11 U.S.C. § 362

Section 362 allows the court to deny relief from the automatic stay when property is necessary to reorganization and the creditor receives adequate protection.

Associates Commercial Corp. v. Performance Leasing, Inc. (In re Performance Leasing, Inc.) · filed 1983-02-17(d)

Based upon the evidence presented, the Court finds that the property is necessary to the Debtor’s reorganization and that the sum of Two Thousand ($2,000.00) Dollars per month would constitute adequate protection for the Plaintiff, ASSOCIATES, within the definition embodied in 11 U.S.C. § 361. The Complaint for Relief from the Automatic Stay and Possession of the Property should therefore be denied and the Debtor in Possession required to make monthly adequate protection payments of Two Thousand ($2,000.00) Dollars per month, as well as providing evidence of insurance on the property and allowing the Plaintiff its right of inspection pursuant to the contract.

Section 362(d)(2)(A) measures equity for stay relief by subtracting the moving creditor’s claim and senior liens from the property value, without counting junior liens.

United Finance Co. v. Cote (In Re Cote) · filed 1983-02-22(d)(2)(A)

The better view is that “equity” is determined by subtracting from the value of the property the amounts owing to the plaintiff and upon liens superior to the lien of the plaintiff without considering amounts owing upon liens inferior to the lien of the plaintiff.

Section 362 permits a bankruptcy court to continue the automatic stay of litigation against a Chapter 11 debtor for a limited period to give the debtor time to pursue reorganization.

MPM Worldwide Corp. v. Sentinel Telecommunications Systems, Inc. (In Re Sentinel Energy Control Systems, Inc.) · filed 1983-02-23

That the automatic stay of 11 U.S.C. § 362 with respect to MPM’s suit against Sentinel is continued in effect for 60 days or until further order of the Court.

Section 362(a)(3) stays acts to obtain estate property, and a creditor pursuing state court remedies must obtain relief from the stay as to both the debtors and estate property.

Tower National Bank of Lima, N.A. v. Klima (In Re Klima) · filed 1983-03-03(a)(3)

In addition, pursuant to 11 U.S.C. § 362(a)(3), the filing of the petition imposed a stay, applicable to all entities, of “any act to obtain possession of property of the estate or of property from the estate”. Thus, in order for Plaintiff to pursue its state court remedies, not only must it obtain relief from stay against the Debtors, it must also obtain relief from stay against property of the Debtors’ estate.

Section 362(d)(1) permits relief from the automatic stay for cause based on debtor misconduct.

Farmers & Merchants Bank & Trust of Watertown v. Trail West, Inc. · filed 1983-03-15(d)(1)

Debtor misconduct can constitute cause under § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause when a prepetition state-court judgment cancelled the debtor’s leases, leaving the debtor with no interest in the property.

Gilbert v. Biron, Inc. (In Re Biron, Inc.) · filed 1983-03-22(d)(1)

We find that “cause” exists within the meaning of § 362(d)(1) for the lifting of the automatic stay in this case, in the judgment entered by the Kansas state court cancelling the leases between these parties. That outcome was the subject of a judgment entered prior to the institution of the bankruptcy case, so that if that state court judgment is operative there is no basis for continuing the automatic stay in effect because there is no property in which this debtor has an interest.

Section 362 imposes an automatic stay when a bankruptcy case is filed, but the stay may be lifted in appropriate circumstances so a creditor can pursue normal remedies.

In Re Vaughn · filed 1983-03-25

It is true that upon the filing of a bankruptcy case, an automatic stay arises by reason of 11 U.S.C. § 362. It is, however, possible to have the stay removed in appropriate circumstances so that normal remedies may be applied. There is no indication in this record that Meyer Dairy made any effort to lift the stay.

Section 362(e) protects secured creditors; an unsecured creditor is not entitled to relief under its stay termination provision.

North Star Diamond Co. v. Brusich & St. Pedro Jewelers, Inc. (In Re Brusich & St. Pedro Jewelers, Inc.) · filed 1983-03-24(e)

In the instant case, North Star is not a secured creditor within the meaning of section 362(e) (N.T. 11/8/82 at 7) and we conclude, therefore, that North Star is not entitled to any relief thereunder.

Section 362(a)(4) stays acts to perfect a lien against estate property, and inadvertent termination of a financing statement does not entitle the creditor to relief from the stay to refile it.

Rock Hill National Bank v. York Chemical Industries, Inc. (In Re York Chemical Industries, Inc.) · filed 1983-04-08(a)(4)

The plaintiff is responsible for having terminated its financing statement—albeit unintentionally and inadvertently. Under these circumstances, this court will not grant the plaintiff relief from the stay in order to file its financing statement, nor may the court recreate a perfected security interest for the plaintiff.

Relief from the automatic stay may be denied when the creditor’s interest in the collateral is adequately protected and the property is essential to the debtor’s reorganization.

Anderson v. Associates Commercial Corp. (In Re Anderson) · filed 1983-04-18(d)

This Court concludes that if the debtor complies with the order which accompanies this opinion as outlined above, then Associates’ interest in the collateral will be adequately protected. Because Associates’ interest in the collateral would then be adequately protected and because this property is essential to the debtor’s reorganization this Court will deny Associates’ counterclaim for relief from stay.

The automatic stay should not be modified to permit foreclosure during an appeal from denial of Chapter 13 plan confirmation when foreclosure would effectively deprive the debtor of the right to appeal.

In Re Hardy · filed 1983-04-22

It would not be just for us to grant the alternative relief sought by creditor by way of modification of the stay so that it could foreclose upon its collateral, for this would effectively deprive debtor of the right to an appeal.

Section 362 allows the automatic stay to be lifted solely for specified state court proceedings.

Porter v. Airport Marina, Inc. (In Re Airport Marina, Inc.) · filed 1983-05-03

That the automatic stay, pursuant to 11 U.S.C. Section 362, be, and the same is hereby lifted solely as to the State Court proceedings set forth in Paragraph # 1, above.

Section 362’s automatic stay may be modified to allow collection of a debt declared nondischargeable.

Mainelli v. Whitman (In Re Whitman) · filed 1983-05-04

For the above reasons, the $500 debt to Mainelli is declared to be nondischargeable, and the automatic stay, 11 U.S.C. § 362, is modified to allow Mainelli to proceed against Donald Whitman with respect to collection of said debt.

Section 362(d) permits relief from the automatic stay when a creditor shows that its interest in the debtor’s property is sufficiently clear and needs protection outside the normal bankruptcy process.

First National Bank of Denver v. Turley · filed 1983-05-04(d)

To obtain relief from an automatic stay under 11 U.S.C. § 362(d), a creditor must show the court that its interest in the debtor’s property is sufficiently clear and in need of protection to justify exempting the property from the normal course of bankruptcy proceedings.

Section 362 stay relief is unavailable to a secured creditor after confirmation of a Chapter 13 plan absent a post-confirmation default in carrying out the plan.

Anaheim Savings & Loan Ass'n v. Evans (In Re Evans) · filed 1983-05-06

The issue before the panel is whether the effect of confirmation of a Chapter 13 plan under 11 USC § 1327 bars a secured creditor from seeking relief from the stay of § 362 absent a post-confirmation default in carrying out the plan. We hold that it does and affirm.

Section 362 permits relief from the automatic stay for cause when the creditor lacks adequate protection and the debtor has no equity or feasible prospect of reorganization.

United States v. Beattie (In Re Beattie) · filed 1983-05-09(d)

Relief from the automatic stay should be granted for cause including the absence of adequate protection, the continued financial losses of the debtor, the debtor’s defaults, the lack of equity for the debtor, and the absence of feasible prospects for reorganization in the absence of substantial financing, all to the detriment of the FmHA.

Section 362(d) relief ordinarily lifts or modifies the automatic stay; it does not itself award a landlord possession or decide the parties’ underlying lease rights.

Boyle v. LJC Corp. (In Re LJC Corp.) · filed 1983-05-23(d)

While this Court is fully satisfied that the plaintiff has met its burden of proof under the Bankruptcy Code with respect to a grant of relief from the stay, this determination and the accompanying grant of relief should appropriately be confined to a lifting of the stay and not to a judicial determination of all the rights and duties existing between these litigants with respect to the underlying lease agreements.

Section 362(e) makes proceedings to lift an automatic stay limited and expedited, so a debtor need not assert a merits-based compulsory counterclaim and a creditor may not join a reclamation claim with the stay application.

Cahill v. IU North America, Inc. (In Re Codesco, Inc.) · filed 1983-06-03(e)

The expedited procedures contemplated by an action for a stay would be ill served by permitting a claim for reclamation to be joined with an application for a stay. The Court also agrees with Judge Schwartzberg’s conclusion that to require a compulsory counterclaim going to the merits to be asserted in such a proceeding would also not be consistent with the expeditious nature of that proceeding.

Section 362 permits relief from the automatic stay so a landlord can recover leased premises after repeated defaults when the debtor offers only speculative negotiations, rather than a bona fide reorganization, as a reason to retain possession.

Sementelli v. Stagedoor, Inc. (In Re Stagedoor, Inc.) · filed 1983-06-29

The only offer of proof made by debtor’s counsel in addition to the above undisputed matters related to negotiations the debtor was trying to arrange with other restaurateurs to take over the business, not any bona fide reorganization of the existing business, and it is our conclusion that a hope for such negotiations is not a valid reason to withhold possession of leased premises from the owner thereof under the undisputed facts and circumstances above set forth.

Section 362(d)(1) does not treat mere delay in foreclosure, without demonstrable economic loss, as cause to lift the automatic stay.

Matter of Madison Hotel Associates · filed 1983-06-30(d)(1)

However estimable that authority may be where a sound legal basis for relief has been presented by the application or complaint, Prudential has not shown any legal basis for the relief different from that rejected in this court’s order of March 5,1982. The court’s conclusion that mere delay in foreclosure is not “cause” within the meaning of 11 U.S.C. § 362(d)(1) was never appealed, and no contrary holding of any court has been cited.

Section 362(d)(1) does not permit relief from the automatic stay based solely on an underfunded Chapter 13 plan when the creditor had an opportunity to contest the plan at confirmation.

Waterfield Mortgage Co. v. Clark (In Re Clark) · filed 1983-07-14(d)(1)

It is the opinion of the Court that relief from stay is not the appropriate remedy if a Chapter 13 Plan is underfunded, without more, and that Plaintiff should be estopped from “relitigating” the issue of adequate funding per se herein.

Section 362 permits relief from the automatic stay so a creditor can seek a state court judgment against a partnership and enforce its security interests if the individual debtors do not submit modified Chapter 13 plans and the partnership does not seek Chapter 11 relief within two weeks.

Miami Valley Production Credit Ass'n v. Tegtmeyer (In Re Tegtmeyer) · filed 1983-07-21

If the Debtors do not elect so to proceed with modified plans within two weeks and the partnership as an entity does not seek relief under Chapter 11 of the Bankruptcy Code within two weeks, Miami Valley Production Credit Association should be granted relief from the stay imposed by 11 U.S.C. § 362 in the individual cases to seek monetary judgment against the partnership in the state courts and enforcement of its security interests.

Section 362(d)(1) permits relief from the automatic stay when a creditor establishes a prima facie case for cause by proving that the debtor has no equity in the collateral.

Penn Security Bank & Trust Co. v. Royce (In Re Royce) · filed 1983-08-09(d)(1)

In the case at bar the Bank has established a prima facie case for relief under § 362(d)(1) by proving that the debt- or has no equity in the properties in question.

Relief from the automatic stay may be provisionally denied when the debtor has equity in rental property needed for an effective Chapter 13 reorganization and modifies the plan to cure mortgage delinquencies.

Dayton Area Savings & Loan Community Redevelopment Corp. v. Foreman (In re Foreman) · filed 1983-08-10(d)

Given these circumstances, plus the existence of equity in the property if accumulated payments are applied to the deficiency on Plaintiff’s claim as provided below, it is the opinion of the Court that relief from stay should be provisionally denied if Debtor modifies her proposed Plan to provide for payment of all prepetition delinquencies upon confirmation of the Plan, and all postpetition delinquencies conformably to the Plan when and if confirmed as feasible.

In deciding whether to lift a stay, a court may consider the debtor’s equity in another property when assessing whether the stayed property is needed for an effective reorganization and whether the creditor’s interest is adequately protected.

In Re Comer · filed 1983-08-26(d)

The extent of the debtors' equity in lot 28 may be a factor in determining whether lot 32 is necessary for an effective reorganization and whether the creditors' interest in lot 32 can be adequately protected. See 11 U.S.C. Sec. 362(d).

Section 362(d)(1) permits relief from the automatic stay for cause when the debtor has no equity and little more than a possessory interest in consigned goods.

Emerson Quiet Kool Corp. v. Marta Group, Inc. (In Re Marta Group, Inc.) · filed 1983-09-29(d)(1)

Since a debtor has no equity and little more than a possessory interest in consigned goods, this same rule applies by analogy in consignment cases and thus Emerson has established cause for relief under § 362(d)(1).

Section 362(d) requires a creditor seeking relief from the stay for lack of adequate protection to show a secured interest in property of the estate.

National City Bank, Akron v. W.R.S., Inc. (In re W.R.S., Inc.) · filed 1983-09-29(d)

The Court further finds that until such time as Plaintiff shows that it has a secured interest in property which is not adequately protected, the automatic stay provided by section 362 shall remain in full force against the Plaintiff.

Section 362 permits modification of the automatic stay so a state workers’ compensation agency can determine employer coverage and employee compensability, while claim allowance and dischargeability remain with the bankruptcy court.

Green v. Mart (In re Mart) · filed 1983-10-05

Separate order will therefore be entered modifying the automatic stay to allow the plaintiff to proceed with its administrative hearings to determine the debtor’s subjectivity to and the alleged employee’s com-pensability under the Workers’ Compensation Law and in the event compensability be determined to file a claim and the Court will abstain therefrom but the issues of allowability and dischargeability of any such claim will be reserved for determination by the Bankruptcy Court.

Section 362(d)(1) permits modification of the automatic stay for cause when debtors make only two mortgage payments in nearly eleven months after filing.

Lomas & Nettleton Co. v. Frascatore (In Re Frascatore) · filed 1983-10-07(d)(1)

In view of the fact that the debtors had made but two payments to the mortgagee since the filing of their petition, we conclude that ample “cause” exists to warrant modification of the automatic stay.

In deciding whether to lift or extend the automatic stay, a court should consider an affirmative defense that challenges the validity of the creditor’s lien.

University State Bank v. Davenport (In Re Davenport) · filed 1983-10-13(d)

However, when the affirmative defense contests the validity of the lien at issue, such affirmative defense should be considered in determining whether or not the automatic stay should be lifted or extended.

Section 362(d)(1) permits relief from the automatic stay for cause to continue litigation in another court when doing so would not adversely affect the bankruptcy case; a party’s desire to litigate elsewhere alone is insufficient.

Charter International Oil Co. v. General Oil Distributors, Inc. (In Re General Oil Distributors, Inc.) · filed 1983-10-13(d)(1)

However, Congress certainly did not intend that a party’s mere desire would constitute cause for modifying the stay. Congress intended that the automatic stay be lifted where the pending bankruptcy case would not be adversely affected.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor files a bankruptcy petition in bad faith to delay foreclosure.

Glassmanor Apartments Ltd. Partnership v. Corp. Deja Vu (In Re Corp. Deja Vu) · filed 1983-10-14(d)(1)

The petition was filed in bad faith. This bad faith constitutes cause to allow the secured creditor relief from the stay.

Section 362(d)(1) permits relief from the automatic stay for a post-confirmation payment default, but a delinquency that is offered to be cured and does not amount to a material default does not warrant relief.

Pa. School Employes' Retirement Fund v. Pizzullo (In Re Pizzullo) · filed 1983-10-14(d)(1)

Consequently, since we do not find the debtors to be in material default under their confirmed chapter 13 plan, we conclude that the mortgagee is not entitled to relief from the automatic stay under section 362(d)(1) of the Code.

Section 362(d) permits relief from the automatic stay for cause, but a plaintiff’s advanced age alone is insufficient cause.

In Re Petronello · filed 1983-10-17(d)

Under this set of facts, it would not be proper for this Court to lift the stay because 11 U.S.C. § 362(d) allows the lifting of the stay for cause only in a case like this. The fact that the plaintiff is elderly is not sufficient cause to lift the stay.

Section 362(d)(1) permits modification of the automatic stay for cause so pending litigation can proceed in another court; the cost of defending that litigation alone does not bar relief.

Hoenig v. Hoffman (In Re Hoffman) · filed 1983-10-19(d)(1)

Relief from the automatic stay is provided for pursuant to § 362(d) which states that relief from the stay may be provided for cause. 11 U.S.C. § 362(d)(1). ... However, the high cost of defending is not, by itself, “great prejudice” which would bar modification of the stay. ... Based on all of the above, therefore, the automatic stay shall be modified for the sole purpose of permitting Plaintiffs to proceed with their respective Complaints against Hoffman currently pending in District Court.

An order lifting the automatic stay to allow related state court litigation to proceed is reviewed for abuse of discretion.

Ozai v. Tabuena (In Re Ozai) · filed 1983-11-01

The debtors contend that the bankruptcy judge erred because he lifted the stay so that the case could go forward in the state court. Lifting the stay, however, was essential to allow the case to proceed in the state court. The standard of review of such an order is abuse of discretion and, for the reasons stated in part I above, we cannot say that the court’s discretion was abused.

Section 362(d)(1) permits modification of the automatic stay for cause when a state forum is suited to determine a claim and doing so will not prejudice the bankruptcy estate, while collection remedies remain stayed.

In re Mazama Timber Products, Inc. · filed 1983-11-08(d)(1)

The suitability of the state forum and the absence of prejudice to the bankruptcy estate are a basis for finding “cause” under 11 U.S.C. § 362(d)(1) and the stay is ordered modified to permit the Employment Division to proceed with determination of the Amended Deficiency Assessment issued on May 14, 1982. Any collection remedies such as those contained in ORS 657.515, 657.525, 657.530, 657.540 and 657.642 remain subject to the automatic stay of 11 U.S.C. § 362.

Section 362(d)(1) requires a party seeking relief from the automatic stay for cause to show that continuation of the stay jeopardizes its interest in property.

In Re Glover Const. Co., Inc. · filed 1983-11-23(d)(1)

Section 362(d)(1), relied upon by American States, demands that there be “cause” to vacate the stay. The moving party must show some interest in property that is jeopardized by continuation of the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a creditor needs a judgment against the debtor to pursue a third party and the creditor’s hardship outweighs prejudice to the debtor or estate.

Folkmann Feed & Grain, Inc. v. Steffens Farm Supply, Inc. (In Re Steffens Farm Supply, Inc.) · filed 1983-11-25(d)(1)

Application of the above principles to the case at bar convinces this Court that the Plaintiff should prevail. Without a judgment against the Debtor, it appears that Plaintiff may not effectively assert its remedies against the Co-op. ... In sum, a balance of the equities leads this Court to conclude that the § 362 stay should be terminated to allow the Plaintiff to proceed in the state court action.

A creditor who establishes cause for relief from the automatic stay under subsection (d)(1) need not also prove the lack of equity and necessity for reorganization required by subsection (d)(2).

Brantley v. First Federal Savings & Loan Ass'n of Atlanta (In re Brantley) · filed 1983-11-30(d)(1)

Having shown that subsection (d)(1) was satisfied, first Federal was under no duty to go further and make the alternative showing that the requirements of subsection (d)(2) had also been met.

Relief from the automatic stay for cause based on another person’s alleged ownership requires evidence establishing that ownership outside the debtor.

Citizens National Bank, Greenville v. Harold Munce Toyota, Inc. · filed 1983-12-05(d)(1)

In this case the Bankruptcy Court lifted the stay for cause under Section 362(b)(1) of the Bankruptcy Code. This Court finds, however, that cause has not been shown by the evidence to allow a lifting of the stay and that the ownership of the used vehicles in question has not been established by the record in anyone other than the Debtor.

Section 362(d) permits modification of the automatic stay to allow pending state court litigation to resolve a new-trial motion, assess costs, and pursue any appeal.

Guarantee Insurance v. Certo (In re Certo) · filed 1983-12-14(d)

The parties agreed that the automatic stay should be modified under 11 U.S.C. § 362(d) to permit the parties to proceed in that State court litigation to obtain a ruling on the pending motion and the assessment of costs and for the prosecution of any appeal that might ensue. I agree and it is so ordered.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the property and the property is unnecessary to an effective reorganization.

Proyectos Electronicos, S.A. v. Alper · filed 1983-12-19(d)(2)

This court finds that the automatic stay did apply to the equipment in debtor’s possession ... but that Proyectos is entitled to relief from the stay under section 362(d)(2) because, based on the undisputed facts, the debtor has no interest in the equipment and by the very nature of the property its continued possession in the estate is not necessary to an effective reorganization.

Section 362 permits modification of the automatic stay to allow secured creditors to foreclose on collateral when their security interests survive the trustee’s avoidance challenge.

Howco Leasing Corp. v. Alexander Dispos-Haul Systems, Inc. (In Re Alexander Dispos-Haul Systems, Inc.) · filed 1983-12-30

For the foregoing reasons, plaintiffs are entitled to a judgment on their complaint modifying the stay to permit foreclosure of their interests in the collateral, and the defendant-trustee is entitled to no relief on his counterclaim.

Section 362 allows a court deciding relief from the automatic stay to defer a counterclaim after considering trial time, overlap of issues, the creditor’s solvency, and whether the counterclaim goes to the essence of the stay request.

Central Penn National Bank v. Zimmerman (In Re Ludwig Honold Manufacturing Co.) · filed 1984-01-05

More generally, factors to be considered in addressing a counterclaim in actions for relief from the stay are the time needed for its trial and adjudication, the amount of factual and legal overlap between the claim and the counterclaim, the likelihood that the creditor will be sufficiently solvent to satisfy the counterclaim, and whether the counterclaim goes to the essence of the request for relief from the stay.

Section 362's automatic stay may be lifted retroactively only by an affirmative court act, not solely by consent.

First Fiscal Fund Corp. v. Fishers Big Wheel, Inc. · filed 1984-01-06

The lifting of a stay is not, however, an act that can be accomplished solely on consent; it must be accomplished through an affirmative act by the court, although such an act may be retroactive.

A valid, enforceable purchase money security interest in property can constitute cause to lift the automatic stay as to that property.

In Re Tucker · filed 1984-01-19(d)(1)

Accordingly, the Court must deny debtors' motion to avoid Sears' lien, because Sears has a valid, enforceable purchase money security interest in the washer. Inasmuch as the foregoing inquiry is dispositive of the issues involved in Sears' motion to lift the automatic stay, the Court finds good cause to grant said motion.

Section 362(d)(1) does not require relief from the automatic stay for cause when a creditor’s claim can be liquidated fairly and expeditiously in bankruptcy court.

Matter of Page-Wilson Corp. · filed 1984-03-02(d)(1)

Therefore, since the facts which movant alleges reveal that the claim may be liquidated as fairly and expeditiously here as elsewhere, movant has stated no “cause” justifying modification of stay.

Relief from the automatic stay to foreclose on disputed property is premature when ownership of that property has not been determined.

In re Development, Inc. · filed 1984-03-05(d)

Since there was no determination of the ownership of the Cluster Permit, it is premature at this time for Pacific Loan to request modification of the order lifting the automatic stay to permit Pacific Loan to foreclose on the Cluster Permit.

A limited partner has no standing to contest a creditor’s request for relief from the automatic stay to foreclose on partnership real property merely because the partner owns a limited partnership interest.

Prichard v. Sherwood & Roberts, Inc. (In Re Kings Inn, Ltd.) · filed 1984-03-07

The owner of a limited partnership interest in a partnership that owns real property has no separate or special interest in the real property and no standing to contest a relief of stay action brought by a creditor seeking to foreclose a lien on the real property.

Section 362(d)(2) does not allow relief from the automatic stay when the debtor has equity in the property and the property is necessary for an effective reorganization.

In re Bruno Corp. · filed 1984-03-28(d)(2)

Since the Court finds that there is equity for Debtors in the property of the estate and that the property is necessary for an effective reorganization, Movants cannot prevail under 11 U.S.C. Section 362(d)(2).

Section 362(d)(1) permits relief from the automatic stay for cause so a joint creditor can seek a judgment against a debtor and the debtor’s spouse to reach property held as tenants by the entireties.

United States ex rel. Small Business Administration v. McQuaige (In re McQuaige) · filed 1984-03-30(d)(1)

The stay will be lifted for cause, 11 U.S.C. § 362(d)(1), in order to permit the S.B.A. to seek to obtain a judgment against the debtor and his wife.

Section 362(d) does not permit relief from the automatic stay when the creditor’s interest is adequately protected, no other cause exists, and the debtor has equity in the property.

Associates Commercial Corp. v. Attinello (In Re Attinello) · filed 1984-04-05(d)(1), (d)(2)

Finally, based upon the foregoing, we must deny the plaintiff’s request for relief from the automatic stay under both § 362(d)(1) and § 362(d)(2) of the Bankruptcy Code. As to § 362(d)(1), we shall deny relief because we have already concluded that the debtors have provided adequate protection of the plaintiff’s interest in the tractor. Also, no other “cause” exists to justify relief from the stay. With regard to § 362(d)(2), our finding that the debtors have equity in the tractor precludes relief under this provision.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the property and the property is not necessary to an effective reorganization, without requiring an inquiry into adequate protection.

NAZARETH NATIONAL BANK v. TRINA-DEE, INC., Appellant · filed 1984-04-12(d)(2)

Subsections (1) and (2) are plainly disjunctive. Only in cases where the court finds an equity in the debtor, or where the court finds that the property is necessary to an effective reorganization, is it necessary to consider the first ground for relief from the stay— the adequacy of protection of the secured party seeking relief.

Section 362(d) does not warrant relief from the automatic stay as to property when the movant has no ownership or secured interest in that property.

In re Hillebrand Metal Works, Inc. · filed 1984-04-23(d)

As a result, UIP has no ownership or secured interest in the cranes. Accordingly, UIP has no basis upon which to warrant relief from the Section 362 automatic stay.

Section 362(d) permits relief from the automatic stay to obtain discovery from a debtor when denying it would seriously prejudice third parties and the debtor has not shown a sufficient reorganization interest to justify that harm.

Norton Co. v. Johns-Manville Corp. (In re Johns-Manville Corp.) · filed 1984-04-24(d)

The present ruling of the bankruptcy court is virtually categorical. With insignificant exceptions, no discovery will be had of Manville by third parties. Such a blanket denial, irrespective of the harm to third parties, cannot, in my view, be justified by the circumstances.

Section 362(d) leaves the decision whether cause warrants lifting the automatic stay to the bankruptcy judge’s discretion.

Tucker v. Sambo's Restaurants, Inc. (In Re Sambo's Restaurants, Inc.) · filed 1984-04-30(d)

Whether “cause” exists for lifting the automatic stay under 11 U.S.C. Section 362(d) is a matter left to the discretion of the bankruptcy judge.

Section 362(d)(1) permits relief from the automatic stay for cause when a Chapter 11 petition is filed in bad faith; filing just before foreclosure of a sole significant asset is not sufficient by itself to show bad faith.

Oregon Bank v. Scott (In Re Scott) · filed 1984-05-01(d)(1)

11 U.S.C. § 362(d)(1) allows various forms of relief from the automatic stay “for cause.” ... In reviewing the facts of this case, this court must conclude that cause exists to vacate the automatic stay and allow the Oregon Bank to proceed with its foreclosure. I believe this proceeding was filed in bad faith for the following reasons: 1. This proceeding was clearly filed only to halt the foreclosure sale of subject property which is the debtor-in-possession’s sole significant asset. This fact alone would not be sufficient grounds for a finding of bad faith.

A joint creditor needs relief from § 362(a) or modification of the debtor’s discharge before reducing its claim to a joint judgment, regardless of whether it objects to the debtor’s exemption.

Community Bank v. Costley (In Re Costley) · filed 1984-05-17(a)

... it appears that relief from the injunctive provisions of 11 U.S.C. § 362(a) or that modification of the discharge would be required for a creditor to reduce its claim to a joint judgment, regardless of whether objection to exemptions is made.

A mortgage default alone does not establish cause to lift the automatic stay when the debtor can promptly cure it and adequately protect the creditor.

In Re Artishon · filed 1984-05-21(d)(1)

I find that no cause exists here. Gene Artishon has demonstrated, through his affidavit, the ability to quickly cure any existing default and to keep his current Chapter 13 plan. Mere existence of default does not constitute cause for relief from the automatic stay. The debtor has shown Knutson’s interests are adequately protected.

Section 362(d)(1) permits relief from the automatic stay for cause when continued withholding of collateral pledged for a letter of credit imposes sufficient hardship on an issuer that has honored the letter.

In Re W.L. Mead Inc. · filed 1984-06-05(d)(1)

In light of the foregoing analysis, it must be concluded that Citizens is entitled to relief from the automatic stay. The continued deprivation of funds is a sufficient hardship on the bank so as to constitute cause to allow such relief.

Section 362’s automatic stay may be lifted to permit a secured creditor to continue foreclosure after dismissal of a Chapter 13 petition filed in bad faith.

In Re Heywood · filed 1984-06-06

The Chapter 13 petition is dismissed as not being in good faith. The stay imposed by 11 U.S.C. § 362 in the Chapter 13 proceeding is also lifted to permit Manufacturers and Traders Trust Company to continue their mortgage proceeding and it is so ordered.

Section 362(d)(1) permits relief from the automatic stay for cause when allowing another action to proceed will not increase the debtor’s liability.

In re Pantaleone · filed 1984-06-08(d)(1)

We will grant relief from the stay under § 362(d)(1), “for cause,” since the debtors will not be subject to greater liability than they are at the present time.

Section 362(d)(1) does not treat a postpetition suit against the debtor in another forum, without more, as cause to lift the automatic stay.

In Re Curtis · filed 1984-06-11(d)(1)

The Court holds that the existence of pending litigation in another forum filed after the commencement of the bankruptcy case, without more, does not constitute “cause.”

Section 362 permits denial of relief from the automatic stay despite a lack of equity when the debtor proves the property is necessary for an effective reorganization and the creditors’ interests can be adequately protected.

In Re Hagel Partnership Ltd. · filed 1984-06-15(d)

The motion must be denied if the debtor can meet its burden of proving that the property is necessary for an effective reorganization and that the creditors’ interests can be adequately protected by periodic payments or by other means.

Relief from the automatic stay under § 362(d) applies to the requesting secured creditor and does not directly alter other parties’ rights.

In Re Transleisure Corp. · filed 1984-06-15(d)

Where a secured claimant requests relief from the automatic stay, such request is as a general proposition narrowly drawn to apply to such party and no other. Thus, a grant of relief to the secured claimant will not directly alter the rights of other parties.

Section 362(d)(1) permits relief from the automatic stay for cause beyond inadequate protection without requiring a finding that the property is unnecessary to reorganization.

Rich v. Maryland National Bank · filed 1984-06-30(d)(1)

First, Judge Mannes lifted the stay under section 362(d)(1), not 362(d)(2). The former requires only a finding of “cause” to lift the stay and, unlike the latter, does not require any conclusion as to the importance of the property in question to the reorganization. Judge Mannes’ finding of such “cause” is supported by the facts and by the applicable law. The “cause” standard is broad and extends beyond the concept of a lack of adequate protection mentioned in the statute.

Section 362(d)(1) permits relief from the automatic stay for cause when the debtor’s lease terminated before bankruptcy.

E.M.R. Corp. v. Flynn (In Re E.M.R. Corp.) · filed 1984-07-06(d)(1)

Those provisions have no application to a lease which has been terminated. Under these circumstances, the defendant owner of the property has shown cause to terminate the automatic stay under § 362(d)(1). The stay is terminated to permit the owner to proceed with the State court litigation.

Section 362(d)(2) permits relief from the automatic stay only if the debtor lacks equity in the property and the property is unnecessary to an effective reorganization.

Cameron Brown Co. v. Bruce (In Re Bruce) · filed 1984-07-11(d)(2)

Therefore, not only must a lack of equity be found, but additionally, the property must be found not necessary to an effective reorganization.

Relief from the automatic stay may be granted retroactively to the petition date, rendering an alleged intervening stay violation moot.

Hadar Leasing International Co. v. D.H. Overmyer Telecasting Co. (In Re D.H. Overmyer Telecasting Co.) · filed 1984-07-11

This order effectively lifted the automatic stay to the date of the filing of the chapter 7 petition by Mr. Overmyer and has rendered moot any alleged violation of the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor’s right to possess leased property ended before the bankruptcy petition.

In Re McGovern Auto Specialty, Inc. · filed 1984-07-26(d)(1)

At the close of April 30, 1984, the debtor’s right to possession of the leasehold had lapsed and its subsequent filing of a petition for relief under the Code does not alter this result and consequently, ... we will grant Ram’s motion for relief from the stay “for cause” under 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay when a debtor fails to maintain insurance coverage on the property.

In Re Heinzeroth · filed 1984-07-26(d)(1)

A debtor who fails to provide insurance coverage is not entitled to the protection of the automatic stay under § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause.

Matter of Ghosh · filed 1984-07-30(d)(1)

Assuming arguendo that this action had been filed timely and the record had been designated, the Bankruptcy Court’s order to lift the stay on the debtor’s property would have been affirmed. The relief from the automatic stay shall be granted “for cause.” 11 U.S.C. § 362(d)(1). Our review of this case demonstrates that the Bankruptcy Court’s order to lift the stay on the debtor’s residence was properly granted.

Section 362(d)(2) permits relief from the automatic stay in a chapter 7 case when the debtor’s obligations exceed the value of the collateral securing them.

In Re Sunshine Books, Ltd. · filed 1984-08-07(d)(2)

The amount of the debtor’s obligation to PSFS and Dodson exceeds the value of the collateral securing those debts in this chapter 7 proceeding, and, therefore, relief from the automatic stay may properly be granted under either 11 U.S.C. 362(d)(2).

Section 362 allows the stay to be lifted so a creditor can exercise a setoff right unless the debtor furnishes adequate protection.

In Re Braniff Airways, Inc. · filed 1984-08-07(d)(1)

Like any secured claim, therefore, an entity with a right to setoff is assured that the automatic stay will be lifted to permit the creditor to setoff unless “adequate protection” is furnished.

Section 362 permits relief from the automatic stay for limited discovery from a debtor when a co-defendant needs evidence in the debtor’s sole control to defend an employee injury suit.

Occidental Chemical Corp. v. Johns-Manville Corp. (In Re Johns-Manville Corp.) · filed 1984-09-05

Balancing the considerations as best I can, I opt for the last of these alternatives, and reverse Bankruptcy Judge Lifland’s order insofar as it relates to Occidental. The rationale of this Court, it will be observed, is limited to cases where the plaintiffs were Manville employees, the case arises out of the functioning of a particular Manville plant, and the discovery sought therefore rests within the sole custody and control of Manville itself.

Section 362(d)(1) permits relief from the automatic stay for cause, including lack of adequate protection, when mismanagement and insufficient funds leave a secured creditor unprotected.

Powers Aero Marine Services, Inc. v. Merrill Stevens Dry Dock Co. (In Re Powers Aero Marine Services, Inc.) · filed 1984-09-05(d)(1)

Most important is that the debtor is unable to overcome the substantial evidence as to cause and lack of adequate protection. For all the many instances of mismanagement and the interrelation yacht of the debtors as stated above, cause exists for the lifting of the automatic stay.

Section 362(d) permits modification of the automatic stay to allow related district court litigation to proceed when doing so conserves judicial resources.

Baranski v. Lagrotteria (In Re Lagrotteria) · filed 1984-09-06(d)

In conclusion, this court finds that a modification of the stay will result in a conservation of scarce judicial resources. Accordingly, the motion of the Baranski plaintiffs to modify the stay is granted.

Section 362(d) permits relief from the automatic stay for lack of adequate protection or when the debtor has no equity in property that is unnecessary to an effective reorganization; equity is the collateral value exceeding the secured debt.

Bank Hapoalim B.M. v. E.L.I., Ltd. · filed 1984-09-18(d)

Section 362(d) of the U.S. Bankruptcy Code provides that a party may seek relief from the automatic stay for cause including the lack of adequate protection or where debtor retains no equity in the property and that property is not necessary for an effective reorganization. Equity is defined as the amount by which the value of the collateral exceeds the debt it secures.

A serious, bona fide challenge to a creditor’s lien can warrant denying relief from the automatic stay to preserve the status quo.

First State Bank of Crossett v. W.E. Tucker Oil Co. (In Re W.E. Tucker Oil Co.) · filed 1984-09-18(d)

Here the proof is clear that no equity exists and no one offered any evidence that any of the property was or was not necessary to an effective reorganization. There was testimony which was undisputed that the property is all depreciating in value, and, were it not for the fact that a serious and bona fide issue exists regarding the transfer of the liens in question, the Court would not hesitate, on the state of the record, to grant relief from the stay. But, in order to preserve the status quo for all parties, the complaint for relief from the stay will be denied.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the property and no reasonable possibility of a successful reorganization within a reasonable time.

Beers v. Slate Belt Vehicle Recycling Center, Inc. (In re Slate Belt Vehicle Recycling Center, Inc.) · filed 1984-09-19(d)(2)

The evidence shows that the plaintiffs hold a first mortgage against the debtor’s real property and that the amount owed pursuant to the mortgage is in excess of $293,000.00. It is undisputed that the fair market value of the property is $154,500.00 or less. It is also clear from the record that the debtor does not have “a reasonable possibility of a successful reorganization within a reasonable time.” ... Therefore, we shall grant to the plaintiffs relief from the automatic stay pursuant to § 362(d)(2) of the Bankruptcy Code.

Section 362(d)(1) does not allow relief from the automatic stay based only on a debtor’s lack of legal title when the debtor has an equitable interest in the property and the creditor shows no other basis for relief.

In Re Gallagher · filed 1984-10-19(d)(1)

Therefore, we conclude that the debtor has an equitable interest in the property in question and the automatic stay is applicable to the property. ... Consequently, we have no alternative but to deny relief because the movant has not set forth any basis for relief from the stay under § 362(d).

An equity cushion can adequately protect a secured creditor during the automatic stay, so additional protection and relief from the stay are unwarranted.

In Re Sun Valley Ranches, Inc. · filed 1984-10-24(d)(1)

I conclude that Equitable Life is adequately protected by its equity cushion and is not entitled to anything more. Therefore, the stay will not be lifted.

Section 362(d)(1) permits relief from the automatic stay for cause when the debtor acts in bad faith.

In Re Integrated Petroleum Co., Inc. · filed 1984-11-19(d)(1)

Indeed, his actions are indicative of bad faith, a cause sufficient for lifting the stay.

The stay under § 362(a)(3) may be lifted to let a true lessor pursue possession of its leased equipment.

In Re Mitchell · filed 1984-11-20(a)(3)

Leasing is entitled to relief from the stay provided for by 11 U.S.C. § 362(a), particularly Subdivision (3), as to the dairy equipment, and an Order will be entered so providing. This will permit Leasing to pursue whatever legal methods or remedies are open to it for recovery of possession of the dairy equipment.

Nondischargeability of a support debt under § 523(a)(5) alone does not establish cause to lift the automatic stay against property of the estate.

In Re Morgan · filed 1984-11-21(d)(1)

It is the opinion of the Court, therefore, that nondischargeability of a debt under § 523(a)(5) does not provide the “cause” necessary for the Court to lift the stay against property of the estate provided by § 362(a).

Section 362(g)(2) places the burden on a debtor seeking to maintain the automatic stay to provide adequate protection for a creditor’s possessory interest.

Matter of Clarkstown Transmissions Corp. · filed 1985-01-11(g)(2)

In order to block Gibraltar from pursuing its possessary interest under the assigned lease and from furthering its right to exploit the trade name “Gibraltar” at the location in question, the debtor must come forward and satisfy the burden imposed under 11 U.S.C. § 362(g)(2), by providing adequate protection within the meaning of 11 U.S.C. § 361.

Section 362(d) permits relief from the automatic stay when the debtor lacks equity in the property and it is unnecessary for an effective reorganization, or when the creditor receives no adequate protection.

Ernst v. Ohsman & Sons, Co. (In Re Manchester Hides, Inc.) · filed 1985-01-25(d)(1), (d)(2)

Section 362(d) provides the framework for lifting the automatic stay. The evidence adduced at trial proves that there is no equity in the four accounts receivable and further that these are not necessary for an effective reorganization. Therefore, sufficient grounds exist for lifting the stay pursuant to 11 U.S.C. § 362(d)(2). In addition, there was no offer of adequate protection for the interests of Sons adduced at trial. Therefore, the Court concludes that grounds for lifting the automatic stay also exist under 11 U.S.C. § 362(d)(1).

Stay relief under § 362(d) is inappropriate when it would allow a creditor to initiate a state procedure that contravenes § 525.

In Re Adler · filed 1985-02-12(d)

Movant is here requesting stay relief under 11 U.S.C. § 362(d) in order to trigger that procedure by making his written request under the Florida statute. ... It would be totally inappropriate, of course, to lift the stay in order to permit movant to initiate a procedure which directly contravenes § 525. For this reason, the motion is denied.

Section 362(d)(1) allows a court to modify the automatic stay for cause to permit discovery in a civil action when serious rent fraud is alleged.

In Re 343 East 43rd Street Holding Corporation · filed 1985-02-13(d)(1)

Modification or relief from the automatic stay may be granted upon notice and a hearing for cause. 11 U.S.C. § 362(d)(1). Given the serious nature of the allegations ... of rent fraud, there is good cause to proceed with discovery in the civil action.

Section 362(d)(1) permits relief from the automatic stay for cause when a lease terminated before bankruptcy is outside the estate and leaves the debtor a tenant by sufferance.

In Re Consolidated Pier Deliveries, Inc. · filed 1985-02-15(d)(1)

The lease in suit never having been property of the estate, the legal effect of such a determination is to render the debt- or a mere tenant by sufferance. Accordingly, cause exists to vacate the automatic stay pursuant to 11 U.S.C. § 362[d][l]. The government’s motion for relief from the stay is granted. This ruling obviously moots consideration of the issue of adequate protection.

Section 362(d)(1) permits relief from the automatic stay for cause, including a lack of adequate protection for a creditor’s interest in property.

In Re Moor · filed 1985-02-18(d)(1)

In addition to finding that the automatic stay should be lifted for cause, including the lack of adequate protection, i.e., § 362(d)(1), the Court, as set forth herein-above, is of the opinion that considering the totality of the debt encumbering the agricultural property, the Debtor owns no equity in this property.

An incipient, dormant state court action does not provide cause to lift the automatic stay under § 362(d)(1) merely because it is pending.

In Re Swann Gasoline Co. · filed 1985-02-22(d)(1)

However, the Circuit Court action is in such an incipient (yet dormant) state that its pendency is virtually irrelevant for § 362(d)(1) purposes.

Section 362(d)(1) permits a court to deny relief from the stay for a creditor’s setoff in a reorganization case when the setoff would impede reorganization.

In Re Coleman · filed 1985-02-26(d)(1)

If a lift of the stay is sought post-filing in a reorganization case rather than a liquidation ease, the right to set off may be more circumscribed, and in cases where the set off would impede the process of reorganization the court may exercise its discretion to deny the right to set off.

After Chapter 13 plan confirmation, a secured creditor cannot obtain relief from the automatic stay to assert preconfirmation rights while the debtor complies with the plan.

Rhode Island Central Credit Union v. Zimble (In Re Zimble) · filed 1985-03-01

At issue is whether the confirmation of a Chapter 13 plan bars such a secured creditor from obtaining relief from stay, absent a post-confirmation default by the debtor as to the terms of the plan. For the following reasons, we conclude that it does, and will deny relief from the stay.

Section 362(d)(1) permits lifting the automatic stay for cause to allow a pending state court action to continue when doing so would not greatly prejudice the bankruptcy estate.

Matter of Rabin · filed 1985-03-04(d)(1)

The Court finds that “cause” exists for lifting the automatic stay allowing movants to continue the state court action. ... Because it appears that no great prejudice to the debtor’s bankruptcy estate would result, the Court finds that it is more appropriate to permit continuance of the state court proceedings in their place of origin.

Section 362(d) requires a motion to lift the automatic stay in the bankruptcy proceeding before another court may decide a suit affecting the debtor’s assets.

NLT Computer Services Corp. v. Capital Computer Systems, Inc. · filed 1985-03-04(d)

It certainly cannot seriously be claimed that were such a suit pending in another district court or in a state court, the judge of that court could proceed to decide that suit on the merits without a motion to lift the stay under 11 U.S.C. § 362(d) having first been filed in the bankruptcy proceeding itself.

Section 362(d) permits relief from the automatic stay for cause determined case by case, including to let a state court address family law matters.

Mac Donald v. Mac Donald · filed 1985-03-12(d)

Because there is no clear definition of what constitutes “cause,” discretionary relief from the stay must be determined on a case by case basis. ... It is appropriate for bankruptcy courts to avoid incursions into family law matters “out of consideration of court economy, judicial restraint, and deference to our state court brethren and their established expertise in such matters.”

In a Chapter 7 case, mutual obligations eligible for setoff are cause to lift the automatic stay absent countervailing factors.

In Re Flanagan Bros., Inc., Debtor · filed 1985-03-14(d)(1)

Under 11 U.S.C. § 362(d)(1) relief from the stay may be granted “for cause.” In a chapter 7 proceeding, such as the one at bench, the mere existence of mutual obligations subject to set-off constitute sufficient “cause” in the absence of countervailing factors.

Relief from the automatic stay under Section 362(d) must be requested by motion; a request buried in a reply opposing a different motion is insufficient.

Ross v. General Plastic & Chemical Corp. (In Re Auto-Pak, Inc.) · filed 1985-03-17(d)

A request for relief from the stay must be made by motion, as Bankruptcy Rule 4001(a) requires; such a request should not be buried in a reply to an opposition to a motion seeking entirely different relief.

Section 362(d)(1) requires cause to modify the automatic stay so a creditor can continue a pending state court suit against the debtor.

Marathon Restaurant Corp. v. Three Bros. Development & Construction Co. (In Re Barr) · filed 1985-03-18(d)(1)

The court interprets this to mean that the plaintiff is seeking a modification of the automatic stay for cause pursuant to 11 U.S.C. § 362(d)(1). However, the plaintiff has shown no cause for such relief.

Relief from the automatic stay may allow a party to enforce rights under a contract terminated before bankruptcy, but monetary claims against the debtor must be pursued through bankruptcy claims.

D.C. Films, Inc. v. Best Film & Video Corp. (In Re Best Film & Video Corp.) · filed 1985-03-22

D.C. Films is entitled to relief from stay to the extent necessary to permit it to exercise the rights given it under its contract with Best Film upon termination of the contract. ... The relief from stay accorded D.C. Films does not embrace any monetary claims which D.C. Films has against Best Film which must be asserted by filing claims against Best Film.

Section 362(d) permits lifting the automatic stay so a creditor can pursue entireties property in state court, but relief may be denied when a single bankruptcy proceeding better serves judicial economy.

Liberty State Bank and Trust v. Grosslight · filed 1985-03-22(d)

In appropriate cases, the court may lift the automatic stay to allow the creditor to proceed against the entireties property in state court. 11 U.S.C. Sec. 362(d). We see no reason for such a procedure here, when judicial economy would be better served by a single proceeding in bankruptcy court.

Section 362(d) allows a court to lift the automatic stay so a creditor can pursue entireties property in state court when appropriate; judicial economy can favor keeping the matter in bankruptcy court.

Liberty State Bank & Trust v. Grosslight · filed 1985-03-22(d)

In appropriate cases, the court may lift the automatic stay to allow the creditor to proceed against the entireties property in state court. 11 U.S.C. § 362(d). We see no reason for such a procedure here, when judicial economy would be better served by a single proceeding in bankruptcy court.

Section 362(d) permits relief from the automatic stay for cause beyond lack of adequate protection, including circumstances favoring prompt resolution of state law claims in a pending state court action.

Broadhurst v. Steamtronics Corp. · filed 1985-03-26(d)

The factors considered by the bankruptcy court were sufficient to support its decision that cause had been shown for the lifting of the automatic stay. Although lack of protection of an interest in property is specifically mentioned by § 362(d), this is not the exclusive basis for a finding of cause.

Relief from the automatic stay under § 362(d) is governed by federal law, so state substantive contract law does not ordinarily apply to the proceeding.

Johnson v. Righetti · filed 1985-03-28(d)

State law, therefore, is not ordinarily applied by the bankruptcy court to an action brought pursuant to 11 U.S.C. § 362(d).

Section 362 does not prevent a state court from continuing an action after the bankruptcy court permits it to proceed and lifts the automatic stay.

Ex Parte Lumpkin · filed 1985-04-03

Put another way, when the trial court took its final action on July 26, 1984, refusing a stay, no error was committed because the bankruptcy court's action, without question, allowed the trial court to refuse a stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a lease was terminated before bankruptcy and the debtor fails to provide adequate protection of the lessor’s interest.

In Re 163rd Street Medical Corp. · filed 1985-04-04(d)(1)

The Lease having been terminated under applicable non-bankruptcy law prior to the filing of the petition herein, there is no executory interest available for the Debtor to assume. ... Therefore, there is sufficient cause to lift the automatic stay. Furthermore, the Court determines that the Debtor has failed to provide adequate protection of the interests of EQUITY PROPERTIES AND DEVELOPMENT COMPANY in and to the Leased premises. Accordingly, EQUITY PROPERTIES AND DEVELOPMENT COMPANY is entitled to relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) for good cause shown.

Section 362(d)(1) makes the effect of outside litigation on estate administration the most important factor in deciding whether cause exists to lift the stay; even slight interference may justify denying relief without a commensurate benefit.

In Re Towner Petroleum Co. · filed 1985-04-10(d)(1)

The most important factor in determining whether to grant relief from the automatic stay to permit litigation against the debtor to go forward in another forum is the effect of such litigation on the administration of the estate. Even slight interference with the administration may be sufficient to deny relief in the absence of a commensurate benefit.

Section 362(d)(2) permits relief from the automatic stay only if the debtor lacks equity in the property and the property is unnecessary to an effective reorganization.

United States v. Smithfield Estates, Inc. (In Re Smithfield Estates, Inc.) · filed 1985-04-12(d)(2)

Furthermore, lack of equity alone does not warrant relief from stay, unless it is also shown that the property is not necessary to an effective reorganization.

Section 362(d)(1) permits relief from the automatic stay for cause so a pending action against the debtor can proceed to judgment.

Wilson v. Unioil (In Re Unioil) · filed 1985-05-10(d)(1)

The Court finds that good cause exists for granting relief from automatic stay, such that the prosecution of actions pending against debtor Unioil in the United States District Court for the Central District of California, entitled Wilson v. DeRussy, Civil No. 84-2400, and Deutsch v. DeRussy, et al., Civil No. 842496, should be allowed to the point of judgment.

Section 362(d)(1) permits modification of the automatic stay for cause to allow delivery of a sheriff’s deed after a prepetition foreclosure sale when the debtor cannot redeem the mortgage or set aside the sale.

In Re Rouse · filed 1985-05-14(d)(1)

The automatic stay may be terminated under § 362(d)(1) of the Code for “cause”. On the evidence presented, the debtor has failed to present any evidence rebutting PSFS’ showing of “cause”. The mortgage may not be redeemed under Pennsylvania law, nor may the sheriff’s sale be set aside under the provisions of the Bankruptcy Code cited by the debtor in his brief. Accordingly, the automatic stay will be modified to permit PSFS to receive and record a duly acknowledged sheriff’s deed to the subject property.

Section 362(d)(1) permits relief from the automatic stay for a state condemnation action that is consistent with the orderly liquidation of the debtor’s property.

In re F.A. Potts & Co. · filed 1985-05-23(d)(1)

Here, the purpose of the debtor’s bankruptcy case is the orderly, fair, and reasonably prompt liquidation of its remaining property. We find that the proposed state condemnation action is consistent with this purpose. ... For the foregoing reasons, we shall grant to DSWA its requested relief from the automatic stay.

Section 362(d) does not require relief from the automatic stay when an equity cushion provides adequate protection and the debtor retains equity in the property.

New ULM State Bank v. Brokmeyer (In Re Brokmeyer) · filed 1985-05-24(d)

This equity cushion, which will erode fairly rapidly, constitutes adequate protection even if only for a short time. ... From the factual circumstances presented, the tests provided in 11 U.S.C. § 362(d) have not been met.

Section 362(d) allows relief from the automatic stay for cause when a lease cannot be assumed under § 365.

Matter of Escondido West Travelodge · filed 1985-06-19(d)

As they correctly point out, if a lease cannot be assumed under § 365, sufficient cause exists to lift a stay of state court proceedings involving that lease.

Section 362(d) permits the bankruptcy court to lift the automatic stay so parties can fix the amount of a personal injury claim by judgment in another forum.

Avitto v. Cardona (In Re Cardona) · filed 1985-06-24(d)

At the joint suggestion of the parties, the bankruptcy stay is lifted under § 362(d) to permit the parties to fix the amount of those damages by judgment in any appropriate forum.

Section 362 permits the court to vacate the automatic stay so a secured creditor may collect assigned payments from a third party to the extent of the debt owed.

First National Bank of Mercer County v. Rankin (In re Rankin) · filed 1985-06-26

1. That the automatic stay under 11 U.S.C. § 362 of the Revised Bankruptcy Code is vacated in favor of the Plaintiff in order that it may proceed against the New York Life Insurance Company to collect the assigned premiums to the extent of the balance owing to it by the debtor, subject to the right of said plaintiff to apply to the Bankruptcy Court for a judgment against said New York Life Insurance Company and an order directing it to pay the premiums due the debtor to the plaintiff bank to the extent of the balance due it on the loan and any amounts in excess thereof as the Court may order, and to have the insurance company cited for contempt if it continues to withhold the payments after being made a party hereto.

Section 362(d) allows the stay to remain in place when creditors are adequately protected and the property is necessary to an effective reorganization.

In Re Vanas · filed 1985-07-08(d)

Because the Court has concluded that there is adequate protection and that the property is necessary to an effective reorganization, the motions of the PLB and the PGA to lift the automatic stay pursuant to § 362(d) are hereby denied.

Section 362’s stay may be lifted to allow a pending state court action to proceed through judgment while bankruptcy proceedings are suspended.

In Re Whitby · filed 1985-07-31

Accordingly, it is ordered that the motion to dismiss is denied, that the motion to suspend is granted, that these proceedings are suspended pending the entry of a judgment in the state court action, that the stay of 11 U.S.C. § 362 is lifted as to those proceedings through the entry of a judgment, and that the parties shall notify the Court when a judgment is entered.

Section 362 does not provide cause for relief from the automatic stay when the requested relief serves only to pursue a claim the movant cannot make.

Heim v. Schierholz (In re Schierholz) · filed 1985-08-16(d)(1)

Because the sole reason for seeking relief from stay herein was to ultimately pursue a claim against the Real Estate Recovery Fund, which the Applicants cannot do, there is no cause shown under 11 U.S.C. § 362 which would warrant the relief requested.

Section 362(d)(1) requires courts to consider the totality of the circumstances when deciding whether cause warrants relief from the automatic stay.

Local 144 Hospital Welfare Fund v. Baptist Medical Center of New York, Inc. (In Re Baptist Medical Center of New York, I · filed 1985-08-21(d)(1)

As Baptist correctly points out, “cause” is sufficient to vacate a stay under § 362(d)(1) only when viewed in the context of the totality of the circumstances.

Section 362(d)(1) permits a court to modify the automatic stay for cause when a debtor has been unable to sell property before and after filing for bankruptcy.

In Re Hunt · filed 1985-08-28(d)(1)

Since the Debtor has been unable to sell the property himself pre- and post-petition, the Court concludes that there is good cause pursuant to 11 U.S.C. § 362(d)(1) to modify the stay in the following manner: ... The Movants’ motion for relief from the stay, for the purpose of selling the property at a state court ordered public auction, is hereby denied.

Section 362 permits relief from the automatic stay for a pending state-court damages action while leaving any relief for execution on a later judgment to a separate request.

Lake Erie Leasing, Inc. v. Bundy (In Re Bundy) · filed 1985-08-30

... but only the right of the plaintiff to have its damages to the reposessed entireties assets determined in its pending action against both spouses in the Court of Common Pleas, and we feel it should have that right and that the litigation pending in said court on the date of the bankruptcy filing should be transferred to that court with the obligation on the parties and their attorneys to report the results or any proposed settlement thereof to the Bankruptcy Court for its approval see. leg.; and that the matter of the plaintiff’s right to issue execution against other entireties property of the debtor and his wife on any judgment that may be obtained in said action should be continued with the right of the plaintiff to re-apply to this Court for vacation of stay in relation to such executions in the event and at the time such judgment is obtained if the within case is still pending.

The automatic stay may remain in place while a debtor pays reasonable rent for its current use of property, with default sufficient cause to lift the stay.

In re Samoa Airlines, Inc. · filed 1985-09-10

Thus, in the instant case, unless Debtor offers additional security to Aero Filipinas, the court is requiring Debtor to pay forthwith to Aero Filipinas for the current use of the aircraft, based upon a reasonable rent. If the parties cannot agree upon the reasonable rent, the court will determine the reasonable rent. Until such determination, the rent provided for in the lease is deemed reasonable. And, such rent must include the sum necessary to pay for the overhaul of the aircraft engines. Any default will be sufficient cause to automatically grant a lifting of the stay, based upon an affidavit filed by counsel for Aero Filipinas.

Section 362(d)(1) generally does not allow unsecured creditors relief from the automatic stay to collect a debtor’s prepetition obligations.

In Re Schmid · filed 1985-09-11(d)(1)

As a general rule, unsecured creditors are not entitled to relief from the stay to collect on a debtor’s prepetition obligations.

Section 362 permits the court to lift the automatic stay as to premises whose leases expired by their own terms.

Glimcher v. Washington Distributors, Inc. (In Re Cook United, Inc.) · filed 1985-09-25

It is further ORDERED, ADJUDGED and DECREED that the leases, by their own terms, expired on August 31, 1985. It is further ORDERED, ADJUDGED and DECREED that the stay under Title 11 U.S.C., Section 362 is lifted as to the Cambridge Shopping Plaza, Inc. and Chillicothe Plaza, Inc. premises.

Section 362(d) permits only a party in interest, such as a creditor or debtor of the bankrupt partnership, to seek relief from the automatic stay.

In re Ledges Apartments · filed 1985-10-09(d)

Under 11 U.S.C. § 362(d), only a “party in interest” may move to lift or modify a stay. Hanover must be either a creditor or a debtor of the partnership in bankruptcy, a real party in interest under the applicable substantive law of the State of Vermont to invoke the Court’s jurisdiction.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor wrongfully withdraws cash collateral from a debtor-in-possession account.

In Re Krisle · filed 1985-10-11(d)(1)

Wrongful withdrawal of funds from the debtor-in-possession account is cause for grant of relief from stay.

Section 362 ordinarily allows the automatic stay to be lifted so labor disputes can be resolved through arbitration, while preserving the stay against execution on bankruptcy property.

Garland Coal & Mining Co. v. United Mine Workers of America · filed 1985-12-05

Although there is some authority for the proposition that the section 362 stay applies to labor arbitrations, we find that, ordinarily, the bankruptcy court should lift the stay to allow the merits of labor disputes to be resolved through arbitration, but that the stay should be continued to prevent the execution of any judgment which would result in a taking of any property at issue in the bankruptcy proceeding.

Section 362(d)(1) requires more than simple nonpayment to establish cause for relief from the automatic stay when the creditor receives adequate protection.

Matter of Lipply · filed 1986-01-02(d)(1)

The term ‘cause’ as used in § 362(d)(1) requires more than simple nonpayment. The cause must be some form of malfeasance on the part of the debtor. The failure to make contractual payments during the bankruptcy case is not, without more, cause, where the creditor is truly given the indubitable equivalent of his bargain.

Section 362(d)(1) permits relief from the automatic stay for cause, which may include an imminent state court trial involving the same issues.

In Re Castlerock Properties, Debtor. Piombo Corporation, a California Corporation v. Castlerock Properties, a California · filed 1986-01-23(d)(1)

11 U.S.C. § 362(d)(1) allows relief from the automatic stays provided by § 362(a) for “cause.” ... More importantly, a state court trial is about to take place involving the very same issues. Under these circumstances, the district court did not abuse its discretion in terminating the stay, thus allowing the entire case to- be determined in one forum.

The § 362 stay may be lifted to allow a state court to determine whether a debtor’s lease was terminated before bankruptcy.

In Re Family Showtime Theatres, Inc. · filed 1986-01-29

If the parties decide to return to the Civil Court for this determination, the Court will lift the § 362 stay for that purpose.

Section 362(d)(1) permits modification of the automatic stay for cause to allow a creditor to litigate compulsory counterclaims alongside the debtor’s claims, without permitting collection of any resulting judgment.

In Re Pro Football Weekly, Inc. · filed 1986-03-19(d)(1)

The court finds that, given the procedural history of this case, the denial of the motion to modify the stay was an abuse of discretion. Accordingly, the court hereby reverses the order denying the motion to lift the stay, and orders that the stay be modified to allow the continued prosecution of Gannett’s counterclaims. The modification of the stay should only permit Gannett to pursue these claims in the litigation of case No. 85 C 6612; and should not be extended to permit Gannett to collect any judgment it might receive.

Section 362(d) permits modification of the automatic stay for cause when a debtor cannot reject a contract through a Chapter 13 plan.

Bregman v. Meehan (In Re Meehan) · filed 1986-03-26(d)

Furthermore, whether or not the contract was executory after the state court’s action, Judge Hall could properly conclude that a § 362(d) modification of the automatic stay was warranted: If the contract is categorized as executory, Judge Hall’s ruling that Meehan could not avoid the contract was consistent with the principles of the business judgment test; if the contract is declared non-executory, then Meehan’s rejection was not authorized by the Bankruptcy Code and thus constituted “cause” to modify the automatic stay.

The automatic stay may be modified to allow enforcement of a state-law lien if the secured debt remains unpaid after a specified period and to allow termination of an agreement under applicable law.

In re Southern Express Airways, Inc. · filed 1986-03-26(a)

ORDERED that the motion of Lee County for relief from the automatic stay is granted; that the automatic stay of 11 U.S.C. § 362(a) is hereby modified to permit Lee County to enforce its rights under § 329.40, Florida Statutes, with respect to the Piper Chieftain aircraft with registration number N35892 but only if the obligation of $713.13 secured by the lien on the aircraft is not paid within fifteen days of the date of this Order; and that the automatic stay of 11 U.S.C. § 362(a) is hereby further modified to permit Lee County to terminate the Airport Use Agreement with the Debtor under applicable law.

In a chapter 7 case, a creditor seeking relief from the automatic stay under § 362(d)(2) need not prove that the property is unnecessary to an effective reorganization, because reorganization is not possible in chapter 7.

In Re Fazio · filed 1986-04-21(d)(2)(B)

Under chapter 7 the movant need not introduce any evidence under § 362(d)(2)(B) since reorganization is not possible in that chapter.

Relief from the automatic stay to foreclose a mortgage does not authorize a creditor to seek appointment of a receiver unless the motion for relief requests that authority.

Matter of Dibbern · filed 1986-04-30

The relief granted by the Court is limited to the prayer in the motion for relief. Therefore, if the prayer does not request permission to seek the appointment of a receiver, the order granting relief does not permit such action.

Section 362 permits relief from the automatic stay to allow a state court action to proceed when the bankruptcy court abstains from the related adversary proceeding.

Taxel v. Veri-Fone, Inc. (In Re American Manufacturing Technologies, Inc.) · filed 1986-05-07

In light of this Court’s ruling that this Court will abstain from hearing this proceeding under 28 U.S.C. § 1334(c)(1), Veri-Fone is granted relief from the automatic stay imposed under 11 U.S.C. § 362. Accordingly, this Court lifts the automatic stay under 11 U.S.C. § 362, as it applies to Veri-Fone, to allow Veri-Fone to file or refile its state court action regarding the issues involved in the trustee’s Complaint.

Section 362(d) permits relief from the automatic stay when the debtor cannot adequately protect a secured creditor’s interest in collateral.

Firstsouth, F.A. v. Lawson Square, Inc. (In Re Lawson Square, Inc.) · filed 1986-05-14(d)

The Court further ruled that no evidence had been offered indicating that the debtor could, through any other means, provide the adequate protection required by 11 U.S.C. § 362(d) to prevent the Motion for Relief from being granted.

Section 362 permits a court to lift the automatic stay for a state court determination of a provisional liquidator’s authority while keeping state court liquidation proceedings stayed.

In Re Eagle Bend Development · filed 1986-05-22

In concert with this opinion, the automatic stay of section 362 is lifted to allow the parties to proceed in State Court to determine the standing or validity of the provisional liquidator appointed March 13, 1986. State Court liquidation proceedings are and remain stayed under section 362.

Section 362(d) permits relief from the automatic stay so a creditor may exercise a preserved right of setoff against future distributions owed to the debtor.

In Re Butler · filed 1986-05-28(d)

The motion is granted. The stay is lifted to permit movant without further leave of this court to assert and exercise its claimed right of setoff.

A bankruptcy court’s remand order can effectively grant relief from the automatic stay to let a state court enter judgment in a divorce proceeding.

Anderson v. Anderson (In Re Anderson) · filed 1986-06-20(a)

In any event, the Court concludes that Judge Kressel’s remand order effectively granted the parties relief from stay to proceed to judgment in the dissolution.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor files bankruptcy solely to forestall foreclosure after receiving distressed property shortly before filing.

Matter of Nelson · filed 1986-06-27(d)(1)

This motive is an abuse and misuse of bankruptcy jurisdiction. ... The debtor was unable to present evidence to establish good and sufficient reasons why relief from the automatic stay should not be granted. Accordingly, Central Mortgage is entitled to relief from the stay for “cause” pursuant to 11 U.S.C. § 362(d)(1).

Section 362(d)(1) requires relief from the automatic stay for cause when a creditor seeking past due child support lacks adequate protection because that debt cannot be included in a Chapter 13 plan.

McCray v. McCray (In Re McCray) · filed 1986-07-01(d)(1)

However, although the stay applies, this creditor must be granted relief from stay for cause under 11 U.S.C. § 362(d)(1). There is no adequate protection for the creditor, nor can there be, because, under the persuasive reasoning of the cases cited by the creditor’s counsel, the debt for past due child support may not be provided for in a Chapter 13 plan.

Section 362’s stay may be terminated to allow foreclosure proceedings to conclude when the foreclosure sale occurred before the bankruptcy filing and extinguished the debtor’s redemption rights.

ICM Mortgage Corp. v. Edwards (In Re Edwards) · filed 1986-07-02(a)

For reasons which have been set forth in the Wallace and Shirley cases, the court finds that with the completion of the auction sale, the mortgagor was divested of all rights of redemption remaining in him at the time of the sale. The sale foreclosed the mortgage. ... With the extinguishment of the rights of the debtor by foreclosure, his filing of a Chapter 13 proceeding did not cause the reinstatement of the foreclosed mortgage. ... An order will be entered in accordance with the foregoing, terminating the stay to permit the conclusion of foreclosure proceedings identified as Civil Action No. 14160, docketed in the Circuit Court for Montgomery County, Maryland.

Section 362(a)'s automatic stay may be modified to permit enforcement of a divorce judgment supported by a valid prepetition lis pendens.

Matter of Ottaviano · filed 1986-07-11(a)

The stay imposed by 11 U.S.C. § 362(a) is modified to the extent necessary to permit Barbara J. Ottaviano to enforce said judgment.

A bankruptcy court may deny a motion for relief from the automatic stay without prejudice to renewal after prompt resolution of a related motion to transfer venue.

In Re Waterman Steamship Corp. · filed 1986-07-24(d)

The motions to vacate the automatic stay are denied without prejudice to renewal upon the district court’s resolution of the motion provided that the Debtor files such motion within 15 days of the date of this order.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor remains substantially behind on mortgage payments, despite a partial payment tender, possible insurance coverage, and the property’s value.

In Re Panas · filed 1986-08-08(d)(1)

As applied to the case at hand the debtor is in arrears on the mortgage to the extent of 43 prepetition payments and at least ten postpetition payments. We conclude that this default constitutes “cause” for relief from the stay under § 362(d)(1), notwithstanding the tender of partial payment, the possible insurance coverage and the value of the premises.

Section 362(d) requires a creditor seeking relief from the automatic stay to establish grounds for relief, such as inadequate protection or lack of debtor equity.

In Re Kasdorf · filed 1986-08-20(d)

In the case at bar, the bank has provided no evidence of lack of adequate protection. It has also failed to show any proof that the debtors lack equity in the subject property. In addition the debtors’ response to the bank’s motion asserts that the property is necessary to an effective reorganization. Since the bank does not meet the requirements of 11 U.S.C. § 362(d), relief from stay cannot be awarded.

Section 362(d)(2) permits relief from the automatic stay only if the debtor lacks equity in the property and the property is unnecessary to an effective reorganization.

Matter of Dunes Casino Hotel · filed 1986-08-21(d)(2)

Under Section 362(d)(2) of the Bankruptcy Code, the court can only grant relief from the stay if it finds both that the debtor lacks equity in the property and that such property is “not necessary to effective reorganization.” As noted above, GNAC has the burden of proof on the equity question. 11 U.S.C. § 362(g)(1). GNAC has presented no evidence to support the argument for Dunes’ lack of equity and does not pursue it in this appeal. Therefore it is not entitled to relief from the stay pursuant to Section 362(d)(2).