11 U.S.C. § 362

A creditor does not willfully violate the automatic stay by foreclosing after a later bankruptcy filing when a final consent order granted prospective stay relief for that filing.

In Re Edwards · filed 1998-06-02(h)

Here, Cenit’s postpetition foreclosure was authorized by the prior consent order. Accordingly, the court cannot find that Cénit willfully violated the automatic stay and will not impose sanctions.

Section 362(d)(2) does not permit relief from the stay based on lack of equity when the debtor shows the property is necessary for an effective reorganization and the plan has a reasonable prospect of success.

In Re Powell · filed 1998-07-10(d)(2)

To sum up, Movant established its burden of proof that Debtors lack equity in the car and van. Debtors then presented sufficient proof that the car and van are necessary for their effective reorganization and that their proposed reorganization plan has a reasonable possibility of success within a reasonable time frame of sixty months. Therefore, Movant’s motion for relief from stay under § 362(d)(2) is due to be denied.

Section 362(d) permits a bankruptcy court to lift the automatic stay for cause when the debtor filed the bankruptcy petition in bad faith.

In the Matter of Gene Reitnauer, Debtor. Gene Reitnauer v. Texas Exotic Feline Foundation, Inc. · filed 1998-09-16(d)

For purposes of the bankruptcy court’s review, therefore, Reitnauer admitted to having filed her Chapter 7 petition in bad faith. Accordingly, it was not an abuse of discretion for the bankruptcy court to have found cause to lift the automatic stay.

Section 362(d) requires a party in interest to seek relief from the automatic stay; a mortgage servicing agent with no interest in the mortgage lacks standing to seek that relief on the creditor’s behalf.

In Re Morgan · filed 1998-09-30(d)

At issue in these cases are the objections to confirmation of a Chapter 13 plan filed in the Morgan case and a motion to modify the automatic stay filed in the Nunez case, both of which are required by the Bankruptcy Code to be made by “a party in interest.” 11 U.S.C. §§ 362(d) & 1324. ... Accordingly, we conclude that a servicing agent has no standing to represent the interests of a secured creditor in a legal proceeding, and that the above described behavior is statutorily proscribed.

An order lifting the automatic stay to permit foreclosure also permits a deficiency judgment motion that is part of the foreclosure action.

Steuben Trust Co. v. Buono · filed 1998-10-02(a)(2)

Because the motion was authorized based on the order in Bankruptcy Court lifting the stay to permit the foreclosure to proceed (see, In re Tyler, 166 Bankr 21, 25 [WD NY]), we reverse the order and dismiss plaintiff’s motion as time-barred (see, Crossland Sav. v Patton, 182 AD2d 496, lv denied 80 NY2d 755; Voss v Multifilm Corp., 112 AD2d 216, 217).

Section 362(d) permits retroactive relief from the automatic stay that validates a lawsuit filed after the bankruptcy petition.

Eastern Refractories Co. Inc. v. Forty Eight Insulations Inc. Aycock Inc., Fibrex Inc. And Minnesota Mining & Manufactur · filed 1998-10-07(d)

We think it is sufficiently clear that the bankruptcy court granted retroactive relief that permits Eastern to proceed with its Southern District action as if the action had not been void by virtue of the automatic stay in the first place.

Relief from the automatic stay allowing a lawsuit to proceed covers claims already included in that lawsuit when the relief order contains no exception.

Bel-Bel International Corp. v. Community Bank of Homestead · filed 1998-12-15

The bankruptcy court's order granting relief from stay concluded, without exception, that Bel-Bel's suit in district court should proceed. This suit included Bel-Bel's contractual claim against the Torcises for repayment of the note. We therefore hold that the district court did not err in entertaining this claim.

Section 362 permits relief from the automatic stay so a state court can decide whether to confirm a tax sale held before the bankruptcy filing.

Washington v. County of King William (In Re Washington) · filed 1999-01-07

Therefore, the court will sua sponte grant King William County relief from the automatic stay for the purpose of presenting the sale to the circuit court for confirmation.

Section 362 relief from the automatic stay cannot be granted to permit foreclosure before resolution of an intertwined equitable subordination claim when lifting the stay would risk conflicting judgments.

Merchants Bank v. C.R. Davidson Co. (In Re CRD Sales & Leasing, Inc.) · filed 1999-02-22

To avoid conflicting judgments, we could not grant relief from the automatic stay until rendering a decision on the equitable subordination claim.

Relief from the automatic stay for a mortgage foreclosure does not establish relief from the stay for enforcement of tax certificates on the same property.

Northcutt v. Balkany · filed 1999-03-05

Unless the bankruptcy court lifts the stay for action on a particular property or cause of action, it remains in effect throughout the pendency of the bankruptcy. In the instant case no evidence was presented that the stay was lifted with respect to any action on enforcement of the tax certificate. We acknowledge Balka-nj^s argument that the stay was lifted because the trial court permitted a mortgagee of some property in Brevard County to be relieved from the stay and to institute foreclosure proceedings with respect to the property covered by the mortgage. But even if this property is the same property as that covered by the tax certificate, this is hardly proof that the bankruptcy court also lifted the stay with respect to the enforcement of the tax certificates covering the property.

Relief from the automatic stay permitting a pending suit to proceed without exception also permits the claims included in that suit.

Bel-Bel International Corp. v. Community Bank Of Homestead · filed 1999-03-08

The bankruptcy court's order granting relief from stay concluded, without exception, that Bel-Bel's suit in district court should proceed. This suit included Bel-Bel's contractual claim against the Torcises for repayment of the note. We therefore hold that the district court did not err in entertaining this claim.

Section 362(d) permits relief from the automatic stay without a separate hearing when the parties have received notice and an appropriate opportunity to be heard.

Lentino v. Cage · filed 1999-04-20(d)

Under the Bankruptcy Code's flexible definition of “notice and hearing,” the district court did not abuse its discretion when it lifted the automatic stay a full year after first notifying the Lentinos and holding a status hearing.

A motion for relief from the automatic stay is moot when the court determines that the property at issue was sold before bankruptcy and belongs to the purchaser.

In Re Berghman · filed 1999-07-07

In the Findings of Fact and Conclusions of Law issued in Jones v. J.G. Wentworth S.S.C. Ltd Partnership (In re Berghman), Adversary Number 98-254 (Bankr.M.D.Fla. June 25, 1999) this Court found that Earle Elwin Berghman's right to receive payments under the annuity contract was validly sold to J.G. Wentworth and payments noted in the Purchase Agreement and amendments thereto are the property of J.G. Wentworth. Accordingly, it is ORDERED: The Motion of J.G. Wentworth Seeking Relief from Automatic Stay and Other Relief Pursuant to 11 U.S.C. Section 362 filed on October 9, 1998 is denied as moot.

Section 362(d)(1) allows an unsecured creditor relief from the automatic stay only if the balance of hardships favors the creditor.

In Re U.S. Physicians, Inc. · filed 1999-07-29(d)(1)

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

A party seeking relief from the automatic stay must show cause; a desire to repudiate a binding contract ratified after reaching majority does not establish cause.

In Re the Score Board, Inc. · filed 1999-07-30

Having found that Bryant and Debtor mutually entered into a binding contract, and that the contract was affirmed by Debtor upon reaching the age of majority, this Court finds that Bryant has failed to show cause for lifting the stay. Therefore, the Bankruptcy Court’s denial of Bryant’s motion for relief from automatic stay is affirmed.

Section 362 permits a court to modify the automatic stay to allow arbitration of claims against a debtor while keeping the stay in effect for other pending litigation.

In Re Ballachino · filed 1999-08-31

The automatic stay imposed by 11 U.S.C. § 362 is hereby modified for the sole purpose of allowing Movants to proceed with the arbitration. The automatic stay shall remain in full force and effect with respect to all other pending litigations.

Section 362(d)(2) permits relief from the automatic stay when secured collateral has no equity for the benefit of unsecured creditors.

In Re Endicott · filed 1999-09-21(d)(2)

The Bank’s claim is approximately $56,000.00 and its collateral consists of program benefits totaling $10,089.00; therefore, no equity exists for the benefit of unsecured creditors. Thus, pursuant to 11 U.S.C. § 362(d)(2), the motion for relief from stay is granted, and the Bank will be permitted to liquidate its security ... interest in the proceeds of the crop disaster payment.

Section 362(d) permits retroactive relief from the automatic stay in compelling circumstances, validating a judgment entered after the bankruptcy filing when the debtor concealed the bankruptcy and pending lawsuit from the creditor and the court.

Wilson v. Carter (In Re Carter) · filed 1999-11-05(d)

Such constitutes “compelling circumstances” that entitles Wilson to retroactive relief from the automatic stay. Accordingly, the state court judgment that was entered post-petition is validated.

A creditor whose lien the trustee may avoid as a preference may lack cause for relief from the automatic stay to repossess collateral, even before the trustee seeks avoidance.

In Re Jarvis · filed 1999-11-29(d)

While the trustee has yet to seek such avoidance, the Court finds that cause does not exist at this time to grant the bank’s motion for relief from stay to repossess the debtor’s vehicle.

A court hearing a motion for relief from the automatic stay asks whether the movant has a colorable claim to the property.

In Re Hernandez · filed 2000-02-03(d)(1)

Thus, in the present case, the only issue before this Court is whether the Movant has a colorable claim to the Property.

Section 362(d)(1) permits the stay to be lifted for cause so a tort claimant can pursue an insured debtor, while barring enforcement of any judgment against the debtor or the debtor’s property.

Egwineke v. Robertson (In Re Robertson) · filed 2000-02-14(d)(1)

Having given this matter its careful consideration, the Court hereby concludes that cause exists to lift the automatic stay in order to permit Movant to prosecute his civil action against Robertson in the State Court of Fulton County. However, no judgment obtained by Movant is enforceable against either the Debtors or their property.

A foreclosure sale does not violate the automatic stay when court-approved relief from the stay remains in effect after the debtor defaults under the governing stipulation.

Martin v. North Penn Savings & Loan (In Re Martin) · filed 2000-03-20

Because the undisputed facts plainly show a default under the second stipulation, the bankruptcy court correctly concluded that the May 26, 1998 Sheriffs Sale did not violate the Bankruptcy Code’s automatic stay provision.

Under § 362(d), a debtor’s ability to cure a default through a Chapter 13 plan can defeat stay relief under (d)(1), and property necessary to an effective reorganization defeats relief under (d)(2).

In Re Stratton · filed 2000-05-09(d)(1), (d)(2)

Greenpoint’s motion for relief from the stay is based upon Donna’s default, but § 1322(b)(2) permits Donna to modify Greenpoint’s rights and cure her default in her Plan. Thus, Greenpoint is not entitled to relief from the stay under 11 U.S.C. § 362(d)(1). Neither is Greenpoint entitled to relief under § 362(d)(2), because the record shows Donna lives in the mobile home with her 3 children. The Court finds that the mobile home is necessary to Donna’s effective reorganization.

Relief from the automatic stay that permits a court to determine the amount of a debtor’s liability can include determination of punitive damages when the claim seeks them.

Nestorio v. Associates Commercial Corp. (In Re Nestorio) · filed 2000-05-22(a)

Thus, the court finds that the consent order lifting the stay did not preclude the district court from considering all issues relevant to a determination of damages, including punitive damages.

Section 362(d)(1) does not entitle a general unsecured creditor to relief from the automatic stay because it has no interest in the debtor’s property.

City of Martinsville v. Tultex Corp. (In Re Tultex Corp.) · filed 2000-06-20(d)(1)

The City does not meet the requirements of § 362(d)(1) because as a general unsecured creditor, it does not have an interest in Tultex’s personal property.

Section 362(d) allows retroactive relief from the automatic stay, which can validate a sheriff’s sale conducted after the bankruptcy petition was filed.

First Merit Mortgage Corporation v. Kolm, Unpublished Decision (9-18-2000) · filed 2000-09-18(d)

Clearly, through the use of the above italicized language, the Bankruptcy Court granted appellee retroactive relief from the automatic stay issued on the morning of the Sheriff's Sale. Since the Bankruptcy Court had the authority to grant appellee a retroactive relief from stay, the Sheriff's sale was valid whether it was void or voidable.

Section 362(d) permits a creditor to seek relief from the automatic stay to pursue its security interest, and relief from the stay allows the creditor to foreclose.

In Re Foreclosure Under That Deed of Trust Executed by Azalea Garden Board & Care, Inc. · filed 2000-09-19(d)

During the bankruptcy proceedings, a creditor can move for relief from stay in order to pursue property that is security for a debt. 11 U.S.C. § 362(d). Once a motion for relief from stay is granted to a creditor, the creditor is free to foreclose on its security interest in the property.

Section 362(d)(1) permits relief from the automatic stay for a state court action to proceed to judgment and for equitable relief to be enforced, while the stay continues to bar enforcement of a money judgment against the debtor.

In Re Silberkraus · filed 2000-10-12(d)(1)

After hearing extensive argument on the Coppersmith relief from stay motion, the Court granted Coppersmith relief from stay to go to judgment plus appeal in the state court, and also relief from stay so that any injunctive or declaratory relief ordered by the state court, such as specific performance, would not by stayed from being enforced. The Court ruled that the stay would remain in effect in so far as enforcing any money judgment against the Debtor, other than by filing a claim in the bankruptcy case for a monetary judgment amount.

Section 362(d)(1) does not entitle a creditor with an unperfected security interest subordinated to the trustee’s interest to adequate protection or relief from the automatic stay on that basis.

In Re Triplex Marine Maintenance, Inc. · filed 2000-11-13(d)(1)

CMC’s unperfected security interests in the remaining assets, which are subordinated to the Trustee’s interest in those assets pursuant to 11 U.S.C. § 544, are not entitled to adequate protection, nor have any other grounds been demonstrated to establish that cause exists to grant CMC relief from the automatic stay.

Section 362(d) permits retroactive annulment of the automatic stay when exceptional circumstances make it equitable to validate an act taken during the stay.

In Re Williams · filed 2001-01-12(d)

However, this is one of those unusual cases where exceptional circumstances exist and where it would be equitable and appropriate to annul the stay, grant retroactive relief to the creditor, and validate the foreclosure sale.

Section 362(d) permits a taxing authority that issued a prebankruptcy deficiency notice and is a party to the stayed Tax Court proceeding to request relief from the automatic stay as a party in interest.

George v. United States Internal Revenue Service · filed 2001-02-13(d)

The district court properly concluded that the IRS was a “party in interest” entitled to request that the stay be lifted because the Commissioner had issued a deficiency notice in George’s income taxes prior to George’s bankruptcy filing, and was a party to the scheduled tax court proceeding for which relief from the stay was sought.

Section 362(d) permits denial of relief from the automatic stay to pursue arbitration when arbitration would conflict with bankruptcy reorganization and creditors’ interests.

In Re Hemphill Bus Sales, Inc. · filed 2001-03-22(d)

Blue Bird requests relief from the automatic stay under 11 U.S.C. § 362(d) “for cause”. ... This Court must find that enforcement of the arbitration clause in the Distribution Contract inherently conflicts with the underlying purposes of the Bankruptcy Code where the purpose of the Code is to give the debtor and his creditor body a full, fair, speedy, and unhampered chance for reorganization including determination of the priority in which this Debtor’s creditors will be entitled to share in the Debt- or’s assets. ... For the aforementioned reasons, the Motion For Relief From Automatic Stay ... Against Distribution Agreement must be denied.

Section 362(d) allows retroactive relief from the automatic stay that validates court actions taken after the bankruptcy petition was filed.

Pascarelli v. Frontier of Connecticut, No. Cv 98-0416426s (Apr. 5, 2001) · filed 2001-04-05(d)

Therefore, all of this court's actions after July 16, 1999, which originally were in technical violation of the stay, have been validated by the bankruptcy court's nunc pro tunc grant of relief.

Section 362(d) requires a creditor that did not exercise setoff before the bankruptcy petition to obtain relief from the automatic stay before effecting setoff.

M & T Electrical Contractors, Inc. v. Capital Lighting & Supply, Inc. (In Re M & T Electrical Contractors, Inc.) · filed 2001-04-09(d)

Although Singleton has a right of setoff effective against M & T (subject to whatever lien rights, if any, are held by the IRS and the other defendants (see Count III)), because Singleton did not exercise setoff prior to the filing of the bankruptcy petition, it must move for relief from the automatic stay pursuant to 11 U.S.C. § 362(d) in order to effect setoff.

Section 362(d) relief proceedings do not decide a challenge to a movant’s post-foreclosure ownership when the movant has a colorable claim; that challenge belongs in a separate proceeding.

Montgomery v. Dennis Joslin Co. II Ex Rel. Seasons Mortgage Group Inc. (In Re Montgomery) · filed 2001-06-15(d)

In sum, the bankruptcy court should not entertain and decide a respondent’s challenge to a movant’s underlying post-foreclosure position in the context of a motion for relief from stay, where the movant has a “colorable” claim of ownership after a completed foreclosure sale and the challenge would sound under nonbankruptcy foreclosure law or under 11 U.S.C. §§ 544, 547, or 548.

Section 362 permits the bankruptcy court to vacate the automatic stay so creditors can arbitrate their underlying claims against the debtor.

In Re Linzer · filed 2001-07-03

The oral motion of the Shins to vacate the automatic stay with respect to the NASD 2000-Arbitration # 00-02503 between the debt- or and the Shins is granted and the stay is vacated to allow the parties to proceed with the NASD arbitration.

Section 362(d) permits the automatic stay to be lifted so a creditor can foreclose when substantial arrearages and unpaid real estate taxes warrant relief.

In Re Hall · filed 2001-08-03(d)

Furthermore, under the circumstances of this case, particularly the amount of arrearage and the non-payment of real estate taxes, the Court concludes the stay should be lifted pursuant to 11 U.S.C. § 362(d) so that Ms. Lilleston-Jordan can proceed with foreclosure in the state court.

Section 362(d)(1) requires a creditor seeking relief from the automatic stay to show cause for relief and a colorable claim to estate property.

United States v. Fleet Bank of Massachusetts · filed 2002-05-02(d)(1)

In order to obtain relief from the stay, the government was required to show cause for relief, in addition to its colorable claim on property of the estate.

Section 362(a)(7) stays setoff of prepetition debts, but a court may grant retroactive stay relief to validate a setoff made during the stay when no party is prejudiced.

In Re Shortt · filed 2002-05-17(a)(7)

While the Court is troubled by AAFES’s violation of the automatic stay, because no party-in-interest has been prejudiced by AAFES’s actions, the Court concludes that the Motion should be granted. ... Notwithstanding its delay in filing the Motion, the automatic stay of section 362 of the Bankruptcy Code shall be modified nunc pro tunc to validate AAFES’s setoff of the 2000 tax refund against the Debt.

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

In Re Our Secret, Ltd. · filed 2002-08-28(d)(2)

Before a creditor will be granted relief from the stay under § 362(d)(2), both prongs of this test must be met: there must be no equity in the property and the property must be unnecessary to an effective reorganization.

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

In Re Southern Illinois Railcar Co. · filed 2002-12-11(d)(2)

Regarding the second test of § 362(d) of the Code, it is unclear whether the Debtor has equity in the Collateral, but it is clear that the Collateral is necessary to the Debtor’s reorganization. ... Therefore, because § 362(d)(2) of the Code is conjunctive, Wells Fargo is not entitled to relief under that Code provision.

Relief from the automatic stay must be sought by motion in the bankruptcy court.

Maria Burnam and Jessica Contreras, Individually and as Next Friend of Ashley Johnson, a Minor Child v. Patt · filed 2003-01-30(e)

Relief from the automatic "stay" can only be granted by the bankruptcy court pursuant to § 362(e) when it is sought by motion.

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

In Re Booth · filed 2003-03-07(d)(2)

However, § 362(d)(2) requires the bankruptcy court to grant relief from this stay if the debtor does not have equity in property subject to a lien, and the property is not necessary to an effective reorganization.

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.

In re Dailey · filed 2003-03-13(d)(2)

It is undisputed that the Debtors do not have any equity in the property. Thus, the only issue with respect to the Bank’s request for relief from the automatic stay is whether the property is necessary to an effective reorganization of the Debtors. ... Since the Court has determined that the Bank’s mortgage may not be modified by a Chapter 11 plan, an effective reorganization is not possible.

Relief from the automatic stay may be withheld when the trustee has a colorable claim to avoid a lien and lifting the stay would prejudice the estate.

In re Herula · filed 2003-04-14(d)(1)

After a truncated relief from stay hearing (see Grella v. Salem Five Cent Savs. Bank, 42 F.3d 26 (1st Cir.1994)), I found that the Trustee has a colorable claim under Section 548, and that to grant Monlezun relief from stay at this time would be prejudicial to the estate.

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.

Manufacturers & Traders Trust Co. v. Walsh (In Re Burkett) · filed 2003-07-24(d)(2)

The chapter 7 trustee concedes that, for purposes of § 362(d)(2)(B), debtors’ farm is not necessary to an effective reorganization. ... The outstanding balance owed on mortgage 4 or, for that matter, on mortgages 1, 2, and 3, far exceeds the value of the farm, which is listed in debtors’ schedules as having a value of $85,000. ... We conclude in light of the foregoing that M & T is entitled to relief from the automatic stay so that it may pursue its foreclosure action against debtors’ farm in state court.

A debtor’s possessory interest in real property may be insufficient to prevent relief from the automatic stay for cause when the creditor lacks adequate protection and the debtor has not shown the interest is necessary for an effective Chapter 11 reorganization.

Steele v. Premier Capital, L.L.C. (In Re Steele) · filed 2003-08-07(d)

It is unlikely that a possessory interest in real property, without more, is likely to overcome a creditor’s proof of cause to grant relief from the automatic stay. In these circumstances, the Creditor had obtained relief from the automatic stay as to this property in the Debtor’s spouse’s Chapter 11 case; no form of adequate protection has been suggested in this case; the Debtor has not shown that his interest in the property is necessary for an effective Chapter 11 reorganization; and the Creditor’s interests in this property are not adequately protected. The Court finds and concludes that cause has been shown to grant the Creditor’s oral request for relief from the automatic stay.

Section 362 allows relief from the automatic stay so parties may ask a state court to determine the dischargeability of post-divorce credit card charges.

Edenfield v. Fussell (In Re Fussell) · filed 2003-11-20

Further, because the state court has concurrent jurisdiction to determine dis-chargeability, the parties are granted relief from the automatic stay under 11 U.S.C. § 362 in order to have the issue determined by the state court.

Section 362 permits retroactive annulment of the automatic stay after proper notice and an opportunity to be heard.

Umali v. Dhanani · filed 2003-10-03(d), (e)

Umali received proper notice and an opportunity to be heard regarding the bankruptcy court’s decision to retroactively annul the automatic stay.

Relief from the automatic stay may be granted to allow a landlord to recover court-held use and occupancy payments determined to belong to the landlord rather than the bankruptcy estate.

Gray v. Coan (In Re Spiro) · filed 2004-02-10

IT IS ORDERED that the Fund is the property of Gray and is not property of the estate; and ... IT IS FURTHER ORDERED that the motion for further relief from stay, to the extent that it is still necessary, is granted to allow Gray to recover the Fund, currently held by the clerk of the Connecticut Superior Court..

Section 362(d)(1) permits relief from the automatic stay to enforce a prepetition, nonexecutory arbitration agreement covering state-law contract claims when arbitration does not inherently conflict with bankruptcy purposes.

In Re Farmland Industries, Inc. · filed 2004-03-24(d)(1)

These policy considerations in this case, however, are simply insufficient to create an inherent conflict between the Bankruptcy Code and the Arbitration Act. ... For the abovementioned reasons, “cause” exists under 11 U.S.C. § 362(d)(1) to lift the automatic stay of § 362(a).

Orders lifting the automatic stay that also transfer possession of mortgaged property to the creditor constitute abandonment orders even without express abandonment language, permitting sheriff's sales.

Davis v. Union Federal Bank of Indianapolis · filed 2004-03-24

Although the orders lifting the stay did not include specific language of abandonment, they transferred possession of the properties from Davis to Union Federal. Therefore, the trial court correctly set the sheriff's sales.

Section 362(d)(2) permits relief from the automatic stay when a perfected, unavoidable mortgage leaves the debtor without equity in property that is not necessary for an effective reorganization.

Citifinancial Services, Inc. v. Haburjak (In Re Haburjak) · filed 2004-04-23(d)(2)

Consequently, and for the reasons stated in the preamble to the instant opinion, the Debtor lacks any equity in the Realty, which finding dictates that the Court grant Citifinancial’s instant stay relief motion at this time pursuant to § 362(d)(2).

Relief from the automatic stay to collect a judgment debt may be denied for lack of cause when the creditor fails to prove the debt nondischargeable.

Blandino v. Bradshaw (In Re Bradshaw) · filed 2004-04-29(a)

Because the plaintiff, as will be discussed below, failed to meet his burden of proof as to the non-dischargeability of his $50,000 judgment debt, no cause exists to lift either the automatic stay of 11 U.S.C. § 362(a), or to otherwise modify the permanent discharge injunction of 11 U.S.C. § 524.

Relief from the automatic stay permitting a creditor to exercise state-law rights and remedies against the debtor’s real property includes a petition to fix value under the Pennsylvania Deficiency Judgment Act.

InterBusiness Bank, N.A. v. First National Bank of Mifflintown · filed 2004-06-07(d)

The relief from stay granted by the bankruptcy court in this case, which permitted InterBusiness “to exercise its rights and remedies under state law against ... the Debtor’s real property,” authorized InterBusiness to file a petition to fix value under the Pennsylvania Deficiency Judgment Act.

The automatic stay may be lifted to allow collection of an annuity income stream sold before bankruptcy and therefore excluded from the estate.

In Re Jackson · filed 2004-06-23(d)

In conclusion, we find that the Debtor had authority to, and in fact did, transfer her interest in the annuity. Further, that portion of the annuity’s income stream purchased by Settlement Capital from the Debtor is not property of the estate. Consequently, to the extent that the Automatic Stay was in effect as to these funds, it is now lifted.

A debtor that acquiesces in limiting the record to legal argument cannot challenge relief from the automatic stay on the ground that the evidentiary record is insufficient.

In Re Armstrong World Industries, Inc. · filed 2004-07-20(d)(1)

AWI does not allege that the District Court applied the wrong standard, only that it misapplied the appropriate standard by finding “cause” to lift the stay under the three prong inquiry set forth in Int’l Business Machines v. Fernstrom Storage and Van Co., 938 F.2d 731, 734-37 (7th Cir. 1991) without a proper evidentiary record. The Maertin Plaintiffs represent, without contradiction that “AWI acquiesced throughout the entire proceedings below to limit the record to legal argument[.]” Brief at 28. The Martin Plaintiffs therefore argue that AWI can not now complain about insufficient support for the equitable inquiry under In re Wilson, 116 F.3d 87, 89 (3d Cir. 1997), and similar cases cited in AWI’s brief. See AWI’s Brief at 16. We agree.

Relief from the automatic stay to resolve a claim permits litigation and a default judgment when settlement provisions do not limit the operative grant of relief.

Payless Cashways, Inc. v. Hill · filed 2004-08-03

The bankruptcy court broadly and unambiguously granted Hill relief from the automatic stay “for the purpose of resolving his claim against Payless Cashways Cashways, Inc.” The order on its face would allow litigation to resolve these claims. Although the bankruptcy court’s order contains provisions that would apply in the event of “any” settlement, those provisions in no way limit or purport to limit the broad language granting relief from stay. Nor was the language concerning settlement included in the operative language granting relief from stay. ... We conclude the trial court’s order granting the default judgment does not violate the automatic stay.

Section 362(d) permits retroactive relief from an automatic stay that can validate a complaint filed during the stay and preserve a resulting default judgment when the relief order supports that result.

Graziani v. Randolph · filed 2004-08-16(d)

Although the underlying reasoning of this case differs from that relied upon in Sikes and Eastern Refractories, the common thread remains: notwithstanding the automatic operation of a stay under § 362(a), a bankruptcy court has discretion to provide retroactive relief from that stay where in its discretion the circumstances require, even, as in Sikes, where this means the continuation of litigation against a bankrupt defendant during the pendency of its bankruptcy petition. ... Thus, we conclude that the bankruptcy court's unequivocal grant to Graziani of relief from the automatic stay obviated from the point of its inception any flaw with Graziani's complaint, and thus Burlington has no basis on which to ground an argument that the default judgment against it should be stricken.

In Chapter 7, possible redemption is not a defense to relief from the automatic stay, and lifting the stay permits a secured creditor to exercise available state-law remedies, including repossession.

In Re Smith · filed 2004-08-27(d)

However, in the Court’s view, possible redemption is not a defense to a stay relief/abandonment motion, and the lifting of the stay and/or the granting of abandonment does entitle a secured creditor to the exercise of its available state law remedies, including repossession of collateral.

Section 362(d)(1) permits relief for cause to complete advanced arbitration when prejudice to the debtor or estate is slight, continued restraint would cause greater hardship to the claimants, and the claimants are likely to prevail.

In Re Betzold · filed 2004-10-14(d)(1)

In this matter, there is little prejudice to the Debtor or the estate in completing the Arbitration. ... Second, the prejudice to the Partners in not lifting the stay far outweighs the hardship to the Debtor. ... The Partners have demonstrated a likelihood of success on the merits, in that the Arbitrator has issued a favorable decision. ... Given the foregoing, all of the Femst-rom factors weigh in favor of modifying the automatic stay and cause is thus demonstrated.

Section 362(d)(2) permits relief from the automatic stay when the debtor has no equity in the property and the case is a Chapter 7 liquidation with no reorganization in process.

Sanabria v. American National Bank (In Re Sanabria) · filed 2004-11-16(d)(2)

A court may grant relief from the automatic stay with respect to an act against property if the debtor does not have equity in the property and the property is not necessary to an effective reorganization. 11 U.S.C. § 362(d)(2). ... The court did not abuse its discretion in terminating the automatic stay where the Debtor has no equity in the vehicle and no reorganization is in process.

Section 362 does not give a creditor a general right to recover attorney’s fees for filing a motion for relief from the automatic stay.

In Re Nair · filed 2004-12-16(d)

The initial question before the Court is whether a creditor has a general right to recover attorney’s fees for the filing of a motion for relief from the automatic stay under § 362 of the Bankruptcy Code. Although the Court has scoured the case law — and Triad’s brief — the Court is unable to locate any authority supporting the proposition that there is generally a creditor’s right of recovery for attorney’s fees under § 362.

Relief from the automatic stay to foreclose may be denied without prejudice while a trustee’s avoidance action leaves the mortgagee’s underlying right to foreclose unresolved.

Wallach v. Brosnahan (In Re Brosnahan) · filed 2005-04-22

Until KeyBank and the trustee resolve their respective rights under the mortgage, neither party can independently demonstrate an underlying right to foreclose, to evict, or to collect rent. Accordingly, this court will deny both KeyBank’s motion for stay relief and the trustee’s cross motion. This denial, however, is without prejudice to a renewal of these requests after a determination of rights in the real property of the debtor.

Section 362(d)(1) permits monthly cash payments to protect a legal owner's property interest, and relief under Section 362(d)(2) requires both lack of debtor equity and lack of necessity for an effective reorganization.

Oligbo v. Louis (In Re Oligbo) · filed 2005-04-28(d)(1), (d)(2)

Taking all of these circumstances together, the Court concludes that under Section 362(d)(1), Bapteau has shown that he is entitled to adequate protection of his ownership interest in the Property, in the form of monthly cash payments, for so long as he remains the legal owner of the Property. ... Based on the entire record, the Court concludes that Bapteau is not entitled to relief from the automatic stay under Section 362(d)(2), because Bapteau has not shown that the Plaintiff does not have equity in the Property, and because the Plaintiff has shown that the Property is necessary for an effective reorganization.

Relief from the automatic stay under § 362(d)(2) is unavailable when the debtor retains substantial equity in the property.

In Re Valdez · filed 2005-05-10(d)(2)

The Mov-ant therefore fails to meet its burden and the Movant’s motion for relief must fail under § 362(d)(2) due to the showing of substantial equity by the Debtors.

Section 362(d)(1) permits relief from the automatic stay for a debtor to appeal a prepetition judgment when lingering questions about the creditor’s claim establish cause.

In Re Meredith · filed 2005-08-19(d)(1)

Considering the lingering questions about Blackford’s claim, the court finds cause to grant debtor’s motion for relief from the automatic stay for purposes of filing and pursuing an appeal of Black-ford’s judgment.

When the automatic stay is lifted to permit pursuit of insurance coverage, the state court may exercise jurisdiction over the separate personal injury suit.

Coles v. Daniels, Unpublished Decision (9-8-2005) · filed 2005-09-08

The bankruptcy stay in the case at bar was lifted for the limited purpose of attempting to access policy coverage between appellee Daniels and Nationwide. The motion for relief filed by appellants in the bankruptcy court stated that the motion was "for the sole reason of proceeding with a personal injury suit against the Debtor, Andrea Daniels." In this instance, the bankruptcy court issues are separate from the common pleas court personal injury suit. Accordingly, we find that the lower court had jurisdiction and did not commit prejudicial error.

The automatic stay may be modified to allow an employment-discrimination personal injury claim to proceed to judgment in state court, while barring enforcement until dischargeability is determined.

Goldschmidt v. Erickson (In Re Erickson) · filed 2005-09-15(a)

In accordance with the foregoing discussion, the court concludes that the motion for relief from stay be, and hereby is, granted to allow the parties to continue to litigate the discrimination claim in state court to judgment, provided, however, that no action be taken to enforce any resulting judgment until the bankruptcy court has ruled, in Adversary Proceeding 05-2011, on the dischargeability of such claim.

Section 362(d) requires stay relief for cause alone or for lack of equity in property unnecessary to an effective reorganization, with the reorganization requirement necessarily satisfied in a Chapter 7 liquidation.

Martens v. Countrywide Home Loans (In Re Martens) · filed 2005-10-03(d)(1), (d)(2)

The bankruptcy court only needed to determine that cause existed in order to grant the relief sought by Countrywide. However, by her own admissions, Martens does not have equity in the property, which satisfies § 362(d)(2)(A). This is a Chapter 7 liquidating bankruptcy case, therefore, by definition, the property is not necessary for an effective reorganization, which satisfies § 362(d)(2)(B).

A court's subsequent decision after the automatic stay is lifted does not violate the stay even if its original decision was entered while the stay was in effect.

Yash Raj Films v. Ahmed (In Re Ahmed) · filed 2005-10-06

Therefore, even though the original decision of the District Court was during the period in which the automatic stay was in effect, once the automatic stay was lifted, the subsequent decision of the District Court adopting the Magistrate Judge’s report and recommendation was not in violation of the stay.

Section 362(d) permits a bankruptcy court to cure automatic-stay violations retroactively and validate a transfer made in violation of the stay.

Cooper v. GGGR INVESTMENTS, LLC · filed 2005-12-07(d)

Based on all these authorities, the bankruptcy court here was correct in holding that whether a transfer in violation of the stay is deemed voidable or invalid but curable, the bankruptcy court has the power to cure violations of the stay retroactively.

Section 362(d)(2) does not warrant relief from the stay in a Chapter 7 case where the debtor retains an interest in marital property under a settlement agreement that was unapproved and subject to an unsatisfied contingency at filing.

In re Hoyo · filed 2006-02-07(d)(2)

Under 11 U.S.C. § 362(d)(2), relief from stay is appropriate only when the debtor has no equity in the property and the property is not necessary for an effective reorganization. ... The contingency relating to the debtor’s termination of his parental rights still existed on the petition date. Thus, there was no final determination as to the property rights of the parties. The property (or at least the non-exempt property) is subject to administration by the Chapter 7 trustee as property of the estate. As a result, the debtor retained an interest in all property stipulated under the MSA. Ms. Hoyo has failed to demonstrate any reason to modify the stay. The motion is denied.

Relief from the automatic stay may be denied pending an offer of adequate protection and an amended Chapter 13 plan when the creditor is fully secured and the property is necessary for reorganization.

In Re Schweizer · filed 2006-03-02(d)(1), (d)(2)

The Court concludes the value of Debtors’ property is $300,000. Creditor’s claim is, therefore, fully secured. The record also establishes that Debtors need their home to reorganize. In addition, Debtors have informed the Court that if the Court concludes, as it has, that they cannot rescind Creditor’s mortgage, Debtors will offer and commence adequate protection payments to Creditor. Therefore, for now, the Court will deny Creditor’s motion for relief from the automatic stay pending submission of an offer of adequate protection by Debtors to Creditor, and the filing of an amended Chapter 13 plan.

Section 362(d) does not provide stay relief for a prepetition rent default under an unexpired lease that remains assumable; the landlord must seek relief under section 365.

In re Winn-Dixie Stores, Inc. · filed 2006-03-22(d)

Because the Court finds that it would be possible for Winn-Dixie to assume the Lease, the Court holds that Sarria is limited to relief under 11 U.S.C. § 365. For this reason, the Court finds it appropriate to deny Sarria’s Motion for Relief from Stay.

Under § 362(d)(1), an unsecured creditor is entitled to relief from the automatic stay only in special circumstances, and avoidance of its lien leaves no basis for relief absent such circumstances.

In Re Giles · filed 2006-04-10(d)(1)

In this case, however, NTL’s status is now that of an unsecured creditor. Unsecured creditors are entitled to relief from the automatic stay only in special circumstances. ... No special circumstances exist in this case.

The automatic stay may be modified to permit arbitration of securities-related claims within § 523(a)(19), while remaining in effect for determinations of dischargeability.

Holland v. Zimmerman (In Re Zimmerman) · filed 2006-04-19(a)

Consequently, it is appropriate to modify the automatic stay of § 362(a) to permit the Plaintiffs to proceed with arbitration and to stay this proceeding pending the conclusion of arbitration of their claims of the type described in § 523(a)(19). ... The automatic stay of 11 U.S.C. § 362(a) is hereby modified to permit the Plaintiffs to proceed with arbitration proceedings against the Debtor, provided, however, that the stay shall remain in effect with regard to determination of whether any debt owed to the Plaintiffs is excepted from discharge.

Under the pre-2005 Bankruptcy Code, relief from the automatic stay under § 362(d), supplemented by § 105(a), may be granted in rem to prevent serial filings from frustrating foreclosure and circumventing prior orders.

Gonzalez-Ruiz v. Doral Financial Corp. · filed 2006-05-04(d)

An order granting in rem relief from stay is an appropriate remedy when a debtor or transferee of a debtor serially files bankruptcy petitions solely to invoke the automatic stay. ... The allowance of relief from stay in rem was warranted by the Debtors’ efforts to circumvent the bankruptcy court’s prior orders.

Relief from the automatic stay under Section 362(d) is committed to the bankruptcy court’s discretion and is reviewed only for abuse of discretion.

Watkins v. Alpert · filed 2006-05-16(d)

The decision to lift the 11 U.S.C. § 362 automatic stay is committed to the discretion of the bankruptcy court, and this Court will overturn the decision only upon a showing of abuse of discretion.

A hearing on relief from stay under Section 362(d)(1) considers colorable claims and defenses that would defeat them, without finally determining the validity, extent, or priority of a creditor’s lien.

G & B Aircraft Management v. Smoot (In Re Utah Aircraft Alliance) · filed 2006-05-19(d)(1)

Because the statute requires bankruptcy courts to rule quickly on stay motions, a relief from stay proceeding is by its nature a cursory or summary proceeding. It does not replace the need for filing an adversary proceeding in order to obtain a final determination as to the validity, extent or priority of a creditor’s lien. ... At a stay hearing, the court merely determines whether the movant has a col-orable claim, i.e., a facially valid security interest. It then should consider whether the objector has raised a colorable defense that, not merely offsets the movant’s claim, but actually would defeat the movant’s claim.

Section 362(d)(2) permits relief from the stay when a debtor’s junior lien has no economic value and is not necessary to an effective reorganization because the debtor cannot protect the lien or exercise its rights as a junior lienholder.

Scripps GSB I, LLC v. a Partners, LLC (In Re a Partners, LLC) · filed 2006-06-05(d)(2)

The court also finds and concludes that the Debtor’s Lien has no economic value to the Debtor, and it is not necessary to an effective reorganization, because the Debtor has no ability to protect its junior lien and exercise the rights of a junior lienholder under California law.

Before the 2005 amendments, Section 362 did not authorize an in rem stay relief order to override the automatic stay in a future bankruptcy case.

Johnson v. Tre Holdings LLC (In Re Johnson) · filed 2006-07-07(a)

The structure of what Congress deemed it necessary to do in the post-2005 regime embodied by §§ 362(b)(20) and (d)(4) confirms the validity of our conclusion that the pre-2005 Code did not authorize an “in rem” stay relief order to trump the automatic stay in future cases.

Section 362(d) permits termination of the stay to recover unearned insurance premiums when the secured financier lacks adequate protection, the debtor has no equity to the extent of the secured debt, and the premiums are unnecessary to an effective reorganization in a Chapter 7 proceeding.

In Re JII Liquidating, Inc. · filed 2006-07-12(d)(1), (d)(2)

In sum, the Court finds that cause exists pursuant to § 362(d)(1) to terminate the automatic stay because PAC has not received any adequate protection of its interest in the unearned premiums, which have been refunded by the Insurers and are being held by the Trustee pending the Court’s determination of this matter. Under § 362(d)(2)(A), the stay is terminated because Jernberg does not have an equity interest in the unearned insurance premiums to the extent of PAC’s debt. Moreover, pursuant to § 362(d)(2)(B), the automatic stay should be terminated because the unearned insurance premiums are not necessary to Jernberg’s effective reorganization as this case is a Chapter 7 proceeding.

A debtor cannot maintain a claim under § 362(h) for actions covered by an exemption from the automatic stay granted by the bankruptcy court.

Laurent v. U.S. Trustee · filed 2006-07-14(h)

As the district court correctly noted, Laurent’s only potential federal claim, asserted under 11 U.S.C. § 362(h), is not viable because Laurent alleged in his amended complaint that ... the bankruptcy court gave the parties in the current suit an exemption from the stay. Consequently, to the extent the amended complaint alleged a claim under 11 U.S.C. § 362(h), the district court properly dismissed it for failure to state a claim for which relief can be granted.

Equity for purposes of relief from the automatic stay under Section 362(d)(2) is the property's value less liens, encumbrances, and any claimed exemption.

In Re Martin · filed 2006-07-20(d)(2)

Equity for the purposes of § 362(d)(2) is a function of the value of property minus the amounts due on account of the liens and encumbrances against it, and any claimed exemption.

An order terminating the automatic stay operates prospectively and does not validate an action commenced during the stay unless the bankruptcy court's order expressly provides retroactive relief.

Levant v. National Car Rental, Inc. · filed 2006-10-05(a)(1)

Furthermore, any order terminating an automatic stay operates only from the date of entry of that order, so the stipulation between these parties on December 3, 2004, did not retroactively validate plaintiffs’ complaint, absent a provision to that effect in the order of the bankruptcy court (see Eastern Refractories Co. v Forty Eight Insulations, 157 F3d 169, 172 [2d Cir 1998]).

Relief from the automatic stay to pursue a potentially nondischargeable securities claim remains subject to the ordinary discretionary analysis under § 362(d)(1); the existence of a § 523(a)(19) claim is relevant but not controlling.

In Re Chan · filed 2006-10-23(d)(1)

As explained below, I conclude that the existence of a § 523(a)(19) claim may be considered in the § 362(d)(1) analysis, but it is not outcome determinative. After evaluating the factors traditionally employed in resolving § 362(d)(1) motions filed by unsecured creditors, I conclude, in the exercise of my discretion, that the creditor’s motion should be denied.

An underfunded Chapter 13 plan that would alter the lender’s rights under the mortgage agreement supports relief from the automatic stay.

In Re: deLone · filed 2006-11-15(d)

Because Appellant’s plan was underfunded and would have altered Wilshire’s rights under the mortgage agreement, the Bankruptcy Court did not err in lifting the automatic stay and dismissing the bankruptcy proceedings.

Section 362(d)(1) does not entitle an unsecured creditor to relief from the automatic stay merely for lack of adequate protection.

In Re RF Cunningham & Co., Inc. · filed 2006-11-20(d)(1)

There is no statutory requirement that unsecured creditors receive adequate protection, and the lack of adequate protection does not entitle an unsecured creditor to relief from the stay.

A lender seeking mortgage reinstatement as adequate protection and failing to object to a Chapter 13 plan’s proposed cure waives a ground for stay relief based on the debtor’s inability to cure the mortgage defaults.

In Re Ramos · filed 2006-11-21(d)(1)

Since Lender has not objected to this Debtor’s plan to cure the defaults under the Mortgage, Lender has waived any legal argument for stay relief that Debtor could not cure the defaults.

Violation of a 180-day bankruptcy filing bar constitutes cause to lift the automatic stay.

Reischel v. Manufacturers & Traders Trust Co. · filed 2007-04-02(d)

In addition, the bankruptcy court’s decision to lift the stay was itself not an abuse of discretion given the undisputed violation of the 180-day filing bar, and Reischel does not argue otherwise.

Section 362(d)(1) permits relief from the automatic stay for cause when a completed prepetition foreclosure extinguished the debtor’s ownership interest, leaving only bare possession.

U.S. Bank v. Roberts (In Re Roberts) · filed 2007-04-23(d)(1)

Furthermore, Movant has shown that cause exists for the lifting of the automatic stay under § 362(d)(1). The Debtor’s interest in the property is an interest based only on bare possession. She has no ownership interest in the Property. Fee simple ownership of the Property clearly vested in the Movant pre-petition under Colorado state law. ... Because the Debtor’s ownership interest in the Property fully terminated prior to the filing of her bankruptcy petition, cause exists for lifting of the stay.

The automatic stay bars a junior mortgagee from participating in a state foreclosure proceeding concerning estate property without bankruptcy-court approval, even when the senior mortgagee has obtained relief from the stay.

West v. JUSTICE EX REL. JUSTICE · filed 2007-05-04(d)

However, once the Property became part of Harper's bankruptcy estate, the automatic stay issued pursuant to 11 U.S.C. § 862 enjoined West from pursuing that interest without the approval of the bankruptcy court. West's mortgage lien might have survived Harper's discharge and the closing of his bankruptey, but while that bankruptcy was pending West needed permission from the bankruptey court to pursue her interest. West did not obtain approval from the bankruptey court to participate in the state court foreclosure proceeding. Consequently, West did not have standing to appear in the state court foreclosure proceeding and she does not have standing to prosecute this appeal.

Section 362(a)(4) prohibits post-petition liens on estate property, but a bankruptcy court may grant retroactive approval of secured refinancing with concurrent relief from the automatic stay.

Sherman v. Harbin · filed 2007-05-08(a)(4)

This obligation stems from section 362 of the Bankruptcy Code, which prohibits post-petition encumbrances on the bankruptcy estate. After a debtor files for bankruptcy, an automatic stay goes into effect prohibiting, among other actions, "any act to create, perfect, or enforce any lien against property of the estate." 11 U.S.C. § 362(a)(4); see also Schwartz v. United States (In re Schwartz), 954 F.2d 569, 571 (9th Cir.1992). ... Nunc pro tunc authorization with concurrent relief from the automatic stay is one such available remedy.

Section 362 permits reconsideration of an order lifting the automatic stay and reinstatement of the original stay when grounds for relief under Rule 60(b) exist.

Rodriguez v. Doral Financial Corp. · filed 2007-06-18(d)

Even so, there is nothing in § 362 or in any other provision of bankruptcy code to suggest that such orders are beyond relief under Rule 60(b).

Relief from the automatic stay may permit a creditor to set off a prepetition judgment against an award on the debtor’s prepetition personal injury claim where the debtor has claimed no exemption in the proceeds.

In Re Gregg · filed 2007-07-02

As such, there exists no limitation upon the rights of SAU to offset its pre-petition judgment claim against the personal injury damage award, if any, by the state court, against SAU, and accordingly, no bar to the relief from the automatic stay requested by SAU to exercise its right of setoff. Accordingly, the court will enter a separate order granting the motion by SAU for relief from the automatic stay of 11 U.S.C. § 362 to setoff any amounts awarded in the debtor’s state court action against the judgment lien amount set forth in SAU’s proof of claim.

Section 362(a)(1) does not prohibit listing estimated foreclosure fees, costs, and charges in a motion for relief from the stay to calculate collateral liquidation value when no payment is demanded.

Holland v. EMC Mortgage Corp. (In Re Holland) · filed 2007-08-02(a)(1)

EMC did not make any demands for these amounts in its motions, and its inclusion of fees, costs, and charges in its motions for relief from stay did not constitute “overt action[s] to collect” from the Debtor in violation of the automatic stay.

Section 362 permits stay relief to liquidate a personal injury claim in district court despite the debtor’s burden of defending under a reimbursement insurance policy, with claim allowance or disallowance reserved for the bankruptcy court.

In Re SunCruz Casinos, LLC · filed 2007-10-26

I find that this additional burden on SunCruz is appropriate here and will, accordingly, grant stay relief so that Sheridan may liquidate his claim in the District Court. Once that liquidation is accomplished, the parties will be required to bring the matter back to the Bankruptcy Court for formal allowance or disallowance of Sheridan’s claim.

Section 362 bars a local rule from authorizing a secured creditor to repossess an uninsured vehicle before obtaining court relief from the automatic stay.

Suggs v. Regency Financial Corp. · filed 2007-11-05(a)(3)

We agree with the debtor that Local Rule 4070-1.D. enlarges creditors’ rights beyond the scope permitted by § 362 and Federal Rule 4001(a). ... The local rule therefore violates both prongs of the test set out in McGowan because its enlargement of creditors’ rights is inconsistent with the Code and the Federal Rules. For this reason, we find the Western District of Missouri’s Local Rule of Practice 4070-1.D. invalid.

Section 362(d) requires a movant seeking relief from the automatic stay to have standing as a party in interest when the motion is filed; acquiring an interest in the note and mortgage afterward does not supply that standing.

In Re Maisel · filed 2007-11-15(d)

The plain language of section 362 of the Bankruptcy Code requires that one be a “party in interest” to seek relief from stay. ... In the situation at hand, the Movant was an unrelated third party that had no interest in the mortgage or note until after the Motion for Relief was filed and, therefore, Movant did not have standing to seek relief from stay.

Relief from the automatic stay to foreclose and provide loss-mitigation information does not authorize repeated collection calls after debtors have clearly stated their intention to surrender the property.

In Re Whitmarsh · filed 2008-01-07(a)

Relief from the automatic stay was granted solely for the purpose of allowing foreclosure (and in this case, authorizing the provision of notice to Debtors regarding loss mitigation opportunities). A phone call or two to follow up a letter regarding loss mitigation efforts is understandable. Twenty-two or more phone calls after Debtors had clearly stated their intention to surrender the Property is simply not excusable and does constitute violation of the automatic stay.

Under § 362(d), a loan servicer with a contractual duty to collect payments and foreclose mortgages on default has standing to seek relief from the automatic stay.

In Re Woodberry · filed 2008-02-04(d)

It seems the better view that a loan servicer, with a contractual duty to collect payments and foreclose mortgages in the event of default, has standing to move for relief from stay in the Bankruptcy Court.

Under § 362(d)(1), defenses and counterclaims may be evaluated in deciding stay relief without adjudicating the merits of the underlying claims.

In Re Noyes · filed 2008-02-19(d)(1)

Although this Court cannot adjudicate the Borrowers’ claims against Tribeca or other third parties that are the subject of the State Court Action, the Court may consider and evaluate them as defenses and counterclaims in the context of the Motion for Relief.

A party seeking relief from the automatic stay to pursue a security interest in collateral must show that it holds an interest in the collateral when the motion is filed.

In Re Dimmings · filed 2008-04-07(d)

A party seeking relief from stay to pursue a security interest in collateral must show that it has an interest in that collateral at the time the motion is filed.

A court may decline to grant relief from the automatic stay merely to provide a comfort order where a true sale of accounts would make stay relief unnecessary.

Cash-On-Demand, LLC v. Muir House, Inc. (In Re Muir House, Inc.) · filed 2008-04-18(a)

Should the Court find that the agreement embodied a true sale of accounts, then, even as conceded by the Movant at the time of the hearing, there is no need to lift the automatic stay by providing what can be characterized, at best, as a comfort order for the Movant. ... The Court declines to issue such a comfort order in this case.

An order lifting the automatic stay as to a deed of trust and the debtor’s property permits the deed holder to foreclose even if the order does not name it.

Reusser v. Wachovia Bank, N. A. · filed 2008-05-07(d)

As such, it is immaterial that the bankruptcy court order did not specifically name Wachovia. Rather, what matters is that it addressed the deed of trust held by Wachovia; the bankruptcy court order granted relief both “as to the enforce- ment of the deed of trust” owned by Wachovia and “as to the [Reussers’] property.” Accordingly, we are satisfied that the order granted Wachovia the right to foreclose on the property.

A final order lifting the automatic stay binds the property or interest addressed and can permit foreclosure by a deed-of-trust holder not named in the order.

Reusser v. Wachovia Bank, N.A. · filed 2008-05-08(d)

Thus, a final order lifting an automatic stay is binding as to the property or interest in question—the res— and its scope is not limited to the particular parties before the court.

Relief from the automatic stay may be granted to continue prepetition arbitration of a state-law contract dispute when enforcing the arbitration agreement would not inherently conflict with the purposes of the Bankruptcy Code.

In Re Shores of Panama, Inc. · filed 2008-05-22(d)(1)

It is not necessary to delineate with precision the contours of core as opposed to non-core proceedings in this case because, assuming that Jordan’s Action is core, enforcing the arbitration provision would not inherently conflict with the underlying purposes of the Bankruptcy Code. ... ORDERED and ADJUDGED that the Motion of Creditor C.F. Jordan Residential, L.P. for (1) Relief from the Automatic Stay and (2) to Compel Arbitration (Doc. 17) is GRANTED.

Section 362 permits stay relief for lack of adequate protection caused by prolonged nonpayment and requires relief when the debtor lacks equity and the property is unnecessary for an effective reorganization.

In Re J & M Salupo Development Co., Inc. · filed 2008-06-11(d)(1), (d)(2)

Herein, relief from the automatic stay is warranted pursuant to § 362(d)(1) because Fifth Third’s interest in the Property is not adequately protected. Debtor’s inability to repay its loan obligation to Fifth Third is sufficient cause to warrant relief from the automatic stay. No record of payment over a period of at least five years has resulted in an extensive delinquency on the Fifth Third loan. ... Relief from the stay against the Property is also warranted under § 362(d)(2). Under § 362(d)(2), the stay must be lifted if the debtor has no equity in the property and the property is not necessary for an effective reorganization.

Section 362(d)(1) permits relief to continue state-court litigation limited to available insurance proceeds and conditioned on the insurer's continued defense of the debtor.

In Re Rj Groover Const., LLC · filed 2008-07-01(d)(1)

In light of the previous discussion, and focusing on this broad test adopted by Judge Drake, I conclude that no great prejudice will befall debtor or debtor's estate if this limited relief is granted. As of this time, the case is being defended by the insurer, and the relief sought is limited to the proceeds of any applicable coverage. ... Without judging the merits of Builders' legal position as to coverage, I will condition my grant of this motion to permit Mrs. Karp to continue the underlying state court litigation as long as Builders continues to provide a defense to L.L.C. and Groover.

Retroactive relief from the automatic stay requires unusual and unusually compelling circumstances, and acting after a trustee warns of a possible stay violation weighs against granting that relief.

In Re Fibercore, Inc. · filed 2008-07-14(d)

If the Court is required to rule that the automatic stay applied — a seemingly necessary predicate to its being lifted — the facts here will not support a finding that there exist “unusual and unusually compelling” circumstances within the meaning of Soares in order to permit a post facto order — particularly where actions were taken contrary to the alleged stay after the Trustee warned the parties that their actions might violate the stay.

Denial of relief from the automatic stay for cause under Section 362(d)(1) is an equitable determination reviewed for abuse of discretion.

In re: Bruce Gilpin v. · filed 2008-07-17(d)(1)

The denial of a motion for relief from the automatic stay “for cause” under 11 U.S.C. § 362(d)(1) is an equitable determination reviewed for an abuse of discretion.

A debtor may rebut prima facie cause for stay relief to permit postpetition tax setoff by showing that timely payments under a confirmed plan adequately protect the creditor and that the refund is needed for family support and plan performance.

In Re Ealy · filed 2008-08-11(d)(1)

In this instance, this court does not find sufficient justification under 11 U.S.C. § 362(d) to modify the automatic stay to permit setoff of the tax overpayment. The debtor has clearly met his burden of rebutting the prima facie showing of “cause” for relief from the automatic stay. The IRS is treated as a fully secured creditor under the debtor’s confirmed plan. The debtor is making his payments timely; in fact, he is slightly ahead in his payments to the trustee’s office. There is no evidence that the payment stream might be discontinued, altered, or adversely impacted in the near future, or that the IRS is inadequately protected under the confirmed plan. Additionally, the debtor has adequately demonstrated his need for the refund and the economic stimulus payment, both of which will help him in providing for his family and in fully complying with the terms of his confirmed plan.

A mortgage assignee seeking relief from the automatic stay under Section 362(d) must establish its standing as a party in interest by providing an accurate history of the mortgage's chain of ownership.

In Re Hayes · filed 2008-08-19(d)

The Court and the Debtor are entitled to insist that the moving party establish its standing in a motion for relief from stay through the submission of an accurate history of the chain of ownership of the mortgage. Absent such proof, relief from stay is unwarranted and a proof of claim filed by the wrong party, to which an objection is filed, must be disallowed.

Section 362(d)(2) permits relief from the stay to foreclose an unavoidable judgment lien when the debtor has no equity in the property and the case is not a reorganization.

Cadle Co. v. Banner (In Re Banner) · filed 2008-08-27(d)(2)

The Tenancy in Common has a stipulated value of $69,500 (one half of $139,000). The Judgment Debt is in the stipulated amount of no less than $175,000. This is not a reorganization case. This court holds above that the Debtor may not avoid the Judgment Lien pursuant to Section 522(f). Accordingly, Cadle is entitled to relief from stay to enable it to foreclose the Judgment Lien in accordance with state law (but not to pursue a deficiency claim against the Debtor).

A loan servicer seeking relief from the automatic stay under § 362(d) on a note held by another must have the noteholder join, ratify, or substitute into the motion to satisfy the real-party-in-interest requirement.

In Re Kang Jin Hwang · filed 2008-09-04(d)

Consequently, if a loan servicer wishes to seek relief from the automatic stay, either as agent or nominee of the noteholder, the servicer may do so only if the noteholder either joins or ratifies the motion. Absent joinder or ratification, the noteholder must substitute into the servicer's place, and prosecute the motion on its own.

A ruling on relief from the automatic stay for cause under § 362(d)(1) must include sufficient findings of fact and conclusions of law to permit meaningful appellate review.

In Re Appleberry · filed 2008-09-11(d)(1)

The procedural requirement that a court make specific findings of fact and conclusions of law is applicable to motions for relief from the automatic stay. ... But, without sufficient findings of facts and conclusions of law, we are prevented from conducting a meaningful appellate review to determine whether the bankruptcy court in fact abused its discretion. Therefore, the bankruptcy court's orders denying the Harrises' Motion for Stay Relief and Motion to Alter or Amend are reversed, and the matter is remanded for further proceedings consistent with this opinion.

Section 362 permits modification of the automatic stay to allow continuation of a pending state-court mortgage foreclosure action.

In Re Haque · filed 2008-10-28

The automatic stay provided by 11 U.S.C. § 362 is modified as to Wells Fargo Bank, N.A., its Successors and Assigns. Accordingly, the automatic stay is modified to permit the Movant to continue its pending mortgage foreclosure action in state court against real property, the legal description of which is described below.

Section 362(d)(1) permits stay relief for litigation involving only state law when judicial economy is neutral and the estate is protected by reserving enforcement of any judgment to the bankruptcy court.

In Re 210 West Liberty Holdings, LLC · filed 2009-02-04(d)(1)

Here, the court believes that, based on the totality of the circumstances, the above factors weigh in favor of granting the Movants relief from the automatic stay to pursue their claims against the Debtor, and the non-debtor parties, in state court. First, the causes of action alleged by the Movants solely involve issues of state law based on events that took place before the filing of the Debtor’s bankruptcy petition. Consequently, the bankruptcy court’s expertise is unnecessary for the resolution of those claims. ... Third, the Debtor’s bankruptcy estate can be protected by modifying the automatic stay to allow the state court to enter judgment against the Debtor, if appropriate. Enforcement of any potential judgment as to the Debtor is a matter of bankruptcy law to be taken up within the context of claims against the Debtor’s bankruptcy estate.

Relief from the automatic stay is unnecessary to provide adequate protection when a creditor has derivative standing to pursue the same fraudulent-transfer claims on behalf of the estate.

Hyundai Translead, Inc. v. Jackson Truck & Trailer Repair, Inc. (In Re Trailer Source, Inc.) · filed 2009-02-06(d)(1)

Because Hyundai will now be able to pursue its fraudulent-transfer claims against the JT & T parties derivatively on behalf of the estate, relief from the stay is not necessary to provide "adequate protection" of Hyundai's interests. Accordingly, we reverse the district court's grant of stay relief.

Relief from the automatic stay is unnecessary for adequate protection when a creditor can pursue the same fraudulent-transfer claims derivatively on behalf of the estate.

Translead v. Jackson Truck & Trailer Repair · filed 2009-02-06(d)(1)

Because we affirm the district court’s grant of derivative standing to Hyundai, we conclude that relief from the automatic stay is not necessary for the adequate protection of Hyundai’s interests.

An order granting relief from the automatic stay does not preclude a later adversary proceeding on affirmative defenses or counterclaims not raised at the stay-relief hearing.

Simpson v. Suntrust Mortgage, Inc. (In Re Hurst) · filed 2009-02-26(d), (e)

Accordingly, collateral estop-pel does not preclude the filing and maintenance of adversary proceedings when affirmative defenses or counterclaims are not raised at a hearing on a motion for relief from stay. This is because one of the essential elements of collateral estop-pel is not present, namely, that the matter has been “actually resolved” or “actually litigated.”

Relief from the automatic stay permitting foreclosure does not authorize a creditor to obtain an additional interest in estate property through mortgage reformation or attachment.

In Re Prescott · filed 2009-03-12(a)(4), (d)

The state court action to reform the Defendant's mortgage and obtain an attachment was outside the scope of the relief that was granted. The Court's order allowed the Defendant to foreclose on its interest as a mortgagee in the property. It did not, however, authorize the Defendant to obtain an additional interest by reforming the mortgage or getting an attachment on the property.

An order granting limited relief from the automatic stay to pursue a pending state court action covers only claims pending when the order issues or expressly brought to the bankruptcy court’s attention during the relief proceedings.

Griffin v. Wardrobe · filed 2009-03-16(d)

... we adopt it and hold that an order granting limited relief from an automatic stay to allow a creditor to proceed to judgment in a pending state court action is effective only as to those claims actually pending in the state court at the time the order modifying the stay issues, or that were expressly brought to the attention of the bankruptcy court during the relief from stay proceedings.

Relief from the automatic stay may be granted when debtors fail to perform under a court-approved stipulation resolving a motion for stay relief.

In Re Burrier · filed 2009-04-08(a)

Wells Fargo Bank, N.A., its predecessors, successors and assigns, are hereby granted Relief from Automatic Stay pursuant to 11 U.S.C. § 362(a) of the Bankruptcy Code, for the Debtors failure to perform under the terms of the Stipulation approved by this Court on April 14, 2008.

Section 362(d)(2) requires courts to consider all liens and encumbrances against property when determining whether the debtor has equity for relief from the automatic stay.

In Re 3h River Turf Farm, LLC · filed 2009-06-08(d)(2)

Notwithstanding the foregoing, the Court is persuaded that the word “equity” in § 362(d)(2) means that the Court must consider all liens and encumbrances against the Real Property.

Section 362 permits modification of the automatic stay to allow confirmation and completion of a prepetition judicial sale when the debtor lost the right to redeem before filing.

City of Roanoke v. Whitlow (In Re Whitlow) · filed 2009-07-06

Based on the foregoing, this Court holds that the proper relief is not to nullify the automatic stay, which might have been appropriate if the judicial sale had occurred following the filing of the bankruptcy petition but without knowledge of such fact, but rather to modify the automatic stay to permit the City to seek confirmation of the sale by the state circuit court and, if the sale is confirmed, to proceed to complete the sale to the prospective purchaser.

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

In Re Gardner · filed 2009-10-05(d)(2)

In other words, Debtors lack any equity in the Rich Lane Property. In addition, since this is a liquidation case, the Rich Lane Property is not necessary for any reorganization. Accordingly, it is clear that Campbells are entitled to relief from the stay to enforce their lien under § 362(d)(2).

Section 362 allows relief from the automatic stay to settle a statutory bond only for obligations the state is entitled to recover from that bond.

In Re Hinsdale Greyhound Racing Ass'n, Inc. · filed 2009-10-23

For the reasons set out herein, the Court finds that the State is entitled to relief from the automatic stay to settle the Chapter 284 bond in the amount of $86,680.46. The remainder of the Chapter 284 bond in the amount of $26,417.50 in addition to any interest accrued as of May 29, 2009 is property of the estate.

Section 362(d) requires a preliminary determination that the party seeking relief from the automatic stay is a party in interest.

In Re Hubbel · filed 2010-03-24(d)

As to the second point, § 362(d) provides that the stay may only be lifted as to a party in interest. Therefore, there must be some preliminary determination as to whether the moving party is, in fact, a party in interest.

Section 362(d) requires a movant seeking relief from the automatic stay to prove that it has standing to bring the motion.

In Re Weisband · filed 2010-03-29(d)

Nevertheless, in order to establish a colorable claim, a movant for relief from stay bears the burden of proof that it has standing to bring the motion.

Section 362(d) permits a bankruptcy court to validate acts that violated the automatic stay by granting retroactive relief from the stay.

Stephens v. Hemyari · filed 2010-04-20(d)

Under section 362(d) of the bankruptcy code, a bankruptcy court can validate acts which would otherwise have been void if it retroactively grants relief from the automatic stay.

Relief from the automatic stay remains effective and cannot be collaterally attacked in a later foreclosure proceeding.

Old West Annuity and Life Ins. Co. v. Apollo Group · filed 2010-05-04(d)

The bankruptcy court’s stay-relief orders may seem unusual or even confused to some people, but those orders remain valid and are not subject to collateral attack in this case.

The automatic stay may be lifted to allow pending state court litigation to determine and liquidate state law claims while the bankruptcy court reserves dischargeability issues.

Banbury v. Banbury (In Re Banbury) · filed 2010-05-25(a)

FURTHER ORDERED that the automatic stay of 11 U.S.C. § 362(a) is hereby lifted to allow the parties to proceed with the State Court Litigation as provided herein; and it is ... FURTHER ORDERED that the claims for determination of dischargeability of the Debtor’s debts to Hunter are held in abeyance pending final resolution of the State Court Litigation.

Section 362(d)(4) permits two years of in rem relief from the automatic stay when a bankruptcy filing is part of a scheme to delay, hinder, and defraud a creditor involving a transfer of real property.

In Re Wilke · filed 2010-06-15(d)(4)

For reasons stated, it is found and held that filing of the Wilke’s bankruptcy petition was part of a scheme to delay, hinder and defraud the Association involving the transfer of the Property. Cause existed to justify the order entered on May 20, 2010, to modify the automatic stay in rem as to the subject Property for two years under 11 U.S.C. § 362(d)(4), until May 19, 2012.

Section 362(d)(2) allows relief from the automatic stay against property only if the debtor has no equity in it and the property is unnecessary for an effective reorganization.

Brown Bark I L.P. v. Ebersole (In Re Ebersole) · filed 2010-12-01(d)(2)

Since both prongs of § 362(d)(2) are required in order to grant relief from the automatic stay under this provision and only one prong has been met, Brown Bark is not entitled to relief from stay under this provision.

Under § 362(d)(2)(A), the debtor’s equity is measured in the property at issue; collateral pledged by guarantors is not included in that equity calculation.

In Re SW Boston Hotel Venture LLC · filed 2011-01-28(d)(2)(A)

Based upon the language of the statute and the authorities noted above, this Court agrees with the majority of courts that it is not appropriate for a court to consider all the collateral available to the secured creditor, such as property pledged by guarantors, in making a determination as to whether “the debtor does not have an equity in such property.”

Section 362 permits relief from the automatic stay for creditors holding liens on property surrendered under a confirmed Chapter 13 plan, allowing them to enforce their rights in that property.

In Re Waterman · filed 2011-04-07

Creditors holding liens on property which the Plan specifies is to be surrendered by the Debtor(s) are hereby granted relief from the stay imposed by 11 U.S.C. § 362 and may enforce their rights in and to said property.

When deciding whether to lift the automatic stay to allow litigation in another forum, courts give greatest weight to preserving opportunities for reorganization.

In Re Salazar · filed 2011-04-12(d)

Maximizing the opportunities for reorganization of the estate is the most important factor in determining whether to grant relief from stay to permit litigation in another forum to proceed.

Section 362(d) requires a fair value hearing before stay relief on remaining collateral when the amount still owed depends on the value of properties the creditor previously acquired at foreclosure.

In Re Karagiannis · filed 2011-05-05(d)

Put somewhat differently and moving along a time line from the bank’s 2010 motion to the current motion, relief from the stay as to the residence and tavern property also requires a fair value hearing in bankruptcy. Issues of remaining debt (in effect, “deficiency”) after the bank took two properties for nominal value remain part of the 11 U.S.C. § 362(d) process set in motion by Crown and ongoing throughout this bankruptcy case.

Section 362(d) requires a mortgage servicer seeking relief from the automatic stay to prove that it is a party in interest.

In Re Alcide · filed 2011-05-27(d)

Notwithstanding 11 U.S.C. § 362(g), Everhome, as the moving party, bears the burden of proving that it is a party in interest under 11 U.S.C. § 362(d).

A movant seeking relief from the automatic stay must have prudential standing, which requires a legal right under applicable substantive law to enforce the obligation supporting the motion.

In Re Jackson · filed 2011-06-06(d)(1)

In the context of this motion for relief from automatic stay, the court must also determine whether the movant has prudential standing by determining whether under applicable substantive law the movant has a legal right to enforce the obligation on which its claim is based.

Section 362(d) permits modification of the automatic stay for cause, but a request to have a state court decide lien rights already determined through plan confirmation does not establish cause.

In Re S. White Transportation, Inc. · filed 2011-06-07(d)

Under 11 U.S.C. § 362(d), this Court may modify the automatic stay “for cause.” “Cause” is not exhaustively defined in the statute, affording the courts a measure of discretion in this regard. As explained herein, Acceptance’s alleged hen has been voided through the Chapter 11 plan confirmation process, accordingly, the “lien rights of the parties” have been determined. Thus, there is no cause which justifies the modification of the automatic stay in this case.

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

S & T Bank v. Garbinski (In Re Garbinski) · filed 2011-07-26(d)(2)

Relief from the automatic stay is appropriate under 11 U.S.C. § 362(d)(2) because the Debtors lack equity in the Property and the Property is not necessary to an effective reorganization.

Section 362(d) requires a creditor seeking stay relief based on an assigned mortgage note to provide satisfactory proof that it owns or holds the note.

In Re Escobar · filed 2011-08-22(d)

Thus, in cases such as these, where the movant claims rights as a secured creditor by virtue of an assignment of rights to a promissory note secured by a lien against real property, it must provide satisfactory proof of its status as the owner or holder of the note at issue.

A determination on relief from the automatic stay under § 362(d) is limited to whether the creditor has a colorable claim to estate property and does not adjudicate the merits of a trustee’s avoidance claims.

Simon v. JP Morgan Chase Bank, National Association (In Re Lebbos) · filed 2011-08-23(d)

The Court finds that any determination under § 362(d) is narrowly limited to whether a creditor has a color-able claim against property of the estate. Any decision would be made solely on the statutory grounds expressed in § 362(d). The possible avoidability of a transfer under § 547 or a lien avoidance action based on a trustee’s invocation of his strong arm powers under § 544 are beyond the scope of a court’s limited inquiry under § 362(d).

Section 362(d) permits limited relief from the automatic stay for cause to let pending state court litigation determine the amount of prepetition rent owed.

Sky Top Enterprises, LLC v. Citrus Tower Boulevard Imaging Center, LLC (In Re Citrus Tower Boulevard Imaging Center, LLC · filed 2011-09-19(d)

Although the Lease is not terminated and Debtor has an interest in the Lease, cause under § 362(d) still exists to allow the state court litigation to continue for the limited purpose of determining the amount of pre-petition rent owing.

Section 362(d) permits relief from the automatic stay when the property is outside the bankruptcy estate and the debtor has no equity in it.

Albritton v. Kartchner · filed 2011-11-02(d)

The bankruptcy court did not abuse its discretion by granting relief from the automatic stay with respect to certain real property because the real property at issue was not property of the bankruptcy estate, and Albritton had no equity in that property.

Section 362(d) permits a valid assignee of a properly perfected security interest to seek relief from the automatic stay without noting the assignment on a motor vehicle’s certificate of title.

In Re: Megan Rice V. · filed 2011-12-05(d)

If an assignee is not required to note its assignment of a security interest on the certificate of title in order to maintain its secured status, surely its perfected status gives that creditor standing to seek relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay to pursue setoff when the creditor shows a colorable setoff claim and the debtor does not rebut cause for relief.

In re: Tuscan Ranch, Inc. · filed 2012-02-02(d)(1)

The bankruptcy court was not required to determine the precise rights afforded and duties placed upon AEA to exercise its setoff rights; it was only required to find that AEA held colorable claims of setoff rights in order to be granted relief from the automatic stay.