11 U.S.C. § 362

Section 362(d) provides no cause to lift the automatic stay based on a lease default that the lessor is equitably estopped from asserting.

In Re Q.T., Inc. · filed 1990-08-15(d)

Accordingly, Thomas Russell is equitably estopped from asserting the debtor’s default, however, the debtor is obligated to attempt to purchase the property pursuant to the valid exercise of its option to purchase. Cause for relief from stay is absent, and Thomas Russell’s motion should be denied.

Section 362(d)(2) requires a debtor with no equity in the property to show a reasonable possibility of successful reorganization within a reasonable time to keep the stay in place.

In Re W. Robert Anderson and Virginia A. Anderson. W. Robert Anderson and Virginia A. Anderson v. Farm Credit Bank of St · filed 1990-09-06(d)(2)

The burden thus shifted to the Andersons to establish that the property was necessary to an effective reorganization. To meet this burden, the Supreme Court’s decision in United Savings Association v. Timbers, 484 U.S. 365, 376, 108 S.Ct. 626, 632, 98 L.Ed.2d 740 (1988), requires the Andersons to show there is “a reasonable possibility of a successful reorganization within a reasonable time.”

Section 362(d) permits a bankruptcy court to lift the automatic stay on its own initiative despite its reference to a request by a party in interest.

Swift v. Bellucci (In Re Bellucci) · filed 1990-09-27(d)

In sum, bankruptcy courts may lift the automatic stay sua sponte notwithstanding the language in section 362(d) that permits a “party in interest” to seek relief from the automatic stay.

Section 362(d)(1) does not allow relief from the automatic stay for lack of adequate protection when an equity cushion and scheduled payments adequately protect the creditor’s interest.

Central Bank of the South v. Thomas (In Re Thomas) · filed 1990-10-29(d)(1)

The factors cited above constitute adequate protection for this Creditor’s interest. Therefore, the Court may not grant Central Bank of the South relief from stay under 11 U.S.C. § 362(d)(1).

Section 362(d) does not permit relief from the automatic stay when the moving creditor offers no evidence to support its motion.

Bowest Corp. v. Stafford (In re Stafford) · filed 1990-10-29(d)

Consequently, the Court may not grant Bowest Corporation relief from stay based on Section 362(d) since it offered no evidence in support of its motion.

Section 362(d)(2) requires relief from the stay when the debtor has no meaningful equity in the property and the property is unnecessary to an effective reorganization; minimal equity that will soon erode can count as no equity.

Royal Bank De Puerto Rico v. Figueroa Ruiz (In Re Figueroa Ruiz) · filed 1990-11-14(d)(2)

Relief must be granted under 11 U.S.C. § 362(d)(2) in this action to lift the stay against the real estate property at issue as debtors have such a small equity in the property as to constitute no equity at all, and the property is not necessary to an effective reorganization.

A limited order lifting the automatic stay permits only claims within the scope of the relief granted; other claims remain barred by the stay.

Salsman v. Barden & Robeson Corp. · filed 1990-12-27

We conclude that this cause of action is barred by the stay imposed pursuant to 11 USC § 362 in the bankruptcy proceeding involving third-party defendant. ... We agree with third-party defendant that defendant’s breach of contract cause of action is outside the scope of this limited lifting of the stay.

Relief from the automatic stay to pursue eviction may be denied when the debtor may have a tenancy and right to possession.

Gregg's Custom Vans v. Boatmen's First National Bank of Kansas City (In re Gregg's Custom Vans) · filed 1991-01-08

The evidence presented at the hearing did not establish that Gregg’s Custom Vans was not a tenant of the owners, and did not have a right of possession, and thus possibly a right to pay adequate protection or some other form of relief other than immediate eviction. The Motion For Relief From Stay is DENIED.

An order granting immediate relief from the automatic stay for foreclosure steps permits the creditor to record notices of sale before the postponed foreclosure sale date.

Houghton v. First American Capital Bank (In Re Houghton) · filed 1991-02-12

The next paragraph of the orders then modify the generality of that relief by staying the actual foreclosure sale until “on or after October 12, 1990.” ... Therefore, the recording of the Notices Of Sale in September, 1990, was not in violation of the automatic stay in this case or in the corporate case.

The automatic stay may be lifted to let a secured creditor pursue state law remedies against collateral in a debtor’s former spouse’s possession.

In Re Logan · filed 1991-02-13(a)

ITT nevertheless is entitled to pursue its state law rights and remedies with respect to the waterbed and, accordingly, is granted relief from the automatic stay for that purpose.

Section 362(d) permits relief from the automatic stay for a creditor seeking to enforce a valid security interest in the debtor’s boat.

Gallatin National Bank v. Lockovich (In Re Lockovich) · filed 1991-02-19(d)

Gallatin has a valid security interest in the boat and under 11 U.S.C. § 362(d), is entitled to relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay when uninsured collateral leaves a secured claim inadequately protected.

In Re Barnes · filed 1991-03-14(d)(1)

Another independent ground for the motion was that the vehicle was not insured and so GMAC’s secured claim was not adequately protected. At the preliminary hearing on this motion the Debtor conceded this point. Accordingly, cause exists for relief from the stay. 11 U.S.C. § 362(d)(1).

The automatic stay may be lifted to let a secured creditor reach the debtor’s property if proceeds from other collateral do not fully satisfy its claim.

In Re RL Kelly and Sons, Millers · filed 1991-03-14(a)

If the restored proceeds from the Areola Avenue sale in Earl’s estate are not sufficient to satisfy the balance of Manna Pro’s claim, absent other arrangements, Manna Pro is entitled to have the stay of 11 U.S.C. § 362(a) lifted as to Austin’s interest in the Ocean City property to collect its claim in full.

Section 362(d)(2)(A) supports relief from the automatic stay when there is no equity in the property for the benefit of the estate.

In re B & B Marine Sales & Service · filed 1991-03-28(d)(2)(A)

Finally, no evidence has been presented reflecting equity in these boats for the benefit of the estate. 11 U.S.C. § 362(d)(2)(A). Because no objection to ITT’s request for abandonment has been made, the court finds that ITT’s motion to lift stay and to abandon property is well taken.

Section 362(d) does not provide a vehicle to sever a debtor’s rights under a government contract on the asserted ground that the debtor in possession cannot assume the contract under § 365(c).

In Re Ontario Locomotive & Industrial Railway Supplies (U.S.) Inc. · filed 1991-04-02(d)

The Court is satisfied that neither 41 U.S.C. § 15 nor 11 U.S.C. § 362(d) are the appropriate vehicles for ... the severance of the debtor’s rights under the contract (See Judge Higginbotham’s separate opinion, West Electronics, 852 F.2d at 84).

Section 362(d)(1) permits relief from the automatic stay for cause, including inadequate protection, but a court may decline to treat an adequate protection motion under § 361 as a motion for relief from stay.

In Re Tellier · filed 1991-04-05(d)(1)

While § 362(d)(1) provides for relief from the automatic stay “for cause, including the lack of adequate protection of an interest in property” of the party moving for such relief, Fleet has not so moved, and we are not inclined, sua sponte, to treat Fleet’s § 361 motion as one under § 362(d).

Relief from the automatic stay may be denied when the lien a creditor seeks to perfect would be subordinate to the trustee’s judgment creditor interest.

Johnson Hydro Seeding Corp. v. Ian Homes, Inc. (In Re Ian Homes, Inc.) · filed 1991-05-09(d)

The court will not terminate the stay. ... Therefore, the trustee’s (here the Chapter 11 debtor’s under 11 U.S.C. § 1107) § 544(a) status as a judgment creditor as of the commencement of the case primes the embryionic mechanics’ lien. ... For the foregoing reasons, the court will enter an order denying the motions for relief from stay.

Relief from the automatic stay may be denied when a vehicle is necessary to a Chapter 13 debtor’s effective rehabilitation and the debtor can insure it.

Karr v. General Motors Acceptance Corp. (In Re Karr) · filed 1991-05-24(d)

A separate issue is whether GMAC is entitled to relief from the automatic stay imposed by 11 U.S.C. § 362(a). Based upon the debtor’s testimony at the hearing on these matters, the Court finds that the Automobile is necessary to the debtor’s effective rehabilitation. Moreover, the debtor testified that she can and will insure the vehicle upon its turnover by GMAC. For those reasons, GMAC’s request for relief from stay shall be denied.

A district court handling a stayed proceeding has no authority to grant relief from the automatic stay.

Sun Products Group, Inc. v. B & E Sales Company, Inc., and Perry Drug Stores, Inc. · filed 1991-05-30

Furthermore, even without the express absence of entry of a judgment, in recognition of Title 11 of the U.S.Code, the district court would have "possesse[d] no authority to grant relief from the automatic stay of proceedings" in any event.

Section 362(d) permits relief from the automatic stay for cause, including inadequate protection, or when the debtor has no equity in the property and it is unnecessary to an effective reorganization.

EEE Commercial Corp. v. Holmes · filed 1991-06-04(d)

Under the language of 11 U.S.C. § 362(d) (1988), a court may grant relief from a stay of foreclosure for cause, including lack of adequate protection. Alternatively, relief may be granted if the debtor has no equity in the property, and the property is not necessary to an effective reorganization.

A debtor’s desire to reaffirm a debt is not a defense to the creditor’s motion for relief from the automatic stay.

In re Ingram · filed 1991-06-14(d)

As this Court has previously advised debtors’ counsel, the desire of a debt- or to reaffirm its debt with a creditor is not a legal defense to such creditor’s motion for relief from the automatic stay.

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.

In re ASI Reactivation, Inc. · filed 1991-07-11(d)

Under the language of 11 U.S.C. Sec. 362(d) (1988), a court may grant relief from a stay of foreclosure for cause, including lack of adequate protection. Alternatively, relief may be granted if the debtor has no equity in the property, and the property is not necessary to an effective reorganization.

Section 362(d) permits nunc pro tunc relief from the automatic stay to allow a creditor with a senior setoff interest to recover prepetition overpayments.

In Re Metropolitan Hospital · filed 1991-08-23(d)

For these reasons, the Secretary’s interest in the overpayments was senior to the Bondholder’s and the Indentured Trustee’s security interests in gross revenues. The bankruptcy court properly decided to grant nunc pro tunc relief from the automatic stay.

Section 362(d) requires courts deciding whether cause exists to lift or modify the automatic stay to balance hardship to the debtor’s estate against hardship to the moving party.

In Re Ionosphere Clubs, Inc. · filed 1991-10-29(d)

In determining whether sufficient cause to modify or lift an automatic stay exists, courts balance the hardship to be imposed on the debtor’s estate if the litigation is allowed to proceed against the hardship to be imposed on the moving party if the stay is not lifted.

Section 362(d) requires findings on adequate protection, the debtor’s equity in the property, and the property’s necessity to an effective reorganization when deciding whether to lift the automatic stay.

DnC America Banking Corp v. Topcroft, Inc. (In re Topcroft, Inc.) · filed 1991-12-12(d)

In the instant case, the Bankruptcy Court made no findings about whether DnC’s interest is adequately protected, whether Topcroft has any equity in the property, or about whether the property is necessary for an effective organization. Thus the case must be remanded to the Bankruptcy Court to make these factual findings and to determine whether relief from the automatic stay is appropriate.

Section 362(d) does not warrant relief from the automatic stay when the debtor has equity in the property and the creditor is adequately protected.

In Re Wetzel · filed 1992-01-02(d)

Therefore, relief from the automatic stay is not warranted at this time under 11 U.S.C. § 362(d) since the debtor has equity in the property and the creditor is adequately protected 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 fails to show that the property is necessary to an effective reorganization in prospect.

In Re Northport Marina Associates · filed 1992-01-09(d)(2)

The Debtor has no equity in its real property in which Citibank has a security interest and the Debtor has not carried its burden of proving that such property is necessary to an effective reorganization which is in prospect. Therefore, Citibank is entitled to relief from stay so that it may continue with its foreclosure proceeding with respect to such property.

Section 362 relief from the automatic stay may permit a secured creditor to foreclose on its collateral.

First National Mercantile Bank & Trust Co. v. Mammoth Spring Distributing Co. (In re Mammoth Spring Distributing Co.) · filed 1992-01-17

For the reasons stated above, the motion for relief from stay is granted. The trustee is ordered to abandon the sum of $7,236.95, plus all interest the trustee has earned on said sum to First National. The automatic stay provisions are relaxed to permit First National to foreclose its security interest in the sum of $7,236.95.

The automatic stay may be lifted to let a workers’ compensation court determine the value of a claim against the debtor.

In re Rose Exterminator Co. · filed 1992-01-24

The court further recognizes the specialized nature of Mr. Reeves’ claim against the Debtor and believes that allowing the Movant’s case to proceed in the workers’ compensation court is the most efficient means of adjudicating this claim. The court, therefore, grants Motion N and lifts the automatic stay so that the workers’ compensation court can determine the value of Movant’s claim against Rose.

Section 362 permits, but does not require, relief from the automatic stay for an unsecured joint creditor to pursue tenancy by the entirety property in state court in appropriate cases.

Frederick County National Bank v. Lazerow · filed 1992-01-27(d)(1)

The Court holds, therefore, that the bankruptcy court is not required.by Fourth Circuit case law to lift the automatic stay to permit an unsecured joint creditor to pursue entireties property in state court, but is permitted to do so in appropriate cases.

A party with no interest in the property at issue cannot obtain relief from the automatic stay under either § 362(d)(1) or (d)(2).

In Re Rowland · filed 1992-04-02(d)

It is not clear whether the movant is moving under (d)(1) or (d)(2) of this subsection, but in view of the court’s finding, infra, that the movant has no interest in the insurance funds, the mov-ant cannot prevail under either branch of § 362(d).

A bankruptcy court may lift the automatic stay to let a state court promptly resolve a limited dispute over state law.

In re Steingold Companies, Ltd. · filed 1992-04-24

The bankruptcy court was persuaded that the partnership dispute was a matter best left to the Virginia courts. We agree. Congress has indicated a strong preference for allowing state law claimants to litigate their disputes in state courts rather than the bankruptcy courts. See 28 U.S.C. § 1334(c) (1988). In the present case, the limited issues presented in Steingold's Virginia case indicate that the dispute is likely to receive prompt resolution in state court, thereby saving the bankruptcy court the need to resolve issues of state law upon which it has no particular expertise. We conclude that under these circumstances the bankruptcy court did not abuse its discretion in lifting the stay.

An equity cushion can adequately protect a secured creditor’s interest against loss while the automatic stay remains in effect.

In Re Eagle-Picher Industries, Inc. · filed 1992-04-28(d)(1)

The Bank’s right to exercise these remedies, of course, was stayed pursuant to 11 U.S.C. § 362. ... We resolved the issue of adequate protection at the hearing by determining that the Bank’s interest was adequately protected by an equity cushion.

Section 362 generally entitles a creditor to relief from the automatic stay to assert a compulsory counterclaim in a state court action initiated by the debtor.

In re Millsap · filed 1992-05-15

A creditor is entitled to relief from the section 362 automatic stay to assert a counterclaim in debtor initiated non-bankruptcy proceedings in most instances as a matter of right considering the compulsory nature of most counterclaims under rules of civil procedure.

Section 362 permits relief from the automatic stay so a lessor may continue eviction proceedings when the debtor holds only a holdover tenant’s interest under a lease terminated before bankruptcy.

In Re Gromyko, Inc. · filed 1992-06-09

Instead, we perceive the issue to be whether the lessors have met their burden under § 362(b) to lift the automatic stay, ... and we find that they have. The Debtor’s only interest in the property is that of a holdover tenant, and that status entitles the lessors to continue their pre-petition eviction proceedings in the state court.

Section 362(d)(2) requires 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: Dennis L. Land and Carla M. Land, Debtors Dennis L. Land Carla M. Land v. Farmers Home Administration · filed 1992-06-22(d)(2)

The bankruptcy court shall grant relief from the automatic stay if the debtor does not have equity in the property and the property is not necessary to an effective reorganization.

Under § 362(d)(1), an unsecured creditor may obtain relief from the automatic stay only if the balance of hardships favors it.

In Re Hunt's Pier Associates · filed 1992-07-10(d)(1)

Relief from the automatic stay is available to an unsecured creditor, under § 362(d)(1), only if the balance of hardships tips in the movant’s favor.

Section 362(d)(1) allows a bankruptcy court to grant relief from the automatic stay for cause, including retroactive relief validating a state court separation decree entered after the bankruptcy filing.

Bain v. Bain (In Re Bain) · filed 1992-08-04(d)(1)

Based on the evidence before the Court, I find that cause exists under 11 U.S.C. § 362(d)(1) for granting Plaintiff relief from the automatic stay to allow the Circuit Court of Lafayette County, Missouri to enter its Decree of Legal Separation in the state court Dissolution Proceedings relating to the debtor and Plaintiff. I further find that, given the circumstances of this case, it is appropriate to grant such relief retroactively to give full validity to the Decree as entered on March 31, 1992 by the Circuit Court of Lafayette County, Missouri.

Section 362(d)(2) permits relief from the automatic stay in a Chapter 7 case when the debtor has no equity in the collateral proceeds.

Blasbalg v. Tarro (In Re Hyperion Enterprises, Inc.) · filed 1992-09-11(d)(2)

Accordingly, in the context of this Chapter 7 case and where the Debtor clearly has no equity in the proceeds, we hereby GRANT Tarro’s motion for relief from stay.

Section 362(d)(1) permits relief from the automatic stay so a mortgagee can foreclose when a fully matured home mortgage is due immediately and the Chapter 13 plan cannot extend payment or reduce the contractual interest rate.

In Re Gianguzzi · filed 1992-10-02(d)(1)

In view of the fact that the debtors may not modify the mortgagee’s fully matured mortgage, either by stretching out payments over the life of their five year plan, or by reducing the contractual interest rate, the mortgagee is entitled to immediate payment and should, therefore, be relieved from the automatic stay so as to allow him to proceed with his state court foreclosure action.

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

In Re Ascher · filed 1992-10-23(d)(2)

Section 362(d) of the Bankruptcy Code provides that the automatic stay may be modified to permit an action against debtor’s property when the debtor has no equity in that property, and it is not necessary for an effective reorganization.

Section 362 permits denial of relief from the automatic stay to pursue a deficiency judgment while discharge remains pending, without prejudice to a renewed request if discharge is denied.

Northeastern Bank of Pa v. Wilkins (In Re Wilkins) · filed 1992-11-03

Upon consideration of the motion of Northeastern Bank requesting relief against the above-captioned debtors, it is hereby ordered and decreed that the motion requesting relief to pursue a deficiency judgment action is denied without prejudice to the movant to move again for relief should the discharge of debtors’ obligation to the movant be denied.

Section 362 permits relief from the automatic stay to allow foreclosure when the debtor filed after the statutory redemption period expired and the bankruptcy estate has no rights in the real property.

In Re Cormier · filed 1992-11-05

Here, the Cormiers’ pending petition was filed after their statutory right of redemption expired. Their bankruptcy estate holds no rights in the real property. Thus, relief from stay will issue.

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.

T-H New Orleans Ltd. Partnership v. Financial Security Assurance, Inc. (In Re T-H New Orleans Ltd. Partnership) · filed 1992-11-10(d)(2)

In order to grant relief from a stay of an act against property two conditions must be met. First, the Debtor must not have an equity in the property. Second, the property must not be necessary to an effective reorganization.

Section 362(d)(2) allows relief from the automatic stay when the debtor lacks equity in the property and the property is unnecessary to an effective reorganization; property under an unconfirmable plan is unnecessary.

In Re F.A.B. Industries · filed 1992-11-24(d)(2)

Prudential is entitled to relief from the automatic stay if (a) the debtor does not have equity in the property, and (b) the property is "not necessary to an effective reorganization.” 11 U.S.C. § 362(d). Since F.A.B. concedes that it has no equity in the Property, Prudential’s right to relief from the stay depends on whether or not the Property is "necessary to an effective reorganization.” Property as to which a plan or reorganization is not confirmable, is, by definition, "not necessary to an effective reorganization” for purposes of relief from the automatic stay.

Section 362(d)(2) requires relief from the automatic stay when the debtor lacks equity in the property and cannot show a reasonable possibility of successful reorganization within a reasonable time.

266 Washington Associates v. Citibank, N.A. (In Re Washington Associates) · filed 1992-12-10(d)(2)

Because appellants could not propose a confirmable plan without improperly classifying creditors, no reasonable possibility exists that 266 WA could successfully reorganize within a reasonable time. Citibank is thus entitled to relief from the automatic stay.

Section 362 requires a party seeking to transfer estate property during the automatic stay to ask the bankruptcy court to lift the stay before the transfer; an unauthorized transfer cannot substitute for that request.

In Re Fugazy Express, Inc. · filed 1992-12-17(d)

Only the court may lift the stay. Conduct that bypasses the bankruptcy court and violates the automatic stay is plainly not the equivalent of a motion asking the court to lift the stay; and a subsequent ruling by the bankruptcy court that conduct bypassing the court was impermissible is, equally plainly, not a ruling on a motion to lift the stay.

A party seeking to transfer estate property must ordinarily ask the bankruptcy court to lift the automatic stay before the transfer; a later summary judgment motion cannot serve as a timely request.

Shimer v. Fugazy · filed 1992-12-17(d)

In any event, even had the motions been so described, such a characterization would have been ineffective, given the requirement that a motion for the lifting of the stay, except in circumstances not present here, must be made prior to the purported transfer of the bankrupt’s property.

Section 362(a)(7) bars a creditor from taking a postpetition setoff against a prepetition debt without first obtaining relief from the automatic stay.

Official Committee of Unsecured Creditors of Operation Open City, Inc. v. New York State Department of State (In Re Oper · filed 1992-12-30(a)(7)

The State violated the automatic stay by effecting a setoff with respect to the Disputed Funds without seeking relief from the automatic stay.

Section 362(d) permits modifying the automatic stay for cause to let a secured creditor recover collateral when the debtor has not surrendered it.

In Re Crooks · filed 1993-01-05(d)

Gau-dio’s request for relief from the automatic stay to permit it to recover the automobile through its lawsuit in the Circuit Court of Cook County would be mooted if Debtor surrenders the automobile to Gaudio by informing the creditor of its whereabouts, but Debtor did not do that. Therefore, cause exists under 11 U.S.C. § 362(d) to modify the stay, as offered by the Court when the motion was filed, and the stay will be modified to allow Gaudio to recover the automobile through state court proceedings.

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 for an effective reorganization that is in prospect.

In Re 500 Fifth Avenue Associates · filed 1993-01-05(d)(2)

Accordingly, I conclude that this property is not necessary for an effective reorganization that is in prospect. Since the debtor concedes that it lacks equity in the property, the conclusion is inescapable that relief from the automatic stay is appropriate under section 362(d)(2).

Section 362(d) does not permit relief from the automatic stay to enforce an injunction when the underlying breach gives rise to a dischargeable right to payment that the creditor can pursue in bankruptcy.

Udell v. Standard Carpetland USA, Inc. · filed 1993-01-20(d)

If, however, upon Udell’s breach of the restrictive covenant, Carpet-land’s right to an injunction for breach also enables Carpetland to seek payment for that breach, Carpetland’s right to an injunction to enforce the restrictive covenant is a claim, and consequently, is a debt dischargeable in Udell’s proposed Chapter 13 plan. Then, Carpetland would be forced to seek protection of its interest as would any other creditor, and relief from the stay would be improper.

Section 362(d)(1) permits a court to modify the automatic stay so a plaintiff may prosecute a personal injury, civil rights/tort action against a debtor.

Williamson v. Patterson (In Re Patterson) · filed 1993-02-04(d)(1)

The court GRANTS plaintiff relief from the stay imposed under 11 U.S.C. § 362(a)(1). The court MODIFIES the stay to the extent that plaintiff may prosecute his personal injury, civil rights/tort action against defendant/debtor. 11 U.S.C. § 362(d)(1).

Section 362(d) permits relief from the automatic stay for cause, assessed by balancing harm to the estate against hardship to the movant and considering whether the pending matter involves only state law, whether relief promotes judicial economy, and whether creditors remain protected.

In Re: Jacqueline Albertine Huffman, Debtor. Jacqueline Albertine Huffman v. Maryland National Bank · filed 1993-03-24(d)

In determining if cause exists, the bankruptcy court should balance any potential prejudice to the debtor's estate with the hardships on the person seeking relief. Robbins, 964 F.2d at 345. This Court examines three factors to determine whether cause exists: (1) Does the issue in the pending litigation involve only state law, so the expertise of the bankruptcy court is unnecessary; (2) Would lifting the stay promote judicial economy; and (3) Would creditors be properly protected without the stay.

Section 362(d) requires a movant seeking to proceed against estate property to show cause for relief from the automatic stay.

City of Farrell v. Sharon Steel Corp. (In Re Sharon Steel Corp.) · filed 1993-04-09(d)

A movant seeking relief from the automatic stay to proceed against property of the estate must show cause why such relief is warranted. 11 U.S.C. § 362(d). The City of Farrell offers no justification for the relief requested. The City of Farrell’s Motion will be refused.

Section 362’s automatic stay may be relaxed to let debtors seek a state court ruling on the validity of a foreclosure sale.

Matlock v. Lomas Mortgage U.S.A., Inc. (In Re Matlock) · filed 1993-04-22

The automatic stay of 11 U.S.C. § 362 (1988) is relaxed, and the debtors are granted thirty days in which to file appropriate proceedings in the appropriate state court to determine whether the sale described herein is valid.

Relief from the automatic stay for all aspects of a pending divorce action permits the state court to exercise its contempt powers in that action.

Burke v. Burke · filed 1993-05-03(a)

Given that the consent order issued by the bankruptcy court provided that the automatic stay would be lifted for the purpose of proceeding with all aspects of the pending divorce action, we interpret this language as granting relief from the automatic stay provisions with regard to the issue of contempt, with the result that the trial court would not be foreclosed from exercising its contempt powers.

Section 362(d) permits retroactive relief from the automatic stay when equitable circumstances warrant validating an action taken during the stay.

In Re IBI Security Service, Inc. · filed 1993-05-05(d)

In these circumstances, this Court adopts the reasoning of Chief Judge Duberstein and holds that the United States is entitled to relief from stay nunc pro tunc to June 18, 1992, the date it filed its third-party complaint against IBI.

A creditor waives § 362(e)’s deadline for a stay ruling by agreeing to a briefing schedule that prevents the court from ruling within 30 days of the request for relief.

J.H. Streiker & Co. v. SeSide Co. (In Re SeSide Co.) · filed 1993-06-09(e)

By agreeing to the briefing schedule, which prevented the court from ruling within the thirty day period provided by statute, Streiker waived the timeliness provisions of Section 362(e) and cannot now assert that the stay has lapsed.

Section 362 allows the bankruptcy court to grant relief from the automatic stay sua sponte so a pending action may proceed to liquidation, but not collection.

Jones v. Chemetron Corp. (In Re Allegheny International, Inc.) · filed 1993-07-26

Finally, the court grants the Plaintiffs relief from the automatic stay sua sponte. 11 U.S.C. § 362. The Plaintiffs may pursue their Cuyahoga County, Ohio action entitled ... to liquidation, but not collection, against the Chemetron.

Relief from the automatic stay to foreclose a mortgage permits the mortgagee to execute on tax refunds that are additional security under that mortgage.

Sapir v. Hudson Realty Co. (In Re Rosalind Gardens Associates) · filed 1993-08-02(d)

Accordingly, because the court has held that a tax refund escrow is additional security under the Mortgage and Hudson received relief from the stay to foreclose on the Mortgage, Hudson could procure the issuance of an execution based on the foreclosure judgment in order to proceed against the tax certiorari refund.

Section 362(d)(2) allows relief from the automatic stay for a creditor to exercise valid setoff rights when the debt exceeds the amount owed to the estate.

In Re Thorvund-Statland · filed 1993-08-03(d)(2)

Assuming IRS’s offset rights are valid, and since the amount of the tax debt exceeds the total due to the Debtor’s bankruptcy estate in refunds, good cause would exist for relief from the automatic stay. 11 U.S.C. § 362(d)(2). ... Therefore, by separate order, the Court finds that IRS has valid setoff rights in the 1989, 1990 and 1991 tax refunds, and its motion for stay relief will be granted to allow it to exercise those rights.

Section 362(d)(1) permits retroactive stay relief for a postpetition municipal tax assessment when the city’s lien priority, good faith, and benefits to the property constitute cause.

In Re Boston Harbor Marina Co. · filed 1993-08-03(d)(1)

The City’s normal lien priority outside bankruptcy and its good faith in employing its customary lien mechanism, as well as the benefits the City confers upon the property, certainly constitute “cause” to authorize imposition of the lien under section 362(d)(1). I therefore validate the postpetition assessment. My power to do this retroactively is clear. Although acts in violation of the automatic stay are generally void, the bankruptcy court in which the case is pending may validate them.

Relief from the automatic stay under § 362(d) is unwarranted when the creditor’s security interests are avoidable and an effective reorganization plan adequately protects its interests.

In Re Lewis · filed 1993-08-05(d)

The avoidability of HNB’s security interests in property of the Debtor’s estate, see In re Hunt’s Pier Associates, 143 B.R. 36, 49-50 (Bankr.E.D.Pa.1992), as well as the adequacy of the protection of HNB’s interests by confirmation of an effective reorga-nizational plan, eliminates any basis for granting HNB relief from the automatic stay under 11 U.S.C. § 362(d).

Under § 362(d), an unsecured creditor seeking relief from the automatic stay must show that the balance of hardships favors it.

Mayer Pollock Steel Corp. v. London Salvage & Trading Co. (In Re Mayer Pollock Steel Corp.) · filed 1993-08-18(d)

Rather, in analyzing this issue, we begin by recalling that London is merely an unsecured creditor seeking relief under § 362(d), as it is not entitled to a lien under 11 U.S.C. § 546(c)(2)(B). Therefore, London is entitled to relief from the automatic stay “only if the balance of hardships tips in [its] favor.”

Section 362(d) permits relief from the automatic stay after weighing the debtor’s limited interest in estate property against the harm to the estate from preventing its use.

Matter of Hernando Healthcare, Inc. · filed 1993-08-25(d)

Even if these considerations establish a clear diversity between interests, there is no doubt that balancing the two alternatives requires this Court to lift the automatic stay and authorize the disbursement conditioned upon the further inquiry of whether the bondholders are ov-ersecured and the allocation of bond payments between principal and interest under the mortgage documents.

Section 362’s automatic stay renders a creditor’s setoff ineffective when made without first obtaining relief from the stay.

Gribben v. United States (In Re Gribben) · filed 1993-09-29

It is true that the IRS purported to accomplish the offset without first having sought judicial relief from the automatic stay provided by § 362. That justified the Bankruptcy Court in concluding that the purported offset had been ineffectual.

Section 362(d) permits relief from the automatic stay when the debtor lacks equity in the property and has no realistic prospect of successful reorganization.

Trident Associates Ltd. Partnership v. Metropolitan Life Insurance (In re Trident Associates Ltd. Partnership) · filed 1993-09-30(d)

MetLife is entitled to relief from the automatic stay pursuant to 11 U.S.C. § 362(d). The debtor lacks equity in the asset and there is no realistic possibility of a successful reorganization.

Section 362(d) permits relief from the automatic stay for a purchaser to remove a debtor’s belongings from foreclosed property when the debtor has no remaining interest in the property.

In Re Gordon · filed 1993-11-26(d)

Since the debtor has no interest in the property, First Commercial is entitled to relief from stay to remove the property of the debtor from its premises.

Under § 362(d)(2), a debtor opposing relief from the automatic stay must show a prospect of effective reorganization, which the court assesses in light of plan confirmation requirements.

Edgewater Walk Apartments v. MONY Life Insurance Co. of America · filed 1993-12-10(d)(2)

As a result, in order to assess whether a debtor has met its burden under sections 362(d)(2) and 362(g), a bankruptcy court must weigh the evidence presented against the standards imposed by section 1129 to determine whether the threshold requirements of that section can be met.

Section 362(d) permits denial of relief from the automatic stay when collateral is necessary to an effective reorganization and confirmation of the debtor’s plan leaves no cause to lift the stay.

In Re Barnett · filed 1993-12-14(d)

The collateral securing the obligation due Citizen’s is necessary to an effective reorganization of the debtor. Furthermore, since debtor’s plan is confirmed, cause does not exist to grant relief from the automatic stay. Therefore, the motion of Citizen’s for relief from the automatic stay should be denied.

An established right of setoff makes a prima facie showing of cause for relief from the automatic stay under § 362(d)(1).

Matter of Olson · filed 1994-01-04(d)(1)

By establishing its right of setoff, the IRS has made a prima facie showing of “cause” for relief from stay under Section 362(d)(1).

A party seeking relief from the automatic stay must seek it from the bankruptcy court that imposed the stay.

Elmwood Dry Dock & Repair v. H & A Trading Co. · filed 1994-01-07

Consequently, Elmwood must seek its relief from the automatic stay from the court that imposed it, the United States Bankruptcy Court for the District of Puerto Rico.

Section 362 allows the court to modify the automatic stay so secured creditors may obtain a foreclosure sale date while postponing the sale until after a specified date.

In re Phoenix Land Corp. · filed 1994-01-10

The automatic stay provided for in 11 U.S.C. § 362 is modified to permit the Secured Creditors and their counsel to obtain a sales date in the Foreclosure Proceedings provided said sale is not held on or before October 25, 1993.

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

In Re Fund Raiser Products Co., Inc. · filed 1994-02-08(d)(2)

The Court has concluded that the movant, Ruth Segal, has established the validity of a claim against the Debtor secured by the Gift-co stock, and has sustained the Movant’s burden under 11 U.S.C. § 362(g) of establishing that there is no meaningful equity in the Giftco stock. The Debtor is a non-operating company and no reorganization of its affairs is contemplated. The Court, accordingly, concludes that grounds exists to modify the automatic stay as to Ruth Segal under both Section 362(d)(1) and 362(d)(2).

Section 362(d) provides alternative grounds for relief from the automatic stay.

Coones v. Mutual Life Ins. Co. of New York · filed 1994-03-10(d)

The standards for lifting the stay set forth in Section 362(d)(1) and (2) are in the disjunctive.

Section 362 permits relief from the automatic stay to allow foreclosure when a debtor who acquired mortgaged property did not assume the mortgage and the equities do not support imposing a debtor-creditor relationship.

In Re Mitchell · filed 1994-03-11(d)

In the case at bar, the Court does not find the compelling equitable considerations which would mandate the imposition of a debtor-creditor relationship on the debtor and the Bank. The Debtor never made any effort to assume the mortgage with the Bank. The Bank never issued a payment book in the name of the Debtor. The Bank did not become aware of the 1984 quitclaim deed until after the foreclosure proceedings were initiated. Under these circumstances, the Debtor’s equitable argument is not persuasive. ... For the foregoing reasons, Illini Bank’s Motion for Relief from the Automatic Stay is allowed.

Section 362 permits a relief-from-stay order to direct the debtor to return property when needed to effect the relief.

Hays v. Cummins (In Re Cummins) · filed 1994-03-15

Moreover, an Order granting relief from stay may direct particular action in order that the order granting such relief may be properly effected. In this case, the Order granting relief from stay directed the debtor to return the vehicle.

Section 362 permits a bankruptcy court to deny relief from the automatic stay for pending litigation when continuing the litigation would threaten the debtor’s Chapter 11 reorganization.

In re Wilson · filed 1994-03-24

This Court believes that the Debtor’s company would not survive the burden imposed by the Indiana litigation if it were allowed to continue at this time. Lifting the stay at this stage, therefore, would be tantamount to converting the case to Chapter 7.

Section 362(d)(2) permits lifting the automatic stay when the debtor has no equity in the property and no feasible reorganization makes the property necessary.

One Times Square Associates Ltd. Partnership v. Banque Nationale De Paris (In Re One Times Square Associates Ltd. Partne · filed 1994-03-31(d)(2)

Since a cramdown is not feasible, the Debt- or’s property is not necessary to an effective reorganization and the bankruptcy court’s decision to lift the automatic stay was not an abuse of discretion.

Section 362 permits relief from the automatic stay after discharge so a mortgage creditor can foreclose on the collateral.

Terio v. Great Western Bank · filed 1994-04-11(d)

Additionally, the record unequivocally discloses and Plaintiff pleads that Defendant sought and obtained a termination of the § 362 stay prior to instituting the foreclosure proceedings upon which Defendant ultimately obtained a judgment of foreclosure. Vacation of the automatic stay following a discharge may occur to permit a creditor to foreclose on a mortgage.

Section 362(d) permits the bankruptcy court to grant relief from the automatic stay on request, after notice and a hearing.

Leroy Adventures, Inc. v. Cafritz Harbour Group, Inc. · filed 1994-04-18(d)

Section 362(d) empowers the bankruptcy court, on request of an interested party and after notice and a hearing, to grant relief from the automatic stay that arises in bankruptcy proceedings under 11 U.S.C. § 362(a).

A creditor seeking relief from the automatic stay under § 362(d)(2)(A) fails to prove lack of equity when inconclusive valuation evidence leaves the debtor’s equity uncertain.

In Re Siciliano · filed 1994-05-05(d)(2)(A)

When a court is unable to establish whether there is equity in a debtor’s property as a result of inconclusive valuation testimony, then it can only conclude that the movant has failed to meet its burden under § 362(d)(2)(A).

In a hearing for relief from the automatic stay under § 362(d), the creditor need only show a colorable claim to a perfected security interest; lien validity and perfection are generally not finally decided there.

In Re Midway Airlines, Inc. · filed 1994-05-17(d)

Questions of the validity and perfection of liens are not generally finally determined in a section 362(d) hearing because the issues are limited to the elements under section 362(d)(1) and (2), and whether the moving creditor has a colorable claim to a perfected security interest.

Section 362(d) permits retroactive relief from the automatic stay when the creditor lacked actual knowledge that the stay applied and would be unfairly prejudiced if the debtor invoked it.

In Re Lipuma · filed 1994-05-19(d)

Notwithstanding the applicability of the automatic stay to the tax sale, a bankruptcy court may validate the sale by granting retroactive relief from the automatic stay pursuant to Section 362(d) of the Bankruptcy Code. ... The decisions cited above indicate that the principles of equity support the granting of retroactive relief from the automatic stay whenever a creditor did not have actual knowledge of the applicability of the automatic stay and the creditor would be unfairly prejudiced if the debtor could raise the stay as a defense.

A modification of the automatic stay that limits recovery to insurance proceeds permits entry of a judgment exceeding the insurance policy limits.

Rosh v. Cave Imaging Systems, Inc. · filed 1994-07-15(d)

The bankruptcy court order limits the amount of recovery, it does not limit the amount of the judgment.

Section 362 permits denial of relief from the automatic stay when the dispute is being sent to arbitration rather than resumed in state court.

In Re Interactive Video Resources, Inc. · filed 1994-07-26(d)(1)

Denying the relief from automatic stay would therefore be consistent with the Court ordered arbitration and consistent with the provisions of 9 U.S.C. § 3. ... Accordingly, that portion of the Memorandum Opinion and Judgment Denying Centec Corporation’s Motion for Relief from the Automatic Stay is hereby AFFIRMED in its entirety.

Section 362(d) permits relief from the automatic stay when the applicant shows cause and the property interest at issue is unnecessary to an effective reorganization.

Hudson Valley Cablevision Corp. v. Route 202 Developers, Inc. · filed 1994-07-29(d)

That showing has been made under 11 U.S.C. § 362(d) because the cable easement is at risk, whereas the property right to oppose an easement permitting continuation of the status quo is not necessary to an effective reorganization.

A court may deny retroactive relief from the automatic stay when the creditor knew of the stay and offers no cause to lift it.

Franklin Savings Ass'n v. Office of Thrift Supervision · filed 1994-08-02(d)(1)

The Director can claim no honest ignorance of the bankruptcy stay, nor has the Director offered any reason why the stay should be lifted “for cause.”

The automatic stay may be lifted to let a landlord pursue state court actions when a nonresidential lease terminated before bankruptcy and cannot be assumed.

Phillips v. Huffman (In Re Huffman) · filed 1994-09-01

The Court concludes that Mary has a valid objection to Huffman’s confirmation plan on the basis that the nonresidential lease terminated under Missouri law prior to the filing of the bankruptcy petition, which prevents Huffman from being able to assume the lease. The Court grants summary judgment in favor of Mary on this issue. The Court finds that at this point in time, Mary has presented sufficient evidence to conclude that the automatic stay must be lifted to enable her to proceed with her state court actions. The Court grants Mary’s motion to lift the automatic stay, which is incorporated in the motion for summary judgment.

Section 362(d) does not authorize relief from the automatic stay for cause based solely on an asserted inability to confirm a plan when the debtor remains legally able to propose a confirmable plan.

Concord Square Apartments of Wood County, Ltd. v. Ottawa Properties, Inc. (In Re Concord Square Apartments of Wood Count · filed 1994-09-21(d)

Ottawa’s motion for relief from stay is predicated solely upon the Debtor’s inability to propose a plan that could meet the requirements of § 1129(a)(10). The Court finds, however, that the Debtor is not precluded as a matter of law from proposing a confirmable plan of reorganization. A factual determination may be required to determine whether any transferee of claims now held by insiders may have its votes counted for or against a proposed plan of reorganization. That factual issue is not ripe for decision at this time, however. Therefore, Ottawa’s motion for relief from stay for cause is DENIED.

Section 362(d) permits relief from the automatic stay when a debtor’s plan provides no adequate protection and cannot show that the property is necessary to an effective reorganization.

In Re McKinney · filed 1994-10-03(d)(1), (d)(2)

Since there is no mortgage to modify or reinstate, the debtors’ plan does not provide adequate protection to Jim Walter Homes, Inc. when it seeks to allow debtors to retain possession of the homestead and pay the mortgage over time. The plan is also not confirmable with this provision in it. Therefore, the debtor has not shown the property is necessary to an effective reorganization. ... The debtors have not sustained their burden of proof under §§ 362(d)(1) or (2).

Section 362(d)(2) requires consideration of both the debtor’s equity in the property and whether the property is necessary for an effective reorganization; when there is no equity, the debtor bears the burden of proving necessity.

LW-SP2, L.P. v. Krisch Realty Associates, L.P. (In Re Krisch Realty Associates, L.P.) · filed 1994-10-25(d)(2)

There are two elements that must be determined under section 362(d)(2): whether there is equity in the subject property and whether the subject property is necessary for an effective reorganization. The Debtor has conceded that there is no equity in the property. Therefore, the burden shifts to the Debtor to establish that the property is necessary for an effective reorganization.

Section 362(d)(2) requires relief from the automatic stay when the debtor has no equity in the property and cannot show that it is needed for an effective reorganization.

In Re Cadwell's Corners Partnership · filed 1994-11-17(d)(2)

Section 362(d)(2) provides that relief from the automatic stay must be granted if the debtor has no equity in the property and the property is not necessary to an effective reorganization.

Section 362(e) gives a court 60 days to make a final ruling on a motion to lift the automatic stay, with extensions by consent or for compelling circumstances.

Pereira v. Lehigh Savings Bank, SLA (In Re Artha Management, Inc.) · filed 1994-11-18(e)

A motion to lift the automatic stay is a contested matter under Fed.R.Bankr.Pro. 9014. A motion of this type is brought and decided in an expedited fashion. A court has only 60 days in which to make a final ruling on such a motion which may only be extended on consent or by the court based upon compelling circumstances.

Section 362(d) permits relief from the automatic stay for cause to allow eviction when the landlord terminated the lease before the bankruptcy filing.

Housing Authority of Decatur v. Caldwell (In Re Caldwell) · filed 1994-11-22(d)

The issue presented is whether the Housing Authority has shown cause for relief from the automatic stay, and if so, whether eviction of the Debtor by the Housing Authority would violate 11 U.S.C. § 525(a). Because the Movant is otherwise entitled to relief from the automatic stay and because section 525(a) does not revive a terminated lease or pre-empt the rights of a lessor under section 365, the court grants the Housing Authority’s motion.

Relief from the automatic stay may be denied when the debtor has substantial unencumbered assets available to fund a confirmable reorganization plan.

Northeastern Copy Services, Inc. v. Bridgeport Park Associates (In Re Northeastern Copy Services, Inc.) · filed 1994-12-20

Since Mammoth has considerable unencumbered assets which it can utilize to attempt to fund a confirmable plan which encompasses both Debtors, granting Concord relief from the automatic stay, which would be tantamount to termination of the cases, or their outright dismissal, would be inappropriate at this time.

Section 362(d) permits relief from the automatic stay when the debtor has no equity in the property and fails to show it is needed for an effective reorganization, or for cause including lack of adequate protection.

In re Ennis · filed 1995-01-06(d)(1), (d)(2)

Therefore, the stay must be terminated pursuant to § 362(d)(2) because a) the debtor has no equity in the property and b) presented no evidence on whether it was necessary for an effective reorganization or whether an effective reorganization is possible, and pursuant to § 362(d)(1) for cause, including the lack of adequate protection of the creditor’s interest in the funds which debtors proposed to expend in their proposed plan.

Section 362(d)(1) permits retroactive relief from the automatic stay for cause, including to validate a tax assessment made during the stay when the equities favor relief.

In Re Siverling · filed 1995-01-11(d)(1)

Applying the balancing test set forth above, the court finds that in the instant action had the Service sought relief earlier, the court would have found sufficient cause to allow the Service to assess the taxes owed on the Hoyt Partnership. ... For these reasons, equity directs the court to grant the Service retroactive relief from stay to validate the prohibited assessment and preserve its otherwise valid elaim.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the property and cannot show a reasonable possibility of successful reorganization within a reasonable time.

In re Patestas · filed 1995-01-12(d)(2)

A creditor seeking relief from the automatic stay provisions in Sec. 362 may obtain an order from the bankruptcy court allowing it to proceed against property if "(A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization." 11 U.S.C. Sec. 362(d)(2). ... Our review of the record reveals that Dunkin' Donuts satisfied its burden of proving that the Debtors had no equity in the property at issue, and that the Debtors failed to prove that there was a reasonable possibility of a successful reorganization within a reasonable time.

Section 362(d)(2) requires a creditor seeking relief from the automatic stay to show that the debtor has no equity in the property.

In Re Bellinger · filed 1995-01-31(d)(2)

As Lomas has failed to show the debtor has no equity in the property, Lomas’s motion for relief from the section 362 automatic stay will be denied.

Section 362(d)(1) permits relief from the automatic stay as to collateral when the debtor makes no ongoing payments on it.

Oare v. Lobel Financial Corp. (In Re Oare) · filed 1995-05-04(d)(1)

As to the truck, in the absence of ongoing payments being made by the debtors, Lobel is entitled to relief from the stay pursuant to 11 U.S.C. § 362(d)(1).

Section 362(d) permits retroactive relief from the automatic stay to validate a postpetition foreclosure sale, even when the mortgagee knew of the bankruptcy filing, where the debtor could not protect the property through Chapter 12 and the sale did not affect the debtor’s possession.

In Re Wright · filed 1995-06-29(d)

While a somewhat rare remedy, § 362(d) has been applied to validate a foreclosure sale conducted after the bankruptcy filing where the mortgagee knew of the bankruptcy filing. ... While the facts of that ease are stronger for retroactive relief from the stay than the facts of the present case, those facts justify such relief, because, as previously noted, the Debt- or was not entitled to invoke Chapter 12 to protect the real estate, the foreclosure sale did not affect the Debtor’s possession of the real estate and MAGNA was not attempting to collect money from the Debtor.

Section 362(d)(1) does not require relief from the automatic stay merely because a creditor’s lien survives bankruptcy when the bankruptcy court can provide adequate protection.

Alliance Capital Management L.P. v. County of Orange (In Re County of Orange) · filed 1995-07-12(d)(1)

However, this does not require granting Appellants’ motion for rehef from the automatic stay to pursue rehef in state court. The bankruptcy court found, and the County has agreed, that the bankruptcy court may order adequate protection of Appellants’ interest.

Section 362 permits relief from the automatic stay so a foreclosure purchaser who acquired equitable title before the bankruptcy filing can obtain legal title.

Bundy v. Donovan (In Re Donovan) · filed 1995-07-12(d)(1)

Once the hammer fell at the Sheriffs Sale, the right to the Property vested in Bundy. They are entitled to relief from stay to gain legal title.

Section 362(d)(2) permits annulment of the automatic stay when the debtor has no equity in the property and the property is not necessary to an effective reorganization.

Prestwood v. United States (In Re Prestwood) · filed 1995-08-01(d)(2)

Because Prestwood has no equity in the property at issue, and the property is not necessary to an effective reorganization, the court finds that the bankruptcy court did not abuse its discretion in annulling the automatic stay pursuant to 11 U.S.C. § 362.

Cause exists to lift the automatic stay to permit a tax-refund setoff when the creditor establishes the requirements for setoff under section 553.

In Re Womack · filed 1995-09-21(d)(1)

Accordingly, each of the elements required for setoff under section 553 has been met such that cause exists for relief from stay.

A valid right to set off mutual prepetition debts supplies cause to lift the automatic stay so the setoff may proceed.

Womack v. United States, Internal Revenue Service · filed 1995-09-21(d)(1)

Accordingly, each of the elements required for set-off under section 553 has been met such that cause exists for relief from stay.

The automatic stay may be modified to permit a creditor to pursue state-court injunctive relief under a noncompete covenant when the covenant is not a dischargeable claim and the creditor seeks no damages.

R.J. Carbone Co. v. Nyren (In Re Nyren) · filed 1995-10-03(a)

The covenant not to compete does not qualify as a dischargeable claim and Carbone is entitled to relief from stay.

Section 362(d) permits prospective relief from the automatic stay against a creditor when coordinated serial bankruptcy filings are used in bad faith to prevent foreclosure, including a later filing by a co-owner of the property.

In Re Felberman · filed 1995-10-17(d)

The courts in this and other Circuits have fashioned a variety of forms of relief from the automatic stay under 11 U.S.C. § 362(d) in order to protect creditors from misuse of the bankruptcy laws by debtors acting in bad faith to interminably prolong their occupation of premises for which they cannot or will not pay and frustrate creditors in the exercise of their contractual and statutory rights. ... Their long history of non-payment and serial filings simply underscores their unity of interest and purpose and fully justifies Judge Connelly’s October 17 order.

Section 362(d)(1) permits a court to lift the automatic stay for cause so a spouse can pursue equitable distribution in state court when the circumstances favor relief.

Roberge v. Roberge (In Re Roberge) · filed 1995-11-07(d)(1)

Because the Bankruptcy Court’s action constituted an abuse of discretion, the decision of that court is reversed, the automatic stay is lifted with respect to Ms. Roberge’s equitable distribution proceeding in Florida, and the ease is remanded for further proceedings consistent with this opinion.

Section 362(d) permits the bankruptcy court to lift the automatic stay so a state court can determine and divide marital property.

Bogart v. Bogart · filed 1995-11-28(d)

Under these principles, bankruptcy courts give state courts the right to determine and divide marital property, even after bankruptcy courts assume jurisdiction over a case.

Section 362(d) supports relief from the automatic stay when a debtor cannot adequately protect the creditor without rents it does not own and cannot effectively reorganize without those rents.

MacArthur Executive Associates v. State Farm Life Insurance · filed 1995-12-15(d)

As MacArthur concedes, it is unable to provide adequate protection to State Farm without title to the Rents. Second Moving Brief at 9. Without the Rents, MacArthur’s argument that it can effectively reorganize within a reasonable time, see Section 362(d)(2)(B), must be rejected. The judgment of the Bankruptcy Court concerning the Stay is affirmed.

Relief from the automatic stay allowing a creditor to proceed with foreclosure against real property does not implicitly authorize a deficiency judgment against the debtor.

Citicorp Mortgage, Inc. v. Mehta · filed 1995-12-19(d)

We conclude, therefore, that for the purposes of construing the Bankruptcy Court’s order, a motion for a deficiency judgment is separable from a strict foreclosure proceeding, and that the Bankruptcy Court order did not include implicit authorization for the plaintiff to proceed with a motion for a deficiency judgment.

Section 362(d) permits a bankruptcy court to annul the automatic stay retroactively and validate a judgment entered while the stay was in effect.

Weiss v. Azran (In Re Thunderbolt Realty Trust) · filed 1995-12-22(d)

Thus I may grant retroactive relief from the stay, as requested by Arment.

Section 362(d) permits relief from the automatic stay for cause when the equities favor allowing a pending state court suit to liquidate a claim without materially prejudicing the estate or other creditors.

In Re Marvin Johnson's Auto Service, Inc. · filed 1996-01-22(d)

Furthermore, litigation of Mr. Franks’ claim in the state court will not unduly hinder, impede or delay the administration of the bankruptcy estate, or materially prejudice the rights of the debtor or other creditors. The Court, accordingly, finds that there is cause under section 862(d) to grant Mr. Franks’ motion for relief from the stay and to allow him to continue his state court lawsuit against the debtor, provided that any judgment he may receive from the state court may be executed only by way of the filing of a proof of claim in this bankruptcy case.

Section 362(a)(7) requires a creditor to obtain relief from the automatic stay before setting off a prepetition debt, but an inadvertent failure to do so does not necessarily forfeit an otherwise valid setoff.

United States Ex Rel. Internal Revenue Service v. Morgan (In Re Morgan) · filed 1996-02-07(a)(7)

For this reason a party seeking to setoff a mutual pre-petition debt as permitted by 11 U.S.C. 553 must secure a lifting of the automatic stay. ... Although the Court cannot condone the failure of the United States to timely seek an exemption from the automatic stay before setting off, the Court is unconvinced that equity commands that the I.R.S. forfeit the setoff that it would otherwise be entitled to under 11 U.S.C. § 553.

Section 362(d)(1) permits retroactive relief from the automatic stay for cause, but repeated disregard of the stay does not warrant that relief without extreme circumstances.

In Re Murray · filed 1996-02-08(d)(1)

Given the Service’s repeated disregard for the automatic stay, the court finds no “extreme circumstances” to weigh in favor of granting retroactive relief. Therefore, the court will deny the Service’s motion for retroactive relief from the automatic stay.

Section 362(d)(2) requires a creditor seeking relief from the automatic stay to show that the debtor has no equity in the property and that the property is unnecessary to an effective reorganization, which turns on whether successful reorganization is reasonably possible within a reasonable time.

Berkeley Federal Bank & Trust v. Sea Garden Motel & Apartments (In Re Sea Garden Motel & Apartments) · filed 1996-02-20(d)(2)

To obtain relief from the automatic stay, Appellant must first satisfy 11 U.S.C. § 362(d)(2), which requires a demonstration that: (1) there is no equity in the property, and (2) the property is not necessary for an effective reorganization. Whether property is necessary for an effective reorganization requires an examination of whether there is “a reasonable possibility of a successful reorganization within a reasonable time.”

Section 362(d)(1) permits relief from the automatic stay for litigation in another forum when relief will not substantially prejudice the debtor, the creditor’s hardship outweighs the debtor’s, and the creditor shows a probability of success.

Ain v. Myers (In Re Ain) · filed 1996-03-06(d)(1)

Under tMs test, a court may modify the stay to permit an action to proceed in a different forum if (1) relief will not prejudice the debtor substantially, (2) the relative hardsMp suffered by the creditor outweighs that of the debtor, and (3) the creditor has demonstrated a probability of success on the merits of the action.

Section 362(d) permits a bankruptcy court to grant retroactive relief from the automatic stay, curing a defect in an action filed while the stay was in effect.

Prudential Insurance Company v. Calabrese, No. Cv 95 127550 (Mar. 15, 1996) · filed 1996-03-15(d)

The Bankruptcy Court is authorized to grant retroactive relief and did, in fact, grant such relief in this case back to June 22, 1995. This action was commenced on July 7, 1995. The retroactive lifting of the stay to a day preceding the commencement of this action cures any defect that may have existed at the time this action was commenced.

Section 362(d) permits a bankruptcy court to grant retroactive relief from the automatic stay without using the word “annul” in its order.

Stallings v. Spring Meadows Apartment Complex Ltd. Partnership · filed 1996-03-26(d)

If Congress had meant that a bankruptcy court can only grant retroactive relief from the automatic stay if it “annuls” the stay, it would have said so. Instead, the legislative history indicates that the bankruptcy court has broad discretion in granting relief.

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 an effective reorganization.

In re Pal · filed 1996-05-23(d)(2)

The bankruptcy court did not abuse its discretion in granting relief from the stay. Relief from a stay is granted if "(A) the debtor does not have equity in [the] property; and (B) such property is not necessary to an effective reorganization." 11 U.S.C. § 362(d)(2). The bankruptcy court properly found that Pal had no equity in the property due to the various mortgages and liens that exceeded the appraised value of the property. The court also properly found that there was no possibility of an effective reorganization because, inter alia, Pal's proposal to reorganize by subdividing her property was infeasible, Pal was unemployed, and the Pal Family Credit Union had no source of income.

Section 362(d) permits a secured creditor whose interest lacks adequate protection to retain estate property until the adequate protection issue is resolved.

Kolberg v. Agricredit Acceptance Corp. (In Re Kolberg) · filed 1996-07-02(d)

As a result, this Court adopts the reasoning employed by the Young court and finds that Agrieredit was entitled to retain possession of the soybeans until the question of adequate protection had been resolved. Therefore, this Court finds that Agrieredit did not commit a technical violation of the automatic stay, and the Kolbergs are not entitled to attorneys’ fees.

Section 362(d)(1) allows a court to annul the automatic stay for cause and permit a mortgagee to pursue foreclosure.

Matter of 183 Lorraine Street Associates · filed 1996-07-03(d)(1)

This court holds that the bankruptcy court did not err in finding sufficient cause to annul the automatic stay. Accordingly, the bankruptcy court’s order annulling the automatic stay to permit UCC to prosecute the foreclosure action is affirmed.

Section 362(d)(2) permits relief from the stay for eviction when a Chapter 7 debtor has no equity in the leasehold and the leasehold is unnecessary to an effective reorganization.

Housing Authority of Pittsburgh v. Collins (In Re Collins) · filed 1996-08-20(d)(2)

This Court GRANTED the Housing Authority’s motion requesting such relief, pursuant to 11 U.S.C. § 362(d)(2), because (a) the debtor did not have an equity in the leasehold, and (b) given that this is a Chapter 7 case, such leasehold was not necessary to an effective reorganization.

Section 362(d) allows a bankruptcy court to deny relief from the automatic stay even when mandatory abstention applies to the underlying state action.

Benedor Corp. v. Conejo Enterprises, Inc. (In re Conejo Enterprises, Inc.) · filed 1996-08-23(d)

First, a finding that mandatory abstention applies to the underlying state action does not preclude denial of relief from § 362’s automatic stay.

Section 362(d) permits denial of relief from the automatic stay for a state court action even when mandatory abstention applies to that action.

Benedor Corporation v. Conejo Enterprises · filed 1996-08-23(d)

First, a finding that mandatory abstention applies to the underlying state action does not preclude denial of relief from § 362's automatic stay.

Section 362 allows a bankruptcy stay to be lifted for state-court equitable distribution when the need for state-court determination outweighs prejudice to the debtor’s estate.

Roberge v. J. Stephen Buis, Trustee, and Robert Arnold Roberge · filed 1996-08-27

In deciding whether a bankruptcy stay should be lifted in order to allow a state court to decide a domestic matter, the Fourth Circuit bal ances the potential prejudice to the bankruptcy debtor's estate against the hardships that will be incurred by the party seeking relief from the stay if relief is denied. ... Here, those factors weigh heavily in favor of lifting the stay.

Relief from the automatic stay allowing a secured creditor to exercise its rights in a commercial property’s rents and profits can encompass the creditor’s election to subordinate its deed of trust to a tenant’s lease before foreclosure.

240 North Brand Partners, Ltd. v. Colony GFP Partners, L.P. (In Re 240 North Brand Partners, Ltd.) · filed 1996-08-29(a)(3)

This remedy was certainly within the scope of the order granting relief from stay. Therefore, Colony’s election to subordinate its deed of trust to FATCOLA’s lease was not a violation of the stay.

Section 362(d)(1) permits a court to deny relief from the automatic stay to continue state court litigation when the relevant factors, including comparative prejudice to the parties, weigh against lifting it.

In Re RCM Global Long Term Capital Appreciation Fund, Ltd. · filed 1996-09-18(d)(1)

As an alternative form of relief, Daiwa seeks to lift the automatic stay for cause pursuant to § 362(d)(1) to allow the State Court Action to proceed. ... In the end, I find that the harm to Daiwa is outweighed by the prejudice to the Debtor if it cannot avail itself of a cause of action which the Bankruptcy Code provides. ... In weighing all of the above factors, I decline to lift the automatic stay.

Section 362(d)(2) does not warrant relief from the automatic stay to foreclose property when the movant has no lien and stands as an unsecured creditor.

In Re Pandeff · filed 1996-10-16(d)(2)

If the Bank has no lien then relief from the stay is unwarranted because the Bank is entitled to no more than is any other general, unsecured creditor.

Section 362(d)(2) permits relief from the automatic stay against property when the debtor lacks equity in it and it is unnecessary for an effective reorganization.

Dunbar v. Johnson (In Re Grady) · filed 1996-10-24(d)(2)

Under § 362(d)(2), the Court shall grant relief from the automatic stay to allow a creditor to pursue an action against property if the debtor lacks equity in the property and the property is not necessary for an effective reorganization.

Section 362(d) permits a court to validate proceedings conducted during an automatic stay retroactively when equity and judicial economy favor doing so.

Excelsior Insurance v. Pennsbury Pain Center · filed 1996-11-13(d)

Hence, although technically the judicial proceedings to enforce the settlement were conducted in violation of the automatic stay provisions of 11 U.S.C. § 362(a)(1), this Court, relying on In re Siciliano, has the option of validating the Griggs proceedings, pursuant to 11 U.S.C. § 362(d), in the interests of equity and judicial economy, or requiring the parties to repeat the approval hearings, now that Pennsbury’s reorganization is complete and the stay has been lifted.

Section 362(d)(1) permits relief from the automatic stay after an expedited hearing when the debtor receives adequate notice and an adequate opportunity to be heard.

State Bank v. Stute Company · filed 1996-12-12(d)(1)

Moreover, we reject Stute's challenges to the notice and adequacy of the hearing as without merit.

Section 362(d)(1) permits relief from the automatic stay after an expedited hearing when notice and the hearing are adequate under the circumstances.

In Re Stute Company, Inc. Debtor. State Bank of Benkelman v. Stute Company, Inc. · filed 1996-12-12(d)(1)

Stute Company, Inc. ("Stute") appeals from an affirmance by the district court 1 of a bankruptcy court 2 order granting State Bank of Benkelman ("Bank") relief from an automatic stay, pursuant to 11 U.S.C. § 362(d)(1). ... Moreover, we reject Stute's challenges to the notice and adequacy of the hearing as without merit.

Relief from the automatic stay may be granted under § 362(d)(1) without deciding whether the property is necessary to an effective reorganization under § 362(d)(2).

Smoker v. Hill & Associates, Inc. · filed 1997-01-24(d)(1)

Because Sections 362(d)(1) and 362(d)(2) are phrased in the disjunctive, relief from the automatic stay can be granted under either provision.

Relief from the automatic stay under § 362 permits foreclosure but does not abandon the estate’s interest in or relating to the property.

Bostanian v. Liberty Savings Bank · filed 1997-02-19

Relief from the automatic stay did not constitute an abandonment of any interest of the estate in or relating to the real property.

An order allowing the debtor and IRS to resolve the amount owed outside bankruptcy court leaves the automatic stay in place against IRS collection efforts until discharge.

Zecco v. United States (In Re Zecco) · filed 1997-05-28

Having so decided, I find that the automatic stay continued to bar IRS’ collection efforts until it terminated by the grant of a discharge in Case II on May 26,1994.

Section 362(h) automatic-stay damages claims do not entitle a debtor to a jury trial when the defendant creditor has filed a proof of claim against the bankruptcy estate.

Gordon v. Friedman's, Inc. (In Re Gordon) · filed 1997-04-25(h)

The remedy for these violations, which is exclusively peculiar to bankruptcy, is found in 11 U.S.C. § 362(h). ... However, the plaintiff has elected to file bankruptcy, and the defendant has filed a proof of claim as a creditor of the bankruptcy estate. The adjustment of the debtor-creditor relationship has been brought into play. Because of these circumstances and because a specific remedy is fashioned in the Bankruptcy Code for this type conduct, the court is of the opinion that the plaintiffs causes of action fit within the expanded definition of public rights as set forth in the Granfinanciera decision. Therefore, the court concludes that the plaintiff is not entitled to a jury trial.

Section 362 bars relief from the automatic stay for a landlord seeking eviction while an Illinois forcible proceeding remains pending and the tenant’s lease can still be revived.

Bennett v. Saint Stephen Terrace Apartments · filed 1997-08-06

Thus, for bankruptcy purposes, a lease is unexpired until the forcible proceeding is ended. As a result, a landlord cannot obtain relief from the automatic stay while the forcible proceeding is pending.

A bankruptcy court may prospectively prevent the § 362(a) automatic stay from applying to specific property in later bankruptcy cases when repeated filings abuse the bankruptcy process.

In Re Yimam · filed 1997-08-12(a)

However, the filing of a bankruptcy case will not extend the protection of the automatic stay of § 362(a) of the Bankruptcy Code to the subject property and will not interfere with any foreclosure proceeding then pending or thereafter filed.

The automatic stay may be modified to allow a nonbankruptcy court to proceed with a prepetition contempt hearing affecting the debtor.

In Re Ormond Beach Associates Ltd. Partnership · filed 1997-08-20

The automatic stay is modified to permit the contempt-of-court hearing to proceed in the Florida court as affects the debtor.

Section 362(d)(1) permits relief from the automatic stay when a landlord seeks to terminate a debtor’s short-term tenancy after the lease ended before bankruptcy.

McCourt v. Nasir (In Re Nasir) · filed 1997-10-14(d)(1)

Since the landlord’s desire to terminate the debtor’s short-term tenancy is sufficient cause under § 362(d)(1), the court will enter an order granting Court’s motion for relief from stay to pursue his recovery of the subject realty under state law.

Section 362(a)(3) prevents creditors from pursuing state-law remedies to recover property held by the debtor without first obtaining stay relief, even when the debtor has no ownership interest in the property.

In Re Lane · filed 1997-12-04(a)(3)

The Court notes, however, that ... although the Debtor has no interest in the vehicles, the automatic stay still prevents the Creditors from exercising their rights under state law, since the automatic stay prohibits “any act to obtain property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3) (West 1997) (emphasis added). The Creditors must thus obtain relief from this Court before pursuing any state law remedies available to them.

Section 362 allows the automatic stay against foreclosure to remain in effect when Chapter 13 debtors can cure mortgage arrears, keep payments current, and retain a reasonable prospect of confirming a plan.

In Re Lippolis · filed 1997-12-12(d)

If they have such a right, we believe that they cannot be said to have proceeded in bad faith in filing this case, thereby justifying dismissal of the case; and they are entitled to the protection of the automatic stay as long as they continue to make current payments to Equity and the Trustee and retain a reasonable prospect of confirming a plan of reorganization.

Section 362(d) permits relief from the automatic stay for state court litigation only on a showing of cause, assessed by weighing the equities, including prejudice to the debtor and delay in discharge.

In Re Cummings · filed 1998-02-25(d)

Similarly, litigation of Ms. Green’s claim in the state court will unduly hinder, impede and delay the closing of this bankruptcy case and the process of determining whether or not the debtors are entitled to a discharge and will materially prejudice the debtors’ opportunity to obtain a “fresh start.” ... This Court, accordingly, finds that there is insufficient cause under section 362(d) to grant Ms. Green’s motion.

Section 362 has no statutory mootness provision, but an appeal from an order lifting its stay can be dismissed as moot under judicial mootness principles when an unstayed foreclosure sale leaves no effective relief.

Egbert Development, LLC v. Community First National Bank (In Re Egbert Development, LLC) · filed 1998-04-02(d)

The absence of a statutory mootness provision in section 362, similar to section 363(m), does not prohibit the Court from dismissing this appeal as moot under the judicial mootness doctrines discussed above.

Section 362(d)(1) permits relief from the automatic stay as to equipment when the pleadings establish no material factual dispute supporting continued protection.

Affordable Efficiencies, Inc. v. Bane (In Re Bane) · filed 1998-06-01(d)(1)

Based on the pleadings, the Court finds no genuine issue of material fact and finds that the stay should be lifted as to the equipment pursuant to 11 U.S.C. § 362(d)(1).

Section 362(d)(1) does not entitle a judgment creditor to relief from the automatic stay when its lien did not attach before the debtor established an exempt homestead.

In Re Lee · filed 1998-06-02(d)(1)

Because FBC’s judgment lien was not valid until January 27, 1997, and the Notice of Lis Pendens did not create nor enforce any kind of lien on the Lake County property, the Debtor’s homestead was established free and clear of such claimed interests. FBC is not a perfected judgment creditor entitled to relief pursuant to 11 U.S.C. § 362(d)(1). FBC’s Motion for Relief From Stay (Doc. 13) is due to be denied.