-11(g)

In a motion for relief from stay, the moving party has the burden of proving the debtor’s equity in the property at issue. The party opposing the relief from stay has the burden of proof on all other issues. 11 U.S.C. § 362(g). First, however, the moving party has the burden of production and must establish a prima facie case for the sought relief. ... Here, the prima facie case to be established by Movant is the existence of a valid security interest in Debtors’ personal property.

A movant seeking relief from the automatic stay for cause must first demonstrate an appropriate basis for relief, after which the debtor bears the ultimate burden of proving a lack of cause.

Unnamed Citizens a Thru E v. White (In Re White) · filed 2008-12-15(d)(1), (g)

This Court finds those authorities persuasive of the proposition that the Unnamed Citizens have the initial burden of demonstrating an appropriate basis for relief. Once that has been accomplished, however, the ultimate burden of proof rests upon the Debtor to show a lack of cause to grant the Amended Motion for Relief.

A debtor seeking to enforce the automatic stay against a property seizure must prove that the seized property belonged to the bankruptcy estate.

In Re Grady · filed 2009-09-29(a)

It is the Debtor’s burden to present facts and evidence to prove that the property taken was property of the Debtor’s bankruptcy estate.

A debtor claiming a willful violation of the automatic stay bears the burden of proving both the violation and willfulness.

Patina, Inc. v. Banks (In Re Banks) · filed 2009-12-17(a)

The Debtor has the burden of proof to establish Plaintiff violated the automatic stay of 11 U.S.C. Section 362(a) and its violation was willful.

Section 362(g)(1) places the burden of proving the debtor lacks equity in property on the party seeking relief from the automatic stay.

AgSouth Farm Credit ACA v. Del-A-Rae, Inc. v. (In Re Del-A-Rae, Inc.) · filed 2010-03-08(g)(1)

However, under 11 U.S.C. § 362(g) the movant bears the burden of proof on the issue of the debtor’s equity in the property. Because there was not such a preponderance of the evidence available to the Court as would permit me to make any final conclusion of lack of equity, AgSouth has failed to carry its burden.

Section 362(g) places the burden of proof on the party opposing relief from the automatic stay for all issues except the debtor’s equity in the property.

In Re Hatfield 7 Dairy, Inc. · filed 2010-03-09(g)

As the party opposing the request for relief from stay, BSB has the burden of proof on all issues other than the issue of the Debtor’s equity in the Silage.

Section 362(g)(2) places the burden on the debtor to show that relief from the automatic stay is unwarranted after the movant establishes a prima facie case.

In Re Dessources · filed 2010-06-01(g)(2)

Once the Movant has established its prima facie case, it is Debtor’s burden to demonstrate that Mov-ant is not entitled to relief.

Under § 362(d)(2), once lack of equity is conceded, the debtor opposing stay relief bears the burden of showing that the property is necessary for an effective reorganization.

In Re Village Green I, GP · filed 2010-07-30(d)(2)

Fannie Mae has requested that the Court lift the stay pursuant to 11 U.S.C. § 362(d)(2) because the Debtor has no equity in the property and such property is not necessary to an effective organization. Because the parties here have conceded that there is no equity in the property, the burden has shifted to the Debtor to show that the collateral is necessary for an effective reorganization.

Section 362(g)(1) places the burden of proving a lack of equity in property on the party seeking relief from the automatic stay.

In re Stanley · filed 2012-10-12(g)(1)

It was BONY’s burden to establish a lack of equity. 11 U.S.C. § 362(g)(1). To satisfy this burden, BONY relied on Stanley’s bankruptcy schedules for evidence of the Property’s value, thereby meeting its burden of going forward with some evidence. Given Stanley’s lack of response on this issue, the court accepts BONY's contention of a lack of equity; that is, it finds that BONY has met its burden of persuasion on this point.

Section 362(g)(2) places the burden of proving a lack of cause for stay relief on the party opposing relief, including when that rule applies to a chapter 9 stay through § 922(b).

In re City of Stockton · filed 2012-12-18(g)(2)

Since the issue in § 922(a) stay relief is § 362(d)(1) “cause,” the burden of proof is allocated by statute to the opponent of stay relief.

A secured creditor seeking relief from the automatic stay under § 362(d) must initially show an actual or real threat of decline in collateral value before the debtor must prove that the value is not declining.

Wilmington Trust Co. v. AMR Corp. (In re AMR Corp.) · filed 2013-04-03(d)

Thus, in order for secured creditors such as the Trustees to meet their initial burden on a § 362(d) motion, they must show that there has been a decline (or at least that there is a real threat of decline) in the value of the collateral at issue; only upon such a showing does the burden shift to the debtor to prove that the collateral at issue is not, in fact, declining in value.

A creditor seeking relief from the automatic stay must establish the validity of its security interest in the collateral, even though § 362(g) places the burden on other issues on the party opposing relief.

Grant, Konvalinka & Harrison, P.C. v. Still · filed 2013-12-17(g)

The bankruptcy court therefore properly required GKH to establish the validity of its security interest in the pledged collateral.

Under § 362(d)(1), a party seeking relief from the automatic stay bears the initial burden of showing cause to lift it.

In re Residential Capital, LLC · filed 2014-04-21(d)(1)

Under section 362(d)(1), Mustafanos bears the initial burden of showing “cause” to lift the stay.

Section 362(g)(2) requires a creditor seeking relief from the automatic stay for cause to make an initial evidentiary showing before the debtor must produce opposing evidence.

In re Spencer · filed 2017-05-26(g)(2)

Here, the Motion is supported only by legal argument, which is not evidence, and Habitat’s loan documents, which shed no light on the Debtors’ supposed bad faith. Perhaps if Habitat had supported its Motion with an affidavit or solemn declaration, the court would be inclined to put the Debtors to their proofs under § 362(g)(2).

Section 362(d) permits a secured creditor to seek relief from the automatic stay without filing a proof of claim.

Jeannie Quinteros · filed 2019-11-08(d)

Upon failing to file a proof of claim, a secured creditor is not barred under the Bankruptcy Code from seeking relief from the automatic stay: nothing in 11 U.S.C. § 362(d) requires that a creditor have filed a proof of claim in order to obtain relief from the automatic stay pursuant to either § 362(d)(1) or § 362(d)(2).

Section 362(g)(1) places the burden of proving the debtor’s equity in property on the party seeking relief from the automatic stay.

JMF CAB, Inc. · filed 2020-04-14(g)(1)

Pursuant to Bankruptcy Code § 362(g)(1), a party moving for relief from the automatic stay bears the burden of proof as to the debtor’s equity in the property at issue.

Section 362(d) places the initial burden on a creditor seeking stay relief to show cause under (d)(1) or lack of equity under (d)(2); the debtor bears the burden on other issues, including whether the property is necessary to an effective reorganization.

Nelson v. Wells Fargo Bank, N.A. · filed 2020-11-06(d)

Wells Fargo had the initial burden to demonstrate either cause under § 362(d)(1) or, under § 362(d)(2), the Debtor’s lack of equity in the Property. But the Debtor had the burden of proof on all other issues, including whether the Property was necessary to an effective reorganization. In re Lopez, 446 B.R. at 20.

A party moving for relief from the automatic stay must come forward with evidence establishing a prima facie case for relief.

Michelle Y. Gilgan · filed 2021-09-03

In the context of a motion for relief from stay, the moving party bears the burden of coming forward with evidence to establish its prima facie case.

Under § 362(d), a party seeking relief from the automatic stay must first show cause; once it does, the opposing party bears the burden of disproving cause.

Regan v. Hon · filed 2022-11-07(d)

If, through examination of the Sonnax factors, a movant has demonstrated cause to lift the automatic stay, the burden shifts to the non-movant to disprove that cause exists.

On a motion for relief from the automatic stay, the debtor bears the burden of proof on all issues except the debtor’s equity in the property.

IN RE: JORGE ENRIQUE BUSTOS · filed 2024-06-17(g)

In this regard, the Court notes that the Debtor bears the burden of proof on all issues on Motions to Lift the Automatic Stay, except as to whether the ...Debtor has any equity in the Property, which was not at issue on this Stay Relief Motion. See 11 U.S.C. § 362(g). The Debtor did not meet that burden.

Under § 362(d)(2), the party seeking relief from the automatic stay must prove that the debtor lacks equity in the property.

Markimian Adams Harris, Sr. · filed 2025-09-18(d)(2)

Wells Fargo, as the party moving for relief from the automatic stay, has the burden to prove a lack of equity.

Section 362(k) requires a debtor to prove that a willful violation of the automatic stay occurred.

In re Autumn Kapuakoumelea Paoo Levy · filed 2026-04-08(k)

To prevail under 11 U.S.C. § 362(k), a debtor must prove that a willful violation of the stay occurred.

Section 362(g) assigns the burden of proof in a stay relief hearing: the movant proves the debtor’s equity, and the opposing party proves all other issues.

Freightliner Market Development Corp. v. Silver Wheel Freightlines, Inc. · filed 1987-07-29(g)

11 U.S.C. § 362(g) provides: ... (1) The party requesting such relief has the burden of proof on the issue of the debtor’s equity in property; and ... (2) The party opposing such relief has the burden of proof on all other issues. ... Second, we find that notions of equity and fairness support the bankruptcy court’s shift of the burden of proof on the issue of tracing to the Trustee.

Section 362(b)(1) allows criminal prosecutions to continue during the automatic stay but does not expressly exempt government efforts to collect restitution.

Pennsylvania Department of Public Welfare v. Davenport · filed 1990-05-29(b)(1)

Section 362(b)(1) does not, however, explicitly exempt governmental efforts to collect restitution obligations from a debtor. ... Section 362(b)(1) ensures that the automatic stay provision is not construed to bar federal or state prosecution of alleged criminal offenses.

Section 362(b)(1) excepts a crime victim’s request for and receipt of a pre-conviction restitution lien in the debtor’s criminal case from the automatic stay, even when the victim is a private creditor.

TROY MICHAEL NASH and SARAH ANN NASH · filed 2021-10-21(b)(1)

The Court need not resolve this issue, however, because it concludes the pre-conviction restitution lien falls within the criminal prosecution exception to the automatic stay found in 11 U.S.C. § 362(b)(1). ... There is nothing in the language of subsection (b)(1) that suggests it only applies to actions taken by the government in a criminal proceeding or that a victim’s rights under the state’s criminal code are excluded.

Section 362(b)(1) does not shield a creditor’s criminal referral of a worthless check debt when the creditor hopes to be reimbursed, even if that is only part of the motivation.

Lori Jayne Kimbler · filed 2020-12-16(b)(1)

A creditor’s criminal referral of a worthless check debt, whether motivated in whole or in part by a hope of getting reimbursed, constitutes a violation of the automatic stay.

Section 362(b)(1) exempts a contempt order entered in a civil case from the automatic stay when the order is intended to uphold or vindicate the court’s authority or dignity.

In re Burgess · filed 2014-01-07(b)(1)

For two reasons this Court adopts the view that a contempt order issued in a civil case is criminal in nature for purposes of section 362(b) if it intended to uphold or vindicate the court’s authority or dignity.

Section 362(b)(1) does not exempt a civil contempt proceeding pursued to enforce a prepetition judgment from the automatic stay.

Iskric v. Commonwealth Financial Systems, Inc. (In re Iskric) · filed 2013-08-07(b)(1)

Based upon the record presented, I conclude that the state court order which resulted in the issuance of a bench warrant for Iskric’s -detention constituted a finding of civil contempt by the state court. I, therefore, also conclude that the exception to the automatic stay for the continuation of a criminal action is not available as a defense to the stay violations here.

Section 362(b)(1) does not except a request for compensatory restitution payable to a complainant from the automatic stay merely because it is sought in a criminal contempt motion.

In Re Storozhenko · filed 2011-09-23(b)(1)

What matters is this: if the fíne or restitution is “payable to the complainant as compensation for damages caused by the contemnor’s noncompliance,” then the fíne or restitution is deemed to be civil in nature, not criminal.

Section 362(b)(1) excepts criminal contempt sanctions from the automatic stay, but compensatory restitution sought in the same contempt motion remains subject to the stay.

In Re Storozhenko · filed 2011-09-16(b)(1)

In seeking that relief, therefore, Findling does not have the benefit of the “criminal action or proceeding” exception to the automatic stay in § 362(b)(1), and he has violated the automatic stay. ... To the extent of all of the other relief sought by Findling’s Criminal Contempt Motion, the Motion is protected by the “criminal action or proceeding” exception of § 362(b)(1), and Findling did not violate the automatic stay.

Section 362(b)(1) excepts enforcement of criminal fines from the automatic stay when collection continues the criminal process, including enforcement of parking fines.

Valle v. Montgomery County (In Re Valle) · filed 2011-06-17(b)(1)

However, these two cases appear to be in the minority, and the court will follow what it believes a better reasoned line of cases that holds that the enforcement of a criminal fine is excepted from the automatic stay and that the efforts to collect the fine are a continuation of the criminal process.

Section 362(b)(1) permits criminal prosecution during bankruptcy, but whether an act was done for prosecution or debt collection is a material factual question when deciding if the act violated the automatic stay.

Carlin v. Rogers District Court (In Re Carlin) · filed 2002-03-08(b)(1)

The determination of whether an act violates the automatic stay and whether the act in this case was done for prosecution or for debt collection are material questions of fact.

Section 362(b)(1) permits criminal proceedings against a debtor, but it does not exempt a creditor’s postpetition replevin action from the automatic stay even when the creditor also files criminal charges.

Boydstun v. Reed · filed 1998-04-09(b)(1)

Regardless of the contortion techniques of the appellants, an action for replevin will always be civil and will always violate the automatic stay when initiated by a creditor against a debtor post-petition. Whether the creditor files criminal charges contemporaneously with the replevin action is irrelevant to the issue of violation of the automatic stay.

The automatic stay binds the United States, and sovereign immunity does not shield the IRS from enforcement of the stay.

Westefield v. Internal Revenue Service (In Re Westefield) · filed 1994-09-09(a)

One need look no further than the use of the phrase “all entities” in 11 U.S.C. § 362(a) and the definition of entity at 11 U.S.C. § 101(15) to determine that the injunction applies to the United States and to everyone who has sworn an oath to uphold its laws. ... The doctrine of “sovereign immunity” does not insulate the Internal Revenue Service and its officers, agents and employees from the operation of the statute itself, or from the orders of this Court in aid of the statute.

Section 362(b)(1) allows parole revocation proceedings for failure to pay criminal restitution to continue after a bankruptcy filing, and § 362(b)(5) does not narrow that criminal proceeding exception.

People v. Kelley · filed 1994-09-08(b)(1), (b)(5)

We do not read § 362(b)(5) to in any way modify the broad, all-encompassing exception to the automatic stay contained in § 362(b)(1). ... We see no basis to distinguish parole conditions from probation conditions under these circumstances. Restitution was a requirement in both defendant’s sentence and his parole conditions. The strong federal policy of preventing the bankruptcy laws from interfering with state criminal justice systems applies equally to probation and parole conditions.

Section 362(b)(1) permits enforcement of criminal laws and penalties incident to them despite the automatic stay.

United States v. Coluccio · filed 1994-04-19(b)(1)

The protective stay, however, is not absolute, and allows enforcement of criminal laws and penalties incident thereto.

Section 362(b)(3) permits post-petition perfection of a lien in the limited circumstances allowed by § 546(b) despite the automatic stay.

Jones v. Salem National Bank (In re Fullop) · filed 1993-10-19(b)(3)

However, pursuant to 11 U.S.C. Sec. 362(b)(3), 11 U.S.C. Sec. 546(b) provides an exception to the general rule that the petition stays actions to perfect an interest and allow the post-petition perfection of a lien in limited circumstances.

Section 362(b)(1) allows criminal actions against a debtor to begin or continue despite the automatic stay.

In Re Gay · filed 1980-04-02(b)(1)

The automatic stay triggered by the filing of a bankruptcy petition does not restrain the commencement or continuation of any criminal action against the Debtors. See 11 U.S.C. § 362(b)(1).

Section 362(b)(1) permits genuine criminal prosecution but does not protect a creditor that uses the criminal process to extract preferential payment of its claim.

In Re Caldwell · filed 1980-09-04(b)(1)

It therefore is incumbent upon this Court to make inquiry and determine from the facts and circumstances presented, if a creditor is seeking to utilize the criminal process as a means of extracting a preference not accorded other creditors similarly situated. On the other hand, if a creditor’s actions are nothing more than aiding and assisting the prosecuting authorities in their rightful duties in protecting society by punishment for violation of the criminal laws, then such is obviously what the Congress intended in enacting 11 U.S.C. § 362(b)(1).

Section 362(b)(1) does not automatically stay a criminal contempt proceeding after a bankruptcy filing.

Martin-Trigona v. Gouletas · filed 1980-12-22(b)(1)

The bankruptcy filing does not automatically stay this criminal contempt proceeding.

Section 362(a)(8) automatically stays a debtor-taxpayer from filing a Tax Court petition while the stay is in effect.

McClamma v. Commissioner · filed 1981-05-12(a)(8)

Section 362(a)(8) of title 11 provides for an automatic stay of “the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.” This provision essentially prohibits a debtor-taxpayer from filing a petition in this Court during the imposition of the stay, which remains in effect until the bankruptcy proceedings are terminated or until the bankruptcy judge chooses to lift the stay.

Section 362(a) stays GNMA from enforcing its contractual rights against property in a Chapter 11 debtor’s possession unless GNMA obtains relief from the bankruptcy court.

Matter of Adana Mortg. Bankers, Inc. · filed 1981-06-08(a)

If jurisdiction of the Bankruptcy Court is proper over an issuer under contract with GNMA, the Section 541 property in the possession of the debtor, i. e., the guaranty agreement, the accounts, the mortgages, are within the jurisdiction of the court, and the Section 362(a) stay is applicable to that property and thus to GNMA in respect to any action to exercise its substantive rights in respect to that property. Being subject to the stay in no way precludes or limits “the exercise” by GNMA of its substantive rights in the guaranty agreement with the Chapter 11 debtor. GNMA may exercise its Section 306(g) rights through a proper action against the debtor in the Bankruptcy Court to obtain relief from the stay.

Section 362(b)(1) permits a criminal restitution order to remain effective despite the filing of a bankruptcy petition.

Newton v. Fred Haley Poultry Farm (In Re Newton) · filed 1981-10-15(b)(1)

An order for restitution is part of a criminal action against the debtor. In the instant case, and pursuant to Georgia law, restitution is part of the sentence imposed on the debtor for his violation of the criminal law. Accordingly, the order of restitution would not be stayed by the filing of a petition in bankruptcy.

Section 362(b)(1) excludes criminal proceedings from the automatic stay even when a private creditor initiated the prosecution and restitution is mandatory upon conviction.

Davis v. Sheldon (In Re Davis) · filed 1981-11-10(b)(1)

Neither the fact that a private individual may prosecute nor that restitution must be ordered upon conviction alters the kind of proceeding pending in the state court. Consequently, the state court proceedings are criminal actions which are removed from the effect of the automatic stay by § 362(b)(1).

Section 362(a) stays a state civil forfeiture action against the debtor and property of the bankruptcy estate.

Sachs v. Ryan (In Re Ryan) · filed 1981-11-20(a)

The Court concludes therefore, that any action by the State to enforce a forfeiture is stayed by the force of § 362(a).

Section 362(b)(1) excepts a genuine state criminal prosecution for nonpayment of taxes from the automatic stay.

In Re H. Cohen Caterers, Inc. · filed 1981-12-21(b)(1)

In so ruling, we expressly hold that the contemplated criminal prosecution of Cohen Caterers and its principal officer Harold Cohen comes within the exception of 11 U.S.C. § 362(b)(1), and therefore that the automatic stay does not operate to bar criminal prosecution for the nonpayment of taxes due the Commonwealth of Kentucky.

Section 362(b)(1) excepts criminal proceedings against a debtor from the automatic stay, but does not limit the bankruptcy court’s power to enjoin them under § 105.

Taylor v. Widdowson (In Re Taylor) · filed 1981-12-31(b)(1)

Criminal proceedings against a debtor are excepted from the scope of the automatic stay imposed by the Bankruptcy Code upon the filing of a petition in the Bankruptcy Court. 11 U.S.C. § 362(b)(1) (Supp. IV 1980). This exception, however, is not a limitation upon the Bankruptcy Court’s power to enjoin criminal proceedings under the Bankruptcy Code’s equivalent of the All Writs Act, 11 U.S.C. § 105 (Supp. IV 1980).

Section 362(b)(1) allows a state criminal prosecution for issuing a bad check to continue despite bankruptcy when the prosecution is not used to collect a debt by coercion or duress.

Trail West, Inc. v. South Dakota, Department of Revenue (In Re Trail West, Inc.) · filed 1982-01-29(b)(1)

Second, 11 U.S.C. § 362(b)(1) excepts from the automatic stay the commencement or continuation of a criminal action or a proceeding against Debtor. ... In light of the above conclusions, this Bankruptcy Court holds it will not issue a permanent injunction pursuant to 11 U.S.C. § 105(a) enjoining State from proceeding with a criminal action against Debtor for the issuance of an insufficient funds check in violation of S.D.C.L. 22-41-1 because the mandate of Congress is clear in 11 U.S.C. § 362(b)(1) and because of the strong policy derived from case law against federal interference in state criminal proceedings.

Section 362(b)(4) exempts NLRB unfair labor practice proceedings from the automatic stay as exercises of governmental regulatory power.

National Labor Relations Board v. Brada Miller Freight System, Inc. (In Re Brada Miller Freight System, Inc.) · filed 1981-12-31(b)(4)

Thus, not only did Congress fail to confer jurisdiction on the Bankruptcy Court to hear and determine regulatory matters such as charges of unfair labor practice, it also exempted those proceedings from the automatic stay provisions of the Bankruptcy Reform Act.

Section 362(b)(1) excludes criminal proceedings from the automatic stay regardless of the motives of those who initiated them.

Davis v. Sheldon (In Re Davis) · filed 1982-03-15(b)(1)

Whatever the motive of those who initiated the criminal prosecution, Section 362 does not operate to stay any criminal proceedings.

Section 362(a)(1) does not automatically stay a state liquor-license revocation proceeding when the state is not attempting to collect a prepetition debt.

In Re Mason · filed 1982-03-12(a)(1)

Although not totally free from doubt in this cause, the court finds that the instant administrative proceeding of the State of Tennessee under Tennessee Code Annotated Section 57-l-207(b) is not automatically stayed under 11 U.S.C. Section 362(a)(1) as the State of Tennessee is not attempting to collect a pre-petition debt; however, the court finds that such administrative proceedings are not immune from injunction under the circumstances and should be conditionally stayed under 11 U.S.C. Section 105(a) pending further order of this court.

Section 362(b)(1) excludes the commencement or continuation of criminal proceedings against a debtor from the automatic stay.

Alan I. W. Frank Corp. v. P. M. A., Inc. (In Re Alan I. W. Frank Corp.) · filed 1982-04-09(b)(1)

Although the commencement or continuation of criminal proceedings against a debtor is not subject to the automatic stay provisions of the Code, ... the majority of the bankruptcy courts to address this issue have held that they do have the power, under § 105(a) of the Code, to enjoin such proceedings in certain circumstances.

Section 362 stays proceedings seeking to forfeit a debtor’s exemption from state certificate-of-need requirements upon the filing of a bankruptcy petition.

Schatzman v. Department of Health & Rehabilitative Services (In Re King Memorial Hospital, Inc.) · filed 1982-04-30

Therefore, it is the conclusion of this Court that King maintained continuous construction until October 2, 1979, at which point the filing of a Petition in Bankruptcy effectively prevented continuation of construction pending the outcome of the Bankruptcy proceedings and stayed any proceeding, the purpose of which would be forfeiture of the exemption from the Certificate of Need laws.

Section 362(a)(1) prohibits a creditor’s attorney from instigating a criminal prosecution to compel payment of the debtor’s debt.

Ohio Waste Services, Inc. v. Fra-Mar Tire Services, Inc. (In Re Ohio Waste Services, Inc.) · filed 1982-09-03(a)(1)

Neither the investigation leading up to the prosecution, nor the prosecution itself would have been commenced but for the action taken by Mr. Zuk, attorney for Fra-Mar, in his efforts to collect the debt due Fra-Mar from debtor. Mr. Zuk’s action of writing the letter to the prosecutor was in direct violation of 11 U.S.C. § 362(a)(1).

Section 362(a) prohibits the IRS from obtaining and depositing wages that became property of the bankruptcy estate despite a prepetition tax levy.

Cudaback v. Langdale (In Re Cudaback) · filed 1982-09-08(a)

The action of the Internal Revenue Service agent in contacting the employer to obtain a portion of those wages and the action of the Internal Revenue Service in forwarding for deposit the check it received constitute a violation of § 362(a) and, thus, are actionable in this adversary proceeding.

Section 362(b)(1) excepts the commencement or continuation of a criminal prosecution against the debtor from the automatic stay.

Pennsylvania v. Barone (In re Barone) · filed 1982-10-20(b)(1)

An exception to the stay provision is “the commencement or continuation of a criminal action or proceeding against the debtor.” 11 U.S.C. § 362(b)(1). Because the action of the District Attorney squarely fits within the exception to the automatic stay provision, the stay does not operate to enjoin the criminal prosecution.

Section 362(b)(5) stays a governmental action seeking a mandatory injunction that requires the debtor to spend funds to correct violations when the injunction is essentially enforcement of a money judgment.

Penn Terra Ltd. v. Department of Environmental Resources (In Re Penn Terra Ltd.) · filed 1982-11-04(b)(5)

This Court concludes that the mandatory injunction sought by DER requiring the debtor’s expenditure of funds is in essence the attempted enforcement of a money judgment. As such, it is subject to the automatic stay by virtue of § 362(b)(5).