11 U.S.C. § 362

Section 362(a) does not bar filing a complaint against a Chapter 7 debtor in the debtor’s bankruptcy case.

Guttman v. Fabian (In Re Fabian) · filed 2011-09-13(a)

The filing of the instant complaint in the Chapter 7 debtor’s bankruptcy case was not a violation of the automatic stay of 11 U.S.C. § 362(a).

Section 362(a)(6) does not stay a creditor’s action in the debtor’s bankruptcy case to determine whether a debt is dischargeable under section 523.

Cody Farms, Inc. v. Deerman (In re Deerman) · filed 2012-10-24(a)(6)

However, an action to contest dischargeability of a debt under section 523 of the Bankruptcy Code brought by a creditor against a debtor cannot violate the automatic stay because the automatic stay does not apply to acts taken in a debtor’s bankruptcy case brought before the Bankruptcy Court seeking relief under the Bankruptcy Code.

Section 362’s automatic stay does not apply to proceedings against a debtor arising in the same bankruptcy court where the debtor’s bankruptcy case is pending.

Eger v. Eger (In re Eger) · filed 2014-02-03

“The automatic stay does not apply to proceedings against the debtor that arise in the same bankruptcy court where the debtor’s bankruptcy case is pending.”

Section 362(a)(1) does not stay proceedings against the debtor brought in the same bankruptcy court where the debtor’s bankruptcy case is pending.

Cowin v. Countrywide Home Loans, Inc. (In re Cowin) · filed 2015-09-29(a)(1)

The purpose of the automatic stay is to provide the debtor with “breathing room” and to ensure an equitable distribution of assets to the creditors. That purpose is not served by staying actions filed in the home bankruptcy court.

Section 362(a) does not stay removal of a state court action to the bankruptcy court where the debtor’s case is pending or continuation of that action there.

In re Cashco, Inc. · filed 2019-02-19(a)

Provided a state court action is removed to the bankruptcy court where the debtor's bankruptcy case is pending, the automatic stay does not apply to the removal or to the continuation of the removed state court action before the bankruptcy court.

Section 362(a) does not bar filing an adversary proceeding in the bankruptcy court where the debtor’s case is pending, so stay modification is unnecessary.

Dean L Horton and Frances H Horton · filed 2020-01-09(a)

Thus, § 362(a) is not a barrier to Marcus filing his proposed constructive trust claim. Conversely, the Debtors’/trustee’s objection that there is no “cause” to modify the automatic stay is not relevant, as no modification is needed.

Section 362(a) stays judicial proceedings against a debtor upon the filing of a bankruptcy petition.

Sheen v. Sheen · filed 2020-03-10(a)

The filing of a bankruptcy petition operates as a stay of any judicial proceeding against the debtor.

Section 362(a) does not bar an adversary proceeding against the debtor filed in the bankruptcy court where the debtor’s case is pending.

LSC Wind Down, LLC · filed 2020-10-07(a)

Thus, the Court concludes that Allied’s claims in the adversary proceeding against the Debtors are not barred by the automatic stay.

Section 362(a) does not require a pending state court case to be closed or dismissed; merely adjourning a hearing or leaving the case open, without more, does not violate the automatic stay.

Harold J. Jackson, Jr. · filed 2022-03-02(a)

But merely adjourning a state court matter, or failing or refusing to cause a pending state court lawsuit to be closed or dismissed, without more, is not a violation of the automatic stay.

Section 362(a) automatically stays eviction proceedings against a debtor upon the filing of a bankruptcy petition when no exception applies.

in Re: Rent Space Mgmt LLC · filed 2022-07-05(a)

On this record, we conclude the underlying proceedings were automatically stayed by Ms. Goodley’s February 23, 2022 bankruptcy filing.

Section 362 supports staying all proceedings in a suit involving a Chapter 11 debtor while the plaintiff seeks relief in bankruptcy court.

Morales v. As Specified, Inc. · filed 2025-06-16

Upon consideration, the undersigned RESPECTFULLY RECOMMENDS that all further proceedings in this case be stayed and the case administratively closed pursuant to 11 U.S.C. § 362 and in light of Plaintiff’s representations that she intends to pursue relief in the Bankruptcy Court.

Section 362(a) stays the retrial of a prepetition breach-of-contract suit against the debtor in state court.

In Re Vic Snyder, Inc. · filed 1985-06-28(a)

Retrial of Stern’s breach of contract suit in the Court of Common Pleas is statutorily stayed by the automatic stay provisions of the Code, 11 U.S.C. § 362(a).

Section 362(a) prevents a state court from resolving a debtor’s petition to open or strike a confessed judgment against it, even when the debtor filed that petition.

Nelson Co. v. Amquip Corp. (In Re Nelson Co.) · filed 1990-08-22(a)

Although the debtor was the moving party in that state court proceeding at the time it filed its bankruptcy petition (by virtue of its pending petition to open or strike the confessed judgment), the automatic stay prevented any resolution of that pleading, at least by the state court.

Section 362 bars a creditor from pursuing reclamation of goods once a bankruptcy case begins.

In Re Circuit City Stores, Inc. · filed 2010-03-05

Section 362 of the Bankruptcy Code prohibits a creditor from taking any action to pursue reclamation of its goods when a bankruptcy case is commenced.

Section 362 requires a creditor to release a prepetition wage levy within a reasonable time after notice of the bankruptcy; failure to do so violates the automatic stay.

Carlsen v. Internal Revenue Service (In Re Carlsen) · filed 1986-08-15(a)

Accordingly, the creditor must release the levy within a reasonable period of time after notice of the bankruptcy and failure to do so is a violation of § 362.

Section 362(a) permits civil contempt against a creditor’s attorney who knows a postpetition writ violates the stay and a court order requires its dissolution, yet fails to dissolve it.

Dubin v. Jakobowski (In Re Stephen W. Grosse, P.C.) · filed 1988-04-08(a)

As of the date that he became aware of the court’s order of February 27, 1984, it was abundantly clear to Jakobow-ski not only that the existence of the writ violated the automatic stay, but also that he had an affirmative obligation to undo the writ and thus release funds which had become property of the bankruptcy estate. Failure to act under such circumstances constitutes proscribed conduct giving rise to the civil contempt remedy.

Section 362 requires a person or entity with even informal or oral notice of a bankruptcy case to halt action against the debtor or estate.

In Re Bland · filed 1998-09-02

Since section 362 requires that any person or entity halt action against the debtor or estate upon notice of the bankruptcy, even informal or oral notice, ... Hunt cannot be faulted for not physically tendering funds to the mortgagee when he was given oral notice of a bankruptcy case.

Former § 362 did not provide a private cause of action outside bankruptcy court for violations of the automatic stay.

Dashner v. Cate · filed 1986-09-04

Therefore, the Court finds that former § 362 does not provide a private cause of action outside the bankruptcy court for violations of the automatic stay.

Section 362(h) creates a cause of action for willful violations of the automatic stay that survives the end of the underlying bankruptcy proceeding.

Richard D. Price, Jr., Formerly Doing Business as Richard D. Price, Jr. & Associates, Limited v. James M. Rochford, Kirk · filed 1991-11-08(h)

We hold that 11 U.S.C. § 362(h) creates a cause of action that can be enforced after ... bankruptcy proceedings have terminated.

Section 362(h) gives an individual harmed by a willful violation of the automatic stay a cause of action for damages.

Hutchins v. Fordyce Bank & Trust Co. (In Re Hutchins) · filed 1997-07-11(h)

Section 362 of the Bankruptcy Code provides that an individual injured by any willful violation of a stay “shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). This section clearly provides for a cause of action by an individual harmed by a violation of the stay.

Section 362(h) creates a private remedy for an individual injured by a willful violation of the automatic stay.

Edwin William Pettitt, Jr. And Erwin Smith McGee v. Don Baker, Geoffrey Price, and Baker & Price, P.C. · filed 1989-06-30(h)

We conclude that subsection (h) creates a private remedy for one injured by a willful violation of an automatic stay.

Section 362(a)(3), (a)(5), and (a)(6) protect trust funds when the debtor retains an interest in them that makes them property of the estate.

United Jersey Bank v. CS Associates (In Re CS Associates) · filed 1990-12-05(a)(3), (a)(5), (a)(6)

We therefore conclude that the funds in the BRF are property of the Debtor’s estate, to which the protections of 11 U.S.C. §§ 362(a)(3), (a)(5), (a)(6) attach.

Section 362(a) automatically stays proceedings seeking property to which a debtor holds legal title as trustee.

Raczynski v. Judge · filed 1986-10-16(a)

Inasmuch as the present action sought a portion of property to which defendant (as trustee) held the legal title, proceedings in that action were automatically stayed upon the filing of defendant’s petition in bankruptcy.

Section 362(a)(3) stays foreclosure of real property held by a nominee trust when the debtor is its beneficiary and equitable owner; a foreclosure after the petition can be set aside.

In Re Eastmare Development Corp. · filed 1993-02-01(a)(3)

However, this Court has ruled that the Debtor, as the beneficiary of a nominee trust, is the actual equitable owner of the Newburyport Property. Consequently, the foreclosure sale conducted by BayBank was an action to obtain or to exercise control over property of the estate. ... Accordingly, the Court rules that the automatic stay was violated and allows the Debtor’s motion to set aside the foreclosure sale.

Section 362 does not stay a bailor’s recovery of property held under a gratuitous bailment when the debtor-bailee retains no monetary, equitable, or ownership rights under the bailment contract.

Little Plantation Estates v. Loos · filed 2004-12-10

Therefore, the automatic stay provision in 11 U.S.C. § 362 is inapplicable to this case, because section 362 imposes an automatic stay on the bailor from divesting the debtor of possession of the property only when the debtor retains in the property certain rights, entitlement or ownership, either monetary, equitable, or otherwise, under the bailment contract.

The automatic stay does not protect property held by a nondebtor trust when the debtor holds title only as trustee.

In re Lady Bug Corp. · filed 2013-10-18(a)

Section 541(d) excludes the parcels conveyed to the non-debtor trust from the bankruptcy estate. Because the parcels are not property of the estate, the stay does not apply to that property.

Section 362 does not require PACA trust claimants to obtain relief from the automatic stay before filing timely notices to preserve their trust rights when the trust fund is outside the debtor’s estate.

Houston Avocado Co. v. Monterey House, Inc. (In Re Monterey House, Inc.) · filed 1986-10-20

Monterey House urged the Court to find that the PACA Claimants violated the automatic stay provision of 11 U.S.C. § 362 when they sent notices of intent to preserve their rights under PACA. Since the PACA Claimants were required by the statute to file their notices of intent to preserve rights within 30 days after payment was due, since their trust claims would have been unperfected absent the filing of the notice, and since the trust fund is not property of the debtors’ estate, this Court holds that the PACA Claimants were not obligated to obtain a lift of stay before filing their notices.

The automatic stay under Section 362 is not subject to Federal Rule of Civil Procedure 65’s injunction requirements.

In re Tulane Hotel Investors Ltd. Partnership · filed 1986-11-13

Moreover, F.R.C.P. Rule 65 on Injunctions does not apply to the imposition of a stay established by 11 U.S.C. § 362, and Appellant’s contentions regarding noncompliance with Rule 65 are therefore without merit.

Section 362’s automatic stay of suits against a debtor generally does not extend to the debtor’s individual partners.

Gran Sabana Corporation N.V. v. Kossoff · filed 2021-08-17(a)(1)

It is well settled that when the debtor is a partnership, a Section 362 stay does not normally extend to the individual partners.

Section 362(a)(6) does not extend a debtor’s automatic stay to claims against individuals who are not so closely identified with the debtor that the debtor is the real party defendant.

Luppino v. York · filed 2016-12-08(a)(6)

For now, the Court simply holds that Republic and the individual defendants are not so closely identified so as to make Republic a real party defendant in this ease, and declines to extend the bankruptcy stay to the individual defendants.

Section 362’s automatic stay does not bar a court from deciding motions as to plaintiffs who have not filed for bankruptcy.

Scheiner v. Wallace · filed 1997-02-11

However, the stay does not bar decision as to the non-bankrupt plaintiffs.

Section 362 does not stay an action against defendants merely because a nonparty files for bankruptcy; defendants invoking the stay must explain why it applies.

Chiriapa v. Matsul Inc · filed 2020-07-24(a)

Defendants Achla, Mor Melamed, and Shoshana Melamed having failed to explain why this case should be stayed in part or its entirety, this case shall not be stayed.

Section 362’s automatic stay may extend to a debtor’s subsidiaries when their identity of interest with the debtor warrants protection from the same lawsuit.

Heisley v. U.I.P. Engineered Products Corp. · filed 1987-10-13

In this case, Eastmet’s March 12, 1986, Motion to Extend the Stay should have been granted in order that Harry Davies, Zalk and UIPE be protected, along with Eastmet, from the Illinois lawsuit. In denying that motion, the bankruptcy court committed error.

Section 362(a)(1)'s automatic stay can reach a nondebtor corporation when the debtor is the real party defendant, including in a Chapter 7 case.

Ng v. Adler · filed 2014-09-24(a)(1)

There is no way to read these statements other than how the Bankruptcy Court read them — if the debtor is the real party defendant, the automatic stay should apply.

Section 362’s automatic stay can extend to non-debtors in unusual circumstances when claims against them would immediately harm the debtor’s bankruptcy estate.

Hefley v. Redington · filed 2023-03-21(a)(1)

For these reasons, the Court finds that “unusual circumstances” exist in this case and that the automatic stay shall also extend to non-debtor Defendants Griffith, Gonia, and Wade.

Section 362(a)’s automatic stay can extend to a nondebtor defendant when claims against that defendant would have an immediate adverse economic effect on the debtor’s estate.

Xep v. De Hoop Corp. · filed 2024-12-03(a)

These facts establish an identity of interests between De Hoop Corp., the debtor, and Ms. Hauptfleisch, the remaining defendant in this action, sufficient to support an extension of the automatic stay to Ms. Hauptfleisch.

The automatic stay was not extended to the nondebtor defendants in the case.

Stih v. Rockaway Farmers Market, Inc. · filed 2024-01-18(a)(1)

For these reasons, the Court declines to extend the automatic stay under 11 U.S.C. § 362 to the Non-Debtor Defendants.

Section 362(a)’s automatic stay may extend to a nondebtor when a claim against it would have an immediate adverse economic consequence for the debtor’s estate; the party seeking extension must show an actual impact.

Somar v. Solar Mosaic, LLC · filed 2025-06-27(a)

IT IS HEREBY ORDERED that the stay in this case is only as to Solar Mosaic and does not extend to NYS Power and Dratel. Although section 362(a) typically applies only to actions against debtors, debtor’s property, or estate property, the Second Circuit has held that “the automatic stay can apply to non-debtors, but normally does so only when a claim against the non-debtor will have an immediate adverse economic consequence for the debtor's estate.” Queenie Ltd. v. Nygard Int'l, 321 F.3d 282, 287 (2d Cir. 2003); see also In re Residential Cap., LLC, 529 F. App'x 69, 70–71 (2d Cir. 2013).

Section 362(a)(1) does not prevent a plaintiff from proceeding against nonbankrupt defendants when the claims do not involve the debtor’s property, unless the debtor must indemnify those defendants.

Ryder v. Knopick · filed 1998-06-04(a)(1)

It is well settled that “ ‘a bankruptcy stay does not prevent a plaintiff from proceeding on causes of action against nonbankrupt defendants, which do not involve the bankrupt’s property’ ” (Golden v Moscowitz, 194 AD2d 385, quoting CenTrust Servs. v Guterman, 160 AD2d 416, 418; see, Teachers Ins. & Annuity Assn. v Butler, 803 F2d 61, 65; Rosenbaum v Dane & Murphy, 189 AD2d 760, 761).

Section 362’s automatic stay does not extend to a debtor’s solvent co-defendants absent circumstances showing that claims against them would affect the debtor or its bankruptcy estate.

Gibson v. McClafferty · filed 2025-09-15(a)(1), (a)(3)

For reasons discussed above, the Court finds that the automatic stay of Section 362 against Mac Equity does not operate to prevent Plaintiff Alex Gibson from proceeding on the merits against the remaining solvent co-defendants in this matter.

Section 362’s automatic stay generally does not extend to a nonbankrupt co-debtor who is personally liable, absent special circumstances linking that person’s liability to the debtor.

Alpine Amusement Company, Inc. v. 741, Inc. · filed 2025-10-08(a)(1)

Given that Mr. Davis agreed to entry of a judgment against him personally in the event that certain conditions were met, those conditions have been met, and the automatic stay does not apply to a nonbankrupt co-debtor of the plaintiff, the motion will be granted to the extent it seeks entry of a judgment against Mr. Davis in the amount of $118,000.

Section 362(a)(1) stays the commencement or continuation of proceedings against a debtor when the debtor files for bankruptcy.

GMAC Mortgage Corp. v. Gisvold · filed 1998-01-28(a)(1)

Under the automatic stay provision of the Bankruptcy Code, Michael Gisvold's bankruptcy filing stayed the commencement or continuation of any action or proceeding against him.

Section 362(a) stays actions to enforce a debt against the debtor when the debtor files for bankruptcy.

First Georgia Bank v. FNB South (In Re Moody) · filed 2001-04-13(a)

When a debtor files for bankruptcy, the filing operates to stay any actions against the debtor under Section 362 of the Bankruptcy Code.

Equitable estoppel can prevent a debtor from asserting liability for a violation of the automatic stay.

Romeo Alegato Lazo Jane Strachan-Lazo, Dba Jane Strachan-Lazo, M.D. v. Home Savings of America, a Banking Corporation Do · filed 1998-02-19(h)

For the reasons set forth in the district court's September 4, 1996 order, the district court properly determined that the Lazos are equitably estopped from arguing that Home Savings is liable for violating the automatic stay entered in a prior bankruptcy proceeding.

Section 362(a)(2) stays a creditor’s enforcement of a judgment against the debtor’s property when the debtor files for bankruptcy.

Trustmark Nat. Bank v. PIKE CTY. NAT. BANK · filed 1998-06-18(a)(2)

When Watkins filed his petition for bankruptcy, 11 U.S.C. § 362(a)(2) prohibited Trustmark from enforcing its judgment against the property.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor fails to make post-petition mortgage payments.

Buczek v. KeyBank, N.A. · filed 2020-12-08(d)(1)

First, as discussed earlier, Judge Bucki acted within his discretion in concluding KeyBank was entitled to relief from the stay under Section 362(d)(1) based on Buczek’s failure to pay post-petition mortgage payments.

Section 362 permits the automatic stay to be lifted if the debtor fails to make required adequate-protection payments.

Central Trust Co. v. Bristol Mountain Enterprises, Inc. (In re Bristol Mountain Enterprises, Inc.) · filed 1981-08-26(d)

Delinquency in any payment for a period of 7 days shall result in the lifting of the 11 U.S.C. § 362(a) stay, and it is so ordered.

The automatic stay may be terminated as to a homestead mortgage when Chapter 13 debtors fail to maintain postpetition payments and cure prepetition arrears within a reasonable time.

In RE FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MINNEAPOLIS v. Whitebread · filed 1982-03-04(a)

It is apparent that debtors have not maintained the payments due postpetition. ... It is equally apparent therefore that debtors have not cured the default in payments due prepetition within a reasonable time. ... The automatic stay provided by 11 U.S.C. Sec. 362(a) is terminated with respect to the plaintiff’s mortgage on real property known as Lot 13, Block 2, Netta Shores Addition, in Anoka County, Minnesota.

Section 362(d)(1) permits modification of the automatic stay for cause when debtors remain in their home while failing to make current mortgage payments for more than two years.

Central Mortgage Co. v. Galbraith (In Re Galbraith) · filed 1982-04-21(d)(1)

Although the Code was intended to afford financially troubled debtors a breathing spell from their creditors, it was not Congress’s intent to allow debtors to remain in their homes while failing to pay the current mortgage payments for over two years. Such is an abuse of the protection given by the Code and is sufficient “cause” to modify the stay pursuant to § 362(d)(1).

Section 362(d)(1) treats a debtor’s failure to make regular mortgage payments after filing as cause for relief from the automatic stay.

Ukrainian Savings & Loan Ass'n v. Trident Corp. (In Re Trident Corp.) · filed 1982-05-11(d)(1)

The regular mortgage payments are not being made. Failure to maintain the regular payments after the filing of the petition, in and of itself, will constitute cause to grant relief from the stay.

Section 362(d)(1) allows relief from the automatic stay for cause based on a debtor’s bad faith, including failure to honor agreed collateral-inspection and interim-payment commitments.

Associates Commercial Corp. v. G.Y. Trucking, Inc. (In Re G.Y. Trucking, Inc.) · filed 1982-11-08(d)(1)

Cause for relief from the stay under § 362(d)(1) includes the debtor’s lack of good faith. ... We find that the debtor’s failure to allow Associates to inspect one of the trucks, as was agreed by counsel, constitutes bad faith. Further evidence of bad faith is the debtor’s failure to pay Associates the $5000 interim payment for the use of the trucks as was also agreed.

Section 362(d)(1) does not allow a mortgagee relief from the automatic stay solely because the debtor missed mortgage payments when the mortgagee is adequately protected by equity in the property.

Household Finance Corp. v. Adams (In Re Adams) · filed 1983-02-04(d)(1)

From the foregoing, it is clear that HFC is entitled to relief under Section 362(d)(1) only if it is not adequately protected.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor has missed mortgage payments for nineteen months and offers no satisfactory explanation or reorganization plan.

Royal Bank of Pennsylvania v. Three Tuns, Inc. (In Re Three Tuns, Inc.) · filed 1983-12-15(d)(1)

In the case at bench no payments have been made on the mortgage for the past nineteen months. No plan has been proposed and the testimony at the hearing afforded no satisfactory explanation for this failure. Under the authority of Galbraith, supra, we will grant relief from the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when debtors fail without explanation to make five consecutive mortgage payments.

Germantown Savings Bank v. Keays (In Re Keays) · filed 1984-02-29(d)(1)

We read § 362(d)(1), as well as the above-cited cases, to support a finding in this case that the debtors’ unexplained failure to make five consecutive mortgage payments, standing alone, constitutes cause for relief from the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor misses scheduled payments and the secured creditor lacks adequate protection.

Simon & Simon v. Mt. Carmel Enterprises, Inc. (In re Mt. Carmel Enterprises, Inc.) · filed 1985-03-08(d)(1)

Accordingly, we hold that cause has been shown for the lifting of the § 362 stay by reason of the failure of debtor to make scheduled payments on its promissory note to creditor, and there is a lack of adequate protection for creditor.

Section 362(d)(1) does not allow a creditor to obtain relief from the automatic stay based on missed plan payments when a court order barred payments to that creditor.

In re Pankau · filed 1985-10-31(d)(1)

No logical interpretation of § 362(d)(1) would give the Bank cause to obtain relief from Pankau’s arrearage if the Bank could not have received any portion of the plan payments had they been timely made.

Section 362(d)(1) permits relief from the automatic stay for cause, which can include missed payments after confirmation of a Chapter 13 plan; lack of adequate protection is only one example of cause.

Ellis v. Parr (In Re Ellis ) · filed 1985-12-23(d)(1)

The bankruptcy court may grant relief from stay “for cause, including the lack of adequate protection of an interest in property.” 11 U.S.C. § 362(d)(1). Failure to make post-confirmation payments can constitute cause for lifting the stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a confirmed Chapter 13 plan fails to disclose a matured balloon payment secured by the debtor’s principal residence and the debtor defaults on that payment.

Knez v. Bosteder (In Re Bosteder) · filed 1986-04-22(d)(1)

Similarly, we find there is cause under 11 U.S.C. § 362(d)(1) to grant creditors’ motion for relief from stay. To permit otherwise would, at a minimum, discourage residential real estate sales in times when conventional financing was not available or feasible and thus thwart the announced Congressional policy supported by court decisions encouraging individual home ownership.

A temporary default in Chapter 13 plan payments does not establish cause to lift the automatic stay under § 362(d)(1) when the default is not material to the secured creditor and the creditor’s collateral remains adequately protected.

In Re Durben · filed 1986-11-24(d)(1)

Based upon the factual findings stated above, the Court finds that the existing default in the debtor’s plan is not a material default as to Associates which would constitute “cause” for granting relief from stay within the meaning of 11 U.S.C. § 362(d)(1). Given the value of the Western, the maintenance and repair which the debtor has provided for that vehicle and the debtor’s equity in the tractor, the Court finds that the value of Associates’ interest in the tractor has not decreased because of the temporary interruption in payments into the debtor’s plan. Indeed, the debtor’s available income during the period of default was used to increase or maintain the value of that collateral. Therefore, adequate protection has also been afforded Associates.

Under § 362(d)(1), a debtor relying on a payment to the chapter 13 trustee to cure missed postpetition mortgage payments must establish that the creditor is adequately protected.

Federal National Mortgage Ass'n v. Skipworth (In Re Skipworth) · filed 1987-01-27(d)(1)

Even assuming that the delinquency is only $1,100.00, the debtor has not established a substantial cure of the postpetition delinquency and has not met her burden of establishing that FNMA is adequately protected. In the absence of additional evidence concerning the debtor’s record of payments to the trustee, the $1,000.00 payment has no independent significance under § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause when a secured creditor lacks adequate protection and the debtor has missed payments for a substantial period.

First Federal Savings Bank v. Sierra (In Re Sierra) · filed 1987-04-01(d)(1)

In the case at bar, the debtors have not provided adequate protection to the movant since the filing of the petition. Moreover, the debtor has failed to make regular payments for a substantial period of time (29 months). These facts per se constitute “cause” to lift the automatic stay.

Section 362(d) makes a debtor’s failure to pay a secured creditor one factor, but not the only factor, in deciding whether to grant relief from the automatic stay.

Philadelphia Consumer Discount Co. v. Gurst (In Re Gurst) · filed 1987-06-30(d)

We have repeatedly held that a Debtor’s failure to make payments to even a creditor which indisputably is secured, while definitely a factor in determining whether a § 362(d) motion should be granted, is not the only factor to be considered.

A creditor cannot obtain relief from the automatic stay based on a payment default after it accepts late payment and the default is cured.

Reliance Funding Corp. v. Sheret (In Re Sheret) · filed 1987-08-07

Implicit in the record of these proceedings is the notion that, once late payment had been accepted by Reliance and the default cured, there were no grounds upon which to grant Reliance’s request for a lifting of the stay.

Section 362(d)(1) permits relief from the automatic stay for cause, but missed mortgage payments alone carry minimal weight when a large equity cushion adequately protects the creditor.

In Re Morysville Body Works, Inc. · filed 1988-05-10(d)(1)

We find that when a large equity cushion exists, the sole fact that debtor has failed to make mortgage payments will be of minimal significance.

Section 362(d)(1) does not treat missed payments alone as cause to lift the automatic stay when the property is cared for, insured, and not misused.

In re Kaplan · filed 1989-01-06(d)(1)

There was no indication that the property was not being cared for, or was uninsured, or was being misused — it just wasn’t being paid for and that does not constitute “cause” under 11 U.S.C.- § 362(d)(1).

During Chapter 12’s 90-day plan period, missed postpetition mortgage payments alone do not establish cause to lift the automatic stay when the creditor has shown no prejudice.

In Re Novak · filed 1989-01-19(d)(1)

The only information available to the Court is that there is a substantial equity in the property which, if true, means that no prejudice will be done to the movant if the stay is continued despite the failure to make mortgage payments for the full ninety days. Should a Plan not be timely filed or should it fail to satisfy § 1225(a)(5), it seems likely that the movant will be entitled to relief from the Section 362 stay but his present motion is premature.

Failure to pay a naturally matured mortgage or land contract debt may constitute cause to modify the automatic stay under § 362(d)(1).

Matter of Cooper · filed 1989-03-22(d)(1)

When a debtor fails to pay an unac-celerated debt which has naturally matured in accordance with the terms of a mortgage or land contract obligation, “cause” may exist to modify the automatic stay.

Section 362(a)'s automatic stay may be lifted to allow a secured creditor to foreclose if the debtor fails to make court-ordered payments protecting the creditor's interest.

In Re the Answer-The Elegant Large Size Discounter, Inc. · filed 1990-06-20(a)

In the event that the Debtor fails to pay Greyhound as ordered, Greyhound may proceed to foreclose upon its secured interest and the automatic stay imposed under 11 U.S.C. § 362(a) shall be lifted for such purpose.

Section 362(d) permits relief from the automatic stay when the debtor has no equity in the collateral, has missed postpetition payments, and has allowed insurance on the collateral to lapse.

In Re Hancock · filed 1991-04-03(d)(1), (d)(2)

In that the Court has already ruled against the Debtor on this issue, the Court finds that Bank meets the requirements to lift stay pursuant to 11 U.S.C. § 362(d)(1) and (2) and accordingly, it is the opinion of this Court that Bank’s Motion to Lift Stay should be GRANTED.

Section 362(d) permits a lessor to seek relief from the automatic stay when a Chapter 11 debtor fails to pay postpetition rent.

Polysat, Inc. v. Union Tank Car Co. (In Re Polysat, Inc.) · filed 1993-04-15(d)

However, when a debtor in chapter 11 fails to tender postpetition rent payments a lessor is entitled to seek both relief from the stay, pursuant to 11 U.S.C. § 362(d), and adequate protection, pursuant to 11 U.S.C. § 363(e).

Section 362(d)(1) permits termination of the automatic stay for inadequate protection where a slim equity cushion, missed payments, and the debtor’s likely continued inability to pay or reorganize leave the creditor’s interest unprotected.

In Re Gibson · filed 2006-11-27(d)(1)

Further, if the debtor is a family farmer, or if this case were converted to chapter 11, cause still exists to terminate the automatic stay. The slim equity cushion, the debtor’s failure to make payments to the senior lienholder and to the Herzog Company, and the debtor’s likely continued inability to make payments and to reorganize indicate that the Herzog’s Company’ interest in its collateral is not adequately protected.

Section 362(d) permits relief from the automatic stay when uncontested allegations of missed adequate protection payments and liens exceeding the property's market value establish a prima facie case for relief.

In Re Rosario · filed 2009-03-09(d)

DLJ’s motion states that Juan has failed to make adequate protection payments since the inception of this case, and that the total amount of outstanding liens against the property (approximately $422,000) far exceeds the market value of the property ($357,000). The trustee does not contest these allegations. DLJ’s motion states a prima facie case for relief from stay and is, therefore, granted under 11 U.S.C. § 362(d), subject to the determinations made in this memorandum of opinion.

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

United States v. Olayer (In re Olayer) · filed 2017-11-22(d)(1)

The Court concludes that in rem relief is not warranted and “cause” for relief exists under section 362(d)(1) only to the extent that Olayer failed to maintain adequate insurance coverage on the Property.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor persistently fails to make payments on a secured loan.

In Re Carmen Astrid Bergeron · filed 2025-03-04(d)(1)

Ms. Bergeron’s “persistent failure” to make payments on the loan constitutes adequate cause to grant stay relief.

A creditor that fails to undo a known violation of the automatic stay commits a willful violation for which the injured debtor may recover actual damages, reasonable attorney’s fees and costs, and punitive damages.

Rojas v. Gomez · filed 2024-06-05(k)(1)

The Defendants had an affirmative duty to restore the status quo for the Debtor’s estate. They failed to fulfill this duty, despite having hired legal representation for the express purpose of prosecuting their claim against the Debtor in the Bankruptcy Case. The Defendants’ inaction over the intervening six years constitutes a willful violation of the automatic stay for which the Debtor is entitled to receive compensation for her actual damages, her reasonable attorneys’ fees and costs spent in prosecuting this matter, and punitive damages.

Section 362(k)(1) treats a stay violation as willful when the creditor knew of the stay and intentionally took the violating action, without requiring a specific intent to violate the stay.

Ohai v. PNC Bank National Association, Inc. · filed 2024-04-03(k)(1)

A willful violation does not require a specific subjective intent to violate the stay. Rather, a willful violation may be found if the creditor knew of the automatic stay and its actions were intentional.

Section 362(k) does not require a finding or admission of a willful stay violation before a bankruptcy court may approve a settlement of a stay-violation claim, because settlement proceeds are not actual damages awarded under the section.

Select Portfolio Servicing Inc v. Holt · filed 2023-08-15(k)

In this sense, the approval or denial of a settlement agreement is not governed by § 362(k), except, of course, to the extent that statutory provisions may overlap with the application of the Justice Oaks factors (which are discussed below). The Bankruptcy Court misapplied the law by characterizing the agreed-to settlement proceeds as “actual damages” and relying on § 362(k) to deny approval of the proposed settlement. Doing so was an abuse of discretion and constitutes reversible legal error.

Section 362(k)(1) requires a debtor claiming a willful stay violation to show that the creditor knew of the stay and intentionally took the action that violated it.

Bruecks v. Nationstar Mortgage LLC d/b/a Mr Cooper · filed 2023-07-12(k)(1)

To demonstrate that a creditor has willfully violated the automatic stay, a plaintiff must show that (1) the creditor had knowledge of the automatic stay; and (2) the creditor intentionally took action that violated the automatic stay.

Section 362(k) requires a movant seeking sanctions for an automatic stay violation to demonstrate actual injury.

Silva v. Riverside County Tax Collector · filed 2022-06-24(k)

The bankruptcy court did not abuse its discretion by denying Silva’s motion for sanctions because Silva failed to establish that he suffered any injury by the alleged violation of the automatic stay. See In re Mwangi, 764 F.3d 1168, 1177 (9th Cir. 2014) (holding a movant must demonstrate actual injury when requesting sanctions under 11 U.S.C. § 362(k) based on a violation of the automatic bankruptcy stay); see also Snowden v. Check Into Cash of Wash. Inc. (In re Snowden), 769 F.3d 651, 661 (9th Cir. 2014) (holding there is no sanctions remedy available under 11 U.S.C. § 105(a) when a remedy is already available under § 362(k)).

Damages under § 362(k) must be proved with reasonable certainty and cannot rest on speculation or conjecture.

In re: Benny Darnell McCarthy · filed 2021-06-16(k)

“Damages under §362(k) must also be proven with reasonable certainty and must not be speculative or based on conjecture.” ... The supplemental response and the Debtor’s brief do not provide any insight or evidence regarding the amount of damages the Debtor suffered.

For a foreclosure to be a willful stay violation under § 362(k)(1), knowledge of the bankruptcy and an intentional sale are insufficient if the defendant has no reason to know the debtor has an interest in the property.

Dwain W. Tate - Adversary Proceeding · filed 2020-10-16(k)(1)

Even if these defendants became aware of the bankruptcy case, and were involved in the intentional act of foreclosing on the Property, that alone does not establish a willful violation of the automatic stay: if they did not have reason to know that Tate had an interest in the Property, they did not willfully violate the automatic stay.

A creditor cannot avoid a finding that a stay violation was willful based on unsettled law unless it relied on persuasive authority when it acted.

California Coast University v. Aleckna · filed 2019-08-28(k)(1)

Therefore, under University Medical Center, to establish a lack of willfulness, the law must be unsettled and the creditor must take an action in reliance on some persuasive authority.

Section 362(k) requires proof that a creditor knew of the transfer bringing property into a debtor’s bankruptcy estate before its effort to recover that property can be treated as a willful stay violation.

James Carter, Jr. v. First National Bank of Crosset · filed 2013-12-05(k)

Absent a showing that the Bank was aware of the Assignment, a willful stay violation cannot be found.

Section 362(k) requires a creditor to know of the bankruptcy filing before its violation of the automatic stay is willful.

Lienhard v. Lehighton Ambulance Ass'n (In re Lienhard) · filed 2013-09-30(k)

Thus, I find that the Defendant had no knowledge of the bankruptcy filing when sending the billing statements and therefore did not willfully violate the automatic stay.

Section 362(k)(1) treats a creditor’s deliberate collection acts, including service by its agent, as willful stay violations when the creditor knows of the bankruptcy filing.

Bankers Healthcare Group, Inc. v. Bilfield (In re Bilfield) · filed 2013-06-12(k)(1)

Given Bankers Healthcare’s actual knowledge of the bankruptcy filing, each one of the violations, including those by its agent Guaranteed Subpoena, was willful.

Under § 362(k), failing to re-serve a foreclosure complaint or halt foreclosure proceedings after the automatic stay is lifted does not constitute a willful violation of the stay.

Kline v. Deutsche Bank National Trust Co. (In Re Kline) · filed 2013-04-18(k)

The bankruptcy court concluded that while the defendants had committed a technical violation of the automatic stay by serving Ms. Kline with an amended complaint for foreclosure after she filed her Chapter 13 bankruptcy case, their failure to re-serve Ms. Kline or to halt the foreclosure proceedings on her condominium following the lifting of the automatic stay did not constitute a “willful” violation of the automatic stay within the meaning of § 362(k). It further noted that the Rooker-Feldman doctrine barred Ms. Kline’s attacks on the state-court foreclosure judgment obtained by the defendants.1 The BAP agreed with each of these rulings and affirmed accordingly. ... Having carefully reviewed the bankruptcy court’s decision and the BAP’s affirmance, the briefs, the record,2 and the applicable law, we affirm the challenged decision for substantially the reasons stated in the BAP’s opinion issued June 1, 2012, and the bankruptcy court’s memorandum opinion of September 2, 2011.

Section 362(k) treats an intentional attempt to execute on estate property, made with knowledge of the automatic stay, as a willful stay violation.

Cini v. Viscomi & Gersh, PLLP (In re Cini) · filed 2013-05-03(k)

Carroll did not commence or continue an action against the Debtor, or against property of the estate, until he served Viscomi with the second writ, Ex. V, after Robin had purchased Nigel’s interest in the Trust Fund at the sheriffs sale. Based on Robin’s and Viscomi’s testimony, the evidence shows and the Court finds that Carroll willfully violated the stay by serving the second writ, but not before. Carroll knew of the automatic stay, and his action in serving Viscomi with the second writ in June 2012 was intentional and constitutes a willful violation of the stay.

A debtor seeking damages for a willful violation of the automatic stay bears the burden of proving by a preponderance of the evidence that the violation caused damages.

Moore v. Association of Apartment Owners of the Windsor (In re Moore) · filed 2013-02-22(k)(1)

And Judge Faris correctly concluded that the debtor bears the burden of proving, by a preponderance of the evidence, that she suffered damages caused by the stay violations.

Damages for a stay violation involving estate property require knowledge that the property belonged to the bankruptcy estate.

Menotte v. King (In Re King) · filed 2011-12-22(k)

A review of the foregoing case law and similar decisions leads to the conclusion that one cannot be held liable for damages resulting from violation of the automatic stay with regard to property of the estate if one did not know that the property in question was in fact property of a bankruptcy estate.

Section 362(h) includes attorneys’ fees and costs as recoverable actual damages for a willful stay violation even when the debtor’s other damages are slight.

Eskanos & Adler, P.C. v. Roman (In Re Roman) · filed 2002-08-15(h)

Appellant contends that the $5 actual damages was too slight to support the fee award. This perception is incorrect, because attorneys’ fees and costs are included in the enumeration of actual damages which are recoverable under § 362(h).

Section 362(h) does not allow a corporation to recover attorneys’ fees and costs for a willful violation of the automatic stay because a corporation is not an “individual.”

Interstate Gas Supply, Inc. v. Wheeling Pittsburgh Steel Corp. (In Re Pittsburgh-Canfield Corp.) · filed 2002-07-23(h)

This Court and others have interpreted § 362(h)’s use of the term “individual” to preclude recovery of attorneys’ fees by a corporation.

Section 362(h) requires actual injury for a damages claim arising from a willful violation of the automatic stay; a person who suffered no damage has no claim under it.

Aiello v. Providian Financial Corp. (In Re Aiello) · filed 1999-03-25(h)

Persons who received a letter from Providian, but who sustained no damage as a result thereof, have no cause of action under § 362(h).

Section 362(h) permits an award of attorneys’ fees for a willful stay violation even when the debtor has no other compensable harm.

In Re Robinson · filed 1998-12-11(h)

A court may award attorneys’ fees pursuant to section 362(h) even if the debtor has suffered no other compensable harm.

Section 362(h) permits sanctions for a willful stay violation when a creditor receives telephonic notice of bankruptcy but allows a postpetition sale of repossessed property to proceed.

In Re Cepero · filed 1998-10-09(h)

The telephonic notification from the office of Debtor’s counsel was sufficient to provide ALAC with actual notice of the bankruptcy filing, despite the fact that it had not received written verification of the filing. ALAC’s failure to take timely actions to stop the sale of the Accord, and the sale of that vehicle constitute willful actions that were in violation of the automatic stay despite actual notice that the bankruptcy action had been filed. ... Clearly, under the facts presented, there has been a willful violation of the automatic stay with actual injury to Debtor, and sanctions are appropriate under 11 U.S.C. § 362(h).

Section 362(h) treats a creditor’s intentional participation in a postpetition sale and retention of title, with knowledge of the debtor’s bankruptcy, as a willful violation of the automatic stay.

Boone v. Federal Deposit Insurance Corp. (In Re Boone) · filed 1998-07-29(h)

The FDIC’s participation in the process of selling the property, its retention of title to the Debtor’s residence while it knew about, and in fact participated in, the Debtor’s Chapter 13 case, and its interference with the revesting of the property with the Debtor after the default was cured, constitutes a willful violation of the automatic stay under these circumstances.

Section 362(h) treats a stay violation as willful when the creditor knows of the pending bankruptcy and intentionally takes acts prohibited by the stay.

Shadduck v. Rodolakis · filed 1998-06-12(h)

Because the record demonstrates that the IRS had knowledge of the bankruptcy and that the assessment, the filing of the lien, and the notice of levy were intentional acts, this Court rules that there has been a willful violation of the automatic stay.

Section 362(h) does not impose a blanket requirement that debtors notify creditors before seeking attorney fees for a willful violation of the automatic stay.

Price v. Pediatric Academic Ass'n, Inc. · filed 1994-10-12(h)

Where facts indicate a willful violation of the automatic stay, it is improper to impose a blanket rule on all debtors requiring them to notify creditors to try to resolve the violations prior to filing a contempt motion.

Section 362(h) allows an award of attorney's fees when a creditor willfully violates the automatic stay.

Amick v. Bradford (In Re Bradford) · filed 1990-03-30(h)

Section 362(h) clearly allows an award of attorney's fees upon a finding of a willful violation of the automatic stay.

Section 362(h) requires an award of attorney’s fees when an individual is injured by a willful violation of the automatic stay.

In Re Peterkin · filed 1989-07-24(h)

The language of § 362(h), “shall recover actual damages, including costs and attorney’s fees” (emphasis added), indicates that attorney’s fees are mandatory where there has been a willful violation of the automatic stay provision.

Section 362(h) makes good faith reliance on counsel no defense to a willful stay violation and entitles an injured debtor to actual damages, costs, and attorney fees.

In re Ezella M. Taylor · filed 1989-09-05(h)

It would contravene a fundamental policy of federal bankruptcy law to allow creditors to proceed with actions possibly subject to the stay merely upon the advice of an attorney that they are entitled to proceed. Accordingly, because "good faith reliance on the advice of counsel" is not a defense, Taylor is entitled to an award of actual damages, costs, and attorney fees to the extent she was injured by the "willful violation."

Section 362(h) requires an award of actual damages, costs, and attorney fees for a willful stay violation; good faith reliance on counsel is no defense.

Tsafaroff v. Taylor (In re Taylor) · filed 1989-09-05(h)

Accordingly, because “good faith reliance on the advice of counsel” is not a defense, Taylor is entitled to an award of actual damages, costs, and attorney fees to the extent she was injured by the “willful violation.”

Section 362(h) requires intent to take an action that violates the automatic stay, but not intent to violate the stay; corporate debtors may recover damages, including attorneys’ fees incurred to correct a violation.

Maritime Asbestosis Legal Clinic v. LTV Steel Co. (In Re Chateaugay Corp.) · filed 1990-03-17(h)

Section 362(h), thus, requires only general intent to take actions which have the effect of violating the automatic stay and not specific intent to violate the automatic stay. ... Furthermore, we believe that section 362(h) authorizes damage awards to corporate debtors. Finally, we find that attorneys fees incurred by a debt- or in moving to correct violations of the automatic stay are cognizable damages under section 362(h).

Section 362(h) does not provide damages for a levy issued before the automatic stay took effect and promptly released upon notice of the bankruptcy filing, absent a willful stay violation.

Chastang v. United States (In Re Chastang) · filed 1990-06-11(h)

In this case the automatic stay was not in effect when the defendant issued its Notice of Levy. Upon notification of the bankruptcy filing, the levy was promptly released. ... Viewing all of the relevant facts, the Court concludes that no actions were taken by defendant in willful violation of the automatic stay.

Section 362(h) requires credible proof of actual damages before a debtor may recover damages for a willful violation of the automatic stay.

In Re Still · filed 1990-07-16(h)

However, parties alleging willful violations of the automatic stay are charged with demonstrating actual damages. Failure to proffer credible evidence of damages results in an inability for Debtors to qualify for damage awards.

Section 362(h) requires proof of actual damages, costs, or attorneys’ fees before a court awards them for a willful violation of the automatic stay.

In Re Alberto · filed 1990-10-12(h)

The Debtor failed to furnish any evidence of actual damages, costs or attorneys’ fees to warrant recovery of same. Absent the showing of liquidated or demonstrable actual damages, the Court declines to assess actual or punitive damages.

Section 362(h) does not treat a stay violation as willful when a party acts on a plausible reading of unsettled law about whether the stay applies.

University Medical Center v. Sullivan · filed 1990-12-28(h)

Rather, Norton holds that when a party is fully informed of the law and rests its action on a plausible reading of an ambiguity in the law, the party should not be held in contempt when the court ultimately resolves the ambiguity the other way. The same logic holds with respect to finding a party in willful violation of the automatic stay.

Section 362(h) does not permit damages for a stay violation when exceptional uncertainty about the stay’s application means the bankruptcy filing did not fairly warn the creditor that its conduct was prohibited.

University Medical Center v. Sullivan · filed 1991-03-11(h)

In those exceptional circumstances where the filing of a bankruptcy petition cannot itself be considered fair warning to the creditor that its acts fall within the stay, sanctions under § 362(h) should not be awarded.

Applying automatic postpetition payroll deductions to prepetition debt violates the stay, and refusing to refund them on request makes the violation willful under § 362(h) and supports attorney fees.

In re Brooks · filed 1991-09-19(h)

While the simple application of the payroll deduction to the debt is technically a violation of the automatic stay, that alone is not the type of violation that requires sanctions, damages or attorney fees. It is the refusal to disgorge the payments improperly applied post petition to the prepetition debts that provides the basis for the willful aspect that 11 U.S.C. Section 362(h) requires before attorney fees and other damages, including punitive, are appropriate.

Section 362(h) requires an award of reasonable attorneys’ fees for a willful stay violation to be based on fees the injured debtor actually incurred.

United States v. Fernandez (In Re Fernandez) · filed 1991-10-01(h)

Appellees have been injured by Appellant's willful violation of the automatic stay pursuant to Section 362(h) and are entitled to an award of their actually incurred reasonable attorneys’ fees. The Bankruptcy Court awarded the attorneys’ fees’ in the instant case without any showing of actual fees incurred.

Section 362(h) allows a debtor to recover reasonable attorney’s fees and costs when the IRS willfully violates the automatic stay; additional compensatory damages require proof of harm.

In Re Solis · filed 1992-02-14(h)

Accordingly, we hold that both violations of the automatic stay were willful, and Debtor is entitled to recover compensatory damages from IRS. This award is limited to attorney’s fees and costs, because Debt- or failed to introduce evidence as to other harm suffered.

Section 362(h) treats attorneys’ fees as actual damages that can support punitive damages even without another compensatory award.

Bank of Boston v. Baker (In Re Baker) · filed 1992-01-31(h)

The Bankruptcy Court’s award of punitive damages was made in connection with an award of compensatory damages in the form of attorneys’ fees. As such, the award was not clearly erroneous, and is AFFIRMED.

Section 362(h) treats a stay violation as willful when the creditor knows of the stay and intentionally takes the action that violates it.

In Re Johnson · filed 1992-03-05(h)

“Willfulness,” in the context of § 362(h), is established if the respondent was aware of the stay, and if its post-petition actions were intentional.

Section 362(h) treats continued, intentional retention of estate property after notice of the debtor’s claim as a willful violation of the automatic stay, even if the creditor initially lacked notice of the debtor’s interest.

Taborski v. United States Internal Revenue Service · filed 1992-03-10(h)

Even if the IRS did not initially realize that Jerri claimed an individual share of the 1987 and 1988 refunds and thus did not know it had seized estate property, it cannot disclaim knowledge of Jerri’s intention to claim an individual share after Jerri filed the adversary proceeding in June, 1989. Moreover, instead of expeditiously investigating Jerri’s claim, the IRS dragged its heels for over sixteen months before providing Jerri her rightful share of the 1987 and 1988 refunds. The IRS’s continued withholding of Jerri’s refund for sixteen months after she filed the adversary proceeding is a willful violation of the automatic stay.

Section 362(h) permits an award of attorneys’ fees to counsel for an individual injured by a stay violation even without a fee agreement between the debtor and counsel.

In Re Price · filed 1992-07-15(h)

The Bankruptcy Code does not require counsel for a debtor to enter into a fee agreement. Section 362(h) of the Code governs in this matter and expressly provides the statutory basis for the award of fees to counsel for individuals injured by violations of the automatic stay.

Section 362(h) treats an IRS levy notice as a willful automatic stay violation when the IRS had notice of the bankruptcy, even if it issued the notice inadvertently.

Boldman v. United States (In re Boldman) · filed 1992-07-31(h)

A number of courts have held that the issuance of a levy notice by the IRS, albeit inadvertently, amounts to a willful violation of the automatic stay within the meaning of Section 362(h) when the IRS is on notice of a pending bankruptcy. See In re Price, 130 B.R. 259 (N.D.Ill.1991) (collecting cases at n. 2, p. 261). This Court agrees with the results reached by those courts.

A violation of the automatic stay under § 362(a) can support an award of costs and attorney's fees.

In Re Kay Bulson, Debtor. United States of America v. Bulson · filed 1992-09-01(a)

The IRS appeals the Bankruptcy Appellate Panel's affirmance of an award of costs and attorney's fees for violation of 11 U.S.C. § 362(a)'s automatic stay. We affirm for the reasons given by the Bankruptcy Appellate Panel in its August 17, 1990 decision, United States v. Bulson (In re Bulson), 117 Bankr. 537 (Bankr. 9th Cir.1990) and In re Pinkstaff, No. 91-35705, slip op. at ---- (9th Cir. Aug. __, 1992).

Section 362(h) treats an intentional act that violates the automatic stay as willful even if the creditor did not intend to violate the stay.

In Re LANSDALE FAMILY RESTAURANTS, INC. A/K/A Lansdale Bonanza, Debtor. LANSDALE FAMILY RESTAURANTS, INC., Appellant, v. · filed 1992-10-16(h)

Willfulness does not require that the creditor intend to violate the automatic stay provision, rather it requires that the acts which violate the stay be intentional.

Section 362(h) treats an IRS collection attempt as a willful stay violation when the IRS has notice of the bankruptcy filing and automatic stay, even if the debtor omitted a business identification number from the petition.

In Re Boldman · filed 1993-05-07(h)

This Court agrees with the bankruptcy court that the IRS action was willful. The IRS was a scheduled creditor who had notice of the bankruptcy filing and the automatic stay. ... Accordingly, the Court holds that the IRS’ violation of the automatic stay was willful.

Section 362(h) treats attorneys’ fees as an element of actual damages recoverable for a willful violation of the automatic stay.

USA v. PRICE · filed 1993-07-07(h)

§ 362(h) provides that “actual damages, including costs and attorneys’ fees”, shall be recoverable. The use of the word “including” points to an intent that attorneys’ fees be considered an element of actual damages, not, as claimed by the government, an embellishment to those damages.

Mailing bankruptcy notice to a creditor suffices to support a willful-stay-violation finding when the creditor later repossesses the debtor’s property without relief from the stay.

Beair v. Polhamus (In Re Beair) · filed 1994-04-28(h)

Service of the notice was deemed complete upon mailing. See Bankruptcy Rule 9006. Therefore, Defendant’s act in repossessing Plaintiffs truck constitutes a willful violation of the stay and is invalid. Defendant’s act in repossessing the truck is likewise void since Plaintiff did not attempt to use the stay unfairly to avoid an unfavorable result nor did he withhold the stay to prejudice Defendant’s rights.

Section 362(h) makes a creditor liable for a willful stay violation when it knowingly seeks to recover estate property after learning of the bankruptcy filing.

In Re Wyatt · filed 1994-09-07(h)

The debtors informed Mr. Kaufman they had filed bankruptcy petition upon his first demand for the return of the vehicle. Despite this warning, Mr. Kaufman continued to demand the return of the vehicle, and threatened the debtors with arrest. Mr. Kaufman then filed a criminal complaint against the debtors. As a result, Mr. Kaufman and AutoRental willfully violated the automatic stay.

Section 362(h) permits actual damages, including costs and attorney’s fees, for a willful stay violation and punitive damages in appropriate circumstances.

Matter of Toll · filed 1994-09-23(h)

Section 362(h) allows this Court to grant the debtors actual damages, including costs and attorney’s fee, due to Johnson’s willful violation of the automatic stay. ... Section 362(h) also allows the Court, in the appropriate circumstances, to award punitive damages.

Section 362(h) does not provide a damages remedy to a trustee acting for a corporate bankruptcy estate because the trustee is not an injured individual.

Sosne v. Reinert & Duree, P.C. (In Re Just Brakes Corporate Systems, Inc.) · filed 1994-11-30(h)

In this matter, the Trustee has requested a money judgment in the amount of $105,000.00 pursuant to 11 U.S.C. § 362(h) which permits an individual injured by any willful violation of a stay provided by Section 362 to recover actual damages and, in appropriate circumstances, punitive damages. This remedy is not available to a corporate entity.

Section 362(h) allows sanctions only when a debtor is injured by a willful violation of the automatic stay.

Hamrick v. United States Ex Rel. Defense Finance & Accounting Service (In Re Hamrick) · filed 1994-12-12(h)

The statute prescribes a sanction only when the debtor is (1) injured and (2) by a willful violation.

Section 362(h) permits recovery of attorney fees incurred in responding to a willful stay violation before the debtor files a motion for relief, not just fees for seeking the order.

Franchise Tax Board v. Roberts (In Re Roberts) · filed 1994-12-09(h)

Debtors are entitled to compensation for damages caused by the FTB’s willful violation, not merely for the cost incurred in applying for the order.

Section 362(h) treats a stay violation as willful when the violator knows of the automatic stay and intentionally takes the action that violates it.

In Re Stanley and Mary Wiley, Debtors. Stanley and Mary Wiley v. Goldome Mortgage Company and Stevens County · filed 1995-02-07(h)

A "willful violation" requires (1) that the defendant know of the automatic stay, and (2) that the defendant's actions which violated the stay were intentional. ... The County's violations were not willful within the meaning of 11 U.S.C. Sec. 362(h).

Section 362(h) treats a stay violation as willful when a creditor has adequate notice of the bankruptcy and intentionally commits an act that violates the stay.

Sculky v. Internal Revenue Service (In Re Sculky) · filed 1995-02-16(h)

A willful violation of the stay occurs when a creditor has adequate notice of the bankruptcy and intentionally commits an act that violates the stay.

Section 362(h) does not require a creditor to act in bad faith before a court may award attorney fees for a stay violation.

Huron Electric Co. v. Graybar Electric Co. (In Re Huron Electric Co.) · filed 1995-03-16(h)

Philips does not cite, and the Court is not aware, of any case-law requiring a showing of a creditor’s bad faith as a prerequisite to a Court award of attorneys fees under § 362(h).

Section 362(h) lets a chapter 7 trustee recover damages sustained by the estate from a willful stay violation, including attorney’s fees incurred to prosecute the claim.

Martino v. First National Bank of Harvey (In Re Garofalo's Finer Foods, Inc.) · filed 1995-08-18(h)

Section 362(h) thus permits a chapter 7 trustee to recover actual damages sustained by the individual bankruptcy estate as a result of a wilful violation of the automatic stay. The attorney’s fees incurred by the trustee in prosecuting such an action are a type of actual damages sustained by the estate.

Section 362(h) treats an intentional act that violates a known automatic stay as willful even without a specific intent to violate the stay.

Cooper v. Shaw’s Express · filed 1995-10-19(h)

We find it clear that the Appellants willfully violated the Sec. 362 stay in the instant case. It is not necessary to a finding of a willful violation of the bankruptcy stay that the Appellants intended to violate Sec. 362 by bringing their claims to the ICC.

A bona fide dispute over whether property is covered by the automatic stay does not by itself prevent a stay violation from being willful under § 362(h).

Camacho v. United States · filed 1995-12-29(h)

Clearly, there was a bona fide dispute between the parties regarding whether the permanent fund dividend was “property of the estate” subject to turnover and therefore covered by the stay. The Ninth Circuit has indicated, however, that such disputes do not prevent a violation from satisfying the “willfulness” requirement.

Section 362(h) makes a defendant’s knowledge of the automatic stay material to a claim for damages for a willful stay violation.

McKinney v. Level Propane (In re McKinney) · filed 1996-02-15(h)

Here, the court finds that there is a genuine issue of material fact regarding the defendant’s knowledge of the existence of the automatic stay which arose upon the debtors’ initiation of bankruptcy proceedings. As a result, the court finds it inappropriate to grant summary judgment to the defendant.

Section 362(h) treats deliberate action against a debtor or estate, taken with knowledge of the stay, as a willful violation of the automatic stay.

Honeycutt v. Rickman (In Re Honeycutt) · filed 1996-04-09(h)

If deliberate action against the debtor or the estate was taken with knowledge of the stay, the violation of the automatic stay is wilful.

Section 362(h) treats an intentional levy on estate property as a willful stay violation even when the creditor acted in good faith under its own procedures.

Weisberger v. United States, Internal Revenue Service (In Re Weisberger) · filed 1997-03-17(h)

Based upon the above testimony, the Court holds that the actions taken by the Defendant through all of its field representatives and the Special Procedures Branch, regardless of whether those actions were taken in compliance with IRS procedures, were a violation of the automatic stay under Section 362(h). It does not matter whether the Defendants acted in good faith thinking they had every right to proceed to levy. The fact remains that the acts taken by the Defendant were intentional and that they were in violation of the automatic stay.

Section 362(h) requires a debtor seeking damages for a stay violation to prove that the violation was willful and caused actual injury.

United States Internal Revenue Service v. Mathews (In Re Mathews) · filed 1997-06-16(h)

To recover damages under § 362(h), the debtor must prove (1) that the violation of the stay was “willful”; and (2) that the individual seeking damages was actually injured by the violation of the stay.

Section 362(h) requires an award of actual damages, including costs and attorney’s fees, to an individual injured by a willful violation of the automatic stay.

Brown v. United States (In Re Brown) · filed 1997-07-10(h)

Bankruptcy Code § 362(h) requires the recovery of actual damages “including costs and attorney’s fees” to an individual injured, as I have found in this case, by a willful violation of the stay of 11 U.S.C. § 362(a).

Section 362(h) does not support damages for a willful stay violation when the creditor lacked adequate notice of the bankruptcy filing.

Okwukwu v. Internal Revenue Service (In Re Okwukwu) · filed 1997-07-11(h)

Accordingly, the Court finds that the address listed for the IRS in Okwukwu’s petition was insufficient to ensure the IRS received notice of the debtor’s case and support an award of damages under § 362(h) for willful violation of the automatic stay.

Section 362(h) makes a creditor liable for damages when it willfully fails to promptly dismiss a pending wage garnishment after learning of the bankruptcy.

In Re Manuel · filed 1997-09-10(h)

The court concludes that Ritchie, having an affirmative obligation not to continue a violation of the automatic stay, acted willfully when he failed to promptly dismiss the garnishment against debtor’s wages. Accordingly, he is subject to damages under § 362(h).

Section 362(h) permits punitive damages for a willful and flagrant violation of the automatic stay.

Carpio v. Smith (In Re Carpio) · filed 1997-10-02(h)

The Court determines that punitive damages are proper in thiis case as punishment for the willful and flagrant violation of the automatic stay.

Section 362(h) treats a stay violation as willful when a creditor knows of the stay and acts intentionally, even without specific intent to violate the stay.

In Re Hendry · filed 1997-10-28(h)

A willful violation does not require specific intent to violate the stay, only knowledge of the stay and an intentional act.

Section 362(h) limits its damages remedy for willful stay violations to individuals; corporations cannot recover under it.

In re A & J Auto Sales · filed 1998-04-30(h)

Thus the court concludes that section 362(h), which explicitly limits its application to individuals, cannot be used by corporations.

Section 362(h) requires an award of reasonable attorney’s fees and costs incurred by a person injured by a willful stay violation in resisting a non-frivolous appeal.

Beard v. Walsh (In Re Walsh) · filed 1998-04-30(h)

Section 362(h) mandates damages, including an award of reasonable attorney’s fees, when the stay is willfully violated. The damages flowing from a stay violation include fees and costs incurred by the injured party in resisting a non-frivolous appeal.

Section 362(h) allows actual damages, including costs and reasonable attorney fees, when a creditor knowingly and intentionally violates the automatic stay; punitive damages depend on the circumstances.

In Re Zaber · filed 1998-05-11(h)

GMAC knew of the automatic stay and its refusal to turn over the Automobile during the period April 21, 1998, up to the hearing on April 28, 1998, was intentional. Under § 362(h), Debtor is entitled to recover actual damages, including costs and reasonable attorney fees as determined by the court. The facts and circumstances of this case do not rise to the level justifying imposition of punitive damages.

Section 362(h) does not award damages for a technical violation of the automatic stay when the creditor acted without willfulness in a legitimate dispute over estate property.

Gurley v. Mills (In Re Gurley) · filed 1998-06-15(h)

The Court believes that the actions of the Trustee do not rise to the level of willfulness. While the Trustee certainly had knowledge of the filing of the Debtor’s petition, his actions were taken based upon a legitimate dispute concerning the property of the Debt- or’s estate. The Court concludes that the Debtor should recover no damages for the Trustee’s technical violations of the automatic stay.

Section 362(h) allows a debtor to recover actual damages, including bank fees and reasonable attorney fees, from a creditor who willfully violates the automatic stay.

In Re Georgeff · filed 1998-07-22(h)

Having found that Ms. Bauer willfully violated the automatic stay, the Court ORDERS that the debtor may recover from her his actual damages. Such damages shall include the $15 returned check fee imposed by the debtor’s bank, the reasonable fees and expenses of the debtor’s attorney in representing him at the garnishment hearing, the reasonable fees and expenses of his attorney in preparing the debtor’s motion for sanctions, and the reasonable fees and expenses of his attorney in attending the June 11,1998 hearing before this Court.

Section 362(h) authorizes costs and attorney’s fees for willful violations of the automatic stay, but a technical or inadvertent violation does not warrant such an award.

Liberty Mutual Insurance v. Leroy Holding Co. (In Re Fort Ann Express Inc.) · filed 1998-07-31(h)

Where a violation of the automatic stay is technical or inadvertent, however, such an order is inappropriate. ... On this record there is insufficient evidence to support Liberty Mutual’s claim of a willful violation of the automatic stay by Leroy Holding. Liberty Mutual’s request for costs, disbursements and attorney’s fees is denied.

Section 362(h) allows damages for a stay violation when the creditor knows of the stay and intentionally takes the action that violates it.

Solfanelli v. Meridian Bank (In Re Solfanelli) · filed 1999-01-22(h)

An award of damages is appropriate where, as here, the defendant knew of the automatic stay and the actions which violated the stay were intentional.

Section 362(h) requires proof that the creditor knew the stay was in effect and deliberately violated its terms to establish a willful violation.

Ford Motor Credit Co. v. Florio (In Re Florio) · filed 1999-01-25(h)

In this case, then, in order to show willfulness, the Debtor had to show that FMCC 1) knew that the stay was in effect, and 2) deliberately violated the terms of that stay.

Section 362(h) treats a creditor’s failure to withdraw a collection order that keeps a debtor incarcerated as a willful stay violation when the creditor knows of the bankruptcy.

Siskin v. Complete Aircraft Services, Inc. (In Re Siskin) · filed 1999-02-26(h)

Once it became clear that Debtor would be unable to secure his own release, a further obligation of taking affirmative action to withdraw the Order of Commitment attached. Failure to take such action constituted a “willful” violation of the stay.