11 U.S.C. § 362

Section 362(d)(1) does not provide cause to lift the stay for former liquor-license owners who have only an unsecured claim to the purchase price.

Johnson v. Kramer (In Re Kramer) · filed 1986-09-25(d)(1)

In this case, neither the License Agreement nor the Lease Agreement purported to grant the plaintiff/sellers any rights in and to the liquor license. ... Accordingly, the plaintiffs are merely unsecured creditors. ... Having found that the plaintiffs are not entitled to the relief requested, we will enter Orders denying the motion for relief from the automatic stay and dismissing the complaint for a declaratory judgment.

A regulator’s complaint may be treated as a request for relief from § 362(a)’s automatic stay, leaving the regulator’s action outside that stay.

Pennsylvania Public Utility Commission v. Metro Transportation Co. (In Re Metro Transportation Co.) · filed 1986-09-29(a)

While the PUC is hereafter not subject to the automatic stay provided in 11 U.S.C. § 362(a) due to the fact that its Complaint in this action may be construed as an action seeking relief from any such stay, this Court has the power to impose relief in the nature of a stay of any actions, including those of governmental bodies, which threaten the assets of the debtor’s estate, pursuant to 11 U.S.C. § 105(a).

Section 362 permits relief from the automatic stay so a secured creditor may pursue its collateral, except property on which its lien has been avoided.

In Re Case · filed 1986-10-01

FURTHER ORDERED that the Bank is granted relief from the automatic stay provided for by 11 U.S.C. § 362 in order to exercise its remedies against all of its collateral except as to those items whereon its lien has been voided, supra.

Section 362(d) does not require lifting the automatic stay to resume state court litigation when doing so would frustrate the principal purpose of a proposed reorganization.

In Re the Bible Speaks · filed 1986-10-08(d)

We disagree. Virtually all of the same reasons for denying dismissal are equally valid for continuation of the automatic stay. There is no need to further prolong this opinion by repeating them. Termination of the automatic stay would clearly frustrate the principal purpose of the proposed reorganization.

Section 362 does not entitle an unsecured creditor to relief from the automatic stay to enforce its claim against the debtor.

In re Shucart · filed 1986-10-22

Beauty, as an unsecured creditor of Shucart, is not entitled to relief from the stay of 11 U.S.C. § 362 in order to enforce its claim against her.

Section 362(d)(1) permits the court to lift the automatic stay on a creditor’s motion after the debtor’s challenges to a prepetition foreclosure sale fail.

Quinn v. Fidelity Financial Services Inc. (In Re Quinn) · filed 1986-10-27(d)(1)

2. Fidelity’s motion to lift the § 362(a) automatic stay is hereby granted. 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause based on a material default in a confirmed Chapter 13 plan, with materiality determined from the plan and the circumstances of the default.

In Re Brown · filed 1986-11-05(d)(1)

Based upon the factual findings stated above, the Court concludes that, although material default in the terms of a confirmed Chapter 13 plan can be cause for relief from the automatic stay and can be cause for the dismissal of a Chapter 13 case, the determination of materiality is a factual question within the discretion of the court based upon its consideration of a particular Chapter 13 plan and upon the totality of circumstances affecting the debtors which caused the default. The Court finds that the existing default in the debtors’ plan is not a material default as to ITT which would constitute “cause” for granting relief from stay within the meaning of 11 U.S.C. § 362(d)(1) and that ITT did not advance any other ground for relief.

Section 362 permits relief from the automatic stay so a spouse may obtain a state court determination of marital-property interests and maintenance.

Johnson v. Fisher (In Re Fisher) · filed 1986-11-17

The consideration of those matters is best done in the pending divorce action in the Yuma County District Court. To enable her to proceed in that action, it is appropriate that she be granted relief from the stay imposed by 11 U.S.C. § 362.

A prior order lifting the automatic stay can permit foreclosure involving the same debtors, creditors, and property despite a subsequent bankruptcy filing.

Jefferson v. Mississippi Gulf Coast YMCA, Inc. · filed 1986-10-31(a)

The Court next addresses the legal propriety of the lower court's holding that the automatic stay provisions of 11 U.S.C. Section 362(a) did not operate to bar or preclude the foreclosure proceedings where an Order pursuant to 11 U.S.C. Section 362(d) was entered lifting the stay and allowing a sale to proceed in a previous bankruptcy involving the same debtors, the same creditors and the same property. The Court has studied the issue and concludes that the lower Court’s decision that the April 19, 1984, foreclosure sale did not violate the automatic stay provision of 11 U.S.C. Section 362(a) — whether based on principles of res judicata, ODECO v. Mont Boat Rental Services, Inc., Et Al, 799 F.2d 213 (5th Cir.1986), or collateral estoppel, United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984)—did not constitute error as a matter of law and, in fact, was fully justified given the posture of this case.

Section 362(d)(1) permits relief from the automatic stay for cause based on a debtor’s unintentional noncompliance with prior bankruptcy proceedings.

In Re Shariyf · filed 1986-12-16(d)(1)

In light of the applicable scope of review discussed above, I find that Judge King did not abuse his discretion in finding that appellant’s unintentional noncompliance with the prior bankruptcy proceedings constituted “cause” under § 362(d).

Section 362(d)(1) permits relief from the automatic stay for cause, including a debtor’s lack of good faith, but the stay remains when the record shows no bad faith or other cause.

Idaho, Dept. of Lands v. Arnold (In re Arnold) · filed 1986-12-19(d)(1)

The debtor’s lack of good faith in filing a bankruptcy petition has often been used as cause for removing the automatic stay. ... Here, there is no abuse of the bankruptcy process. The Ar-nolds have used the land productively to repay creditors while the stay is in place. There is no showing of bad faith.

Section 362(d)(1) permits relief from the automatic stay for cause when a Chapter 13 debtor has a significant unexcused postpetition payment default that she cannot cure.

E.F. Hutton Mortgage Corp. v. Radney (In Re Radney) · filed 1987-01-05(d)(1)

The Court finds that in this case there has been a significant unexcused post-petition default by the Debtor. ... Debtor has no ability to cure the post-petition default. ... Under these circumstances, the Movant has shown “cause” for lifting of the stay under Section 362(d)(1) of the Bankruptcy Code (11 U.S.C. Section 362(d)(1)).

Section 362(d)(1) permits relief from the automatic stay for cause when debtors make no mortgage payments for over two years and have no equity in the mortgaged property.

Chase Home Mortgage Corp. v. Klepper (In Re Klepper) · filed 1987-01-15(d)(1)

The debtors’ failure to make any mortgage payments in over two (2) years, together with their lack of equity in the subject property warrants relief pursuant to § 362(d)(1).

Section 362(d)(2) permits relief from the automatic stay when the debtor lacks equity in the property and there is no reasonable likelihood of an effective reorganization within a reasonable time.

In Re B-K of Kansas, Inc. · filed 1987-01-26(d)(2)

In the final analysis, this Court lifts the automatic stay for the grounds stated in subsection 362(d)(2). The debtors lack equity in the franchise rights. In addition, this Court does not perceive any reasonable likelihood of an effective reorganization within a reasonable time.

Lack of adequate protection provides cause to grant relief from the automatic stay under § 362(d)(1).

In Re Halley · filed 1987-01-28(d)(1)

In other words, even if the bankruptcy court was vested with the authority to modify the expired mortgage instrument so as to extend it by extending the plan provisions, there still was a proper basis for Judge King to find “cause” (i.e., lack of adequate protection, 11 U.S.C. § 362(d)(1)) to grant appellee relief from the § 362(a) automatic stay.

Section 362(d)(2)(A) measures the debtor’s equity in property as its value minus all encumbrances against it.

Matter of Belton Inns, Inc. · filed 1987-02-06(d)(2)(A)

Under section 362(d)(2), the stay may be modified if two requirements are met: the debtor lacks equity in the property, and the property is not necessary to an effective reorganization. This court subscribes to the majority view which defines equity in debtor’s property as the difference between the property value and all encumbrances against it.

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.

In Re Louden · filed 1987-02-09(d)(2)

3. Under 11 U.S.C. § 362(d) the Court may grant Equitable relief from the stay if (1)Louden does not have any equity in the real estate and (2) the real estate is not necessary to his effective reorganization.

Section 362(d) permits modification of the automatic stay to let claimants litigate liability and the amount of their claims in another court.

In Re Cache, Inc. · filed 1987-03-12(d)

With respect to each of these claims, the creditor has requested stay relief under 11 U.S.C. § 362(d). The request is granted and the automatic stay is modified to permit each creditor to proceed to the point of final decision fixing the debt- or’s liability, if any, for the claim and the amount of the claim.

A party seeking relief from the automatic stay bears the burden of showing just cause, and the bankruptcy court has discretion to lift or continue the stay.

In re Pacor, Inc. · filed 1987-03-17(d)

The decision to lift or continue the automatic stay is committed to the sound discretion of the bankruptcy court. The moving party has the burden of establishing that just cause exists for a lifting of the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a state court judgment has already adjudicated the debtor’s lease rights and precludes relitigation in bankruptcy court.

Rivera v. Centro De Transmisiones Automaticas De Puerto Nuevo, Inc. (In Re Centro De Transmisiones Automaticas D · filed 1987-03-18(d)(1)

In view of the foregoing the automatic stay provisions of 11 U.S.C. § 362 are hereby lifted in favor of Alvarez for cause, that is, because the debtors rights to the lease contract were already adjudicated by the state courts and such an adjudication precludes relitigation before the Bankruptcy Court.

An unsecured creditor seeking relief from the automatic stay for cause must show that the balance of hardships favors the creditor, a burden rarely met through disputed allegations alone.

In Re Ronald Perlstein Enterprises, Inc. · filed 1987-03-23(d)(1)

We do acknowledge that an unsecured creditor could succeed in a stay motion if it shows that the balance of hardships tips in the creditor’s favor. ... However, establishing that the balance of hardships tips in their favor imposes a significant burden upon unsecured creditors such as the Movants, which they can rarely, if ever, sustain on the basis of pure allegations, most of which are disputed.

Section 362(d) permits a motion seeking resolution in state court to satisfy the request and notice requirements for stay relief when the motion implicitly requests modification of the stay and alerts the debtor to that request.

Pursifull v. Eakin · filed 1987-03-27(d)

Thus, implicit in Eakin's request to have the issues resolved in Texas state court is a request for modification of the stay. We therefore conclude that, under the particular wording of Eakin's motion, the motion did constitute a request for relief from the stay, and did provide notice to appellant that such request had been made.

Section 362(d) permits relief from the automatic stay for cause when a pending state court proceeding addresses the same issues and those state-law issues are best decided by state courts.

Pursifull v. Eakin · filed 1987-03-27(d)

The district court in the present case lifted the stay because there was a Texas state court proceeding pending which dealt with the same issues, and because the issues involved were matters of state law best decided by the state courts. The reasons given by the district court constitute sufficient cause for lifting the stay as to the Texas proceedings.

After a court lifts the automatic stay to allow enforcement of a security interest, a creditor’s failure to comply with state foreclosure law does not itself violate the stay or support damages under § 362(h).

Domestic Fuel Corp. v. Rainaldi (In Re Domestic Fuel Corp.) · filed 1987-04-03(h)

The court had already lifted the automatic stay, as previously requested by Rainaldi, so that he might proceed to enforce his secured rights. Rainaldi’s failure to comply with the requirements of the Uniform Commercial Code in attempting to effect a valid disposition of interest in the Raab stock does not constitute a violation of the Bankruptcy Code. If, as a result of Rainal-di’s exercise of self-help, the debtor has sustained damages, the debtor may seek compensation in an appropriate proceeding independently of 11 U.S.C. § 362(h)), which deals with willful violations of the stay imposed under § 362.

Section 362(e) starts its 30-day period for deciding or continuing a stay when the debtor receives notice of a motion for relief from stay; absent a timely decision or valid continuation order, the stay terminates automatically.

In Re Northwest Aggregate & Const. Co., Inc. · filed 1987-04-06(e)

This court agrees with the bankruptcy judge that a request under Section 362(d) is completed when the debtor receives notice of the motion for relief from stay rather than at the time the creditor files the motion. ... Clearly then, the bankruptcy court did not make a final determination on the Bank’s motion by July 16, and did not, alternatively, enter an order prior to July 16 continuing the stay. Accordingly, the stay of the state proceeding automatically terminated on July 16.

Section 362(d)(1) permits relief from the automatic stay for cause when an earlier order lifting the stay precludes relitigation of the same stay issue in a subsequent bankruptcy case.

Matter of Inesta Quinones · filed 1987-04-06(d)(1)

An order lifting the stay in a case may constitute res judicata on a subsequent filing and may constitute “cause” under 11 U.S.C. § 362(d)(1). Once the court decides the stay issue in a bankruptcy case the decision precludes relitigation in a subsequent case.

Section 362(d)(1) permits prospective relief from the automatic stay for cause when a debtor’s planned sale of property would prevent a judgment creditor from reaching it.

In Re Clarke · filed 1987-04-10(d)(1)

In sum, the prospect of the Debtor’s selling his property out from under the Movant is, in our view, sufficient “cause” to justify prospective relief from the automatic stay, per 11 U.S.C. § 362(d)(1).

Section 362(d)(1) does not allow an unsecured creditor relief from the automatic stay solely because the debtor filed a Chapter 11 case to deliver a notice accelerating its debt.

In Re Texaco Inc. · filed 1987-05-29(d)(1)

The commencement of these cases under title 11, without more, cannot be regarded by unsecured creditors as sufficient cause for relief from the automatic stay imposed under 11 U.S.C. § 362.

A defendant seeking to proceed to trial despite an automatic stay must ask the bankruptcy court to lift the stay rather than require the plaintiff to do so.

Dupuis v. Homes · filed 1987-06-05

The trial court erred in ordering the plaintiff to obtain a lifting of the Bankruptcy Court’s automatic stay. If the defendant, Bellefonte Underwriters Insurance Co., wishes a trial on the matter, it is incumbent upon the defendant to motion the Bankruptcy Court to obtain a lifting of that court’s automatic stay order. 11 U.S.C. Sec. 362.

A Chapter 13 plan that provides adequate protection for a secured claim may prevent relief from the automatic stay under § 362(d).

In Re Sacerdote · filed 1987-06-08(d)

Depending upon the plan’s terms, this may constitute adequate protection thereby depriving Meyers of his right to relief under 11 U.S.C. §§ 362(d), 363(e).

Section 362(d)(1) permits relief from the automatic stay for cause, including lack of adequate protection, but a creditor must demonstrate sufficient cause to obtain relief.

Grundy National Bank v. Rife · filed 1987-06-24(d)(1)

11 U.S.C. § 362(d)(1) authorizes a court to grant relief from a stay “for cause, including the lack of adequate protection of an interest in property.” The Bank has not demonstrated sufficient cause to remove this stay.

Section 362(d)(1) permits relief from the automatic stay for cause when allowing a claim to finish in another court is the most expeditious way to liquidate it.

May v. Wheeler Group, Inc. (In Re Wheeler Group, Inc.) · filed 1987-06-30(d)(1)

Again, it is not an interest in property here involved, so that questions of adequate protection are irrelevant, and so we have to decide whether movant has shown “cause” to have the stay lifted within the meaning of that word as found at § 362(d)(1). We conclude that cause does exist. ... Clearly, since the matter has proceeded through very substantial adjudicatory steps in the District Court, there having been a report by a Magistrate, the most expeditious way to liquidate the claim is to allow it to proceed to its conclusion in the District Court.

Section 362(d)(1) does not entitle a landlord to relief from the automatic stay when its prepetition notice to quit did not properly terminate the debtor’s lease.

In Re 29 Newbury Street, Inc. · filed 1987-07-10(d)(1)

Because the Court has found that the summary process proceeding was ineffective and that the 14 day notice to quit did not properly terminate the lease, it is clear that Saunders is neither entitled to relief from stay nor entitled to possession of the leased premises.

Section 362(d)(2) permits relief from the automatic stay for personal property as well as real property.

Efcor, Inc. v. BancAmerica Commercial Corp. (In Re Efcor, Inc.) · filed 1987-07-29(d)(2)

Thus, debtor’s argument that § 362(d)(2) does not apply to personal property is without merit.

Section 362(d) provides alternative grounds for relief from the automatic stay; establishing one ground is enough to lift it.

Sun Valley Ranches, Inc. v. Equitable Life Assurance Society · filed 1987-08-05(d)

Although the district court found that both these statutory provisions justified granting relief to Equitable, the provisions are disjunctive.

Section 362(d)(1) permits relief from the automatic stay for cause when the stay prevents a foreclosure purchaser from obtaining the deed and possession after the debtor’s right to cure has expired.

In Re Brown · filed 1987-08-06(d)(1)

Because the debtor retained legal title and possession of the premises at the time of the bankruptcy filing, the automatic stay has prevented Meritor from proceeding to settle with the sheriff and obtain a deed and, ultimately, possession. ... In these circumstances, I agree that Meritor has established “cause” for granting relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1).

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

Gaglia v. First Federal Savings & Loan (In Re Gaglia) · filed 1987-08-06(d)(2)

Once the creditor establishes that there is no equity in the property (a fact which will be evident from the debtors’ move to void the underse-cured portion of the creditor’s lien) and that the property is not necessary to an effective reorganization (which, in a chapter 7, is also evident), the court has no discretion to lift or not lift the automatic stay. The court must lift the automatic stay so that the secured creditor may pursue his remedy against the liened property for whatever benefit he may perceive.

After the bankruptcy court enters an order granting partial relief from the automatic stay, the district court may enter judgment on the matter covered by that relief.

Barona Group of the Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc. · filed 1987-08-07(d)(1)

The district court did not enter judgment as to the claim for declaratory relief until after the bankruptcy court entered its order granting the Band partial relief from the automatic stay. Thus, the district court had jurisdiction to enter judgment granting the Band’s motion for summary judgment.

Section 362(d) does not permit relief from the automatic stay for an adequately protected creditor when the secured property is necessary to an effective reorganization.

In Re Cann & Saul Steel Co. · filed 1987-08-11(d)(1), (d)(2)

Since it is deemed to be adequately protected, the Bank lacks cause to terminate the automatic stay pursuant to 11 U.S.C. § 362(d)(1). Since the property secured is necessary to an effective reorganization, the Bank cannot succeed in terminating the stay, pursuant to 11 U.S.C. § 362(d)(2), at this time.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor cannot cure a post-petition payment default within a reasonable time, even if the debtor has equity in the property.

In Re Sennhenn · filed 1987-08-12(d)(1)

The court, however, finds that “cause” exists for granting relief from stay pursuant to § 362(d)(1). ... Although it appears that Debtor has equity in his residence, Debtor does not have the ability to cure the post-petition default within any reasonable period of time, as previously discussed. The court finds, then, that movants’ motion for relief from stay is well taken and should be granted.

Section 362(d)(1) permits the automatic stay to continue after a postpetition payment default when the creditor is adequately protected and suffers no economic or other harm.

In Re McCollum · filed 1987-08-13(d)(1)

A postpetition default may, or may not, constitute “cause” for relief from stay. In circumstances where, as in this case, no economic or other harm to the creditor would result, it is appropriate that the stay continue in effect.

Section 362 permits a creditor to obtain relief from the automatic stay when a debtor fails to comply with a confirmed plan, allowing the creditor to pursue state-court remedies.

Ford v. Fidelity Consumer Discount Co. (In Re Young) · filed 1987-08-14(d)(1)

We believe that the dispute-resolution mechanism to determine whether or not the debtor has complied with his obligations under the Plan, thus binding the creditor to the treatment proposed for the creditor in the Plan, both before and after discharge, is a stay-relief motion pursuant to 11 U.S.C. § 362. If the Debtor has not complied with the terms of the Plan, the creditor may obtain relief from the stay and proceed with state-court remedies.

Relief from the automatic stay may be denied when the creditor has not established its entitlement to disputed estate funds.

Matter of DeLancey · filed 1987-09-03

In light of the foregoing, Nazario Brothers' motion for summary judgment declaring that Nazario Brothers is entitled to the escrow funds and for relief from the automatic stays is denied.

Section 362(d)(1) requires a creditor seeking relief from the automatic stay for cause to present evidence establishing a prima facie case; unsupported allegations do not suffice.

In Re Brown · filed 1987-09-04(d)(1)

Like the secured creditor in the Stranahan Gear case, the movant in the present case, Firemen’s Fund, has failed to establish a prima facie case of cause, specifically, lack of adequate protection under § 362(d)(1). As noted above, Firemen’s Fund offered absolutely no evidence to establish that its interest in debtors’ property lacked adequate protection: Firemen’s Fund did not produce evidence to show lack of equity, depreciating collateral, non-payment of taxes, failure to maintain insurance on the property, failure to keep the property, in a good state of repair, or any other facts tending to evidence a lack of adequate protection.

Section 362(d)(1) does not provide cause to lift the automatic stay based on a claimed lease termination when state law still requires a judgment of termination.

In Re Texaco Inc. · filed 1987-09-17(d)(1)

The PPG’s request for relief from the automatic stay for cause on the ground that the Placid Lease has been terminated, cannot be maintained absent a state court judgment of termination. A notice of default is not self-operative; a second prerequisite to termination is the issuance of a judgment of termination or cancellation by a state court.

Section 362(d)(2) permits modification of the automatic stay when the debtor lacks equity in the property and a bad-faith, unconfirmable plan means the property is not necessary to an effective reorganization.

In Re Ouverson · filed 1987-09-30(d)(2)

In addition, the Court concludes the automatic stay should be modified pursuant to 11 U.S.C. § 362(d)(2). The Debtor lacks equity in the property and because of the lack of good faith in filing, the Plan also lacks the requisite good faith and confirmation would fail pursuant to 11 U.S.C. § 1225(a)(3). ... Therefore the property is not necessary to an effective reorganization.

Section 362(d) permits relief from the automatic stay so a landlord may set off a security deposit against pre-petition rent arrears.

In Re Inslaw, Inc. · filed 1987-10-14(d)

The Court finds as a matter of law that Prudential should be granted relief from the automatic stay and permitted to set off the security deposit against the pre-petition rent arrearage. ... At the same time, however, 11 U.S.C. Section 553 preserves the creditor’s right “to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under [the Bankruptcy Code] against a claim of such creditor against the debtor that arose before the commencement of the case,” once relief from the automatic stay has been granted pursuant to 11 U.S.C. Section 362(d).

Section 362(d)(1) requires cause to be established before the court grants relief from the automatic stay.

In Re A. Tarricone, Inc. · filed 1987-10-14(d)(1)

The motion of Friedrich-Wilhelm Metzeler, as the foreign representative for Uni-Petrol, for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1), for cause, is denied in view of the fact that cause for such relief has not been established.

Section 362(d)(1) requires a movant seeking relief from the automatic stay for marital property distribution to show that the balance of hardships favors lifting the stay.

In Re Ziets · filed 1987-10-22(d)(1)

We therefore fail to find here that the “balance of hardships” tips in favor of the Movant on this record, and the § 362(d)(1) aspect of the Motion must therefore be denied.

Section 362(d) allows relief from the automatic stay for cause, including inadequate protection, or when the debtor lacks equity in property that is unnecessary to reorganization; the party seeking relief must establish a ground for it.

Matter of Executive Technology Data Systems · filed 1987-10-27(d)

Moreover, even if the equitable lien were enforceable against the debtor, no grounds have been shown for relief from the automatic stay. Howard and Dial have not attempted to establish either that “cause,” such as a lack of adequate protection, exists under Section 362(d)(1), or that the debtor lacks equity in the property and the property is not necessary for reorganization under Section 362(d)(2).

A motion to lift the automatic stay concerns creditor protection, the debtor’s equity, and whether property is needed for reorganization; it does not decide claim merits or provide a setting for counterclaims.

County Fuel Co. v. Equitable Bank Corp. · filed 1987-11-02

As County Fuel correctly points out, the only matters potentially in issue in relation to a motion to lift an automatic stay relate to the adequacy of the creditor’s protection, the debtor’s equity, and the necessity of the property to effective reorganization; the merits of claims are not in issue and the procedural setting is not one appropriate for the assertion of counterclaims.

Section 362 does not require a bankruptcy court to formally lift the automatic stay before awarding rents and profits accruing after a mortgagee petitions that court to sequester them, where the funds are unnecessary to reorganization.

SALINE STATE BANK, Appellant, v. Richard MAHLOCH, Eunice Mahloch, Dennis Mahloch and First National Bank of Chicago, Ill · filed 1987-11-23

Accordingly, we hold that the stay need not be formally lifted in order to award the rents and profits to Saline from the date after it filed petitions to sequester rents and profits.

Section 362 permits relief from the automatic stay for an unsecured creditor to assert a claim only when the balance of hardships favors that creditor.

In Re International Endoscope Manufacturers, Inc. · filed 1987-11-24

Relief from the automatic stay to assert “common unsecured claims” will be granted only if the “balance of hardships” tips in the movants’ favor, which we fail to find here.

Section 362(d)(1) permits a court to grant relief from the automatic stay.

In Re Sennhenn · filed 1987-11-25(d)(1)

In addition, the appellees are entitled to relief from stay. 11 U.S.C. § 362(d)(1).

Relief from the automatic stay under § 362(d) that grants a motion to foreclose in all respects permits foreclosure after the month mentioned in the order.

Matheson v. Powell (In Re Matheson) · filed 1987-11-30(d)

By granting the relief in all respects as prayed for in the motion, the lifting of the stay was not limited to a May foreclosure.

To obtain relief from the automatic stay on a secured loan, the movant must establish a properly perfected security interest in the collateral and cause to lift the stay.

Amvest Funding Co. v. Rex Group, Inc. (In Re Rex Group, Inc.) · filed 1987-12-01(d)(1)

To prevail on its motion for relief from stay in regard to the $825,000 loan, Amvest must establish that it has a properly perfected security interest in the horses claimed as collateral and that there is cause for lifting the automatic stay.

Section 362(d) governs a motion to lift the automatic stay so a party may sue a bankruptcy trustee; failure to qualify for the exception in 28 U.S.C. § 959(a) does not itself decide whether the stay should be lifted.

Baptist Medical Center v. Singh (In Re Baptist Medical Center) · filed 1987-12-23(d)

In any event, that Singh impermissibly commenced the Pending Action under § 959(a) is inapposite to the Court’s determination of a motion to modify the stay. Instead, the Court’s decision on such a motion must necessarily be founded upon analysis of 11 U.S.C. § 362(d), the subdivision of the Bankruptcy Code’s automatic stay provision which allows the Court to grant relief from the stay upon appropriate showings.

Section 362(d)(1) permits relief from the automatic stay for inadequate protection when an interest-only payment offer leaves an undersecured creditor exposed to property risks and unpaid taxes.

In Re Markowitz Building Co. · filed 1988-01-11(d)(1)

In light of the Debtor-In-Possession’s lack of equity in the apartment complex, the offer to pay “interest only” is not “adequate” protection. Without an equity cushion, the risks that the Debtor-In-Possession seeks to impose on United Home Federal are too great, particularly when there are outstanding real estate taxes.

Section 362 permits relief from the automatic stay when a debtor fails to comply with adequate protection agreements and the creditor’s collateral is inadequately protected.

In re Cambridge Properties, Inc. · filed 1988-01-13

The Order given was reasonable in lieu of the mortgages and encumberances on the subject property, the length of time which the Debtor had been in Chapter 11, and the Debtor’s failure to comply with the adequate protection agreements which resulted from prior Bankruptcy Court hearings. ... Accordingly, IT IS ORDERED that the Bankruptcy Court’s order lifting the automatic stay imposed by 11 U.S.C. § 362 of the Bankruptcy Code in so far as Baton Rouge Production Credit Association be AFFIRMED.

Section 362(a)(7) stays a creditor from exercising a prepetition setoff until the court lifts the stay.

In Re Britton · filed 1988-01-15(a)(7)

The right is not self-executing and in a bankruptcy context, the creditor is stayed from exercising the right without permission of the court. 11 U.S.C. § 362(a)(7). As a result, the creditor must timely and properly assert the right and then obtain approval of the court before exercising the right. The right may be asserted in a proof of a claim, but it cannot be exercised until the automatic stay is lifted.

Section 362(d)(1) calls for a fact-specific assessment of cause, and concern about litigating issues twice does not justify stay relief when the bankruptcy court can resolve the dispute faster and more economically.

In Re Borbridge · filed 1988-01-19(d)(1)

Each request for relief for “cause” under § 362(d)(1) must be considered on its own facts. ... On balance, the movant has not demonstrated that his asserted concern about having to litigate certain issues twice outweighs the policy considerations and interest of the debtor in having the matter tried here.

Section 362(d)(1) requires a movant seeking relief from the automatic stay for cause to present a prima facie case or a legally sufficient basis for relief.

Lazaro v. Texaco Inc. (In Re Texaco Inc.) · filed 1988-01-25(d)(1)

The movant for relief from the automatic stay for cause has the burden of presenting a prima facie case or a legally sufficient basis for such relief.

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

In Re Metro Transportation Co. · filed 1988-01-25(d)

Here, similarly, there is an absence of production of evidence by the Movant tending to establish that the balance of hardships tips in his favor. Thus, we will enter a similar Order denying the instant Motion.

Section 362(d) does not permit relief from a new Chapter 13 stay on res judicata grounds when the prior stay was lifted by stipulation rather than a decision on the merits.

In Re Vita · filed 1988-02-02(d)

Where there is no final judgment on the merits in an earlier case because the stay was lifted as a result of a stipulation or agreement between the parties, rather than as a determination on the merits, a stay imposed in a subsequent Chapter 13 case will not be lifted on the basis of the doctrine of res judicata.

Section 362 permits retroactive relief from the automatic stay when requiring the state court to repeat its postpetition acts would serve no purpose.

In re Ruespin Corp. · filed 1988-02-05

For the reasons stated below, the motion is granted retroactively to January 5. ... Failure to make the stay relief retroactive to January 5 would accomplish nothing other than to require the State court to reissue its Order and Certificate and thus extend the period of redemption about 30 days (from January 5 to the State court’s repetition of its acts of January 5). The trustee has shown no interest in redemption. There is, therefore, no purpose to be served by requiring the State court to act again.

Section 362(d)(1) requires relief from the automatic stay for cause when a Chapter 13 plan fails to adequately protect secured creditors’ property rights by impermissibly modifying those rights.

In Re McKeon · filed 1988-02-17(d)(1)

No ingredient in the plans before this court adequately protect the secured creditors’ right in the property but instead impermissibly modifies those rights in violation of 11 U.S.C. § 1322(b)(2). Therefore, “cause” exists in all three cases for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor’s noncurable default prevents assumption of a franchise agreement.

Caribbean Gulf Refining Corp. v. Quinones Ruiz (In Re Quinones Ruiz) · filed 1988-02-23(d)(1)

A noncurable default constitutes cause under 11 U.S.C. § 362(d)(1) to lift the stay.

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

In Re Fry · filed 1988-03-15(d)(2)

The Debtors ... in their Response to that Motion have admitted they have no equity in the subject property. And, because this is a Chapter 7 case, there is no reorganization. Thus, under 11 U.S.C. § 362(d)(2), the creditors are entitled to relief from stay.

Section 362(a) permits a district court to enter judgment on a claim after the bankruptcy court enters an order granting relief from the automatic stay for that claim.

Barona Group of the Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc. · filed 1988-03-17(a)

The district court did not enter judgment as to the claim for declaratory relief until after the bankruptcy court entered its order granting the Band partial relief from the automatic stay. Thus, the district court had jurisdiction to enter judgment granting the Band’s motion for summary judgment.

Relief from the automatic stay may be affirmed when debtors present no new facts showing why a secured creditor should remain barred from enforcing a valid lien.

George Allen Willey, Helen Beatrice Willey, David R. Levin, Trustee v. Village Savings Bank · filed 1988-03-18

On appeal, the district court held that the Willeys had failed to present any new facts to the bankruptcy court to show why the Bank should not have been relieved of the stay and permitted to enforce its lien. The district court also held that the Willeys failed to present any such facts on appeal, and therefore affirmed the bankruptcy court's ruling. We find no error in the district court's decision, and affirm on its opinion.

Relief from the automatic stay generally should not be granted to an unsecured creditor seeking to reduce an antecedent debt to judgment after the bankruptcy filing, absent blatant abuse of the statutory framework.

Matter of Nehring · filed 1988-03-22(d)(1)

As a general rule and absent blatant abuse of the statutory framework, this court will not grant relief from the stay to an antecedent claimholder for the purpose of reducing the debt to judgment.

Section 362(d)(1) permits relief from the automatic stay for cause when insurance adequate to cover defense costs supports continuation of an unrelated state court action.

Martin v. Martin (In Re Krank) · filed 1988-03-24(d)(1)

Insurance adequate to cover defense costs on unrelated state court proceedings can support a showing of § 362 “cause.” Thus, genuine issues of material fact remain and we deny debtor’s motion for summary judgment on the § 362 portion of the complaint.

Section 362(d) allows an obligee under an executory contract to obtain relief from the automatic stay, even though § 365 also provides remedies for such contracts.

Richard Royce Collection Ltd. v. New York City Shoes, Inc. (In Re New York City Shoes, Inc.) · filed 1988-04-06(d)

Especially as we are unwilling to grant any injunctive relief against the Debtor here ourselves, we believe that relief from the automatic stay is warranted, either under 11 U.S.C. § 362(d)(1) or 11 U.S.C. § 362(d)(2). We reiterate that we have held that relief under § 362(d) can be granted to an obligee under an executory contract, contrary to the holdings of some courts that such relief is confined to remedies contained in 11 U.S.C. § 365.

Section 362(d)(1) requires the court to balance the estate’s interests against the movant’s hardship when deciding whether cause exists to lift the automatic stay.

In Re Todd Shipyards Corp. · filed 1988-04-19(d)(1)

In deciding whether there is sufficient cause present to lift the stay, the Court must conduct a balancing test whereby the interests of the estate are weighed against the hardships that will be incurred by the movants.

The automatic stay requires relief before a debtor defending a state-court action may pursue an appeal, and may require relief to seek reconsideration.

In Re Telephonics, Inc. · filed 1988-04-25

We also note that it is necessary to provide the Debtor with relief from the automatic stay to pursue any appeal and, arguably, the quasi-appeal of a motion for reconsideration in the Maryland court, since the Debtor is a defendant in that action.

Section 362(d)(1) permits relief from the automatic stay to let pending state court equitable distribution proceedings conclude when they were near resolution before the bankruptcy filing.

In Re Wilson · filed 1988-04-27(d)(1)

The matter was about to be resolved in state court, and section 362(d)(1) supports the result that it should still be resolved there.

Section 362(d) permits modification of the automatic stay to allow parties to litigate pending issues to conclusion in state court.

Braun v. Zarling (In Re Zarling) · filed 1988-05-04(d)

Pursuant to 11 U.S.C. § 362(d), the automatic stay is modified to permit all parties to litigate those issues to conclusion in the State court action.

Section 362(d) permits relief from the automatic stay when an interest in property lacks adequate protection or when the debtor has no equity in property that is unnecessary to an effective reorganization.

In Re Cambridge Mortgage Corp. · filed 1988-05-12(d)(1), (d)(2)

Based on the testimony and evidence, the Court finds that the interest of FHLMC in the 64 notes and mortgages and in $136,-213.27 on deposit in Account No. 791518707 is not adequately protected within the meaning of 11 U.S.C. § 362(d)(1). The Court further finds that the Debtor has no equity in the 64 notes and mortgages or in $136,213.67 on deposit in Account No. 791518707, and that the property is not necessary to an effective reorganization within the meaning of 11 U.S.C. § 362(d)(2).

Section 362(d)(2) does not permit relief from the stay when the debtor has equity in the property, and an equity cushion strongly supports adequate protection under § 362(d)(1).

In Re 1606 New Hampshire Avenue Associates · filed 1988-05-13(d)

The existence of equity of the Debtor in the premises eliminates the applicability of § 362(d)(2)(A) and, perforce, § 362(d)(2). The presence of an equity cushion is also a powerful factor in determining that Cavalier is adequately protected pursuant to § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause when parallel proceedings risk inconsistent results, conflicting interpretations of state law, and duplicated effort.

In Re Davis · filed 1988-05-13(d)(1)

Cause for lifting the stay exists here, principally because of the risks, if the stay is not lifted, of inconsistent results in two forums, of a conflict in the interpretation of state law between this court and the state court, and of duplication of lawyer and judicial effort.

A creditor with no claim it may assert in the bankruptcy proceeding lacks cause to lift the automatic stay under Section 362.

In Re Loffland Bros. Co. · filed 1988-05-24(d)(1)

Therefore, since Halliburton does not have a claim which it may assert in this bankruptcy proceeding, the Court finds that there is not “cause” for lifting the automatic stay. Therefore, Halliburton’s Motions to Lift Stay are DENIED.

Relief from the automatic stay permits only proceedings within the scope of the bankruptcy court’s order; a state court cannot extend that relief.

Miranne v. First Financial Bank, F.S.B. (In Re Miranne) · filed 1988-06-10

Fourth, even if the state preliminary injunction purported under state law to enjoin the Bank’s actions concerning the note proceeds, the state court would have lacked the authority to enter such an injunction, for the Bankruptcy Court’s partial lifting of the automatic bankruptcy stay was not so broad as to permit state court proceedings on this issue.

Section 362(d) permits relief from the automatic stay for purposes beyond foreclosure on specific property, including pursuit of a personal deficiency claim.

Delta Savings & Loan Association, Inc. v. Internal Revenue Service · filed 1988-06-17(d)

Nothing in section 362(d) expressly limits the ability to obtain relief from the automatic stay to secured creditors seeking only to foreclose on specific property.

Section 362(d)(1) allows a personal-property lessor in a Chapter 13 case to seek relief from the automatic stay before the lease is assumed or rejected.

In Re Reice · filed 1988-07-01(d)(1)

In summation, we hold that a lessor in the position of the instant movant is not limited to forcing assumption or rejection under § 365 and may avail itself of the protection of § 362.

Section 362(a)’s automatic stay may be lifted, if necessary, to permit enforcement of alimony and child support obligations in state court.

In Re Mann · filed 1988-07-07(a)

For that purpose, if necessary, the automatic stay provided in 11 U.S.C. § 362(a) is lifted to permit Mrs. Mann and the State court to proceed.

Section 362(d) permits a bankruptcy court, in its discretion, to lift the automatic stay so a state divorce court can determine and allocate interests in marital property.

In Re John Paul White, Debtor, John Paul White v. White · filed 1988-07-11(d)

The provisions for lifting the stay found in § 362(d) should be deemed to apply in these circumstances for the limited purpose of allowing the state court to exercise its exclusive domestic relations authority, including decisions concerning fair allocation of the marital estate.

Section 362(d)(1) allows relief from the automatic stay for cause, including inadequate protection; a substantial equity cushion can provide adequate protection.

In Re Powers · filed 1988-07-18(d)(1)

This equity cushion provides Jeffrey with adequate protection and there is no evidence of any other “cause” that would justify granting relief from the stay.

Section 362(d) requires lifting the automatic stay as to a contract the debtor in possession cannot assume without the other party’s consent when that consent is refused.

In the Matter of West Electronics Inc. Appeal of United States of America, by the United States Air Force · filed 1988-07-19(d)

The bankruptcy court was, therefore, confronted with a situation in which the debtor in possession was not entitled to assume the contract without the government's consent and the government was unwilling to give that consent. In that situation, the debtor in possession did not have a legally cognizable interest in the contract and it was an abuse of discretion for the court to decline to lift the stay.

Section 362 does not require a debtor to obtain relief from the automatic stay before moving to reject an executory contract with another Chapter 11 debtor.

In Re Sun City Investments, Inc. · filed 1988-08-09

As for Zentmeyer’s remaining arguments, the Court finds that the debtor need not move for relief from the stay pursuant to § 362 prior to filing a motion to reject an executory contract with Central Florida Fuels (a Chapter 11 debtor in Tampa).

Section 362 permits the automatic stay to remain in effect temporarily while a debtor seeks to cure lease defaults and assume the lease, with relief from the stay if the debtor fails to do so by the deadline.

20251 Century Associates Ltd. Partnership v. Opus Corp. (In Re Opus Corp.) · filed 1988-08-19

The stay of 11 U.S.C. Section 362 will likewise be conditionally extended through September 6, 1988. If the lease is assumed by Debtor by curing all payment defaults by September 6, 1988, Landlord’s Motion to lift the stay will be denied. Otherwise, it will be granted effective September 7, 1988.

Section 362(d)(1) provides no cause to lift the automatic stay for a creditor that has no right to recoup or set off its prepetition claim.

Hiser v. Blue Cross of Greater Philadelphia (In Re St. Mary Hospital) · filed 1988-08-23(d)(1)

Finally, given our decision that HHS has no right to recoupment or set off to assert its claims to collect past Medicare over-payments, there is no “cause” to allow it relief from the stay, pursuant to 11 U.S.C. § 362(d)(1).

Section 362 permits a court to order that the automatic stay terminate immediately upon a future rental payment default, allowing repossession without a further application to the court.

In Re Mako, Inc. · filed 1988-09-13

If such default should occur, the automatic stay pursuant to 11 U.S.C. § 362 will be lifted instanter without any further action by this Court, the DIP will surrender and abandon the property, and Derby may take immediate possession of the property described in the Master Agreement.

A tax claimant without a valid perfected security interest in the debtor’s property is not entitled to relief from the automatic stay to foreclose on that property.

In Re Brent Explorations, Inc. · filed 1988-09-14

Because the County has no valid perfected security interest in the Debtor’s property, it is not entitled to relief from the automatic stay to foreclose on said property.

Section 362 permits relief from the automatic stay for a secured creditor when a confirmed Chapter 13 plan provides no adequate protection for its collateral and the debtor has no equity in that collateral.

Southtrust Bank of Alabama v. Thomas (In Re Thomas) · filed 1988-09-19(d)

This court holds as a matter of law that the lien of SouthTrust upon the mobile home has not been invalidated by the Debtors’ Chapter 13 confirmed plan, and that SouthTrust is entitled to relief from the stay to pursue its detinue action to recover possession of the mobile home because the Debtors afford no adequate protection of SouthTrust’s security in their confirmed plan and the Debtors claim no equity in the mobile home.

A debtor’s material default under a confirmed plan constitutes cause to terminate the automatic stay under § 362(d)(1).

Matter of Grogg Farms, Inc. · filed 1988-09-22(d)(1)

Phoenix Mutual obviously will not acquiesce in the proposed modification and the debtor’s material default in the performance of its obligations under the confirmed plan constitutes cause, pursuant to 11 U.S.C. § 362(d)(1), to terminate the automatic stay.

Section 362(d) does not provide relief from the automatic stay to foreclose a mortgage that has been invalidated, leaving the creditor with only an unsecured claim.

Celona v. Equitable National Bank (In Re Celona) · filed 1988-09-28(d)

The Creditor is not entitled to relief from the automatic stay, pursuant to 11 U.S.C. § 362(d), in light of the fact that its claim has been determined to be unsecured and the mortgage on which it would base a foreclosure proceeding must be satisfied.

Section 362(d) requires a motion to lift the automatic stay to be heard by the bankruptcy court supervising the reorganization.

LTV Steel Co. v. Board of Education of the Cleveland City School District (In Re Chateaugay Corp., Reomar, Inc.) · filed 1988-10-04(d)

Thus, as an initial matter, the Ohio federal court has no authority to relieve the Cleveland School Board from the automatic stay with respect to the third claim. That matter can only be heard by the Bankruptcy Court for the Southern District of New York.

Section 362(d) relief from the automatic stay for setoff turns on whether the creditor has an interest in the property when no reorganization is attempted.

United States v. Thomas (In Re Thomas) · filed 1988-10-14(d)

Lifting the stay occurs for cause, upon sufficient proof that a party with an interest in the property is not provided with adequate protection of its interest or the debtor does not have any equity in the property and the property is not necessary for reorganization. 11 U.S.C. § 362(d). Since no reorganization was attempted in the case at bar, the issue in lifting the stay in this case is whether or not the government agencies have an interest in the property.

Section 362(d)(1) permits modification of the automatic stay for cause when keeping related litigation against the debtor stayed would require duplicative proceedings.

In Re Wedtech Corp. · filed 1988-10-25(d)(1)

In addition, to refuse to modify the stay in the Civil Actions might effectively doom KMG to prove the plaintiffs’ case and its own case in the adversary proceeding and to prove its own case again in the Civil Actions. In short, KMG has demonstrated ample cause for modification of the stay in the Civil Actions.

An order lifting the automatic stay to let Tax Court proceedings conclude permits the Tax Court to render a bench opinion and judgment when the order does not limit that authority.

Robert P. Noli and Delora J. Noli v. Commissioner of Internal Revenue · filed 1988-11-14(d)

There would be scant reason, indeed, for the bankruptcy court to allow the Tax Court proceedings to conclude, but yet prohibit a judgment from being rendered. ... Because the Tax Court’s bench opinion did not exceed the bounds permitted by order of the bankruptcy court, we find no error.

Section 362(d) permits modification of the automatic stay for cause to let limited partners pursue state-law remedies against a nondebtor partnership, while protecting estate property from forfeiture.

In Re Priestley · filed 1988-11-17(d)

The second relief requested, however, is substantially different. Basically, the limited partners seek to pursue their state law remedies against a partnership not before this Court: to have a receiver appointed, to remove the sole general partner, and to dissolve and wind up the partnership. To the extent that the automatic stay applies to these activities, the Court finds cause to modify it.

Section 362 does not entitle an unsecured creditor to relief from the automatic stay on a claim for adequate protection.

In Re Microwave Products of America, Inc. · filed 1989-01-12

As a holder of an unsecured claim, Copyfax is not entitled to adequate protection to the detriment of the other unsecured creditors.

Section 362’s automatic stay may be lifted to let a foreclosure creditor pursue its nonbankruptcy remedies when the debtor has no right, title or interest in the property.

In Re Pitts · filed 1989-02-10

Accordingly, the Court finds that the debtor has no right to cure or reinstate Amwok Corporation’s mortgage and that debtor has no right, title or interest in the property located at 1555 Elizabeth Street, Jacksonville, Florida. ... The automatic stay imposed by 11 U.S.C. § 362 is lifted to permit Amwok Corporation to pursue its remedies under applicable non-bankruptcy law.

The automatic stay may be lifted to allow a state tax agency to notify a debtor of potential personal liability for corporate taxes.

In re Vallis · filed 1989-02-15

Thus the Court will free the Commonwealth from the strictures of the automatic stay for the purpose of notifying the Debtor of his potential liability as a responsible party pursuant to section 31A.

A motion for relief from the automatic stay under § 362(d) may be denied when the movant fails to serve the debtor.

Taylor v. Federal National Mortgage Ass'n (In Re Taylor) · filed 1989-03-01(d)

At the hearing finally conducted on January 10, 1989, we initially expressed our intention to dismiss the § 362(d) motion because FNMA had admittedly still not served the Debtor himself therewith. ... At the close of the hearing, we indicated an intention to enter an Order, ultimately memorialized on January 11, 1989, denying the § 362(d) motion and allowing Briefs to be filed on January 24, 1989 (Debtor’s Opening); February 7, 1989 (FNMA); and February 10, 1989 (Debtor’s Reply).

Section 362 permits relief from the automatic stay to execute a warrant of eviction when issuance of the warrant has terminated the lease.

In Re B.K.B. Enterprises, Inc. · filed 1989-03-07

The debtor’s residual interest in a lease for purposes of assumption under 11 U.S.C. § 365 differs from the Landlord’s right to modify the automatic stay imposed under 11 U.S.C. § 362 after the issuance of a warrant of eviction which cancels the lease. Where a lease has been terminated upon the issuance of a warrant of eviction, the Landlord is entitled to relief from the automatic stay in order to proceed with the execution of the warrant of eviction.

Section 362(a) requires a secured creditor to obtain relief from the automatic stay before liquidating collateral that is property of the debtor’s estate.

Altenberg v. Frankford Trust Co. (In Re Railroad Dynamics, Inc.) · filed 1989-03-17(a)

Frankford correctly concluded that it could not liquidate the collateral to satisfy the Debtor’s obligations without first obtaining relief from the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code.

Section 362(d)(2) requires both lack of equity and lack of necessity for an effective reorganization before relief from the automatic stay may be granted under that subsection.

The Greenhouse Patio Apartments and the Greenhouse 484 v. Aetna Life Insurance Company · filed 1989-03-20(d)(2)

Once Judge Leal determined that the property was necessary to an effective reorganization, he could have denied stay-relief under Bankruptcy Code § 362(d)(2)(B). No further inquiry was necessary to deny the motion for relief under subsection (d)(2), because the requirements of § 362(d)(2) are conjunctive.

Relief from the automatic stay solely to regain possession of leased premises does not permit a landlord to detain, destroy, or sell the debtor’s estate property left there.

B. Cohen & Sons Caterers, Inc. v. New Plan Realty Trust (In Re B. Cohen & Sons Caterers, Inc.) · filed 1989-03-24(a)(3), (a)(6)

Relief from the stay, for this limited purpose only, clearly did not give the Landlord relief from the stay or authority to detain or take any other action in reference to the personal property of the Debtor’s estate on its Premises, even pursuant to lawful state-court processes.

Section 362(d) does not entitle a creditor whose purchase money security interest lacks priority to relief from the automatic stay to pursue replevin.

In Re Vermont Knitting Co., Inc. · filed 1989-03-30(d)

Its purchase money may not be accorded as a first priority lien. Since it is not in a priority position, it is not entitled to relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay so pending pre-petition state court litigation may proceed to judgment when the bankruptcy estate would not suffer great prejudice.

In Re Kaufman · filed 1989-04-07(d)(1)

We find that this case falls within the category of decisions which recognize that relief from the stay is justified to enable a case pending pre-petition in state court to continue to judgment where no great prejudice to the bankruptcy estate would result.

A secured creditor lacks cause for relief from the automatic stay to recover collateral when the debtor has consistently made the required loan payments.

In Re Crouch · filed 1989-04-15(d)(1)

The Debtors have consistently made payments on their loan with Colgasco by way of a deduction from wages earned by the Debtor, Robert Crouch. Therefore, stay relief to permit the credit union to recover its collateral is inappropriate here.

Section 362(d)(1) does not treat irregular post-confirmation Chapter 13 plan payments as automatic cause for relief from the stay; the court assesses the circumstances and materiality of the default.

In Re Raymond · filed 1989-05-04(d)(1)

In sum, based on the evidence of record, the Court concludes that debtors’ irregular payment history over approximately the last four months does not, as a matter of law, constitute cause for relief from stay under § 362(d)(1) of the Bankruptcy Code.

The automatic stay should be lifted to allow state-court claims against individual defendants to proceed when the bankruptcy court lacks subject matter jurisdiction over those claims.

Coffey v. Anderson · filed 1989-05-25(a)

Since we agree with the bankruptcy court's determination that it did not have subject matter jurisdiction over the claims asserted by Coffey against the individual defendants, the bankruptcy court should now lift the Sec. 362(a) stay to permit Coffey's claims to go forward in state court.

Section 362(d)(1) allows relief from the automatic stay for cause without requiring the movant to satisfy subsection (d)(2).

Parks v. Cardone (In re Cardone) · filed 1989-05-25(d)(1)

Parks has satisfied the requirements of § 362(d)(1). That section is written in the disjunctive and there is no requirement that both subsections be satisfied.

Section 362 permits the court to lift the automatic stay for a creditor to exercise a setoff without a separate stay-relief motion when the court has considered the setoff issues, while allowing the debtor to request adequate protection.

Blanton v. Prudential-Bache Securities, Inc. (In Re Blanton) · filed 1989-05-30

As mentioned above, Prudential-Bache has not formally sought relief from the stay under § 362 to exercise its setoff. However, since the Court has considered all issues relating to the setoff, no purpose would be served by requiring Prudential-Bache to file a separate motion for relief from the stay. At the same time, there is the remote possibility that Blanton may wish to offer adequate protection so that he might have use of the funds. Therefore, the Court will provide in its judgment order issued concurrently with this opinion that the stay of § 362 is lifted as to Prudential-Bache’s exercise of its set-off right unless with ten days after entry of the order, Blanton files with the Court a request to offer adequate protection. If such a request is timely filed, the stay will remain in effect pending further order of the Court.

Section 362(d)(1) permits relief from the automatic stay for cause when a Chapter 7 debtor in default, facing an unchallenged lien and no trustee opposition, fails to assert an intent to redeem or reaffirm the debt or convert to Chapter 13.

CCNB Bank, N.A. v. Elicker (In Re Elicker) · filed 1989-06-01(d)(1)

In cases such as the one at hand, where the creditor’s lien is not challenged, the default is admitted, and the Chapter 7 Trustee does not oppose the lifting of the automatic stay, I believe that in order to justify the continued imposition of the stay individual debtors must raise the defense that they will seek to redeem or reaffirm the obligation or that they will be converting to a Chapter 13 case. In this case the debtors have raised none of those defenses.

Section 362(d)(1) requires evidence of specific harm to the creditor and consideration of harm to other creditors before the automatic stay is lifted for cause.

In Re Caldwell · filed 1989-06-09(d)(1)

Based upon the lack of evidence as to the specific harm to UPCA coupled with UPCA’s failure to show that no harm will befall other creditors as a result of lifting the stay, the court finds that no cause exists to lift the automatic stay. The relief sought under section 362(d)(1) is denied.

Modification of the automatic stay to permit a secured creditor to collect receivables extinguishes the estate’s interest in those receivables.

First National Bank of Maryland v. United States Wall Corp. (In Re Incor, Inc.) · filed 1989-06-07(d)(1)

The modification of the automatic stay extinguished the interest of the debt- or’s estate in the debtor’s accounts receivable and permitted the Bank to collect them.

Section 362(d) permits relief from the automatic stay for cause to allow a claimant to continue a prepetition personal injury action.

Pieklik v. Hudgins (In Re Hudgins) · filed 1989-07-25(d)

Based upon these facts, the Court concludes that cause exists to lift the stay to permit Pieklik to continue her action against the debtor.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor has lost all legal and equitable rights in property after a completed prepetition foreclosure and eviction judgment.

In Re Boyd · filed 1989-08-02(d)(1)

His equitable rights to the property, if any, were likewise extinguished by the entry of the District Court’s order of eviction which was affirmed by the Fifth Circuit. Accordingly, it is the opinion of the Court that sufficient “cause” exists in this case to justify lifting the automatic stay pursuant to 11 U.S.C. § 362(d)(1) to effect the ouster of the defendant from the property.

Section 362(d) permits relief from the automatic stay for cause to allow labor grievances to proceed to arbitration when the circumstances show that arbitration will not interfere with reorganization.

Air Line Pilots Ass'n, International v. Eastern Air Lines, Inc. (In Re Ionosphere Clubs, Inc.) · filed 1989-08-02(d)

In light of the particular circumstances presented, cause exists to modify the stay with respect to the three arbitration proceedings. Thus, in accordance with foregoing, ALPA’s motion for relief of the automatic stay pursuant to § 362(d) of the Code is hereby granted.

Section 362(d)(1) permits relief from the automatic stay for cause when Chapter 12 debtors delay confirmation of a plan without excuse.

In Re Novak · filed 1989-08-03(d)(1)

The movants argue that the debtors’ delay in obtaining confirmation of a plan constitutes “cause” for relief from the automatic stay imposed by Section 362, and the Court agrees.

Section 362(d)(1) allows relief from the automatic stay for cause when a debtor retains possession under a lease without paying rent and intends to discharge prepetition arrears.

In Re Miller · filed 1989-08-11(d)(1)

The Bankruptcy Code provides that, upon request of a party in interest, the Court shall grant relief from the stay “for cause.” 11 U.S.C. § 362(d)(1). ... The burden is on Cafritz to prove that cause for relief from the automatic stay exists. ... Cafritz has met that burden by showing that the Debtor continues to enjoy the benefits of the lease, i.e., possession of the property, without shouldering the burden of paying the monthly rental due and with expressed intent to have all pre-petition rental arrearages discharged.

Section 362(d)(1) allows relief from the automatic stay for cause when repeated bankruptcy filings abuse the bankruptcy process to delay creditors.

Shearson Lehman Hutton Mortgage Corp. v. Hundley (In Re Hundley) · filed 1989-08-22(d)(1)

These factors demonstrate that the debt- or has no intention of seeking to reorganize under chapter 13 and that this most recent bankruptcy filing was for the sole purpose of invoking the automatic stay to further delay his creditors. Accordingly, this Court finds that under § 362(d)(1) cause exists to lift the automatic stay.

Section 362(d)(1) permits temporary continuation of an automatic stay while the court develops a sufficient record to decide whether cause warrants lifting it permanently.

Kubicik v. Apex Oil Co. (In re Apex Oil Co.) · filed 1989-08-28(d)(1)

We observe that if a complete and accurate record existed in this case justification might exist to lift the stay. After consideration of the problems with the record in this case, we temporarily affirm the stay, pending further development of a record upon which a reasonable decision as to the permanency of the stay can be made.

Section 362(a)(7) requires a creditor to obtain relief from the automatic stay before setting off a prepetition debt against a debtor’s prepetition claim.

In Re Cole · filed 1989-08-31(a)(7)

Before it can effect a setoff, however, Potomac Edison is required to obtain from the Court relief from the automatic stay of 11 U.S.C. § 362(a)(7) pursuant to 11 U.S.C. § 362(d).

Section 362(d)(1) and (d)(2) permit denial of stay relief early in Chapter 11 when alleged cause is not determinative and the debtor’s property may still be necessary to an effective reorganization.

In re Holley Springs Estates, Inc. · filed 1989-09-06(d)(1), (d)(2)

We also find that the “test” enunciated in the Little Creek case for ascertaining whether cause exists under § 362(d)(1) is not determinative, on the facts and at this point in the debtor’s month old Chapter 11 case. ... Again, considering the short amount of time elapsed since the debtor’s filing, we are not presently in a position to conclude that this property is not necessary to an effective reorganization. Moreover, if a reorganization is to take place, it can only occur through the utilization of the real property, since it is the sole asset of the debtor.

A creditor seeking to pursue an estate claim outside bankruptcy must obtain relief from the automatic stay in the bankruptcy court or have the trustee abandon the claim.

St. Paul Fire and Marine Insurance Company v. Pepsico, Inc., Pepsico, Inc., Third-Party v. Banner Industries, Inc., Thir · filed 1989-09-08(d), (e)

If it wishes to proceed with its claim, it must receive relief from the stay in the bankruptcy court, 11 U.S.C. § 362(d), (e), or request that the bankruptcy court make a finding that the claim has been abandoned by the trustee, 11 U.S.C. § 554.

Section 362 permits relief from the automatic stay when the debtor has made no postpetition payments to a secured creditor and has little or no equity in the collateral.

In re Oliver · filed 1989-09-08(d)

Lastly, we must determine whether RCC is entitled to relief from the automatic stay of 11 U.S.C. § 362. It was represented, without objection, that the market value of the secured property is $90,000, that the balance due on the first mortgage is approximately $12,000, and that RCC is owed $75,000. Since no postpetition payments have been made to RCC by the Olivers, and considering the very small (if any) equity in the subject property, RCC’s Motion for Relief from Stay should be granted.

Relief from the automatic stay can allow claimants to pursue remedies against arrested vessels in the foreign court exercising in rem jurisdiction over them.

In Re McLEAN INDUSTRIES, INC. · filed 1989-09-12

There was no valid objection available to the order granting all parties relief from the automatic stay to pursue their remedies in the Singapore court. Had there been no bankruptcy proceeding, the seamen would have been obliged to enforce their liens before the forum exercising in rem jurisdiction over the vessels.

Section 362(d)(1) allows a court to deny relief from the automatic stay when continuing the stay better protects the debtor and its creditors against prejudice from numerous competing claims.

Matter of Gatke Corp. · filed 1989-09-20(d)(1)

The court further considers that allowing Illinois Central relief from the automatic stay would encourage the filing of similar requests for relief by plaintiffs of pending lawsuits involving similar claims and would result in undue prejudice to Gatke and its creditors. Taking into consideration all of the relevant facts, the court concludes that the interests of Gatke and its creditors in the continuance of the automatic stay outweigh Illinois Central's interest in obtaining relief from the stay and in pursuing its claim against Gatke in another jurisdiction. The court therefore finds that Illinois Central’s Motion for Relief from Automatic Stay should be denied.

Section 362(d)(1) permits a bankruptcy court to deny relief from the automatic stay for pending state-court litigation while it resolves a threshold bankruptcy-law issue affecting the claim.

In Re Johnson · filed 1989-09-27(d)(1)

Thus, the Court has denied Movants’ motion for relief from stay, pending the resolution of certain preliminary bankruptcy-law issues in this Court.

Section 362 permits modification of the automatic stay to allow pending state court litigation to proceed.

Smith v. Cravey (In Re Cravey) · filed 1989-09-29

The automatic stay of 11 U.S.C. § 362 is modified to permit the State Court to deal with the pending litigation.

Section 362(d)(1) does not give a lessor relief from the automatic stay merely because a Chapter 11 debtor’s unexpired lease is terminable on notice.

In Re O-Jay Foods, Inc. · filed 1989-10-18(d)(1)

While the argument has some surface attraction, it has a fundamental flaw: it assumes that the provisions of 11 U.S.C. § 362(d), and any attendant provisions of 11 U.S.C. § 361, apply to an unexpired lease under which a Chapter 11 debtor is a lessee. They do not.

Section 362(a)’s automatic stay may be modified to permit state-court ratification of a foreclosure sale.

Friedman v. Oliver (In Re Oliver) · filed 1989-11-30(a)

ORDERED That the stay of 11 U.S.C. § 362(a) is hereby modified to permit ratification to proceed in state court on the foreclosure sale of the property at 1503 Lorelei Drive, Fort Washington, Prince George’s County, Maryland.

Relief from the automatic stay allowing a landlord to regain possession of leased premises does not authorize it to dispose of the debtor’s property to satisfy rent arrears.

In Re B. Cohen & Sons Caterers, Inc. · filed 1989-12-11(a)(3)

These Orders, however, did not grant New Plan any relief from the stay that enabled it to dispose of debtor’s property in satisfaction for rent arrears, even if New Plan was acting pursuant to a Sheriff’s Levy or other judgment. The purpose of the stay provision is to halt all creditors, whether they be judgment or otherwise. The Bankruptcy Court’s characterization of the relief Orders from the stays is entirely accurate: The relief from the stays was simply for New Plan to regain possession, not for it to convert and destroy debtor’s property. Since the Bankruptcy Court found that New Plan willfully disposed of debtor’s property, it correctly found that New Plan violated the stay order.

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.

Matter of Independent Management Associates, Inc. · filed 1989-12-13(d)(2)

11 U.S.C. § 362(d)(2) has a two-fold test. It allows relief from the stay where the debtor has no equity in the property and the property is not needed for a successful or effective reorganization.

Section 362(d) permits denial of relief from the automatic stay when a substantial equity cushion adequately protects an oversecured creditor seeking to exercise setoff rights.

Matter of American Sunlake Ltd. Partnership · filed 1989-12-19(d)

Nevertheless, based upon preponderance of the evidence before it, the court finds that there clearly exists a substantial equity cushion to provide adequate protection to Wilder. 11 U.S.C. §§ 361 and 362(d). Given the existence of adequate protection of Wilder’s interest, relief from the automatic stay is not merited.

Section 362(d) permits lifting the automatic stay when the debtor has had a reasonable time to reorganize and no successful reorganization is in prospect.

In Re Pullman Construction Industries Inc. · filed 1990-02-02(d)

Here, Pullman has had over a two-year “breathing spell” to reorganize; thus, a “reasonable time” to reorganize has passed. Debtors are not entitled to any more time to effect a reorganization. The automatic stay must be lifted for cause based upon 11 U.S.C. § 362(d).

Section 362(d)(2) requires a creditor seeking relief from the automatic stay to show that the debtor lacks equity in the property; a claim comfortably below the property’s value does not satisfy that requirement.

Rowe v. Conners (In Re Rowe) · filed 1990-02-08(d)(2)(A)

Since we find that the Defendant’s claim is comfortably oversecured, the requirement of § 362(d)(2)(A) is not met, and any further discussion of § 362(d)(2)(B) is academic.

Section 362(d) permits a bankruptcy court to annul the automatic stay retroactively to approve a postpetition setoff when the circumstances warrant.

In Re Metropolitan Hospital · filed 1990-02-14(d)

Furthermore, bankruptcy courts do possess the power to “annul” the automatic stay, thereby granting nunc pro tunc relief. 11 U.S.C. § 362(d).

Section 362(d) does not permit relief from the automatic stay based on an asserted security interest when the movant fails to prove that the interest exists.

In re Beauti-Full Size Boutique, Inc. · filed 1990-02-16(d)

Because Olim has failed to establish its status as a secured creditor, it cannot be granted any relief from the automatic stay pursuant to 11 U.S.C. § 362(d) since such relief would necessarily involve a finding that Olim is a secured creditor.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the collateral and it is not necessary for effective reorganization.

In Re Goodwin · filed 1990-04-12(d)(2)

Because the Debtor has no equity in the items at issue and they are not necessary for effective reorganization, the Court will modify the stay to allow the Harlans to proceed against their collateral.

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.

Germania Bank v. Lindbergh Plaza Associates, L.P. (In Re Lindbergh Plaza Associates, L.P.) · filed 1990-06-01(d)(2)

Accordingly, this Court must conclude that even if Debtor had filed its petition in “good faith”, Germania would be entitled to relief from the automatic stay, as it related to the Shopping Center, under section 362(d)(2).

A court may keep the automatic stay in effect while it gathers evidence on collateral equity and its necessity to reorganization before deciding a request for relief from the stay.

In Re Bert's Refrigeration, Inc. · filed 1990-06-13

However, this Court requires additional information regarding, among other things, the value received by Eagle upon its previous foreclosure action, the “necessity” of the ice merchandisers to the Debtor’s successful reorganization, and the amount of equity, if any, remaining in the collateral pledged to Eagle Bank. ... In the interim, pursuant to 11 U.S.C. § 362, the automatic stay shall remain in effect.

A creditor seeking relief from the automatic stay under § 362(d)(1) to enforce a security interest must first establish a validly perfected security interest in the collateral.

Matter of Harris · filed 1990-06-18(d)(1)

In order for a secured creditor to obtain relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) to foreclose or otherwise enforce its secured interest in collateral, the secured creditor must first establish it holds a validly perfected security interest in the collateral.

Section 362(d) permits relief from the automatic stay for cause when a foreclosure purchaser’s interest is not adequately protected.

In Re Beaty · filed 1990-06-27(d)

Carteret’s interest as purchaser of the property, however, is not being adequately protected and Carteret has shown cause for relief from the stay under 11 U.S.C. § 362(d).

Section 362(d)(1) permits relief from the automatic stay for cause to allow a creditor to set off mutual prepetition debts when the circumstances favor relief.

In Re Julien Co. · filed 1990-07-20(d)(1)

2. Cause exists to grant CCC’s requested relief from the automatic stay under § 362(d)(1).

Section 362(d) requires a creditor seeking relief from the automatic stay as to property to establish a valid security interest in that property.

Chrysler First Consumer Discount Co. v. Walkers Mill Inn, Inc. (In Re Walkers Mill Inn, Inc.) · filed 1990-08-08(d)

Chrysler is required to establish that it has a valid security interest in the liquor license before it is entitled to relief from stay pursuant to 11 U.S.C. § 362(d).