11 U.S.C. § 362

Section 362(d)(4) permits in rem relief from the automatic stay against real property when repeated bankruptcy filings obstruct a creditor’s foreclosure.

Helen J. Mitchell · filed 2021-06-21(d)(4)

Relief is granted to U.S. Bank pursuant to 11 U.S.C. § 362(d)(4) as in rem relief against the Debtor or anyone having or purporting to have a possessory interest in the Real Property located at 930 South 47th Street, Louisville, Kentucky 40211, from attempting to reorganize the debt owed to the Movant or asserting a stay against the Movant which would affect or otherwise delay the Movant’s rights to complete a state court action against the Real Property securing a Movant’s claim.

Cause supported relief from the automatic stay to allow the bank to take possession of the property.

In re Huy Ying Chen · filed 2023-08-31(d)

Accordingly, this Court agrees that good cause supported the Court’s Order confirming that The Bank was relieved from the automatic stay in order to take possession of the Property.

Section 362(d) requires notice and a hearing before relief from the automatic stay is granted; a debtor’s mere denial of receipt does not overcome a certificate of service showing proper notice.

Barry · filed 2026-03-31(d)

Under 11 U.S.C. § 362(d), the bankruptcy court may only grant a motion for relief from stay “after notice and a hearing.” ... The certificate of service is accordingly prima facie evidence of proper service. The only evidence Barry offers to rebut this is his mere denial of receipt. The Court finds that this is insufficient.

Section 362(d) permits denial of a secured creditor’s motion for relief from the automatic stay when the debtors are not in default.

In Re Hunter · filed 1990-11-26(d)

1. That since Debtors have not been in default, SouthTrust Mobile Services, Inc.’s Motion for Relief from Stay under the provisions of 11 U.S.C. § 362(d) is due to be and is hereby DENIED.

Section 362(d)(1) permits a bankruptcy court to lift the automatic stay when a debtor defaults on payments to a secured creditor.

Price v. Delaware State Police Federal Credit Union · filed 2004-06-03(d)(1)

In the event that debtors such as the Prices do default on their payments, we agree with the Second Circuit's conclusion that a bankruptcy court may lift the automatic stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a more convenient forum can resolve a dispute without substantial harm to the bankruptcy estate.

In Re Johnson · filed 1993-03-05(d)(1)

The legislative history to section 362 is suggestive, however, that a more convenient forum is cause under section 362(d)(1).

Section 362(d)(1) permits a court to condition continuation of the automatic stay on prompt payments to secured creditors when cause exists for relief.

Sewanee Land, Coal & Cattle, Inc. v. Lamb (In Re Sewanee Land, Coal & Cattle, Inc.) · filed 1982-07-13(d)(1)

Accordingly, the Court will enter an interlocutory judgment to the effect that relief is granted from the stay by way of conditioning the continuance of the stay upon the prompt payment of said sums to the creditors during the continuance of the stay, with leave to J. Edgar Hammonds to seek other relief from the Court as may be justified by the circumstances hereafter occurring.

Section 362(d) permits a court to condition relief from the automatic stay on terms that protect the debtor.

Sistema De Retiro De La Universidad De Puerto Rico v. Colon (In re Colon) · filed 1982-08-11(d)

Under the Villarie case doctrine, we understand that we cannot prevent these consequences from eventually occurring, but under Sec. 362(d) we can condition relief from the stay with appropriate terms to protect the debtor.

Section 362(d) permits a bankruptcy court to condition modification of the automatic stay on the parties’ compliance with a stipulation governing state court proceedings.

Browning v. Navarro · filed 1983-12-05(d)

In section 362(d), Congress specifically provides that a bankruptcy court can modify the automatic stay over state court proceedings, and that the bankruptcy court can condition the modification or lifting of the automatic stay. In this case, the Court holds that the Bankruptcy Court did not exceed its authority in conditioning the modification of the automatic stay upon each party’s compliance with the stipulation and agreement.

Section 362(d) authorizes a bankruptcy court to modify or condition the automatic stay to provide relief requested by a party in interest.

Browning v. Navarro · filed 1984-11-07(d)

Section 362(d) expressly authorizes a bankruptcy court to modify or condition the automatic stay to provide relief to a party in interest who has requested it.

Section 362(d) relief from the automatic stay may be denied on condition that a debtor comply with the requirements for assuming its lease under § 365(b).

In Re R.H. Neil, Inc. · filed 1986-03-28(d)

The landlord’s motion for relief from the automatic stay imposed under 11 U.S.C. § 362 is denied conditioned on the debtor’s performance in accordance with the assumption of lease requirements imposed under 11 U.S.C. § 365(b).

Section 362(d)(1) permits relief from the automatic stay for cause when a conditioned sale of pledged property will benefit the estate by satisfying debt greater than the property’s value.

In Re Opelika Manufacturing Corp. · filed 1986-10-16(d)(1)

In conclusion, the Court finds that cause under § 362(d)(1) exists to lift the stay to allow FNB to proceed with a U.C.C. sale of the pledged stock. Cause exists as a result of the unique circumstances surrounding the Put Agreement and the fact that the value of the pledged stock is significantly less than the indebtedness owed by Opelika to FNB. However, the order lifting the stay is conditioned to the extent that FNB will not be allowed to sell the pledged stock for less than the entire amount of the outstanding indebtedness, including all costs due FNB from Opelika.

Section 362(d) permits a bankruptcy court to condition relief from the automatic stay on compliance with Section 9 of the Shipping Act when foreclosure of U.S.-flag vessels proceeds abroad.

In Re McLean Industries · filed 1987-06-10(d)

Although it is all too apparent that Congress gave no express consideration to the interplay of § 362(d) and Section 9, the language of § 362(d) itself affords ample warrant for attaching a condition.

Section 362 permits conditional relief from the automatic stay, with the stay lifted if the debtor fails to meet specified mortgage payment conditions.

In Re Kosanovich · filed 1987-10-26

Accordingly, Broadview’s motion for relief from the automatic stay is provisionally granted, subject to the Debtor’s present ability to pay Broadview an amount sufficient to bring current his mortgage account not later than ten days from entry of this Order; and subject to no subsequent single mortgage payment being paid later than fifteen days beyond the monthly due date. In the event of such a default, the automatic stay will be lifted upon the presentment of an affidavit to that effect by Broadview.

Section 362 permits relief from the automatic stay for cause when excluding the debtor from insured litigation risks depriving the creditor of recovery, and relief may be conditioned on reimbursement of uninsured defense costs.

In Re Winterland · filed 1988-03-29(d)(1)

Under these circumstances, the Court finds that the FDIC has demonstrated cause for lifting the automatic stay. ... The Court further finds that in the event that the Debtor’s attorney’s fees are not covered by insurance, the FDIC will be directed to reimburse the Debtor for his reasonable attorney’s fees and court costs.

Section 362 permits relief from the automatic stay to allow eviction of debtors who hold property only as month-to-month tenants, conditioned on at least thirty days’ notice.

In Re Miller · filed 1988-09-09(d)

From my holding above that the land contract was abandoned and the Millers are rental tenants, it follows that the Millers hold 281 as tenants at will under an oral month to month lease. However, relief from the automatic stay is conditioned upon the Gregorys’ giving the Millers at least thirty days’ notice of any eviction.

Section 362(d)(1) permits denial of relief from the automatic stay when a sufficient equity cushion adequately protects the secured creditor, considering the collateral and market conditions.

In Re Johnson · filed 1988-09-12(d)(1)

A sufficient equity cushion in relation to the value and nature of the collateral and the present market forces may preclude an order granting the creditor relief from the automatic stay.

Section 362 permits a bankruptcy court to conditionally modify the automatic stay to allow preparation for a Tax Court trial, then trial and appeal once the parties are ready.

In Re Hunt · filed 1989-02-01(d)

Rather than terminating the automatic stay at this juncture, the automatic stay shall remain in effect except as conditionally modified. We modify the automatic stay to the extent that the parties may begin preparing for a trial before the Tax Court in July 1989. ... In the event that the parties progress toward a trial before the Tax Court in a meaningful manner, and upon the parties’ announcement of ready for trial before the Tax Court, the automatic stay shall be modified to permit trial and appeal to a final conclusion so as to liquidate the claim of the United States.

The automatic stay may be conditionally extended against a landlord seeking eviction when the debtor needs the lease for a realistically possible reorganization.

Elkton Associates v. Shelco Inc. (In Re Shelco Inc.) · filed 1989-10-11

Elkton Associates’ motion for relief from stay must be denied at this stage of the proceedings and the stay conditionally extended. Shelco needs its leasehold to stay in business. Since it has no secured debt, has made cutbacks in its expenses, has a liquor license for the premises, is revamping its format to off-set competition, and anticipates receiving the proceeds of sale of Stedi, Inc.’s liquor license on or before the end of November, there is a realistic possibility of an effective reorganization.

The automatic stay may be lifted conditionally to allow a creditor with a valid setoff right to exercise that right.

In Re Null's Service, Inc. · filed 1990-01-17

Therefore, based on the foregoing, the case record as a whole, and the testimony and arguments at the hearing, the court conditionally lifts the automatic stay to allow McCain to setoff the claims designated above.

Relief from the automatic stay may be denied on condition that a plan proponent promptly files and pursues an amended plan that cures defects in a potentially confirmable reorganization.

Bruce Energy Centre Ltd. v. Orfa Corp. of America (In Re Orfa Corp. of Philadelphia) · filed 1991-07-02

Since preparation of a further Amended Plan, which cures the enumerated defects, seems within the Proponents’ grasp, the motions of BEC and SPNB seeking relief from the automatic stay and that of SPNB seeking conversion are denied upon the condition that the Proponents (or any other interested party) promptly file a further Amended Plan curing the enumerated defects, with an accompanying Amended Disclosure Statement, and promptly pursue same to confirmation.

Section 362(d)(2) requires relief from a stay of an act against property if the debtor lacks equity and the property is unnecessary for an effective reorganization; the reorganization condition is satisfied in a Chapter 7 case.

Gateway North Estates, Inc. v. Bailey · filed 1994-07-06(d)(2)

The two conditions set forth in section 362(d)(2) are: (A) the Debtor does not have an equity interest in [the] property; and (B) such property is not necessary to an effective reorganization. In the instant case, Debtor’s petition for bankruptcy was filed under Chapter 7 which does not provide for reorganization. Thus, condition (B), that the property not be necessary for an effective reorganization, is met.

Section 362(d)(1) permits retroactive relief from the automatic stay for cause, with conditions protecting both the creditor and the debtor.

In Re Stockwell · filed 2001-05-15(d)(1)

The Court will grant lift stay relief retroactively to the commencement of the state court foreclosure proceedings and related transactions, with one significant condition. In fight of the relative actions and inaction of the parties, the lift stay relief is conditioned upon each party providing protection of the other’s interest.

The automatic stay may be modified to permit a claim against the debtor’s insurer on condition that the claimant cannot assert a claim against the debtor or its estate for amounts within the self-insured retention.

In Re OES Environmental, Inc. · filed 2004-08-03(a)

ORDERED, ADJUDGED AND DECREED that the automatic stay pursuant to 11 U.S.C. § 362(a) be, and the same is hereby, modified to permit Browns Bridge Marine, Inc. to pursue its claim against the Debtor’s insurer in the adversary proceeding pending in Browns Bridge’s own Chapter 11 case provided however, that Browns Bridge cannot assert a claim, either as an administrative claim or as an unsecured claim against the Debtor or its estate for any such amount that is within the SIR of $50,000.

Section 362(d) requires both lack of equity and lack of necessity to an effective reorganization for relief under paragraph (2), but permits conditional stay relief for uncured payment or insurance defaults under paragraph (1).

In Re Bivens · filed 2005-01-03(d)(1), (d)(2)

Because both prongs must be satisfied and the second has not been met, Nuvell’s request to modify the stay at this time fails under § 362(d)(2). ... More specifically, the drop dead order to be entered here provides that upon Bivens’ failure to make two or more monthly plan payments or upon cancellation or lapse of the insurance on the Vehicle covering Nuvell’s interest, the automatic stay protection as to Bivens will be lifted without leave of the Court after fourteen days’ notice of the default by Nuvell to Bivens and her attorneys at their respective addresses of record and her failure to cure same within such period.

Section 362(d)(2) requires both statutory conditions for relief from the automatic stay to be satisfied, so relief is unavailable when there is equity in the property.

In Re Prussia Associates · filed 2005-04-05(d)(2)

As there is indisputably equity in the property, Fremont’s request for stay relief cannot succeed under 11 U.S.C. § 362(d)(2), because the tests for relief under this subsection of the Bankruptcy Code must be met in the conjunctive, and one them (which cannot be met) is the absence of equity.

The automatic stay does not terminate under a conditional relief order for failure to pay changing monthly amounts when the order specifies no payment amounts and the creditor does not show that the debtor knew of the changes.

Paulk v. Green Tree Servicing, LLC (In re Paulk) · filed 2007-04-02(a)

Consequently, the court cannot find that a debtor had violated the terms of an order requiring her to make 12 “regular monthly payments” when the order fails to specify the amount required for each “regular monthly payment”; and when the creditor can produce no additional evidence showing the debtor knew the payments were constantly changing almost every month following entry of the “drop-dead” order.

Section 362(d) authorizes a court to condition the automatic stay so that it terminates by operation of the resulting order.

Sharpe v. Wells Fargo Home Mortgage (In Re Sharpe) · filed 2008-05-29(d)

This Court exercised its authority to condition the stay when it entered its November 19, 2003. ... The issue then is: Did the stay lift by operation of this order? As explained below, it did, for two reasons.

Section 362’s automatic stay continues to bar foreclosure sale confirmation proceedings when an order lifts the stay to let a lender pursue remedies against its collateral but does not authorize confirmation.

Haugen v. Multibank 2009-1 CRE Venture, LLC (In re Laprade's Marina, LLC) · filed 2017-03-23(a)

... this Court finds that the stay was not lifted to permit Multibank to commence proceedings to confirm the sale, including reporting the sale as required by Georgia law.

A party alleging violation of a stay relief order must provide a sufficient record to show a clear violation of the stay.

LI v. ZHANG · filed 2023-08-18

It was up to Li to provide a sufficient record of the Chinese proceedings and law to enable the Bankruptcy Court to find a clear violation of the stay.

Section 362's automatic stay may be continued while debtors amend a plan, subject to payment and filing conditions.

In re DeSanto · filed 1994-10-14

While the court sustains the objections to the plan, it will also continue the automatic stay or the injunction whichever is applicable to the specific creditor. Such continuation is conditioned on the Debtors continuing to make the payments to the Trustee as proposed by the Third Amended Plan. It is further conditioned on the Debtors, within forty-five (45) days of the date of this Opinion and Order, filing a Fourth Amended Plan in conformity with this Opinion. Otherwise, on Certification, the stay or injunction will be automatically terminated without further notice or hearing with this court.

Section 362(d) requires notice and a hearing when a party in interest requests relief from the automatic stay.

Bruce v. U.S. Bank National Association · filed 2023-09-29(d)

However, 11 U.S.C. § 362(d) only requires such “notice and a hearing” when “a party in interest” requests relief from the automatic stay.

Section 362(d) requires notice and an opportunity for a hearing before terminating an automatic stay; scheduling the hearing more than three weeks ahead and allowing the debtor to contest termination satisfies that requirement.

Baumann v. PNC Bank, N.A. · filed 2016-11-10(d)

Also, Baumann argues that the bankruptcy court failed, before terminating the automatic stay, to afford him “notice and a hearing,” to which he is entitled under 11 U.S.C. § 362(d). However, the bankruptcy court scheduled the hearing in which it decided to terminate the automatic stay more than three weeks before the hearing. Also, the court afforded Baumann an opportunity during the hearing to speak and dispute the termination. Baumann received “notice and a hearing” before the termination of automatic stay.

A hearing on relief from the automatic stay is limited to the statutory grounds for relief and does not resolve the estate’s defenses or preclude a later adversary proceeding.

In re Vitreous Steel Products Co. · filed 1990-08-07(d)

The scope of a hearing on a motion to lift the automatic stay is quite narrow; the issues to be heard are limited to those specified in the statute. ... Therefore rulings on the estate’s defenses are not necessary to the court’s decision on the motion to lift the stay, and do not have preclusive effect in a later adversary proceeding.

In a hearing for relief from the automatic stay, the party opposing relief bears the burden of showing that the creditor is adequately protected.

Peachtree Federal Savings & Loan Ass'n v. Universal Profile, Inc. (In Re Universal Profile, Inc.) · filed 1980-08-05(g)

In a hearing of this nature the party opposing relief has the burden of showing that a creditor is adequately protected.

An unsecured state tax creditor cannot obtain relief from the automatic stay to file liens or hold sales tax liability and license revocation hearings outside the bankruptcy claims process.

South Dakota Department of Revenue v. Capn's Galley of South Dakota, Inc. (In Re Capn's Galley of South Dakota, Inc.) · filed 1981-07-31

This Bankruptcy Court holds that Creditor cannot file a complaint for relief from the automatic stay to file liens, to hold hearings to determine sales tax liability, and to hold hearings on whether Debtor’s sales tax license should be revoked.

Section 362(f) permits emergency relief from the automatic stay to prevent irreparable damage to an interest in property, with a later rehearing on a motion to vacate.

In Re Montgomery Mall Limited Partnership · filed 1983-04-07(f)

Accordingly, it was not inappropriate for Judge Johnson to grant relief in accordance with Sec. 362(f) with provision for a rehearing upon a motion to vacate.

Section 362(f) permits emergency relief from the automatic stay to prevent irreparable damage to an interest in property before notice and a hearing can occur, with provision for a later rehearing.

General Electric Credit Corp. v. Montgomery Mall Ltd. Partnership · filed 1983-04-07(f)

In making its bankruptcy court motion for summary judgment, GECC asserted that irreparable injury would ensue unless expenses of the Montgomery Shopping Center were met and unless structural repairs were undertaken. Indeed, the City of Albuquerque’s mechanical and structural engineer testified that the shopping center presented a public hazard, and that he would recommend that it be closed. Accordingly, it was not inappropriate for Judge Johnson to grant relief in accordance with § 362(f) with provision for a rehearing upon a motion to vacate.

A relief-from-stay order remains binding between the debtor, creditor, and property after dismissal of the bankruptcy case until modified following a motion and hearing.

Matter of Gates · filed 1983-07-20

A dismissal of this Chapter 13 case cannot terminate the effect of this dismissal and consequent relief from stay order. This order is res judicata between this creditor, debtor and this real property. It shall continue, after the dismissal of the Chapter 13 case, to bind the rights of the parties to this stay proceeding until and unless modified by a subsequent order following a motion to modify and a hearing.

Section 362 permits a debtor to challenge the validity of a creditor’s security interest in a proceeding for relief from the automatic stay, and a substantial challenge can preclude the creditor’s requested prompt hearing.

Mammoth Cave Production Credit Ass'n v. Lee (In Re Hickman) · filed 1983-11-07

However, those portions of the answer and counterclaim which draw into question the validity of the security interest sought to be protected are directly responsive to the complaint and must be considered as part and parcel of this controversy from the outset. ... It is fair to say that the nature of this controversy has been so radically altered by the pleadings that it does not at all fit within the modes of relief envisioned by Sections 361 and 362. To that extent the plaintiff is not even entitled to the prompt hearing it demands.

Cause to terminate the automatic stay exists when a debtor disregards bankruptcy hearings and court rules, then dismisses and refiles to delay foreclosure.

National Permanent Bank v. Judd (In re Judd) · filed 1983-11-15(d)(1)

Debtor’s actions do not comply with the underlying good faith requirement of the Code. Debtors may not pick and choose among the court hearings they wish to attend. The bankruptcy court is open to provide relief for debtors such as Mr. Judd — -if they only follow the rules. The debtor here made up his rules as he went along. Cause exists for the termination of the stay as to Mr. Judd.

Section 362 stay-relief hearings generally do not adjudicate collateral defenses or counterclaims, which may be stricken when they would delay and complicate the stay-relief request.

Maryland National Industrial Finance Corp. v. Vacuum Cleaner Corp. of America (In Re Vacuum Cleaner Corp. of America) · filed 1983-10-11(d)

On the other hand, in addressing the motion to strike we note that the legislative history of 11 U.S.C. § 362 and the case law state that a hearing on an action for relief from the automatic stay is typically not the proper forum for hearing counterclaims and third party actions. ... We decline to do so since those matters will unduly delay and complicate the resolution of the request for relief from the stay. Consequently, we will grant the motion of Maryland National to strike the affirmative defenses and counterclaims of the debtor.

A hearing for relief from the automatic stay has a limited scope; a stay-lift order that does not decide a debtor’s collateral claim does not preclude later litigation of that claim.

Jackson v. Security Finance Group (In Re Jackson) · filed 1984-06-18

However, matters appropriate for consideration in proceedings for relief from the stay are limited. ... In addition, nowhere in this Court’s findings, conclusions and order of December 22, 1983 lifting the stay is there even any mention of the plaintiffs’ present claims against SFG, including the usury claim, much less any disposition of any of those claims. Hence, one of the essentials for collateral estoppel or law of the case to apply is missing, in that the matter now at issue has not been actually decided in the prior ruling.

The automatic stay may continue while a secured creditor is adequately protected and may be set to lift without further hearing if the debtor misses a required plan or mortgage payment.

In Re Smith · filed 1984-10-10

IT IS FURTHER ORDERED that if during the next 18 months the debtors should fail to make any plan payment or should fail to make any regular payment to Bankers “outside the plan,” the automatic stay of 11 U.S.C. § 362(a) shall be automatically lifted without further notice or hearing to permit Bankers to pursue any and all of its collection remedies.

Section 362(d)(2) permits a court to lift the automatic stay after notice and a hearing when the debtor has no equity in the property and the property is not necessary to an effective organization.

Richmond Leasing Co. v. Capital Bank · filed 1985-06-17(d)(2)

11 U.S.C. Sec. 362(d)(2) permits the court to lift the automatic stay, after notice and a hearing, if the debtor does not have an equity in the property that the movant seeks to recover and the property is not necessary to an effective organization. ... Therefore, the bankruptcy judge did not err in lifting the automatic stay.

At a Section 362 relief from stay hearing, the court may consider claims challenging the validity of a creditor’s lien, including alleged avoidable postpetition transfers, without adjudicating those claims.

Cheshire County Savings Bank v. Pappas (In Re Pappas) · filed 1985-12-16

As such, these claims will be considered, though not adjudicated, at the hearing on relief from stay, in part because they do not appear to be defenses capable of being raised at a state court hearing on foreclosure.

Section 362(e) lets the bankruptcy court choose whether to consolidate the preliminary hearing with the final hearing on relief from the automatic stay.

In the Matter of Leslie BOOMGARDEN, Debtor-Appellant · filed 1985-12-19(e)

We disagree with Boomgar-den’s assertion that the choice of whether to consolidate the preliminary and final hearings into one hearing lies with the parties. Rather, the bankruptcy court here apparently considered the November 7, 1984, hearing as a final hearing in Avco’s motion to lift the stay, thus asserting its statutory option.

Section 362(f) permits ex parte relief from the automatic stay only to prevent irreparable damage to a creditor’s interest before notice and a hearing are possible.

In Re Wildcat Const. Co., Inc. · filed 1986-02-21(f)

Under this provision we may grant only such relief from the stay as is necessary to prevent irreparable damage to the bank’s interest before there is an opportunity for notice and a hearing.

Under § 362(d), granting relief from the automatic stay without a separate hearing is not reversible error when debtors argued for reinstatement at the dismissal hearing and did not object to that procedure.

Norton v. Hoxie State Bank · filed 1986-06-04(d)

Debtors also contend a separate hearing is necessary under 11 U.S.C. § 362(d) for relief from an automatic stay. Subsection (d) provides that the bankruptcy court may grant relief from an automatic stay on request of a party in interest and after notice and a hearing. The bankruptcy court granted Hoxie State Bank prospective relief from an automatic stay in Chapter 13 proceedings not at a hearing specifically called for that purpose, but at the hearing on debtors’ motion to dismiss the Chapter 11 proceeding. The record reflects that the debtors argued their motion to reinstate the automatic stay at the hearing on their motion to dismiss, and voiced no objection to that procedure. Under these circumstances, the court does not find the absence of a separate hearing to constitute reversible error.

Section 362(d) stay hearings do not adjudicate the validity of the underlying debt.

Federal Deposit Insurance v. Mathis (In Re Mathis) · filed 1986-08-19(d)

This court finds that the appellant was not entitled to attack the validity of the underlying note, and that the appellee met its burden of proof. The purpose of a stay hearing is not to litigate the basis of the indebtedness.

Section 362(e) requires a preliminary hearing on a creditor’s motion to lift the automatic stay within 30 days of filing and a final hearing within 30 days thereafter; those prompt-hearing requirements weigh against a stay pending appeal without additional protection for the creditor.

In Re Smoldt · filed 1986-11-14(e)

11 U.S.C. § 362(e) requires a preliminary hearing on a creditor’s motion to lift stay be held within 30 days of the filing of the motion and a final hearing within 30 days thereafter. This congressional mandate to promptly adjudicate stay litigation would be violated if a debtor who has lost in the bankruptcy court has the benefit of a stay pending the 3 to 9 month appeal period without being required to offer a creditor anything more than the protection this Court has already found to be inadequate.

Section 362(d) requires a creditor seeking relief from the automatic stay to request it with notice and a hearing; a standing order cannot grant that relief automatically.

Willardo v. United States (In Re Willardo) · filed 1986-12-16(d)

The General Orders, however, allow relief from stay to occur automatically, without a motion by a party in interest, and without notice and a hearing. As such, the Orders do not comport with § 362(d) nor with the most basic requirements of due process.

Section 362(e) requires notice to the parties before a bankruptcy court continues the automatic stay after a motion for relief, though an actual preliminary hearing is not required in every case.

Grundy National Bank v. Looney · filed 1987-07-14(e)

While § 102, read in conjunction with § 362(e), does not require actual preliminary hearings in all cases when a bankruptcy court continues the automatic stay in the face of a motion for relief from the stay, it requires at a minimum that notice be given to the parties before taking such action, to allow them, for example, to request an actual hearing.

Section 362 stays actions against a debtor's property, including insurance policies held to be estate property, and subsection (d) permits the bankruptcy court to lift the stay on request of a party in interest after notice and a hearing.

National Union Fire Insurance Co. v. Titan Energy · filed 1988-01-19(d)

Technically, our determination that the policies are property of Titan's estate triggers the automatic stay provision of 11 U.S.C. Sec. 362, which prohibits any action against a debtor's property. However, subsection (d) allows the bankruptcy court to lift the stay "on request of a party in interest and after notice and a hearing."

Section 362 stays actions against estate property, including a debtor’s insurance policies, and subsection (d) permits the bankruptcy court to lift the stay on a party in interest’s request after notice and a hearing.

National Union Fire Insurance v. Titan Energy, Inc. · filed 1988-01-19(d)

Technically, our determination that the policies are property of Titán’s estate triggers the automatic stay provision of 11 U.S.C. § 362, which prohibits any action against a debtor’s property. However, subsection (d) allows the bankruptcy court to lift the stay "on request of a party in interest and after notice and a hearing.” As our abstention discussion makes clear, following a proper motion and hearing, we would consider the bankruptcy court’s grant of a motion to lift the stay entirely appropriate.

Section 362(e) requires a bankruptcy court to review the evidence before continuing an automatic stay when the movant requests a hearing and the facts are disputed.

John Hancock Mutual Life Insurance v. Forseen, Inc. (In Re Forseen, Inc.) · filed 1987-12-24(e)

But where, as in this case, the movant requests such a hearing and the facts are disputed, this court holds that a bankruptcy court should at least review the evidence (either at a live hearing or by reviewing the documents on file) before it continues the stay.

At a Section 362 relief from stay hearing, the court may decide a defense challenging the validity of the creditor’s lien because that issue bears directly on the creditor’s interest in the property.

In Re Markunes · filed 1988-05-23

But in the case of defenses which contest the validity of a creditor’s lien, it is necessary for the court to entertain the issue of lien validity because the issue lies at the very heart of the creditor’s interest in the property.

Section 362(d) requires notice and a hearing before a court grants relief from the automatic stay.

Blanchard v. Booch (In Re Booch) · filed 1988-10-03(d)

Furthermore, 11 U.S.C. § 362(d) requires notice and a hearing prior to the court’s granting of relief from stay.

Section 362(e) terminates the automatic stay 30 days after a request for relief unless the court, after notice and a hearing, continues it pending a timely final hearing upon finding that the party opposing relief is reasonably likely to prevail.

Bankr. L. Rep. P 72,914 Grundy National Bank v. Alvin Eugene Rife Jo S. Widener, Trustee-Appellee · filed 1989-06-05(e)

Thirty days after request for relief from the stay, the stay is terminated unless the court, after notice and a hearing, orders the stay continued in effect pending a final hearing to be commenced not more than thirty days later if the court finds that there is reasonable likelihood that the party opposing relief from the stay will prevail.

Section 362(d) permits a summary hearing on relief from the automatic stay without live testimony when the court accepts offers of proof as true and does not resolve conflicting offers.

Drislor Associates v. Metro North State Bank (In Re Drislor Associates) · filed 1990-02-16(d)

The Bankruptcy Code, its legislative history, and the case law addressing the issue all indicate that the bankruptcy court was not required to hold an evidentiary hearing before granting relief from stay. ... The opportunity for the parties to be heard is also “appropriate in the particular circumstances,” so long as the court is assuming the truth of what is offered and not attempting to resolve issues on conflicting offers of proof.

A hearing on relief from the automatic stay is limited to the movant’s colorable claim and the statutory grounds for lifting the stay; rulings on other estate defenses do not preclude later litigation.

In re Vitreous Steel Products Company · filed 1990-10-05(d)

The scope of a hearing on a motion to lift the automatic stay is quite narrow; the issues to be heard are limited to those specified in the statute. The court hearing a motion of this nature looks only to determine whether the party seeking to lift the stay has a colorable claim on property of the estate, and does not undertake a complete examination of all the estate's possible defenses. Therefore rulings on the estate's defenses are not necessary to the court's decision on the motion to lift the stay, and do not have preclusive effect in a later adversary proceeding.

Under § 362(d), the validity and perfection of a security interest are at issue in a motion for relief from the stay, and a trustee who could contest perfection at that hearing cannot relitigate it later.

Salem Five Cents Savings Bank v. Grella (In re Beverly Corp.) · filed 1994-01-05(d)

The question of the validity and perfection of a security interest which is the subject of a request for relief from stay goes to the heart of the issues before the court. If the security interest were invalid or unperfected, there would be no cause for relief from stay and the request would be denied. ... The Trustee could have raised the perfection issue at the hearing on the motion for relief. If he felt that I was wrong in denying him additional time to respond, an appeal from my order was appropriate. Having had the potential for one bite at the apple, he cannot relitigate the issue at this time.

Section 362(g) assigns the nonmovant the burden on issues other than the debtor’s equity, but lien validity cannot be litigated at a stay relief hearing.

In re Waste Alternatives, Inc. · filed 1994-07-18(g)

While the Code clearly assigns to the nonmoving party the burden of proving “all other issues,” the nonmovant may not present evidence that a lien is invalid during a hearing on a motion for relief from stay.

Section 362(d) limits a relief from stay hearing to whether the creditor has a colorable claim; lifting the stay does not decide the claim’s validity or avoidability or preclude later defenses and counterclaims.

Paul J. Grella, Trustee v. Salem Five Cent Savings Bank · filed 1994-12-06(d)

As a matter of law, the only issue properly and necessarily before a bankruptcy court during relief from stay proceedings is whether the movant creditor has a colorable claim; thus, a decision to lift the stay is not an adjudication of the validity or avoidability of the claim, but only a determination that the creditor’s claim is sufficiently plausible to allow its prosecution elsewhere.

A prepetition waiver of the automatic stay does not by itself require relief from the stay; the court may decline to enforce it and consider it as a factor after an evidentiary hearing.

In Re Jenkins Court Associates Ltd. Partnership · filed 1995-04-25(d)(1)

Accordingly, the waiver of the automatic stay granted to JCP by the Debtor will not be enforced. That is not to say, however, that JCP will not receive any benefit from the waiver. The follow-up hearing will not proceed on a blank slate. On the contrary, the Court will consider the representations in the prepetition settlement agreement against whatever additional evidence might be forthcoming at the subsequent evidentiary hearing as a significant factor in its determination as to whether JCP will be granted relief.

Section 362(e) permits a party to waive its right to a timely hearing on a motion for relief from the automatic stay by failing to object to a hearing delay.

In Re Kingsmen Enterprises, Debtor. Mark Kasunic Anita Kasunic v. Kingsmen Enterprises · filed 1996-04-19(e)

The Kasunics also argue that they may appeal the denial of their motion for relief from an automatic stay because the bankruptcy court did not conduct a hearing within thirty days after the motion was filed. See 11 U.S.C. § 362(e). The Kasunics failed to object to the continuation of the pre-trial hearing. They, therefore, waived their right to a timely hearing by not objecting to a delay of seven days.

Section 362(d) permits a court to condition relief from the automatic stay on the creditor’s payment of damages and waiver of deficiency claims.

Pennsylvania Footwear Corp. v. Midlantic Bank, N.A. (In Re Pennsylvania Footwear Corp.) · filed 1997-01-14(d)

We believe that an appropriate measure of additional damages to the Debtor imposed due to the Bank’s wrongful conduct is therefore to serve this purpose by requiring the Bank to waive any deficiency claims, as well as pay the $3,500 damages which we deem appropriate, as conditions for granting the Bank relief from the automatic stay. ... We also note that § 362(d) expressly authorizes the “conditioning” of the automatic stay.

Section 362(d) does not authorize lifting the automatic stay on a condition that the bankruptcy court deny a state court judgment its required preclusive effect.

Presta v. Robert F. McClendon Meredith R. McClendon Ronald G. Brown, Trustee · filed 1997-06-03(d)

We hold a bankruptcy court lacks the authority to lift a stay of state court proceedings conditioned upon disregarding an act of Congress that requires all federal courts to afford state judgments preclusive effect.

A hearing on a motion for relief from the automatic stay is a summary proceeding that cannot finally adjudicate the merits of the creditor’s underlying setoff claim.

Biggs v. Stovin (In Re Luz International, Ltd.) · filed 1998-02-25(d)(1)

Given the case law and legislative history regarding the proper scope of a motion for relief from stay, we hold that the bankruptcy court erred by determining the merits of the Appellees’ setoff claim during the hearing on the motion for relief from stay.

Section 362(e) permits a status conference to satisfy the initial notice and hearing requirement for stay relief when it gives creditors notice that the court intends to act on their request.

Marine Midland Bank v. Breeden (In Re Bennett Funding Group, Inc.) · filed 2000-11-29(e)

This status conference fulfilled the initial “notice and hearing” requirement of section 362(e), as it gave notice to the petitioning creditors that the Bankruptcy Court intended to act upon its claim.

Section 362(d)(2) requires a movant seeking relief from the automatic stay to show that the debtor lacks equity in the property before the debtor must show that the property is necessary for an effective reorganization.

In Re Harrington · filed 2002-05-06(d)(2)

Similarly, under § 362(d)(2), the movant did not introduce any evidence that the debtor lacked equity in the tractor. Therefore, the debtor was not required to show that the tractor is necessary for his effective reorganization.

Section 362(e) permits a bankruptcy court to reserve its decision on stay relief after holding the final hearing on a date consented to by the parties.

In Re AdBrite Corp. · filed 2003-03-24(e)

The Court notes that although it does not now issue a decision on this motion for relief from the automatic stay, the final hearing on this motion was held on a date consented to by the parties and, thus, the Court remains in compliance with § 362(e).

Relief from the automatic stay does not, by itself, annul a Chapter 13 plan's bifurcation of a creditor's claim into secured and unsecured portions.

Carvalho v. Federal National Mortgage Ass'n · filed 2003-07-09(d)(1)

We hold, therefore, that bifurcation of a creditor's claim into secured and unsecured portions is not annulled by the mere act of granting relief from the automatic stay.

Section 362(d)(2) entitles a debtor to notice and an opportunity to be heard on a motion to terminate the automatic stay.

Harris v. The Trust · filed 2006-02-15(d)(2)

A debtor is entitled to notice and an opportunity to be heard on a motion to terminate the automatic stay. 11 U.S.C. § 362(d)(2); Banrk. R. 9014(a).

Section 362(d)(2) entitles a debtor to reasonable notice and an opportunity to be heard on a motion to terminate the automatic stay.

Harris v. Boyd G. Montgomery Testamentary Trust (In re Harris) · filed 2006-02-15(d)(2)

A debtor is entitled to notice and an opportunity to be heard on a motion to terminate the automatic stay. 11 U.S.C. § 362(d)(2); Banrk. R. 9014(a). The notice must be reasonable given the circumstances of the particular case. 11 U.S.C. § 102(1)(A).

Consent to relief from the automatic stay under Section 362(d) does not bar later lien avoidance under Section 522(f) through res judicata or judicial estoppel when the debtor takes no inconsistent positions.

Trent Dales Ginter v. Alliant Bank · filed 2006-09-14(d)

The Debtor’s right to avoid the lien in the tools under Section 522(f) of the Bankruptcy Code did not involve the same cause of action as the earlier relief from stay proceeding under Section 362(d) of the Bankruptcy Code. Furthermore, the Debtor did not take inconsistent positions by consenting to the Creditor’s relief from stay motion and then filing the lien avoidance motion. Therefore, the court should not have denied the lien avoidance motion under the doctrine of res judicata or judicial estoppel.

Section 362(d) permits relief from the automatic stay without an evidentiary hearing when the debtor receives an appropriate opportunity for a hearing but fails to respond timely to the motion.

In Re Padilla · filed 2008-10-14(d)

The Bankruptcy Code provides that a bankruptcy court may grant relief from the automatic stay on request of a party in interest, after notice and a hearing. [11] The Bankruptcy Code further provides that the phrase "after notice and a hearing" means "after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances." [12] Thus, only an "opportunity for a hearing," and not an actual hearing is required. ... Therefore, the bankruptcy court did not abuse its discretion in lifting the automatic stay without an evidentiary hearing.

Section 362(d) relief-from-stay hearings are summary proceedings; when property rights are disputed, the court need only determine whether the movant has a colorable claim to estate property.

In Re Arcadia Enterprises, Inc. · filed 2010-10-27(d)

A hearing on a stay relief motion is a summary proceeding. When rights in property are in dispute, a court need only determine “whether the party seeking relief has a colorable claim to property of the estate.”

A creditor that briefs a motion for relief from the automatic stay waives an evidentiary hearing if it first requests one after the motion is denied.

In re Fakhari · filed 2016-07-12(d)

A creditor who actively participates in briefing of a contested matter waives the right to insist on an evidentiary hearing that it at no time requested until after the motion was denied.

Section 362(d)(2)(A) does not require a debtor to claim or be allowed an exemption in property for the debtor to have equity in it.

In re Pederson · filed 2017-01-10(d)(2)(A)

Further, § 362(d)(2)(A) requires that “the debtor does not have an equity in such property[.]” It does not include language requiring that the Debtor claim or be allowed an exemption in the property. Since Congress did not require an exemption when it drafted § 362(d)(2)(A), this Court will not.

Section 362(d) gives the bankruptcy judge discretion to decide what notice and opportunity for a hearing are appropriate when considering relief from the automatic stay.

Thomas-Wise v. RICM Properties · filed 2019-07-29(d)

The Bankruptcy Code grants the bankruptcy judge the discretion to determine what notice and opportunity for a hearing is appropriate in the particular circumstances, 11 U.S.C. §§ 102(1)(A), 362(d), and the bankruptcy judge did not abuse his discretion when he denied the motion to vacate because he found that due process had been provided; notice had been mailed to the proper address and Thomas-Wise had appeared at the hearing and presented her defense.

Section 362(d) permits relief from the automatic stay after appropriate notice and an opportunity for a hearing; an evidentiary hearing is not required in every case.

Lord v. True Funding, LLC. · filed 2020-07-28(d)

Indeed, the Bankruptcy Code makes no mention of an evidentiary hearing, providing only, under § 362(d), a bankruptcy court may grant relief from an automatic stay “after notice and hearing.” 11 U.S.C. § 362(d). The phrase “after notice and a hearing” is, in turn, defined as “after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances.” 11 U.S.C. § 102(1)(A). In short, the Court finds no support for Lord’s contention that the Court must reverse the bankruptcy court’s annulment because it failed to conduct an evidentiary hearing.

Section 362(d)(2) does not require relief from the automatic stay when avoidance of a judgment lien leaves the debtor with equity in the property.

Winfield Solutions, LLC v. Ganske · filed 2022-03-31(d)(2)

The bankruptcy court concluded, however, that Winfield was not entitled to relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(2) because the Ganskes had equity in the Baileys Harbor property. Ganske, 2021 WL 316076, at *7. The court reasoned that Winfield’s $1.5 million judgment lien is avoided under 11 U.S.C. § 522(f) because the judgment lien impairs the Ganskes’ homestead exemption. It found that avoidance of the judgment lien and subtracting the $159,665 total mortgages on the property results in $140,335 in exempt equity. The bankruptcy court did not abuse its discretion in denying Winfield’s motion for relief from the automatic stay.

A bankruptcy court may not decide a motion to lift the automatic stay on an ex parte affidavit unless the Bankruptcy Code or Rules expressly permit that procedure.

First RepublicBank Dallas v. Gargyle Corp. · filed 1988-09-27

This appeal from an order of the bankruptcy court lifting the automatic stay presents one dispositive question: whether the bankruptcy court may determine a matter on the basis of an ex parte affidavit where neither the Bankruptcy Code nor Rules expressly permit the procedure. The court concludes the bankruptcy court may not do so.

Section 362(e) requires the final hearing on a motion for relief from the stay to commence within 30 days after the preliminary hearing concludes; reconsideration a year later cannot serve as that final hearing.

In Re Chateaugay Corporation · filed 1989-06-30(e)

Because the statute requires that the final hearing commence within 30 days after "the conclusion" of the preliminary hearing, Judge Lifland's reconsideration of the issue in one year cannot properly be the final hearing contemplated by the statute, and cannot make the October 20, 1988 hearing a preliminary hearing for purposes of the statute.

Section 362(e) requires a hearing within thirty days after a request for relief from the automatic stay.

In re Leviton Construction Co. · filed 1991-01-09(e)

This contested matter was heard by Judge William A. Clark in the absence of Judge Thomas F. Waldron at the date of the hearing on the motion pursuant to 11 U.S.C. § 362(e) requiring such hearing within thirty days after the request for relief from stay.

Section 362(e) requires the court to proceed with a hearing on a request for stay relief or grant relief unless the movant agrees to a continuance.

In Re Smith · filed 1995-03-02(e)

However, Luff insisted on proceeding with the Stay Motion hearing that date and, being concerned that 11 U.S.C. § 362(e) required the court to proceed with a hearing that date or grant relief to Luff summarily unless Luff agreed to a continuance, we required the Debtor to proceed pro se.

Section 362(d) limits a hearing on relief from the automatic stay to whether cause exists to modify or lift the stay; the validity of the underlying claims is decided separately.

In re Al's Den, Inc. · filed 1987-11-12(d)

Under In re Johnson, in a hearing on a motion for relief from stay, this Court has no authority to determine whether Simone has a valid claim against debtors or vice versa. Such issues have been raised in the state court action, C.A. 85-4067 and are ready for trial. Thus, it is only proper that those issues under Hawaii’s contract laws be determined by the state court. The only issue before this court may be summarized as follows: is there cause to modify or lift the automatic stay.

Section 362(d) requires notice and an opportunity to be heard before a court grants relief from the automatic stay.

Rashid v. Public Savings Ass'n · filed 1989-03-06(d)

Accordingly, for the reasons set forth above, I will grant summary judgment in favor of the defendants on plaintiff’s claim that he was not provided with adequate notice of the hearings required under 11 U.S.C. § 362(d).

Section 362(e) automatically terminates the stay if the court fails to hold a timely hearing or fails to continue the stay and schedule a timely final hearing after a preliminary hearing.

In Re Wedgewood Realty Group, Ltd. Wedgewood Investment Fund, Ltd. v. Wedgewood Realty Group, Ltd · filed 1989-06-21(e)

Failure either (1) to hold a hearing within thirty days of the filing of the request for relief, or (2) to issue an order continuing the stay and to schedule a final hearing within thirty days of the preliminary hearing, results in automatic termination of the stay.

Section 362(e)(1)’s 30-day protection may be impliedly waived when a movant continues litigating a stay motion and first invokes that protection after the period expires.

Condal Distributors, Inc. v. 2300 Xtra Wholesalers, Inc. (In Re 2300 Xtra Wholesalers, Inc.) · filed 2011-01-14(e)(1)

By failing to raise the potential application of section 362(e) until its fourth submission on the motion, and past the expiration of the statute’s 30-day period, Condal impliedly waived protection under the statute.

Section 362(e) terminates the automatic stay as to a party seeking relief 30 days after the request unless the court orders the stay continued after notice and a hearing.

In re Williams · filed 1998-07-23(e)

At the final hearing scheduled and timely called for final hearing on July 7, 1998, the Court made no determination that the stay should continue for any reason. By operation of law, on July ...15, 1998, the automatic stay terminated as to the moving party in interest and the property which is the subject of the motion for relief.

Section 362(e) permits the automatic stay to remain in place pending a continued hearing when the creditor seeking relief offers no evidence to support its motion.

Federal National Mortgage Assoc. v. Rockafellow (In Re Taylor) · filed 1990-06-13(e)

We did indicate that FNMA’s inability to present any evidence justified our maintaining the stay in place until April 25, 1989.

Section 362(e) terminates the automatic stay when the required deadlines for hearings or rulings on a motion for relief from stay are missed.

Nasco P.R., Inc. v. Chemical Bank (In Re Nasco P.R., Inc.) · filed 1990-03-16(e)

Section 362(e), Bankruptcy Rule 4001 and Local Bankruptcy Rule 4001 provide an expedited and strictly defined timetable to process motions to lift stay. ... Failure to observe any of the above thirty (30) day periods results in the termination of the automatic stay.

Section 362(e) permits a bankruptcy judge to continue the stay after a timely preliminary hearing upon finding a reasonable likelihood that the debtor will prevail at the final hearing.

Satter v. KDT Industries, Inc. (In Re Satter) · filed 1982-12-01(e)

I hold, however, that the proceedings before Judge Lewittes on November 18, 1982 constituted a “preliminary hearing” within the meaning of § 362(e); and that, at the conclusion of that hearing, the Bankruptcy Judge reached a reasoned conclusion that there was a reasonable likelihood that the debtor, opposing the relief sought by petitioners, would prevail at the final adjudication of the merits. In these circumstances, Judge Lewittes’ action in continuing the stay of proceedings does not violate the statute.

Section 362(e) permits a stay to continue after a preliminary hearing only if the debtor is reasonably likely to prevail at a final hearing on relief from the stay.

Castle Ranch I, Ltd. v. Castle Ranch of Ramona, Inc. (In Re Castle Ranch of Ramona, Inc.) · filed 1980-02-28(e)

In order to continue the stay in effect as a result of this preliminary hearing, under § 362(e), I must find that there is a reasonable likelihood that the debtor will prevail at any final hearing held pursuant to § 362(d).

Section 362(e) allows collateral defenses and counterclaims to be heard in separate, fuller proceedings apart from expedited hearings on adequate protection and relief from the stay.

Citibank, N.A. v. Executive Leasing Corp. (In Re Executive Leasing Corp.) · filed 1980-03-20(e)

The legislative history of Section 362(e) of the Code, 11 U.S.C. § 362(e), grants the Court broad discretion to hear such matters, provided they are segregated from the informal, expeditious and summary hearings for adequate protection and relief from the stay.

Section 362(e) limits a stay relief hearing to issues concerning relief from the stay; extraneous counterclaims and third-party claims must be dismissed from the stay proceeding and may be filed separately.

Wyatt v. Bennett (In Re Bennett) · filed 1982-02-26(e)

Matters raised extraneous to the issue of lifting the automatic stay, whether they be raised by a counterclaim, third-party complaint, or otherwise, therefore shall be dismissed from the main stay complaint and may be filed in separate proceedings.

Section 362(e) permits preliminary relief from the automatic stay when delay supplies cause to lift it and those opposing relief have no reasonable likelihood of prevailing at a final hearing.

Chicago Title Insurance v. Meckstroth (In Re Meckstroth) · filed 1982-11-03(e)

In view of the foregoing, we hold, first, that cause exists, avoidance of delay, to lift the stay, and there is no reasonable likelihood that those opposing relief from the stay could prevail at final hearing.

A stay-relief movant is estopped from claiming automatic termination of the stay under § 362(e)(2) when its own appeal causes the hearing delay.

In re Zaleta · filed 1983-03-17(e)(2)

It would be unconscionable to permit plaintiff to achieve stay relief solely by the delay occasioned by plaintiff’s appeal. I hold that plaintiff is estopped to assert that position.

Section 362(e)’s thirty-day period for a stay-relief hearing may be impliedly waived when the parties fail to confer as ordered and request a hearing that cannot be scheduled within that period.

Agristor Credit Corp. v. Fairchild (In Re Fairchild) · filed 1983-05-26(e)

It is the opinion of this Court that the instant parties have impliedly waived the thirty day rule. The parties failed to comply with the Court’s pretrial order that the parties “confer at their earliest convenience” sometime “prior to the pretrial hearing,” thereby compounding the apparent notice problem. Furthermore, given the complexity of the instant litigation and the need for a relatively lengthy evidentia-ry hearing, it is the additional determination of the Court that the parties’ request for a full half-day of Court time itself constitutes an implied waiver of the thirty day rule until the earliest possible time such hearing can be scheduled as requested.

Section 362(e) terminates the automatic stay thirty days after a request for relief from stay if the court takes no action during that period.

Spagnol Enterprises, Inc. v. Atlantic Financial Federal Savings Ass'n · filed 1983-09-07(e)

By the terms of § 362(e) the automatic stay will terminate of its own accord if no action has been taken within thirty days following the request for relief from stay.

Section 362(e) requires a hearing within thirty days only for secured creditors asserting interests in real property or nonconsumer personalty.

Barclay Properties v. Small (In Re Small) · filed 1984-03-01(e)

The legislative history of the Code indicates that the requirement of a thirty-day hearing set forth in 11 U.S.C. § 362(e) was only intended by Congress to apply to secured creditors asserting interests in real property and/or nonconsumer personalty.

Section 362(e) terminates the automatic stay 30 days after a request for relief when the court holds no qualifying preliminary hearing and does not enter an order continuing the stay within that period.

In The Matter Of Martin Exploration Company · filed 1984-05-14(e)

Because there was no preliminary hearing with attendant findings as to Superior's probability of success, which would have operated to extend the time for a final hearing and entry of judgment as described above, the automatic stay terminated with respect to Explorer 30 days from October 21, 1982, to wit, on November 23, 1982.

Section 362(e) terminates the automatic stay 30 days after a request for relief when no preliminary hearing and findings extend the time for a final hearing and order.

Explorer Drilling Co. v. Martin Exploration Co. · filed 1984-05-14(e)

Because there was no preliminary hearing with attendant findings as to Superior’s probability of success, which would have operated to extend the time for a final hearing and entry of judgment as described above, the automatic stay terminated with respect to Explorer 30 days from October 21, 1982, to wit, on November 23, 1982.

Section 362(e) causes the automatic stay to expire if the court does not deny a motion for relief within 30 days after the final hearing begins.

In Re Rolanco, Inc. · filed 1984-05-15(e)

The thrust of Hancock’s motion is that since the Court did not deny the motion for relief from the stay within 30 days after the final hearing, the stay provisions of 11 U.S.C. § 362 automatically expired. The movant is correct in its assertion.

Section 362’s automatic stay terminates as to collection of post-petition income taxes when confirmation of a Chapter 13 plan revests all property in the debtor and terminates the estate.

In Re Dickey · filed 1985-04-30

Thus, upon confirmation of the Plan, the automatic stay of 11 U.S.C., Sec. 362 terminated against collection of debtor’s post-petition 1982 and 1983 income tax liabilities.

Section 362(e) permits the automatic stay to continue pending a full evidentiary hearing on adequate protection.

Levin v. Kedzie-Carrol Currency Exchange, Inc. (In Re Cash Currency Exchange, Inc.) · filed 1985-08-07(e)

The automatic stay shall be continued in effect pending the disposition of a full evidentiary hearing with reference to these matters. 11 U.S.C. § 362(e).

Section 362(e) terminates the automatic stay by operation of law if no preliminary hearing is held within 30 days after a request to modify it.

Lifshutz v. Trang (In Re Trang) · filed 1985-09-10(e)

This 30 day limit is imposed by Congress in 11 U.S.C. § 362(e). Since there was no preliminary hearing held on or before May 15, 1983, the stay had terminated by operation of law.

Section 362(e) permits a court to continue the automatic stay until the conclusion of a final hearing when it finds at the preliminary hearing that the party opposing relief is reasonably likely to prevail, and the stay does not expire merely because 30 days have passed since the final hearing began.

In Re Roberts · filed 1987-01-27(e)

Since the Court found at the preliminary hearing that the debtor in possession had a reasonable likelihood of prevailing at the conclusion of the final hearing, the stay was not lifted at the preliminary hearing but instead it was continued “until further order of the Court” and a final hearing date was set. Since there has never been a “further order”, the stay has continued. The final hearing was commenced not later than 30 days after the conclusion of the preliminary hearing. Therefore, the latter portion of § 362(e) was satisfied.

Section 362(e) terminates the automatic stay 30 days after a motion for relief unless the court holds a proper hearing and timely orders the stay continued.

United States v. Marine Power & Equipment Co. (In Re Marine Power & Equipment Co.) · filed 1987-03-30(e)

In summary, 11 U.S.C. § 362(e) provides for automatic termination of the stay within 30 days of a motion for relief from stay, unless the court rules after notice and hearing within that time that the shortcomings enumerated in subsection (d)(1) and (2) are not present.

Section 362(e) terminates the automatic stay thirty days after a request for relief unless the court orders it continued, even when the court does not hold a hearing.

In Re River Hills Apartments Fund, Debtor. River Hills Associates, Ltd. v. River Hills Apartments Fund · filed 1987-04-06(e)

Section 362(e) provides that the stay terminates thirty days after a request for relief “unless the court, after notice and a hearing, orders such stay continued in effect.” The automatic stay therefore terminates even if the court fails to hold a hearing, whether its failure to do so results from the parties’ failure to importune the court — due to their own inadvertence or to the absence of a dispute — or from the court’s own inadvertence.

Section 362(e) terminates the automatic stay thirty days after a request for relief when the hearing is adjourned beyond that period without consent or a court order continuing the stay.

In Re Springer-Penguin, Inc. · filed 1987-06-10(e)

Therefore, pursuant to the mandate contained in 11 U.S.C. § 362(e), the automatic stay terminated thirty days after the request for relief, which was prior to the adjourned hearing date of June 5, 1987.

Under § 362(e), the automatic stay terminates as to a party seeking relief 30 days after its request unless the bankruptcy court orders the stay continued.

Sunbelt Sav. Ass'n of Texas v. Truman · filed 1988-06-30(e)

Section 362(e) of the Code provides that the stay is terminated as to the party seeking relief 30 days after the request for relief if the Bankruptcy Court does not order the stay continued.

Section 362(e) terminates the automatic stay 30 days after a motion for relief is filed and served unless the court orders the stay continued after notice and a hearing.

In Re Jones · filed 1988-08-15(e)

This Court agrees with the courts that adhere to the clear language of the statute, as buttressed by its legislative history, and holds that the automatic stay expired 30 days after the filing and service of Movant’s motion.

Section 362(e) requires a hearing and a finding that the party opposing stay relief is likely to prevail before a court can continue the automatic stay; an order entered without them has no effect.

Prudential Insurance Co. of America v. Ryan Place Joint Venture · filed 1988-10-27(e)

Although the court entered an order continuing the stay on June 20, the order had no effect because the court failed to comply with the hearing and findings requirements of Section 362(e).

Section 362(e) requires an affirmative finding that the debtor is likely to prevail to continue the stay pending a final hearing; without that finding, the stay lifts automatically 30 days after the motion for relief is filed.

Grundy National Bank v. Harman Investments, Inc., A/K/A Dorothy Mae Coal 17 · filed 1989-09-27(e)

An "implied" finding is insufficient. The bankruptcy court must find affirmatively that the debtor is likely to prevail. ... As the stay was not properly continued under Sec. 362(e) it automatically lifted 30 days after GNB's motion was filed.

Section 362(e) terminates the automatic stay 30 days after a motion for relief is filed unless the court orders the stay continued.

Thompson v. First National Bank of Trinity (In Re Franklin) · filed 1989-11-29(e)

Statutory and case law is clear that the automatic stay provided by § 362(a) of the Bankruptcy Code is terminated 30 days after a motion to lift stay is filed unless the Court orders such stay continued in effect.

A creditor that acquiesces in continuances of a relief-from-stay hearing waives its § 362(e) timeliness objection.

In Re Bogosian · filed 1990-03-08(e)

We therefore conclude that, by its silence and apparent acquiescence in the various continuances (until immediately after the expiration of the 90 days), the bank has waived its right to raise any timeliness objection under § 362(e) and Rule 4001(a)(2).

A creditor may impliedly waive its § 362(e) timeliness objection by silently acquiescing in continuances of a relief-from-stay hearing.

In re Belmont Realty Corp. · filed 1990-03-08(e)

We therefore conclude that, by its silence and apparent acquiescence in the various continuances, the bank has impliedly waived its right to raise any timeliness objection under § 362(e) and Rule 4001(a)(2).

Section 362(e) terminates the stay as to a creditor thirty days after its request for relief unless the court orders the stay continued pending a final hearing.

In Re Hale · filed 1991-04-08(e)

Section 362(e) makes it clear that the stay will be lifted with respect to a moving creditor thirty days after the party moves for relief from the stay unless the court orders such stay continued in effect pending the conclusion of a final hearing and determination.

Under § 362(e), the automatic stay expires thirty days after a § 362(d) request for relief unless the court orders the stay continued pending or after a final hearing.

In Re Duran · filed 2003-04-08(e)

Unless one of the above-described conditions of section 362(e) is met — and in this case it was not — the stay is simply gone thirty days after a section 362(d) application is filed.

Under the law applicable to cases filed before October 17, 2005, continuation of the automatic stay after a preliminary hearing requires a finding that the party opposing relief has a reasonable likelihood of prevailing at a final hearing, and counsel’s absence may leave no basis for that finding.

In Re Hein · filed 2006-03-01(e)(1)

Nonetheless, once the court holds that initial hearing it may only continue the stay pending the conclusion of a final hearing if it concludes that the party opposing the motion has a reasonable likelihood of prevailing at the final hearing, which must itself be held within thirty days. Given counsel’s absence from the pre-trial conference, the court has no basis upon which to conclude that the debtor might prevail if the matter were set for a final hearing sometime during the thirty days following the February 7 pre-trial. Thus, Wells Fargo would have to be freed from the automatic stay.

Section 362(e) terminates the automatic stay as to the property at issue by operation of law when the bankruptcy court misses the required deadlines on a request for relief from the stay.

Bugg v. Gray (In Re Gray) · filed 2016-04-28(e)

As such, the automatic stay was terminated as to the residence by operation of law upon the section 362(e) violation.

Section 362(e)(2) terminates the automatic stay 60 days after a party in interest requests relief in an individual Chapter 7 case unless the court renders a final decision within that period or the period is extended by agreement or for good cause.

Paczkowski v. Garven · filed 2020-02-13(e)(2)

Consequently, the automatic stay was terminated by operation of law on August 5, 2019,2 rendering the bankruptcy court's later order lifting the stay superfluous.

Section 362(d) permits a party in interest to request annulment of the automatic stay, but a purchaser without standing cannot seek that relief on behalf of the creditor.

In re Grason · filed 2013-02-01(d)

Relief from the automatic stay may be granted upon the request of a party in interest, and annulment of a stay is specifically allowed. ... Further, Mr. Meurlot does not have prudential standing to seek annulment of the stay in this case. The real party in interest is HSBC.

Section 362(d) permits a creditor with a colorable claim to estate property to seek relief from the automatic stay.

Rinaldi v. HSBC Bank USA, N.A. · filed 2013-02-22(d)

The threshold for standing to seek relief from stay is that the moving creditor has a “colorable claim” to property of the estate.

Relief from the automatic stay under § 362(a) must be sought through an adversary proceeding, rather than an application to abandon property.

In Re Hawkins · filed 1981-02-03(a)

The first and primary defect is that this application to abandon is an attempt by the creditor to engage in stay litigation by other than an adversary proceeding.

Relief from the automatic stay requires notice and a hearing.

Matter of Robinson · filed 1981-07-17(d)

Motions, applications and petitions for relief from the automatic stay require notice and a hearing. 11 U.S.C. § 362(d).

A proceeding for relief from the automatic stay under § 362 is limited to issues raised under that section, so unrelated counterclaims do not belong in that proceeding.

General Motors Acceptance Corp. v. Simmons (In Re Simmons) · filed 1981-08-27(d)

As a consequence of the special nature of these proceedings, this type of action must be limited to the issues raised under § 362.

A debtor must pursue a voidable-transfer claim separately rather than assert it as a counterclaim in a proceeding for relief from the automatic stay.

Vastola v. Milks · filed 1981-09-08

Thus, the debtor should pursue her voidable transfer claim in a separate action in the Bankruptcy Court, not as part of the proceeding by plaintiffs to lift the automatic stay.

A request for relief from the automatic stay under § 362(d) proceeds as an adversary proceeding initiated by complaint.

National City Bank of Rome v. Purdy (In Re Purdy) · filed 1981-12-10(d)

Such a request is governed procedurally by Rule 701, which requires that a request for relief from the stay as provided by Rules 401 and 601 be only by adversary proceeding. ... The Rules further provide that the adversary proceeding which determines the merits of the request for relief is commenced by the filing of a complaint.

The trustee is a necessary party defendant in an action for relief from the automatic stay, but failure to join the trustee is cured when the trustee is involved and has an adequate opportunity to intervene.

BA Business Credit Corp. v. DiToro (In Re DiToro) · filed 1982-02-25

The Trustee is a necessary party defendant in cases where the plaintiff is seeking relief from the automatic stay. In re DiBona, 7 B.R. 798 (Bkrtcy.E.D.Pa.1980). In this case, however, the Court notes that the record reflects the Trustee s involvement in the case. The Trustee had adequate opportunity to intervene in the action if an interest of the estate was threatened. As a result, the Court finds the procedural defect is cured.

A request for relief from the automatic stay must be raised in a proceeding focused on stay relief, rather than in a counterclaim seeking other relief.

Lekvold v. Henderson (In Re Lekvold) · filed 1982-03-30

Requests for relief from the automatic stay should be the only focus in such a proceeding and the pleadings initiating it must reflect such a fact. If this were not so, such requests would not be calendared expeditiously and injustice to the parties would result since relief would not be forthcoming. For these reasons, this Court feels that the request for relief from stay was not properly raised in the counterclaim even if the automatic stay would have been applicable here.

Under the bankruptcy rules then in effect, a creditor seeking relief from the automatic stay under Section 362(d) had to file a complaint rather than a motion.

In Re UNR Industries, Inc. · filed 1982-09-15(d)

In order to have the stay lifted the clear language of the Code and appellate authority of our Seventh Circuit specifies that creditors must file a complaint, not a motion.

Section 362(d) limits a proceeding for relief from the automatic stay to stay-relief issues, excluding requests for abandonment of property and objections to exemptions.

Public Consumer Discount Co. v. Leecan (In Re Leecan) · filed 1983-03-03(d)

On the basis of this authority, the Court will dismiss the complaint insofar as it requests abandonment of property or an opportunity to object to exemptions. The only matter to be considered by the Court in this proceeding shall be such issues as are raised under the section of the Code providing for relief from the automatic stay.

Section 362(d) limits relief from stay proceedings to deciding whether to grant or deny relief from the automatic stay.

Bell v. Financial Guild of America (In Re Bell) · filed 1983-03-15(d)

The parties also lost sight of the special nature of relief from stay litigation under 11 U.S.C. § 362(d). The legislative history makes clear that such litigation should be limited to granting or denying relief from the automatic stay.

A hearing for relief from the automatic stay may address a defense central to the request for relief, but collateral third-party claims are not properly decided there.

LaSalle National Bank v. Harrow Leasing Corp. (In Re Harrow Leasing Corp.) · filed 1983-09-07

Since the debtor’s allegation that LaSalle incorrectly computed the rate of interest goes to the essence of LaSalle’s claim for relief, we will allow the amendment on this issue. But we will deny the request to amend by adding a third party defendant against whom it proposes to assert a counterclaim, since these matters seem largely tangential to the request for relief from the stay.

Section 362 stays actions against a debtor, but not actions brought by the debtor.

In Re WHET, Inc. · filed 1983-09-13

11 U.S.C. § 362 stays actions against the debt- or, not actions by the debtor.

Section 362(a) does not automatically stay an action brought by the debtor against others.

In Re Ruble · filed 1983-10-05(a)

Thus, section 362(a) does not, by its own terms, mandate a stay of Ruble’s state court action against the officers.

Section 362 stays collection of utility charges due before conversion from Chapter 13 to Chapter 7, but does not stay collection of charges accruing afterward for continuing service.

Matter of Deiter · filed 1983-09-02

MG & E is not stayed by 11 U.S.C. § 362 from collecting amounts due from debtor arising and accruing after August 18, 1983, because continuing utility services are governed by 11 U.S.C. § 366. 11 U.S.C. § 362 does stay any effort of MG & E to collect any sums due from the debtor prior to August 18, 1983.

Section 362(d) allows a creditor to seek relief from the automatic stay as a party in interest only if the creditor has a lien on the property in question.

In Re Dino & Artie's Automatic Transmission Co. · filed 1986-12-18(d)

This is so because 11 U.S.C. § 362(d) expressly provides that relief from the automatic stay with respect to property of the estate may be sought by “a party in interest.” If the moving creditor does not have a lien on the property in question, it follows that the creditor is not “a party in interest” as to such property.

Section 362(a) prohibits joining a debtor to a civil action while the debtor is in bankruptcy.

Capitol Medical Center, LLC v. Amerigroup Maryland, Inc. · filed 2010-01-04(a)

The parties agree that Envision cannot be joined to this action because it is in engaged in a bankruptcy proceeding. Joinder in such cases is prohibited by statute.

Section 362(a) stays proceedings against the debtor but does not automatically stay proceedings against other joined defendants.

Plant v. Merrifield Town Center Ltd. Partnership · filed 2010-03-18(a)

As indicated in the Order dated October 7, 2009, the automatic stay provisions of the bankruptcy code only applied with respect to Merrifield and not to any other joined defendant.

Section 362(a)’s automatic stay can be extended to a nondebtor defendant by the bankruptcy court.

Steah 200537 v. Shinn · filed 2023-03-02(a)

Moreover, the bankruptcy court, not this Court, would extend the automatic stay to Centurion if appropriate.

Section 362(d) permits a bankruptcy court to modify the automatic stay for cause so a state court can determine whether a debtor’s lease ended and whether defenses to eviction are viable.

In Re: Shirley A. Bennett, Debtor-Appellee, Appeal Of: St. Stephen's Terrace Apartments · filed 1998-09-22(d)

By modifying the automatic stay in Ms. Bennett's case, the bankruptcy court permitted the state court, which admittedly has greater expertise in this narrow area of Illinois law, to quickly and accurately determine the viability of any defenses Ms. Bennett intended to advance. We thus conclude here, as we concluded in Williams, that the bankruptcy court did not abuse its discretion by modifying the automatic stay.

Section 362 allows the automatic stay to be lifted for state-court trials while it remains in effect against execution, attachment, or other suits against property of the estate.

James Green Construction Co. v. Alton Telegraph Printing Co. (In Re Alton Telegraph Printing Co.) · filed 1981-09-28

IT IS FURTHER ORDERED that motions to remand of the above-named, plaintiffs’ civil actions be, and hereby are, allowed, and the automatic stay, pursuant to 11 U.S.C. § 362, is hereby lifted except to the extent that it shall remain in effect as to any execution, attachment or other suit brought against property of the estate, pending further order of this Court.

Section 362(d) permits a court to lift the automatic stay for cause after notice and hearing to allow state courts to resolve a dispute over a terminated lease.

951 Plymouth Restaurants, Inc. v. Pemberton Pub, Inc. (In Re Pemberton Pub, Inc.) · filed 1981-12-23(d)

11 U.S.C. § 362(d) provides for the lifting of the automatic stay on request, after notice and hearing, for cause, including the debtor having no equity and that the property is not necessary for an effective reorganization. ... For the reasons stated above, and in order to enable the state court to proceed under this abstention, the stay is lifted.

Section 362(d)(1) permits relief from the automatic stay for a divorce proceeding when its continuation would not affect the debtor’s rights under the Bankruptcy Code or interfere with administration of the bankruptcy case.

Flagg v. Flagg (In Re Flagg) · filed 1982-02-12(d)(1)

For the above reasons, we conclude that the debtor has failed to establish how the continuation of the divorce proceedings in the state court will affect any of his rights under the Code or otherwise interfere with the administration of his bankruptcy case. Hence, we find no valid reason why we should not grant the plaintiff’s request for relief from the stay to permit her to proceed with her divorce action against the debtor.

Section 362’s stay may be modified to allow a civil suit to determine a debtor’s liability despite the debtor’s possible defense costs.

Matter of McGraw · filed 1982-02-25

While debtor may incur attorney’s fees as the result of the continuance of the civil litigation, as enumerated above, this in and of itself does not bar modification of the 11 U.S.C. § 362 stay.